Department of Homeland Security v. Thuraissigiam

I join the Court's opinion, which correctly concludes that respondent's Suspension Clause argument fails because he does not seek a writ of habeas corpus. I write separately to address the original meaning of the Suspension Clause, which guarantees that "[t]he 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." Art. I, § 9, cl. 2. The Founders appear to have understood "[t]he Privilege of the Writ of Habeas Corpus" to guarantee freedom from discretionary detention, and a "suspen [sion]" of that privilege likely meant a statute granting the executive the power to detain without bail or trial based on mere suspicion of a crime or dangerousness. Thus, the expedited removal procedure in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, 110 Stat. 3009-546, is likely not a suspension.1

I

The writ of habeas corpus began as a prerogative writ in the Court of King's Bench in the 16th century. J. Baker, An Introduction to English Legal History 157 (5th ed. 2019). Over time, however, it came to be understood both as a right to be free from arbitrary detention and as a procedural writ.

By the end of the 16th century, the English connected the common-law writ of habeas corpus to liberty. Specifically, it was associated with the guarantee in Magna Carta that "[n]o free person (Nullus *1984liber homo ) shall be taken or imprisoned, or disseised or outlawed or exiled, or in any way destroyed ... except by the lawful judgment of his peers or by the law of the land." Id. , at 157, n. 76, 506. Perhaps most prominently, Edward Coke wrote in his Institutes that "if a man be taken, or committed to prison contra legem terrae , against the Law of the land," then "[h]e may have an habeas corpus ." The Second Part of the Institutes of the Laws of England 55 (6th ed. 1681). For Coke, and for the many English (and later Americans) who read his work, "the writ was treated as an aspect of the Charter's guaranty." D. Meador, Habeas Corpus and Magna Carta: Dualism of Power and Liberty 22 (1966).

This association between habeas corpus and freedom from discretionary detention deepened after 1679 with the Habeas Corpus Act, also known as An Act for the better secureing the Liberty of the Subject and for Prevention of Imprisonments beyond the Seas. The statute sought to address "great Delayes" in "criminall or supposed criminall Matters." 31 Car. 2, ch. 2. It required an officer served with a writ of habeas corpus to produce the prisoner within three days in "any such criminall or supposed criminall Matters." Ibid. It also guaranteed bail to prisoners in cases of felony or high treason if they were not tried within one term of court. Ibid. To protect these rights, Parliament created a special statutory remedy: All writs under the Habeas Corpus Act were marked as issuing pursuant to the statute. Ibid. ; P. Halliday, Habeas Corpus: From England to Empire 320 (2010).

Parliament passed the Habeas Corpus Act to curb the power of King Charles II, but it nonetheless came to be seen as a protection for liberty, not just an assertion of the powers of Parliament over the Crown. Henry Care, in the 1774 edition of his widely read treatise English Liberties, commented that "before this statute [the common-law writ of habeas corpus] was rendered far less useful than it ought to be, partly by the Judges pretending a power to grant or deny the said writ at their pleasure, in many cases; and especially by the ill practices of Sheriffs and Goalers, by putting the prisoner to the charge and trouble of ... a second and third writ, before they would obey the first." 1 English Liberties, or the Free-born Subject's Inheritance 195. The Habeas Corpus Act, he concluded, "provides thus for our liberty." Id., at 198. William Blackstone put it even more sweepingly, writing that the Habeas Corpus Act "is frequently considered as another magna carta ." 3 Commentaries on the Laws of England 135 (1770).

II

The Founders inherited this understanding of habeas corpus. And they enshrined it in the Suspension Clause, which they understood to protect a substantive right.

