Kiyemba v. Obama

Opinion for the Court filed by Senior Circuit Judge RANDOLPH.

Opinion concurring in the judgment filed by Circuit Judge ROGERS.

Seventeen Chinese citizens currently held at Guantanamo Bay Naval Base, Cuba, brought petitions for writs of habeas corpus. Each petitioner is an ethnic Uighur, a Turkic Muslim minority whose members reside in the Xinjiang province of far-west China. The question is whether, as the district court ruled, petitioners are entitled to an order requiring the government to bring them to the United States and release them here.

Sometime before September 11, 2001, petitioners left China and traveled to the *377Tora Bora mountains in Afghanistan, where they settled in a camp with other Uighurs. Parhat v. Gates, 532 F.3d 834, 837 (D.C.Cir.2008). Petitioners fled to Pakistan when U.S. aerial strikes destroyed the Tora Bora camp. Id. Eventually they were turned over to the U.S. military, transferred to Guantanamo Bay and detained as “enemy combatants.”1

Evidence produced at hearings before Combatant Status Review Tribunals in Guantanamo indicated that at least some petitioners intended to fight the Chinese government, and that they had received firearms training at the camp for this purpose. See Parhat, 532 F.3d at 838, 843. The Tribunals determined that the petitioners could be detained as enemy combatants because the camp was run by the Eastern Turkistan Islamic Movement, a Uighur independence group the military believes to be associated with al Qaida or the Taliban, see id. at 844, and which the State Department designated as a terrorist organization three years after the petitioners’ capture, see 69 Fed.Reg. 23,555-01 (April 29, 2004).

In the Parhat case, the court ruled that the government had not presented sufficient evidence that the Eastern Turkistan Islamic Movement was associated with al Qaida or the Taliban, or had engaged in hostilities against the United States or its coalition partners. Parhat, 532 F.3d at 850. Parhat therefore could not be held as an enemy combatant. The government saw no material differences in its evidence against the other Uighurs, and therefore decided that none of the petitioners should be detained as enemy combatants.

Releasing petitioners to their country of origin poses a problem. Petitioners fear that if they are returned to China they will face arrest, torture or execution. United States policy is not to transfer individuals to countries where they will be subject to mistreatment. Petitioners have not sought to comply with the immigration laws governing an alien’s entry into the United States. Diplomatic efforts to locate an appropriate third country in which to resettle them are continuing. In the meantime, petitioners are held under the least restrictive conditions possible in the Guantanamo military base.

As relief in their habeas cases, petitioners moved for an order compelling their release into the United States. Although the district court assumed that the government initially detained petitioners in compliance with the law, In re Guantanamo Bay Detainee Litig., 581 F.Supp.2d 33, 37 (D.D.C. 2008) (“Mem.Op.”), the court thought the government no longer had any legal authority to hold them, id. at 38. As to the appropriate relief, the court acknowledged that historically the authority to admit aliens into this country rested exclusively with the political branches. Id. at 39-40. Nevertheless, the court held that the “exceptional” circumstances of this case and the need to safeguard “an individual’s liberty from unbridled executive fiat,” justified granting petitioners’ motion.2 Id. at 40, 42.

*378Our analysis begins with several firmly established propositions set forth in Saavedra Bruno v. Albright, 197 F.3d 1153, 1158 (D.C.Cir.1999), from which we borrow. There is first the ancient principle that a nation-state has the inherent right to exclude or admit foreigners and to prescribe applicable terms and conditions for their exclusion or admission.3 This principle, dating from Roman times,4 received recognition during the Constitutional Convention5 and has continued to be an important postulate in the foreign relations of this country and other members of the international community.6

