Due Process in Removal Proceedings After Thuraissigiam.

• Author: Li, Diana G.
• Position: NOTE

Table of Contents Introduction I. Thuraissigiam as a Departure from Precedent A. The Due Process Holding in Thuraissigiam. B. The Historical Role of Territorial Presence in Conferring Due Process Rights 1. Supreme Court precedent. 2. Statutory background. C. Exceptions and Supplements to the Territorial Model. II. Interpreting the Rule from Thuraissigiam. A. Due Process in the Proceedings Below and the Supreme Court's Opinion B. Three Possible Readings of the Opinion. 1. Limited as applied to the facts of Thuraissigiam. 2. "Established connections" as a way to overcome lack of admission. 3. Admission as a prerequisite for procedural due process rights III. Due Process Rights as a Function of "Entry" Instead of "Established Connections" A. Entry as a Grant of Procedural Due Process Rights: Text and Precedent. B. Thuraissigiam's Reference to "Established Connections" 1. Lower courts' interpretations of Verdugo-Urquidezs "substantial connections" test. 2. Implications for lower courts interpreting Thuraissigiam IV. Distinguishing Statutory and Constitutional Procedural Due Process Inquiries A. Thuraissigiam's Emphasis on Statutory Admission. B. The Types of Rights and Challenges at Stake. Conclusion. Introduction

In Department of Homeland Security v. Thuraissigiam, the Supreme Court considered the case of a Tamil asylum seeker, Vijayakumar Thuraissigiam, who fled political violence in Sri Lanka. (1) After Thuraissigiam had worked for a Tamil candidate for Sri Lankan Parliament, men who identified themselves as government intelligence officers went to his farm and called for him by name. (2) As the district court described, Thuraissigiam was "pushed into a van where he was bound, beaten, and interrogated about his political activities" by the government officers, and he then "endured additional torture before he woke up in a hospital where he spent several days recovering." (3) He ultimately fled the country, making his way through Latin America before eventually seeking asylum at the U.S.-Mexico border. (4) When Thuraissigiam brought his case to court, he bore scars from his beatings and "still suffered] from numbness in his left arm." (5)

Thuraissigiam was a target of what an amicus brief called the "notorious pattern of 'white van abductions' perpetrated by the Sri Lankan government": the common phenomenon of plainclothes Sri Lankan government officials kidnapping individuals in unmarked white vans and subsequently torturing and interrogating them. (6) Nevertheless, the U.S. government denied Thuraissigiam's application for asylum and ordered him expelled by means of expedited removal, an accelerated process that is applied to certain categories of noncitizens. (7) Thuraissigiam then filed a habeas petition contesting his removal order, arguing that it violated statutory and regulatory requirements as well as his constitutional due process rights. (8) In the ensuing litigation, Thuraissigiam also argued that 8 U.S.C. [section] 1252(e)(2), a statute that limits judicial review of expedited removal orders, would violate the Suspension Clause if interpreted to deny him review of his removal order. (9)

The Supreme Court ultimately rejected Thuraissigiam's claims, holding that the relevant statute, as applied to Thuraissigiam, violated neither the Suspension Clause nor the Due Process Clause. (10) Justice Alito's majority opinion first addressed the inapplicability of the Suspension Clause to Thuraissigiam's situation in a portion of the opinion (11) that has plenty of critics and commentators. (12) This Note, however, focuses on the consequences of and questions raised by the Court's second holding: that Thuraissigiam, despite being on U.S. soil, had no procedural due process rights with regard to his entry and removal. (13) In reaching that holding, the majority opinion made two statements. First, it stated that "aliens who have established connections in this country have due process rights in deportation proceedings." (14) Second, it stated that aliens who both try to "enter the country illegally" and are "detained shortly after unlawful entry" have "only those rights regarding admission that Congress has provided by statute." (15)

It is now up to lower courts to interpret Thuraissigiam. The Court's opinion treated Thuraissigiam's due process claims only cursorily and, in doing so, raised more questions than it answered. This Note aims to help navigate the resulting doctrinal confusion by exploring the different possible readings of the opinion and arguing that the decision should be limited to its narrow facts. Courts should not embrace a reading of Thuraissigiam that gives life to the opinion's two fleeting suggestions that a noncitizen's due process rights can be tied to either "established connections" or legal admission. Beyond being wholly unnecessary to the decision, such a broad reading of the opinion is atextual, contradicts decades of precedent, and implicates the rights of many noncitizens and immigrants beyond just asylum seekers like Thuraissigiam.

