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Separation of Powers

Separation of Powers and Thuraissigiam: The Entry Fiction as Judicial Aggrandizement

In Department of Homeland Security v. Thuraissigiam, the Supreme Court rejected Vijayakumar Thuraissigiam’s challenge to the procedurally threadbare “expedited removal” he faced. The Court relied, in part, on the “entry fiction” — a doctrine under which certain physically present noncitizens are legally considered never to have entered the country and are therefore entitled to limited procedural due process rights. Before Thuraissigiam, the Court had only ever used the fiction where immigration authorities met an arriving noncitizen at the border and authorized physical — but not legal — admission. And it had been widely maligned as a separation-of-powers violation, allowing the whims of Congress to dictate the Constitution’s reach. Yet the Thuraissigiam Court breathed new life into the doctrine. What’s more, it took the unprecedented step of using the fiction against a noncitizen halted by immigration authorities in the interior, rather than at the border. But the Court failed to recognize — let alone justify — this sea change in the fiction’s use. Nor could it.

This Essay argues that the entry fiction’s new use effects a constitutional harm distinct from, and less defensible than, that wrought by its historical use. Its premise is that a clandestine entrant has frustrated the political branches’ ability to exercise their otherwise plenary power to decide, at the border, whether she may enter. However lamentable (or not) that may be as a policy matter, the fact remains: she is in. In this context, courts would use the entry fiction to make a normative political judgment too late for the political branches to make — that a noncitizen should not be “let into” the country. And courts would do so despite it being the political branches’ exclusive province to make that call. This Essay argues that such judicial aggrandizement is illegitimate and should be rejected, regardless of whether one holds a formalist or functionalist view of the separation of powers.

Introduction

Vijayakumar Thuraissigiam had made it twenty-five yards into the United States when he was arrested.1×1. Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020). He had fled his native country of Sri Lanka, where Thuraissigiam claimed to have faced severe persecution as a Tamil man2×2. See id. at 1995 (Sotomayor, J., dissenting). and supporter of a Tamil political candidate.3×3. Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1101–02 (9th Cir. 2019), rev’d, 140 S. Ct. 1959. Tamils are an ethnic minority group in Sri Lanka. See Thuraissigiam, 140 S. Ct. at 1995 (Sotomayor, J., dissenting). He alleged that, in 2007, he was “detained and beaten” by Sri Lankan officers, who instructed him not to support the Tamil candidate.4×4. Thuraissigiam, 917 F.3d at 1102. But Thuraissigiam maintained his support, backing the candidate in 2014 — prompting Sri Lankan officials to once again punish him.5×5. See id. Thuraissigiam alleged that government intelligence officers approached him on his farm and shoved him into a van,6×6. Thuraissigiam v. U.S. Dep’t of Homeland Sec., 287 F. Supp. 3d 1077, 1078 (S.D. Cal. 2018), rev’d, 917 F.3d 1097, rev’d, 140 S. Ct. 1959. after which they bound and beat him “during an interrogation about his political activities.”7×7. Thuraissigiam, 917 F.3d at 1102. Thuraissigiam further alleged that he was “lowered into a well, simulating drown-ing, threatened with death, and then suffocated, causing him to lose consciousness.”8×8. Id. On February 17, 2017 — after spending some time in hiding in Sri Lanka and India and navigating through Latin America — Thuraissigiam made it to the U.S.-Mexico border.9×9. Thuraissigiam, 287 F. Supp. 3d at 1078–79. He crossed just west of the San Ysidro Port of Entry in Southern California.10×10. Thuraissigiam, 917 F.3d at 1101.