For more than a century, the Supreme Court has recognized the power to exclude aliens as “ ‘inherent in sovereignty, necessary for maintaining normal international relations and defending the country against foreign encroachments and dangers — a power to be exercised exclusively by the political branches of government’ ”7 and not “granted away or restrained on behalf of any one.” The Chinese Exclusion Case, 130 U.S. 581, 609, 9 S.Ct. 623, 32 L.Ed. 1068 (1889). Ever since the decision in the Chinese Exclusion Case, the Court has, without exception, sustained the exclusive power of the political branches to decide which aliens may, and which aliens may not, enter the United States, and on what terms. See, e.g., Ekiu, 142 U.S. at 659, 12 S.Ct. 336; Fong Yue Ting v. United States, 149 U.S. 698, 713, 13 S.Ct. 1016, 37 L.Ed. 905 (1893); Lem Moon Sing v. United States, 158 U.S. 538, 543, 547, 15 S.Ct. 967, 39 L.Ed. 1082 (1895); Wong Wing v. United States, 163 U.S. 228, 237, 16 S.Ct. 977, 41 L.Ed. 140 (1896); Fok Young Yo v. United States, 185 U.S. 296, 302, 22 S.Ct. 686, 46 L.Ed. 917 (1902); Tiaco v. Forbes, 228 U.S. 549, 556-57, 33 S.Ct. 585, 57 L.Ed. 960 (1913); Hines, 312 *379U.S. at 62-64, 61 S.Ct. 399; United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542, 70 S.Ct. 309, 94 L.Ed. 317 (1950); Galvan v. Press, 347 U.S. 522, 530, 74 S.Ct. 737, 98 L.Ed. 911 (1954); Graham v. Richardson, 403 U.S. 365, 377, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1971); Kleindienst, 408 U.S. at 765-66, 92 S.Ct. 2576; Mathews v. Diaz, 426 U.S. 67, 81, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976); Fiallo, 430 U.S. at 792, 97 S.Ct. 1473; Reno v. Flores, 507 U.S. 292, 305-06, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Demore v. Kim, 538 U.S. 510, 521-22, 123 S.Ct. 1708, 155 L.Ed.2d 724 (2003).

With respect to the exclusive power of the political branches in this area, there is, as the Supreme Court stated in Galvan, “not merely ‘a page of history,’ ... but a whole volume. Policies pertaining to the entry of aliens and their right to remain here are peculiarly concerned with the political conduct of government.” 347 U.S. at 531, 74 S.Ct. 737 (quoting N.Y. Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S.Ct. 506, 65 L.Ed. 963 (1921)). Justice Frankfurter summarized the law as it continues to this day: “Ever since national States have come into being, the right of the people to enjoy the hospitality of a State of which they are not citizens has been a matter of political determination by each State” — a matter “wholly outside the concern and competence of the Judiciary.” Harisiades, 342 U.S. at 596, 72 S.Ct. 512 (concurring opinion).

As a result, it “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knauff, 338 U.S. at 543, 70 S.Ct. 309. With respect to these seventeen petitioners, the Executive Branch has determined not to allow them to enter the United States.8 The critical question is: what law “expressly authorized” the district court to set aside the decision of the Executive Branch and to order these aliens brought to the United States and released in Washington, D.C.?

The district court cited no statute or treaty authorizing its order, and we are aware of none. As to the Constitution, the district court spoke only generally. The court said there were “constitutional limits,” that there was some “constitutional imperative,” that it needed to protect “the fundamental right of liberty.” These statements suggest that the court may have had the Fifth Amendment’s due process clause in mind. See Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). But the due process clause cannot support the court’s order of release. Decisions of the Supreme Court and of this court — decisions the district court did not acknowledge — hold that the due process clause does not apply to aliens without property or presence in the sovereign territory of the United States.9 See Zadvydas v. Davis, 533 U.S. 678, 693, 121 S.Ct. 2491, 150 L.Ed.2d 653 (2001); United States v. Verdugo-Urquidez, 494 U.S. 259, 269, 274-75, 110 S.Ct. 1056, 108 L.Ed.2d 222 (1990); Johnson v. Eisentrager, 339 U.S. 763, 783-84, 70 S.Ct. 936, 94 L.Ed. *3801255 (1950); Jifry v. FAA, 370 F.3d 1174, 1182 (D.C.Cir.2004); 32 County Sovereignty Comm. v. Dep’t of State, 292 F.3d 797, 799 (D.C.Cir.2002); Harbury v. Deutch, 233 F.3d 596, 603-04 (D.C.Cir.2000), rev’d on other grounds sub nom. Christopher v. Harbury, 536 U.S. 403, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002); People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 22 (D.C.Cir.1999); Pauling v. McElroy, 278 F.2d 252, 254 n. 3 (D.C.Cir.1960) (per curiam). The district court, no less than a panel of this court, must follow those decisions. See LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C.Cir.1996) (en banc).