The language of the Suspension Clause evinces this understanding. The Clause itself does not authorize courts to issue writs of habeas corpus. INS v. St. Cyr , 533 U.S. 289, 337, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (Scalia, J., dissenting); Ex parte Bollman , 4 Cranch 75, 94, 8 U.S. 75, 2 L.Ed. 554 (1807). Nor does it refer simply to the writ of habeas corpus. Rather, it protects the privilege of the writ of habeas corpus. The word "privilege" was "used interchangeably with the words 'rights,' 'liberties,' and 'freedoms,' and had been since the time of Blackstone." McDonald v. Chicago , 561 U.S. 742, 813, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (THOMAS, J., concurring in part and concurring in judgment). By using this term, the Framers appear to have had a substantive right in mind.

Ratification debates reflect this understanding as well. Future Supreme Court *1985Justice James Iredell said in the North Carolina convention that, "[b]y the privileges of the habeas corpus , no man can be confined without inquiry; and if it should appear that he has been committed contrary to law, he must be discharged." 4 Debates in the Several State Conventions 171 (J. Elliot ed. 1891). Signer of the Constitution James McHenry told the Maryland House of Delegates that "[p]ublic safety may require a suspension of the Ha[beas] Corpus in cases of necessity: when those cases do not exist, the virtuous Citizen will ever be protected in his opposition to power." 11 Documentary History of the Ratification of the Constitution 80, 84 (J. Kaminski et al. eds. 2015) (Documentary History).

This understanding is echoed in statements that the Constitution protects the Habeas Corpus Act, the writ of habeas corpus, or simply "the habeas corpus," all referring to a substantive right. Alexander Hamilton wrote in The Federalist No. 83 that "the habeas corpus act" was "provided for in the most ample manner in the plan of the convention." The Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in No. 84, he wrote that the Constitution "establish[ed] the writ of habeas corpus ." Id. , No. 84, at 511. In the Pennsylvania ratifying convention, Jasper Yeates said that the Suspension Clause "direct[ed] that the privilege of the habeas corpus act shall not be suspended except in times of immediate danger." 2 Documentary History 434-435 (M. Jensen ed. 1976). In Virginia, Governor Edmund Randolph-a signer and future Attorney General-argued that "the habeas corpus is at least on as secure and good a footing as it is in England" because "[t]hat privilege is secured here by the Constitution." 9 id. , at 1099 (J. Kaminski & G. Saladino eds. 1990). Luther Martin of Maryland wrote that "the general government is to have a power of suspending the habeas corpus act , in cases of rebellion or invasion. " Genuine Information VIII, reprinted in 15 id. , at 434 (J. Kaminski & G. Saladino eds. 1984). In Massachusetts, Theophilius Parsons "made a Loud Speech on the Habeas Corpus act that it will not be in the power of Gov[ern]ment to suspend the act only in time of war." 7 id. , at 1813 (J. Kaminski & G. Saladino eds. 2001). Other speakers and writers made similar references. See A. Tyler, Habeas Corpus in Wartime 132-133 (2017) (collecting examples). In sum, it seems that the founding generation viewed the privilege of the writ of habeas corpus as a freedom from arbitrary detention.2

*1986III

The remaining question is what it means for "[t]he Privilege of the Writ of Habeas Corpus" to "be suspended." U. S. Const., Art. I, § 9, cl. 2. At the founding, suspension was a well-known term that meant "a [t]emporal [s]top of a [m]an's [r]ight." N. Bailey, An Universal Etymological English Dictionary (22d ed. 1770); see St. Cyr , 533 U.S. at 337-338, 121 S.Ct. 2271 (Scalia, J., dissenting). In the context of habeas corpus, it appears to have specifically meant a grant of authority to the executive to detain without bail or trial based on suspicion of a crime or dangerousness.