After arresting Thuraissigiam, U.S. immigration authorities promptly placed him in expedited removal proceedings.11×11. Id. See infra note 26 for a brief summary of the expedited removal regime. Thuraissigiam informed the authorities of the persecution he feared facing in Sri Lanka, in response to which they referred Thuraissigiam to an asylum officer for a “credible fear” interview.12×12. See Thuraissigiam, 917 F.3d at 1101. Should a noncitizen demonstrate a credible fear of persecution — a “significant possibility” that she would be eligible for asylum, 8 U.S.C. § 1225(b)(1)(B)(v) — she would receive full consideration of her asylum claim in an ordinary removal hearing. See id. § 1225(b)(1)(B)(ii), (v). But Thuraissigiam’s claim went nowhere. The asylum officer and their supervisor found that Thuraissigiam had not demonstrated a credible fear, and an immigration judge affirmed that finding “in a check-box decision.”13×13. Thuraissigiam, 917 F.3d at 1101. Thuraissigiam therefore never saw his asylum application formally adjudicated in an ordinary removal hearing.14×14. See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1967–68 (2020). Thuraissigiam’s case was instead returned to the Department of Homeland Security (DHS) for his expedited removal.15×15. Id.

Though convinced that the government had committed numerous errors in issuing its negative credible fear determination,16×16. Factually, Thuraissigiam alleged that both the asylum officer and the immigration judge failed to elicit and consider all relevant and useful information bearing on his credible fear claim, including relevant country conditions evidence; that Thuraissigiam, his translator, and the government faced significant language-based communication difficulties; and that Thuraissigiam was unaware whether the information he divulged would be shared with the Sri Lankan government. See Thuraissigiam, 917 F.3d at 1102. Two legal claims supported Thuraissigiam’s habeas petition: (1) that the government violated his Fifth Amendment due process rights by “not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decisions” and (2) that the government violated his statutory and regulatory rights to apply for asylum and other forms of relief, including by applying an incorrect legal standard to his credible fear application. Id.; see also 8 U.S.C. § 1225(b)(1)(B)(v) (setting credible fear standard as “a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum”); id. § 1225(b)(1)(E)(i) (requiring asylum officers to have “had professional training in country conditions”); 8 C.F.R. § 208.30(d) (2021) (stating that the purpose of the credible fear interview is to “elicit all relevant and useful information bearing on whether the alien can establish a credible fear of persecution, reasonable possibility of persecution, or reasonable possibility of torture”); id. § 208.30(d)(1)–(2), (5) (requiring government to provide translation services in credible fear interviews where necessary and to ensure that noncitizen is notified of all relevant information and is able to participate effectively in interview). Thuraissigiam had limited judicial recourse. Apart from a few narrow exceptions inapplicable to Thuraissigiam, federal courts have no jurisdiction to resolve a noncitizen’s challenge to her expedited removal.17×17. See 8 U.S.C. § 1252(a)(2), (e)(2). That left Thuraissigiam no choice but to attack the law’s jurisdiction-stripping provision as an unconstitutional suspension of the writ of habeas corpus. So that is exactly what he did — and with intermittent success. Though his case was initially dismissed, the Ninth Circuit reversed, finding the jurisdiction strip a violation of the Suspension Clause.18×18. See Thuraissigiam, 917 F.3d at 1100, 1119; U.S. Const. art. I, § 9, cl. 2 (“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.”). But the Supreme Court, in Department of Homeland Security v. Thuraissigiam,19×19. 140 S. Ct. 1959. disagreed, employing an originalist account of the Suspension Clause at odds with the Ninth Circuit’s reasoning.20×20. See id. at 1968–81. For a comprehensive analysis of the Suspension Clause’s historical origins germane to the Thuraissigiam majority’s originalist account, see generally Paul D. Halliday & G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575 (2008).