The district court also sought to support its order by invoking the idea embodied in the maxim ubi jus, ibi remedium — where there is a right, there is a remedy. See Towns of Concord, Norwood, & Wellesley, Mass. v. FERC, 955 F.2d 67, 73 (D.C.Cir.1992).10 We do not believe the maxim reflects federal statutory or constitutional law. See id. Not every violation of a right yields a remedy, even when the right is constitutional. See Wilkie v. Robbins, 551 U.S. 537, 127 S.Ct. 2588, 2597-98, 168 L.Ed.2d 389 (2007). Application of the doctrine of sovereign immunity to defeat a remedy is one common example. See Alden v. Maine, 527 U.S. 706, 754, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999). Another example, closer to this case,11 is application of the political question doctrine. See Webster v. Doe, 486 U.S. 592, 612-13, 108 S.Ct. 2047, 100 L.Ed.2d 632 (1988) (Sealia, J., dissenting). More than that, the right — remedy dichotomy is not so clear-cut. As Justice Holmes warned, “[s]uch words as ‘right’ are a constant solicitation to fallacy.” Jackman v. Rosenbaum Co., 260 U.S. 22, 31, 43 S.Ct. 9, 67 L.Ed. 107 (1922). Ubi jus, ibi remedium cannot tell us whether petitioners have a right to have a court order their release into the United States. Whatever the force of this maxim, it cannot overcome established law that an “alien who seeks admission to this country may not do so under any claim of right. Admission of aliens to the United States is a privilege granted by the sovereign United States Government. Such a privilege is granted to an alien only upon such terms as the United States shall prescribe.” Knauff, 338 U.S. at 542, 70 S.Ct. 309.

Much -of what we have just written served as the foundation for the Supreme Court’s opinion in Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 73 S.Ct. 625, 97 L.Ed. 956 (1953), a case analogous to this one in several ways. The government held an alien at the border (Ellis Island, New York). He had been denied entry into the United States under the immigration laws. But no other country was willing to receive him. The Court ruled that the alien, who petitioned for a writ of habeas corpus, had not been deprived of any constitutional rights. Id. at 215, 73 S.Ct. 625. In so ruling the Court necessarily rejected the proposition that because no other country would take Mezei, the prospect of indefinite detention entitled him to a court order requiring the Attorney General to release him into the United States. As the Supreme Court saw it, the Judiciary could not question the Attorney General’s judgment. Id. at 212, 73 S.Ct. 625.

Neither Zadvydas, 533 U.S. 678, 121 S.Ct. 2491, 150 L.Ed.2d 653, nor Clark v. Martinez, 543 U.S. 371, 125 S.Ct. 716, 160 *381L.Ed.2d 734 (2005), are to the contrary. Petitioners are incoiTect in viewing these cases as holding that the constitutional “liberty interests of concededly illegal aliens trumps [sic] statutory detention power pending exclusion once that detention becomes indefinite.” Pet’rs’ Br. 29. Both cases rested on the Supreme Court’s interpretation not of the Constitution, but of a provision in the immigration laws — a provision, the Court acknowledged, Congress had the prerogative of altering.12 See Clark, 543 U.S. at 386, 125 S.Ct. 716. It is true that Zadvydas spoke of an alien’s due process rights, but the Court was careful to restrict its statement to aliens who had already entered the United States. 533 U.S. at 693, 121 S.Ct. 2491. It was on that ground that the Court distinguished Mezei. Id. The distinction is one that “runs throughout immigration law.” Id. The Court stated: “It is well established that certain constitutional protections available to persons inside the United States are unavailable to aliens outside of our geographic borders.” Id. (citing Verdugo-Urquidez, 494 U.S. at 269, 110 S.Ct. 1056; Eisentrager, 339 U.S. at 784, 70 S.Ct. 936).

