The Fragility of Immigrants’ Constitutional Protections

Recent cases have claimed that our founding document doesn’t defend noncitizens—even on American soil.

The Supreme Court (and American flag next to it) are slightly pink in a sunset, and framed by leaf-less trees.
Gary Cameron / Reuters

On the night of July 27, 2017, police in the Memphis suburb of Southaven, Mississippi, responded to a domestic-violence report. They went to the wrong address, knocked loudly, and, a short time later, shot through the door, fatally hitting the homeowner, Ismael Lopez, in the back of the head. Officers later claimed that Lopez had pointed a gun at them; his wife, who was present, denies this.

Those events are not before the Supreme Court this term and they may never be, but the killing of Lopez and its aftermath illustrate the stakes in two cases the Court will hear soon.

Lopez’s widow, Claudia Linares, has filed a $20 million excessive-force lawsuit against the City. The City recently asked a federal court to dismiss it. Lopez, the City says, was an undocumented immigrant. Thus, “Lopez may have been a person on American soil, but he was not one of the ‘We, the People of the United States’ entitled to the civil rights invoked in this lawsuit,” the City said in a memo supporting its motion to dismiss the case. And thus, he had no constitutional protection against “unreasonable searches and seizures.” (Being shot to death is, in Constitution-speak, a “seizure.”)

The 1990 Supreme Court case on which Southaven’s brief relies, United States v. Verdugo-Urquidez, is what I call an “Inigo Montoya case”—it does not mean what the City thinks it means. Verdugo-Urquidez concerned a Mexican national who did not live in the United States but who had been brought from Mexico to a U.S. border crossing by Mexican police and arrested by U.S. marshals in the U.S. Then U.S. law-enforcement personnel, working with Mexican police, searched two of his homes without a U.S. warrant. The homes, however, were in Mexico. The Court held that Verdugo-Urquidez could not invoke the Fourth Amendment right against “unreasonable searches” to suppress the evidence seized outside the country.

It is, to say the least, a long way from “Federal agents can search a nonresident’s homes outside the country” to “Local police can kill immigrants living in the U.S. in their own homes 800 miles from the nearest U.S.-Mexico crossing.”

I stopped teaching immigration law years ago, so I asked my University of Baltimore colleague Matthew Lindsay, a scholar in the field, to assess the City’s contention. “I don’t even understand the source of the argument,” Lindsay told me. “There are plenty of cases, including Supreme Court cases, holding that undocumented people do have constitutional rights.”

Mississippi authorities may feel some uncertainty about the Fourteenth Amendment; the state did not even formally ratify the Thirteenth Amendment, outlawing slavery, until 2013. But the requirements of “due process of law” and “equal protection of the laws” do bind Mississippi—and in the words of the amendment itself, both apply to “any person within its jurisdiction.” The framers of the amendment were clear that person was used in order to cover immigrants on American soil. “Every human being, citizen and stranger, within your gates is under the shelter of the limitations of the Constitution,” John Bingham, the principal author of Section One of the amendment, explained while the amendment was being ratified in the states.

The right at issue here—let’s call it “not being shot in the back of the head in your own home”—is very much one of the due-process rights that the amendment’s language protects.

But in 2019, the cheeky brutality of the “no rights” argument (you have to admire that “Lopez may have been a person on American soil”) has a certain deranged plausibility.

The major immigration cases this fall, of course, are Department of Homeland Security v. Regents of the University of California and its two companion cases, which test whether the sudden decision by Donald Trump’s administration to end the Deferred Action for Childhood Arrivals program (DACA, or the “Dreamers” program) was lawful. But two other, lower-profile cases will shed light on how far constitutional limitations protect against government power in immigration matters.

The first will be heard on November 12, the same day as the DACA cases. Hernandez v. Mesa asks whether there is a remedy for a Mexican citizen killed when a Border Patrol agent in the United States opens fire on someone in Mexico. Hernandez arises out of an incident at the border between El Paso, Texas, and Ciudad Juárez, Mexico—a 33-foot-wide culvert. Mexican teenagers were annoying the Border Patrol agent Jesus Mesa. Mesa, for reasons unclear, pulled his pistol and killed the 15-year-old Sergio Hernandez, who was hiding behind a culvert on Mexican soil 60 feet away. (The Border Patrol’s initial story—that Mesa had been attacked by thrown rocks and in danger—fell apart in light of cellphone-video evidence.)

Since then, Sergio’s parents have been seeking damages from Mesa in federal court. No statute specifically authorizes such a lawsuit, but in the 1970s, Warren Burger’s Court fashioned a remedy, called a Bivens lawsuit, for persons deprived of constitutional rights by federal agents. The issue in Hernandez is whether such suits should be available to a Mexican killed in Mexico by a federal agent shooting from U.S. territory.

This case has been to the Court before, during the 2016 term. On that pass, the justices did not decide the specific question, but simply set out what they thought to be the correct standard for deciding the issue. Recent cases had held that Bivens suits should not be available if there are “special factors counseling hesitation,” the Court said. The Court remanded the case to the Fifth Circuit for a fresh look. After that look, the en banc appeals court, 13–2, decided that Sergio’s family had no remedy. Allowing such suits “increases the likelihood that Border Patrol agents will ‘hesitate in making split second decisions,’” Judge Edith Jones wrote for the majority, and “threatens the political branches’ supervision of national security.”

