In a breathtaking 80-page opinion handed down today in Castro v. U.S. Dep’t of Homeland Security, a unanimous panel of the Third Circuit has held that the Suspension Clause does not protect non-citizens physically (but not lawfully) present within the United States — at least where they have recently (and surreptitiously) entered the country. The holding comes in the specific context of habeas petitions filed by dozens of Central American migrants seeking to block their expedited removal from the country, but the reasoning has much broader scope (and, potentially, enormously troubling consequences).
Here’s the central passage from pp. 66-68 of the majority opinion:
Boumediene contemplates a two-step inquiry whereby courts must first determine whether a given habeas petitioner is prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention. Only after confirming that the petitioner is not so prohibited may courts then turn to the question whether the substitute for habeas is adequate and effective to test the legality of the petitioner’s detention (or removal). . . . .The reason Petitioners’ Suspension Clause claim falls at step one is because the Supreme Court has unequivocally concluded that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon, 459 U.S. at 32. Petitioners were each apprehended within hours of surreptitiously entering the United States, so we think it appropriate to treat them as“alien[s] seeking initial admission to the United States.” Id. And since the issues that Petitioners seek to challenge all stem from the Executive’s decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them. As such, we need not reach the second question under the Boumediene framework, i.e., whether the limited scope of review of expedited removal orders under § 1252 is an adequate substitute for traditional habeas review.
The Court of Appeals is certainly correct that Boumediene contemplates a two-step inquiry to determine whether a statute violates the Suspension Clause, but its articulation of the first step is incredibly novel and misleading (full disclosure: I helped to prepare and signed an amicus brief in support of the petitioners, arguing that the Suspension Clause does apply). In Boumediene, Justice Kennedy explained that threshold application of the Suspension Clause should turn on a balancing of three factors: “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ.” Nothing in Boumediene suggests that there is an additional step for individuals who otherwise lack constitutional protections (otherwise, the Guantánamo detainees’ lack of other constitutional rights would have resolved the Suspension Clause issue against them). Moreover, the Boumediene factors quite clearly militate in favor of applying the Suspension Clause to non-citizens physically present within the United States regardless of the circumstances of their arrest and/or detention. After all, there’s no question that U.S. courts have territorial jurisdiction in such cases; the sites of apprehension and detention are not on or near foreign battlefields; and the practical obstacles at issue in cases of overseas military detention are simply nonexistent here.
The Court of Appeals weakly tried to distinguish Boumediene‘s factors in footnote 25:
In evaluating Petitioners’ rights under the Suspension Clause, we find Boumediene’s multi-factor test, referenced earlier in this opinion, to provide little guidance. As we explain above, the Court derived the factors from its extraterritoriality jurisprudence in order to assess the reach of the Suspension Clause to a territory where the United States is not sovereign. In our case, of course, there is no question that Petitioners were apprehended within the sovereign territory of the United States; thus, the Boumediene factors are of limited utility in determining Petitioners’ entitlement to the protections of the Suspension Clause.
Exactly. That’s because this is an easy case under Boumediene. But instead of recognizing that, and reaching the harder question of whether the limited judicial review of expedited removal orders violates the Suspension Clause, the Third Circuit held that non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States. That seems simply nuts to me — and, hopefully, a strong candidate for en banc review (and reversal). Putting aside harder questions about whether non-citizens physically (but not lawfully) present have other constitutional rights, it seems to me a no-brainer that the Suspension Clause applies — all the more so after, and in light of, Boumediene.