And so we ask again: what law authorized the district court to order the government to bring petitioners to the United States and release them here? It cannot be that because the court had habeas jurisdiction, see Boumediene v. Bush, — U.S. —, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008), it could fashion the sort of remedy petitioners desired. The courts in Knauff and in Mezei also had habeas jurisdiction, yet in both cases the Supreme Court held that the decision whether to allow an alien to enter the country was for the political departments, not the Judiciary. Petitioners and the amici supporting them invoke the tradition of the Great Writ as a protection of liberty. As part of that tradition, they say, a court with habeas jurisdiction has always had the power to order the prisoner’s release if he was being held unlawfully. But as in Munaf v. Geren, — U.S. —, 128 S.Ct. 2207, 2221, 171 L.Ed.2d 1 (2008), petitioners are not seeking “simple release.” Far from it. They asked for, and received, a court order compelling the Executive to release them into the United States outside the framework of the immigration laws. Whatever may be the content of common law habeas corpus, we are certain that no habeas court since the time of Edward I ever ordered such an extraordinary remedy.13

An undercurrent of petitioners’ arguments is that they deserve to be released into this country after all they have endured at hands of the United States. But such sentiments, however high-minded, do not represent a legal basis for upsetting settled law and overriding the prerogatives *382of the political branches. We do not know whether all petitioners or any of them would qualify for entry or admission under the immigration laws.14 We do know that there is insufficient evidence to classify them as enemy combatants — enemies, that is, of the United States. But that hardly qualifies petitioners for admission. Nor does their detention at Guantanamo for many years entitle them to enter the United States. Whatever the scope of habeas corpus, the writ has never been compensatory in nature. See Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Preiser v. Rodriguez, 411 U.S. 475, 493, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). The government has represented that it is continuing diplomatic attempts to find an appropriate country willing to admit petitioners, and we have no reason to doubt that it is doing so. Nor do we have the power to require anything more.

* * *

We have the following response to Judge Rogers’s separate opinion.

1. Judge Rogers: “The power to grant the writ means the power to order release.” Sep. Op. at 1037.

No matter how often or in what form Judge Rogers repeats this undisputed proposition — and repeat it she does — it will not move us any closer to resolving this case. The question here is not whether petitioners should be released, but where. That question was not presented in Boumediene and the Court never addressed it. As we wrote earlier, supra at 1028, never in the history of habeas corpus has any court thought it had the power to order an alien held overseas brought into the sovereign territory of a nation and released into the general population. As we have also said, in the United States, who can come in and on what terms is the exclusive province of the political branches. In response, Judge Rogers has nothing to say.

2. Judge Rogers: “[T]he district court erred by ordering release into the country without first ascertaining whether the immigration laws provided a valid basis for detention as the Executive alternatively suggested.” Sep. Op. at 1034.

This statement, and others like it throughout the separate opinion, is confused and confusing. First of all, the government has never asserted, here or in the district court, that it is holding petitioners pursuant to the immigration laws. None of the petitioners has violated any of our immigration laws. How could they? To presume otherwise — as Judge Rogers does *383throughout her separate opinion, e.g., id. at 1032,1034,1038 — is strange enough.

Stranger still, Judge Rogers charges the district court with acting “prematurely” in ordering petitioners’ release into the United States. Sep. Op. at 1032, 1038. How so? As she sees it, the district court should have first determined whether, under the immigration laws, petitioners were eligible to enter the country or were ex-cludable. But no one — not the government, not petitioners, not the amici — no one suggested that the court should, or could, make any such determination.

What then is Judge Rogers talking about when she insists on evaluating petitioners’ eligibility for admission under the immigration laws? None of the petitioners has even applied for admission. Perhaps she thinks a court should decide which, if any, of the petitioners would have been admitted if they had applied. But deciding that at this stage is impossible. A brief survey of immigration law shows why.

Eligibility turns in part on what status the alien is seeking. The immigration laws presume that those applying for entry seek permanent resident status. Such persons must first obtain an immigrant visa from a consular officer. 8 U.S.C. § 1101(a)(16). But the consular officer can only act after a petition is filed with the Secretary of Homeland Security, showing the immigrant status for which the alien qualifies. Id. §§ 1153(f), 1154. The consular officer then has the exclusive authority to make the final decision about the issuance of any such immigrant visa. Id. §§ 1104(a), 1201(a)(1)(A). That decision is not judicially reviewable. Saavedra Bruno, 197 F.3d at 1158.