The English understood the term this way. Blackstone called it "the happiness of [the English] constitution" that "the parliament only, or legislative power, ... can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing." 1 Commentaries on the Laws of England, at 136. Bills known as suspensions granted broad power to detain based on suspicion of a crime. For example, in 1777, Lord Germaine introduced a bill " 'to empower his Majesty to secure and detain Persons charged with, or suspected of, the Crime of High Treason committed in North America, or on the High Seas, or the Crime of Piracy.' " 19 W. Cobbett, The Parliamentary History of England 4 (1814). The bill allowed certain prisoners to be detained " 'without bail or mainprize' "3 and prohibited any " 'judge or justice of peace' " from " 'bail[ing] or try[ing] any such person or persons, ... any law, statute, or usage, to the contrary in any wise notwithstanding.' " Id., at 5. The text contained no mention of the Habeas Corpus Act, but it nevertheless was referred to as a "suspension of the Habeas Corpus Act." Id., at 9-10. As one historian has written, suspensions "were officially acts 'empowering his majesty to apprehend and detain such persons as he shall find cause to suspect' " and to do so " 'without bail or mainprise.' " Halliday, Habeas Corpus, at 248.

Americans shared a similar understanding, as evidenced by the suspensions that States passed during the Revolutionary War. "By their common terms," these suspensions "bestowed authority on state executives to arrest and detain persons preventively based on suspicion of supporting the Crown." Tyler, Habeas Corpus in Wartime, at 111. In 1777, Massachusetts authorized the detention of "any person whom the council shall deem the safety of the Commonwealth requires should be restrained of his personal liberty, or whose enlargement within this state is dangerous thereto" "without bail or mainpri[s][z]e." 1776-1777 Mass. Acts ch. 45, §§ 1, 3, p. 641. Virginia similarly allowed the Governor and council to detain anyone "whom they may have just cause to suspect of disaffection to the independence of the United States or of attachment to their enemies." An act for giving certain powers to the governour and council, and for punishing those who shall oppose the execution of laws, reprinted in 10 W. Hening's Statutes at Large 413-414 (1822). And New York created a board with power "to apprehend and confine or cause to be apprehended or confined ... all persons whose going at large shall in the judgment of the said commissioners or any three of them appear dangerous to the safety of *1987this State." An Act appointing commissioners for detecting and defeating conspiracies and declaring their powers (Feb. 5, 1778), 1778 N. Y. Laws ch. 3, pp. 8-9; see also An Act for constituting a Council of Safety (Oct. 11, 1777), 1777 N. J. Laws ch. 40, § 4, p. 85; An Act to Empower the Supreme Executive Council of this Commonwealth to Provide for the Security Thereof in Special Cases Where No Provision Is Already Made by Law (Sept. 6, 1777), ch. 762, § 2, 9 Statutes at Large of Pennsylvania 140 (J. Mitchell & H. Flanders eds. 1903); An Act to punish certain crimes and misdemeanors, and to prevent the growth of toryism, 1777 Md. Laws ch. 20, § 7.4

Massachusetts continued using this formula for suspensions under its 1780 Constitution. These suspensions are especially probative because that Constitution contained language similar to the Federal Suspension Clause: "The privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be suspended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months." Pt. 2, ch. VI, Art. VII. In response to Shays' Rebellion, which gained notoriety across the United States, Massachusetts passed "An Act for Suspending the Privilege of the Writ of Habeas Corpus." It provided that

"the Governor, with the advice and consent of the Council, be and he hereby is authorised and empowered ... to command, and cause to be apprehended, and committed in any Goal, or other safe place, within the Commonwealth, any person or persons whatsoever, whom the Governor and Council, shall deem the safety of the Commonwealth requires should be restrained of their personal liberty, or whose enlargement is dangerous thereto; any Law, Usage or Custom to the contrary notwithstanding." 1786-1787 Mass. Acts ch. 41, p. 102.

The Act also provided that "any Person who shall be apprehended and imprisoned, as aforesaid, shall be continued in imprisonment, without Bail or Mainprize, until he shall be discharged therefrom by order of the Governor, or of the General Court." Id., at 103; see also An Act to Suspend the Privilege of the Writ of Habeas Corpus for Six Months (June 27, 1782), 1782-1783 Mass. Acts ch. 2, pp. 6-7. Thus, in a jurisdiction with an analog to the Suspension Clause, a suspension was a grant of power to detain without bail or trial based on suspicion of a crime or dangerousness.