And the Court did not stop there. Apart from its habeas holding (and of principal interest here), the Court reached out to opine on Thuraissigiam’s due process entitlements as a recent clandestine entrant.21×21. See Thuraissigiam, 140 S. Ct. at 1981–83; id. at 1989 (Breyer, J., concurring in the judgment) (“I would . . . avoid . . . com[ing] to conclusions about the Due Process Clause, a distinct constitutional provision that is not directly at issue here.”); id. at 2011 (Sotomayor, J., dissenting) (“The Court stretches to reach the issue whether a noncitizen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. In so doing, the Court opines on a matter neither necessary to its holding nor seriously in dispute below.” (citation omitted)). The fundamental move the Court made in its due process analysis was to treat Thuraissigiam as if he were at the border, seeking to be let into the country.22×22. See id. at 1982–83 (majority opinion). Of course, that was not true — when Thuraissigiam was stopped, he had already made it into the United States. Nonetheless, the Court pretended that had not happened by applying the so-called “entry fiction,” a legal make-believe under which physically present noncitizens are considered never to have entered the country.23×23. See id. at 1982 (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 215 (1953)) (citing Leng May Ma v. Barber, 357 U.S. 185, 188–90 (1958); Kaplan v. Tod, 267 U.S. 228, 230–31 (1925)). Once fictitiously “assimilated to [the] status” of a noncitizen on the “threshold of initial entry,” Thuraissigiam was denuded of comprehensive constitutional rights.24×24. Mezei, 345 U.S. at 212, 214 (quoting Kwong Hai Chew v. Colding, 344 U.S. 590, 599 (1953)). Whether the country’s border acts as a constitutional on/off switch has long been the subject of much debate. Compare Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082, 2086 (2020) (“[I]t is long settled as a matter of American constitutional law that foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”), with id. at 2099 (Breyer, J., dissenting) (“[T]his Court has studiously avoided establishing an absolute rule that forecloses [constitutional] protection in all circumstances.”), and Boumediene v. Bush, 553 U.S. 723, 770–71 (2008) (applying dynamic inquiry into whether extraterritorial application of the Suspension Clause would be impracticable and anomalous). The Court has generally declined to issue a sweeping rule on the matter, instead analyzing the extraterritoriality of constitutional provisions in specific and distinguishable contexts. Boumediene, for instance, dealt with enemy combatants imprisoned at Guantanamo Bay. See id. at 732; Jennifer K. Elsea, Substantive Due Process and U.S. Jurisdiction over Foreign Nationals, 82 Fordham L. Rev. 2077, 2089–93 (2014) (canvassing the issue). See generally Joshua Alexander Geltzer, Of Suspension, Due Process, and Guantanamo: The Reach of the Fifth Amendment After Boumediene and the Relationship Between Habeas Corpus and Due Process, 14 U. Pa. J. Const. L. 719 (2012) (analyzing whether Boumediene’s reasoning can be extended to the Due Process Clause); Eunice Lee, The End of Entry Fiction, 99 N.C. L. Rev. 565, 631 & n.416 (2021) (surveying doctrinal development of territorial understanding of the Constitution’s reach). Though inside of the country, his procedural due process rights with respect to his admission suddenly were diminished to only whatever Congress had deigned to provide.25×25. See United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 544 (1950) (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”); Nishimura Ekiu v. United States, 142 U.S. 651, 659–60 (1892). For Thuraissigiam, who faced expedited removal, that meant virtually no process at all.26×26. As the name suggests, expedited removal allows the government in most cases to summarily remove certain noncitizens without first providing them a hearing before a neutral adjudicator. See 8 U.S.C. § 1225(b)(1)(A)(i). But see id. § 1225(b)(1)(A)(ii) (entitling noncitizens seeking asylum to a credible fear hearing). Moreover, those subject to expedited removal are mandatorily detained pending removal, unable to seek release on bond. Id. § 1225(b)(1)(B)(iii)(IV). But cf. id. § 1226(a) (establishing discretionary detention regime allowing for bond hearings for noncitizens in general, nonexpedited removal proceedings). Nor do they enjoy the right to counsel in connection with their removal. See United States v. Barajas-Alvarado, 655 F.3d 1077, 1088 (9th Cir. 2011). And lurking beneath all of this is the Suspension Clause problem that compelled the Ninth Circuit to invalidate the jurisdiction-stripping element of the law, see 8 U.S.C. § 1252(e)(2). See Thuraissigiam v. U.S. Dep’t of Homeland Sec., 917 F.3d 1097, 1119 (9th Cir. 2019), rev’d 140 S. Ct. 1959. For an overview of the extent of the regime’s potential, see generally Hillel R. Smith, Cong. Rsch. Serv., LSB10336, The Department of Homeland Security’s Nationwide Expansion of Expedited Removal (2020).