Worldwide limits on immigration are set out in 8 U.S.C. § 1151. Additionally, there are limitations on the number of visas that can be issued to immigrants from any one particular country. Id. § 1152. Immigrants are divided into three categories: family-sponsored immigrants, id. § 1153(a); employment-based immigrants, id. § 1153(b); and diversity immigrants, id. § 1153(c). For employment-based immigrants, first preference is given to “priority workers,” which include aliens with extraordinary ability in sciences, arts, education, business, or athletics, id. § 1153(b)(1)(A); “outstanding professors and researchers,” id. § 1153(b)(1)(B); and “certain multinational executives and managers,” id. § 1153(b)(1)(C). There are lower preference categories unnecessary to set forth.

Suppose the eligibility of any of the petitioners was determined on the basis that they were seeking only temporary admission. Here again, to be admitted as a nonimmigrant in any of the categories set forth in the margin,15 the alien must apply for a visa. 8 U.S.C. § 1201(a)(1)(B). Different classes have different requirements for what the alien must do to obtain a visa, but all require that the alien submit some form.

Suppose the petitioners’ eligibility for admission turned on whether they could be considered refugees or asylum seekers. An alien seeking refugee or asylum status (refugees apply from abroad; asylum applicants apply when already here) must *384qualify as a “refugee” as defined in 8 U.S.C. § 1101(a)(42). Whether they could be admitted under this heading depends on numerical limitations established by the President, and on the discretion of the Attorney General or the Secretary of Homeland Security. To qualify as a refugee, an alien must (1) not be firmly resettled in a foreign country, (2) be of “special humanitarian concern” to the United States, and (3) be admissible as an immigrant under the immigration laws. Id. § 1157(c)(1). Although the Attorney General and the Secretary are given discretion to waive many of the grounds of inadmissibility for a refugee applicant, the statute specifically prohibits waiver of the “terrorist activity” ground. Id. § 1157(c)(3); see also supra at 1029 n. 14.

The parole remedy, 8 U.S.C. § 1182(d)(5)(A), not only is granted in the exclusive discretion of the Secretary of Homeland Security, but also is specifically limited to “any alien applying for admission.” The section also provides that no alien who would more properly be considered a refugee should be paroled unless the Secretary specifically determines that “compelling reasons in the public interest” argue in favor of the parole remedy.

There are many more complications, but the bottom line is clear. Aliens are not eligible for admission into the United States unless they have applied for admission. Numerical limits may render them ineligible, as may many other considerations. The Secretary has wide discretion with respect to several categories of applicants and the decisions of consular officers on visa applications are not subject to judicial review. And so we find it impossible to understand what Judge Rogers is thinking when she insists, for instance, that “the district court erred by ordering release into the country without first ascertaining whether the immigration laws provided a valid basis for detention” of someone who (a) has never entered or attempted to enter the country, and (b) has never applied for admission under the immigration laws.

3. Judge Rogers: “[T]he majority has recast the traditional inquiry of a habeas court from whether the Executive has shown that the detention of the petitioners is lawful to whether the petitioners can show that the habeas court is ‘expressly authorized’ to order aliens brought into the United States.” Sep. Op. at 1036.

Judge Rogers fails to mention that the “expressly authorized” quotation in our opinion is taken from a Supreme Court opinion in a habeas case. We repeat with some additional emphasis: it “is not within the province of any court, unless expressly authorized by law, to review the determination of the political branch of the Government to exclude a given alien.” Knaujf, 338 U.S. at 543, 70 S.Ct. 309. When Judge Rogers finally confronts Knaujf, how does she deal with the Supreme Court’s opinion? She calls it an “outlier,” as if her label could erase the case from the United States Reports. We know and she knows that the lower federal courts may not disregard a Supreme Court precedent even if they think that later cases have weakened its force. See Rodriguez de Quijas v.