Although the ratification debates are not especially illuminating on the meaning of a suspension, they provide further support for this understanding. Luther Martin wrote that the Government, upon "suspending the habeas corpus act may seize upon the persons of those advocates of freedom , who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleasure." Genuine Information VIII, reprinted in 15 Documentary History 434. Another essayist, writing in a Boston newspaper, explained that suspension would allow "the President, or President and Senate, as Congress shall think proper to empower, to take up and confine for any cause, or for any suspicion, or for no cause, perhaps any person, he or they shall think proper. 5 id. , at 712 (J. Kaminski & G. Saladino eds. 1998).

*1988In sum, a suspension was not necessarily an express limitation on the availability of the writ of habeas corpus. Rather, it appears to have been a grant of power to detain based on suspicion of a crime or dangerousness without bail or trial.

IV

Under this interpretation, 8 U.S.C. § 1252 likely does not suspend the writ of habeas corpus. To be placed in expedited removal, an immigration officer must "determin[e]" that an alien is "inadmissible." § 1225(b)(1)(A)(i). That determination is based in part on the alien's lack of valid entry documentation and failure to satisfy a 2-year continuous physical presence requirement, not on mere suspicion or dangerousness. §§ 1225(b)(1)(A)(i), (iii)(II) ; § 1182(a)(7). An alien has the opportunity to avoid expedited removal by demonstrating a "credible fear of persecution." §§ 1225(b)(1)(B)(iii), (v). If the alien is unsuccessful, he may seek "[j]udicial review ... in habeas corpus proceedings" of "whether [he] is an alien"; "whether [he] was ordered removed" under expedited removal; and "whether [he] can prove by a preponderance of the evidence that [he] is an alien lawfully admitted for permanent residence, has been admitted as a refugee ..., or has been granted asylum" and "such status [has not] been terminated." § 1252(e)(2).

This statute bears little resemblance to a suspension as that term was understood at the founding. It does not allow the executive to detain based on mere suspicion of a crime or dangerousness. Rather, it requires a finding that the detainee lacks valid documentation and is not eligible for asylum. It even expressly permits habeas relief for a detainee who does not meet certain criteria for expedited removal.

Some may wish that the Suspension Clause were broader. Perhaps for this reason, our precedents have departed from the original understanding of the Suspension Clause. See, e.g. , Boumediene v. Bush , 553 U.S. 723, 826-850, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (Scalia, J., dissenting); St. Cyr , 533 U.S. at 336-341, 121 S.Ct. 2271 (Scalia, J., dissenting). But this understanding does contain an important guarantee of individual liberty by limiting the circumstances in which Congress may give the executive power to detain without bail or trial based on suspicion of a crime or dangerousness. In this case, that guarantee has not been violated.

Justice BREYER, with whom Justice GINSBURG joins, concurring in the judgment.

The statute at issue here, 8 U.S.C. § 1252(e)(2), sets forth strict limits on what claims a noncitizen subject to expedited removal may present in federal habeas corpus proceedings. I agree that enforcing those limits in this particular case does not violate the Suspension Clause's constitutional command: "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." U. S. Const., Art. I, § 9, cl. 2. But we need not, and should not, go further.

We need not go further because the Government asked us to decide, and we agreed to review, an issue limited to the case before us. The question presented is "whether, as applied to respondent , Section 1252(e)(2) is unconstitutional under the Suspension Clause." Pet. for Cert. i (emphasis added). All we must decide is whether, under the Suspension Clause, the statute at issue "is unconstitutional as applied to this party, in the circumstances of this case." Chicago v. Morales , 527 U.S. 41, 74, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (Scalia, J., dissenting).