Instead, this Note argues, lower courts should affirm what I call a territorial conception of due process: one in which successful entry into the territory of the United States, authorized or unauthorized, confers the threshold ability to bring procedural due process challenges. Of course, noncitizens may lose their due process challenges on the merits if they cannot prove a violation of their rights--but the issue Thuraissigiam raised is whether noncitizens can bring constitutional challenges at all, or whether they are subject to the government's removal processes with no mechanism to vindicate their substantive rights. Conferring procedural due process rights upon all who have entered the United States is the position that is most consistent with the text, history, and purpose of the Fifth Amendment, (16) as well as with precedent. (17) This position also avoids the significant administrability issues posed by other readings of the opinion. (18) Lower courts should interpret the due process holding in Thuraissigiam narrowly to preserve the territorial conception of due process as much as is practicable within the current doctrine. Whatever flaws a territorial conception of due process may have, it is vastly preferable to other directions that courts might take after Thuraissigiam that would make the due process inquiry even more incoherent and hostile to noncitizens.

Part I of this Note describes the due process holding in Thuraissigiam and situates it in the broader setting of over a century of Supreme Court precedent, which has frequently assumed that territorial presence is sufficient to confer procedural due process rights. In doing so, it illustrates long-standing principles that lower courts should adhere to when deciding how broadly to interpret Thuraissigiam's holding. Part II then advances three plausible readings of the opinion, canvassing recent cases and briefs to help illustrate the various ways courts can interpret the ambiguities in the opinion. The rest of this Note then explains why courts should adopt the first of these readings and narrowly limit Thuraissigiam to its facts. Specifically, Part III argues that courts should not read Thuraissigiam to mean that only noncitizens who can demonstrate established connections to the United States deserve procedural due process rights, which is the second possible reading of the opinion. Instead, courts should reaffirm the longstanding principle, described in Part I, that an immigrants entry into the United States, defined as territorial presence and freedom from restraint, is sufficient to confer procedural due process rights. Finally, Part IV explains why Thuraissigiam should not be read to mean that noncitizens cannot claim procedural due process rights unless they have been formally and legally admitted. That is the third possible reading of the opinion, and it is similarly flawed due to its unjustified conflation of statutory and constitutional inquiries.

Despite his harrowing account of persecution, Thuraissigiam was not the most compelling litigant. He had no apparent ties with the United States, was apprehended shortly after crossing the border, and struggled to articulate his case to immigration officials. (19) But as with all cases that wind their way up to the Supreme Court, his case--and its legacy--will affect countless individuals, including Deferred Action for Childhood Arrivals (DACA) recipients, other asylum seekers, and even legal permanent residents and U.S. citizens. (20) Due to the lack of judicial scrutiny of procedures like the one Thuraissigiam endured, the government has coerced noncitizens (and even citizens) into signing away their legal rights, denied them translation services and opportunities to find counsel, and even shackled and detained them without food. (21) Without procedural due process rights, immigrants who have lived in the United States for a long period of time but were never legally admitted could be abruptly removed with little to no procedural fairness or transparency. Given how high the stakes are, courts must dissect the limits placed on judicial review by Thuraissigiam and grapple with the decision's potentially dangerous consequences.

1. Thuraissigiam as a Departure from Precedent

   Depending on how the opinion is interpreted, Thuraissigiam may be read as calling into question decades of precedent. This Part places Thuraissigiam within the broader historical context of Supreme Court precedent concerning noncitizens' due process rights. In doing so, it aims to illustrate long-standing principles that should inform how lower courts interpret Thuraissigiam moving forward. Although Thuraissigiam is good law, this Note argues that earlier cases can provide lower courts with helpful principles for limiting the opinion's reach while still remaining faithful to its holding.

   1. The Due Process Holding in Thuraissigiam

      Vijayakumar...