Thuraissigiam’s utter vulnerability as a fictional applicant for admission derived from the political branches’ “plenary power” to set the terms of admission for those seeking initial entrance. Rooted in turn-of-the-century cases regarding the exclusion and deportation of Chinese laborers, the doctrine identifies as inherent in the notion of sovereignty virtually unfettered legislative and executive authority to regulate the nation’s border.27×27. See Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893) (“The power to exclude or to expel aliens, being a power affecting international relations, is vested in the political departments of the government, and is to be regulated by treaty or by act of Congress, and to be executed by the executive authority according to the regulations so established, except so far as the judicial department has been authorized by treaty or by statute, or is required by the paramount law of the Constitution, to intervene.”); Chae Chan Ping v. United States (The Chinese Exclusion Case), 130 U.S. 581, 603–04 (1889) (“That the government of the United States, through the action of the legislative department, can exclude aliens from its territory is a proposition which we do not think open to controversy. Jurisdiction over its own territory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens it would be to that extent subject to the control of another power.”). Numerous commentators have observed the flaws in that doctrine.28×28. See, e.g., Louis Henkin, Foreign Affairs and the Constitution 17–18 (1972) (“The attempt to build all the foreign affairs powers of the federal government with the few bricks provided by the Constitution has not been accepted as successful. It requires considerable stretching of language, much reading between lines, and bold extrapolation from ‘the Constitution as a whole,’ and that still does not plausibly add up to all the power which the federal government in fact exercises.” (footnote omitted)); Lee, supra note 24, at 584 n.114 (citing literature calling to end the plenary power doctrine); David Cole, In Aid of Removal: Due Process Limits on Immigration Detention, 51 Emory L.J. 1003, 1035–36 (2002) (“It is reasonable to decline to allow [physical presence] to act as a bootstrap, giving the alien rights with respect to entry that he would not otherwise enjoy if stopped at the border and turned away. But it does not follow that he has no right to object to the process by which he was deprived of his liberty once stopped.”); Louis Henkin, Essay, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 863 (1987) (“The power of Congress to control immigration and to regulate alienage and naturalization is plenary. But even plenary power is subject to constitutional restraints. I cannot believe that the Court would hold today that the Constitution permits either exclusion on racial or religious grounds or deportation of persons lawfully admitted who have resided peacefully here. . . . Chinese Exclusion — its very name is an embarrassment — must go.” (footnote omitted)). But those discussions are outside the scope of this Essay, and the Thuraissigiam majority and dissent agreed that plenary power doctrine remains good law.29×29. See Thuraissigiam, 140 S. Ct. at 1982 (noting “century-old rule regarding the due process rights of an alien seeking initial entry”); id. at 2011 (Sotomayor, J., dissenting) (“[O]ur cases have long held that foreigners who had never come into the United States — those ‘on the threshold of initial entry’ — are not entitled to any due process with respect to their admission.” (quoting Mezei, 345 U.S. at 212)).