*1989Nor should we go further. Addressing more broadly whether the Suspension Clause protects people challenging removal decisions may raise a host of difficult questions in the immigration context. What review might the Suspension Clause assure, say, a person apprehended years after she crossed our borders clandestinely and started a life in this country? Under current law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedings, see § 1225(b)(1)(A)(iii), but Congress might decide to raise that 2-year cap (or remove it altogether). Does the Suspension Clause let Congress close the courthouse doors to a long-term permanent resident facing removal? In INS v. St. Cyr , 533 U.S. 289, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), we avoided just that "serious and difficult constitutional issue." Id. , at 305, 121 S.Ct. 2271.

Could Congress, for that matter, deny habeas review to someone ordered removed despite claiming to be a natural-born U. S. citizen? The petitioner in Chin Yow v. United States , 208 U.S. 8, 28 S.Ct. 201, 52 L.Ed. 369 (1908), and others have faced that predicament. See also § 1252(e)(2)(A) (permitting, at present, habeas review of citizenship claims). What about foreclosing habeas review of a claim that rogue immigration officials forged the record of a credible-fear interview that, in truth, never happened? Or that such officials denied a refugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a "religion" under governing law? Cf. Tod v. Waldman , 266 U.S. 113, 119-120, 45 S.Ct. 85, 69 L.Ed. 195 (1924) (observing that immigration officials ignored a Jewish family's claim that they were "refugees" fleeing "religious persecution").

The answers to these and other "difficult questions about the scope of [Suspension Clause] protections" lurk behind the scenes here. Lozman v. Riviera Beach , 585 U. S. ----, ----, 138 S.Ct. 1945, 1953, 201 L.Ed.2d 342 (2018). I would therefore avoid making statements about the Suspension Clause that sweep beyond the principles needed to decide this case-let alone come to conclusions about the Due Process Clause, a distinct constitutional provision that is not directly at issue here. Compare ibid. (concluding that, with narrow grounds for decision available, resolving broader, more difficult questions "must await a different case") with ante , at 1969 - 1972 (suggesting that removal is simply not the sort of "restraint" for which the Suspension Clause guarantees a means of "securing release"), and ante , at 1981 - 1983 (addressing a separate due process question).

As for the resolution of the dispute before us, Congress, in my view, had the constitutional power to foreclose habeas review of the claims that respondent has pressed in this case. Habeas corpus, as we have said, is an "adaptable remedy," and the "precise application and scope" of the review it guarantees may change "depending upon the circumstances." Boumediene v. Bush , 553 U.S. 723, 779, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) ; see also id. , at 813, 128 S.Ct. 2229 (ROBERTS, C. J., dissenting). So where the Suspension Clause applies, the "habeas court's role" may prove more "extensive," or less so, depending on the context at issue. Id. , at 780, 128 S.Ct. 2229 (majority opinion). Here, even assuming that the Suspension Clause guarantees respondent some form of habeas review-which is to say, even accepting for argument's sake that the relief respondent seeks is "release," contra, ante , at 1975-the scope of that constitutionally required review would not extend to his claims. Two features of this case persuade me.

*1990First , respondent's status suggests that the constitutional floor set by the Suspension Clause here cannot be high. A Border Patrol agent apprehended respondent just 25 yards inside the border. Respondent was placed in expedited removal proceedings shortly thereafter, where he received the same consideration for relief from removal that Congress has afforded persons arriving at the border. Respondent has never lived in, or been lawfully admitted to, the United States.

To my mind, those are among the "circumstances" that inform the "scope" of any habeas review that the Suspension Clause might guarantee respondent. Boumediene , 553 U.S. at 779, 128 S.Ct. 2229. He is thus in a materially different position for Suspension Clause purposes than the noncitizens in, for example, Rowoldt v. Perfetto , 355 U.S. 115, 78 S.Ct. 180, 2 L.Ed.2d 140 (1957), United States ex rel. Accardi v. Shaughnessy , 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), Bridges v. Wixon , 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103 (1945), and Hansen v. Haff , 291 U.S. 559, 54 S.Ct. 494, 78 L.Ed. 968 (1934). They had all lived in this country for years. The scope of whatever habeas review the Suspension Clause assures respondent need not be as extensive as it might for someone in that position.