Now the Hernandez family has come to the Supreme Court again. The government, supporting Mesa, argues that the Supreme Court’s attitude toward Bivens suits has changed since 1971, and that both foreign-policy and national-security concerns “increase the need for caution before inserting the courts into such sensitive matters.” Represented by the University of Texas professor Stephen Vladeck, the Hernandez family argues that there actually are no “special factors” to prevent Bivens liability. Courts hear law-enforcement-brutality cases all the time, they point out in their brief: “Petitioners are … pursuing a conventional excessive force claim against a rogue federal law enforcement officer.” Unlike other cases that involve high officials or new constitutional claims, they contend, this case is squarely within established Bivens precedent.

The second case is Department of Homeland Security v. Thuraissigiam, which has not yet been scheduled for argument. The case tests a speedy deportation system called “expedited removal,” created by Congress in 1996, that gives immigrants few of the procedural guarantees of regular deportation proceedings. DHS currently applies this procedure to immigrants arrested within 100 miles of the border who cannot prove that they have been in the U.S. for at least two weeks. An immigration officer must allow the alien to seek asylum and prove “credible fear” of persecution in their home country. If the proof does not satisfy the officer, the alien can be deported more or less at once. No appeal to a federal court is permitted—with a small exception. An alien can seek release through an action for habeas corpus, the old common-law writ challenging detention as unlawful. However, in these cases, the statute limits the court to asking (1) whether the individual is actually a citizen or has previously been given authorization by law to be in the U.S., and (2) whether a deportation order has in fact been entered. The immigration officer’s determination is otherwise beyond review. Conspicuous by its absence is (3) whether other provisions of the Immigration and Nationality Act should bar deportation.

Vijayakumar Thuraissigiam, the respondent in this case, is from Sri Lanka and a member of the Tamil minority there. He was arrested a mere 25 yards from the border. Customs and Border Protection determined that he was not eligible for asylum, used expedited removal, and scheduled him for deportation. He filed a petition for habeas corpus arguing that the omission of (3) renders the procedure unconstitutional.

His argument is based on what’s called the suspension clause, Article I, Section 9, Clause 2 of the Constitution, which says, “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The Ninth Circuit agreed with Thuraissigiam. It relied on Boumediene v. Bush, a key Supreme Court terrorism case. Congress, in the Detainee Treatment Act, had tried to oust civilian courts from any judicial review over cases involving Guantánamo Bay detainees. But Guantánamo, though technically in Cuba, is under complete U.S. control, the Supreme Court reasoned, and thus the suspension clause applied to prisoners held there. Because the writ was not suspended, the Court concluded that the Constitution required that those prisoners have a “meaningful opportunity” to challenge the legality of their detention.

Thuraissigiam was being held on the soil of the United States itself, the Ninth Circuit reasoned. If the suspension clause applied at Guantánamo, it must surely apply inside the U.S., his lawyers argued. The appeals court ordered the district court to permit Thuraissigiam to contest the legality of his detention and impending deportation, the statute’s language notwithstanding.

In its petition for review, the government argued that this question has “significant practical importance.” It noted that “thousands of aliens each year are ordered removed via [expedited removal].” Granting them “unrestricted habeas review” would “significantly delay removal of aliens like respondent, preventing expedited removal of such aliens from being expedited at all and undermining the government’s ability to control the border.”

Thuraissigiam is represented by the American Civil Liberties Union. Its brief in opposition argued that, given Boumediene and other precedents, “as a person detained within U.S. borders, he was entitled to invoke the Suspension Clause … That he was not legally admitted into the country does not alter that result, nor does the fact that he was apprehended only a short distance over the border.”

The “practical importance” of the case was greatly heightened on July 23, when DHS announced a sweeping expansion of expedited removal. As practiced until then, the expedited procedure was applied only to immigrants detained within 100 miles of the border—and only if they could not prove they had been in the U.S. for more than two weeks. But under the new regulation, Immigration and Customs Enforcement will apply expedited removal anywhere in the U.S—to immigrants who cannot prove they have been in the U.S. for two years.

The language of the Immigration and Nationality Act permits it; thus, if full habeas review does not cover expedited-removal cases, ICE agents may soon be able to seize immigrants anywhere in the U.S. and hustle them out of the country without any meaningful procedures.

It’s worth noting the ebbing tide of legality in this area over the past decade or so. The Fourth Amendment doesn’t apply in Mexico; fair enough. Next, Mexicans killed in Mexico by U.S. officers on the U.S. side of the border can’t invoke the Fourth Amendment (“searches and seizures”) or the Fifth Amendment (“due process”). That’s a slight stretch. Habeas corpus doesn’t apply to immigrants within 100 miles of the border. That’s concerning. Now the government says that habeas should not apply to immigrants anywhere in the country.

Given this progression, one can almost understand why lawyers in a small Mississippi town might think that they can persuade a court to just junk the Constitution altogether. One prominent immigration-law professor, Kevin Johnson of the University of California at Davis School of Law, sees in Linares’s case a link to a dark aspect of immigration-law history. “It’s consistent with a long history of creating a Constitution-free zone in this context,” he told me. “It all makes perfect sense if you think the Constitution shouldn’t apply to people who are less than people.”