Second , our precedents demonstrate that respondent's claims are of the kind that Congress may, consistent with the Suspension Clause, make unreviewable in habeas proceedings. Even accepting respondent's argument that our "finality era" cases map out a constitutional minimum, see ante , at 1975 - 1976, his claims, on the facts presented here, differ significantly from those that we reviewed throughout this period.

To begin, respondent concedes that Congress may eliminate habeas review of factual questions in cases like this one. See, e.g. , Nishimura Ekiu v. United States , 142 U.S. 651, 660, 12 S.Ct. 336, 35 L.Ed. 1146 (1892). He has thus disclaimed the "right to challenge the historical facts" found by immigration officials during his credible-fear process. Tr. of Oral Arg. 44. But even though respondent has framed his two primary claims as asserting legal error, substance belies that label. Both claims are, at their core, challenges to factual findings.

During his credible-fear interview, respondent said that he is an ethnic Tamil from Sri Lanka and that, one day, a group of men abducted him in a van and brutally beat him. App. 67, 70-74. The asylum officer believed respondent's account, id. , at 83, which respondent confirmed was his sole basis for seeking relief, id. , at 77, 79. The critical question, then, concerned the nature of the attack: Who attacked respondent and why? In written findings, the asylum officer concluded that it was "unknown who these individuals were or why they wanted to harm [respondent]." Id. , at 87. Based on those findings, the asylum officer determined that respondent had not established a credible fear of persecution or torture within the meaning of governing law. See id. , at 87, 89.

Respondent, to be sure, casts the brunt of his challenge to this adverse credible-fear determination as two claims of legal error. But it is the factual findings underlying that determination that respondent, armed with strong new factual evidence, now disputes. See id. , at 23-27; Brief for Professors of Sri Lankan Politics as Amici Curiae 7-11; see also ante , at 1983, n. 28 (noting that immigration officials may revisit their findings in light of this additional evidence).

Respondent first asserts that the asylum officer failed to apply-or at least misapplied-the applicable legal standard under § 1225(b)(1)(B)(v), which required only a "significant possibility" that respondent *1991could establish entitlement to relief from removal. See App. 30-32; Brief for Respondent 6. Respondent also contends that the asylum officer "demonstrated a fatal lack of knowledge" about conditions in Sri Lanka, id ., at 7, in violation of provisions requiring that asylum officers consider "other facts as are known to the officer," § 1225(b)(1)(B)(v), and have "had professional training in country conditions," § 1225(b)(1)(E)(i). See App. 24-26, 28-29, 31.

At the heart of both purportedly legal contentions, however, lies a disagreement with immigration officials' findings about the two brute facts underlying their credible-fear determination-again, the identity of respondent's attackers and their motive for attacking him. Other than his own testimony describing the attack, respondent has pointed to nothing in the administrative record to support either of these claims.

As to his legal-standard claim, respondent does not cite anything affirmatively indicating that immigration officials misidentified or misunderstood the proper legal standard under § 1225(b)(1)(B)(v). Rather, he argues that their credible-fear determination was so egregiously wrong that it simply must have rested on such a legal error. See Tr. of Oral Arg. 46-50. But that contention rests on a refusal to accept the facts as found by the immigration officials. Specifically, it rejects their findings that no evidence suggested respondent was attacked by men affiliated with the Sri Lankan Government and motivated by respondent's Tamil ethnicity or (as he now alleges) history of political activism. See App. 87; see also, e.g. , id. , at 23-26. Respondent's quarrel, at bottom, is not with whether settled historical facts satisfy a legal standard, see Guerrero-Lasprilla v. Barr , 589 U. S. ----, ----, 140 S.Ct. 1062, 1068-1069, 206 L.Ed.2d 271 (2020), but with what the historical facts are .

Respondent's country-conditions c