This Essay instead examines the Court’s unprecedented application of the entry fiction to subject Thuraissigiam to that plenary power in the first place. The move marked a sea change in the doctrine’s use, applying for the first time to a clandestine entrant arrested in the interior.30×30. See Catherine Y. Kim, Rights Retrenchment in Immigration Law, 55 U.C. Davis L. Rev. 1283, 1315 (2022) (“[D]ecades of precedent suggested that the central doctrinal distinction was between (a) individuals apprehended at a port of entry — and thus deemed outside of the U.S. under the entry fiction doctrine and thereby without any right to procedural due process, and (b) individuals physically within the United States, who were deemed to enjoy constitutional protections. Thuraissigiam appears to eliminate that distinction, denying procedural due process protections to both those apprehended at the border as well as to those apprehended in the nation’s interior.”); Ahilan Arulanantham & Adam Cox, Immigration Maximalism at the Supreme Court, Just Sec. (Aug. 11, 2020), https://www.justsecurity.org/71939/immigration-maximalism-at-the-supreme-court [https://perma.cc/9SAK-G4AC] (“[The Court] both doubled down on the ‘entry fiction’ doctrine applied at the border and extended that rule into the interior — to an uncertain extent.”). Indeed, as far back as the 1903 case of Yamataya v. Fisher,31×31. (The Japanese Immigrant Case), 189 U.S. 86 (1903). the Court has been careful not to use the entry fiction to pretend that a clandestinely entered noncitizen never made it inside in order to strip her of procedural due process rights — thin as those rights may prove to be.32×32. Admittedly, the Court’s reasoning in Yamataya suggests that social ties to the country bear on clandestine entrants’ due process rights. While recognizing the due process rights of the petitioner in that case, the Court explicitly left aside the question “whether an alien can rightfully invoke the due process clause of the Constitution who has entered the country clandestinely, and who has been here for too brief a period to have become, in any real sense, a part of our population.” Id. at 100. And, in any event, procedural due process entitlements may prove to be of little help. See Kim, supra note 30, at 1313 n.128 (citing Yamataya, 189 U.S. at 101–02) (“[T]he scope of procedural protections was thin at that time. Yamataya went on to hold that the [petitioner’s] procedural due process rights were satisfied, even though she spoke no English, was unable to consult with friends or family, and did not understand the nature of the removal proceedings that were occurring.”). See generally Mathews v. Eldridge, 424 U.S. 319 (1976) (establishing basic framework for determining what process is due); Henry J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267 (1975) (outlining the contours of what process is due in an ordinary hearing). That approach has comported with the Court’s longstanding recognition that noncitizens who have “passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”33×33. Mezei, 345 U.S. at 212. But see T. Alexander Aleinikoff et al., Immigration and Citizenship 535 (8th ed. 2016) (querying whether Mezei’s “passed through our gates, even illegally” language may refer to noncitizens who enter after inspection but are deported because of “some defect — some illegality — that comes to light thereafter”).

Thuraissigiam’s novel use of the entry fiction occurred in a few paragraphs bereft of any meaningful analysis,34×34. See Thuraissigiam, 140 S. Ct. at 1963–64, 1982. and the academy is only beginning to analyze it.35×35. See Lee, supra note 24, at 573 n.37 (“[I]n this Article I focus on entry fiction’s impact on due process rights in the detention context. While a thorough contemporary assessment of entry fiction with regard to admissions procedures and removal orders is outside the scope of this Article, it would be a fruitful avenue for future exploration. Thuraissigiam did not deeply explore contextual or historical arguments based on evolving immigration law practices, doctrines, or structures.”); Kim, supra note 30, at 1307–16, 1360, 1364 (reflecting on Thuraissigiam’s potential implications for multiple constitutional rights); Diana G. Li, Note, Due Process in Removal Proceedings After Thuraissigiam, 74 Stan. L. Rev. 793, 793 (2022) (arguing that Thuraissigiam’s due process holding should be limited to its facts); Lucas Guttentag, The President and Immigration Law: The Danger and Promise of Presidential Power, Just Sec. (Oct. 19, 2020), https://www.justsecurity.org/72863/the-president-and-immigration-law-the-dangerand-promise-of-presidential-power [https://perma.cc/MD76-KGCZ] (“[Thuraissigiam is] the most under-reported yet deeply consequential immigration ruling in decades.”). The dearth of rigorous treatment is of enormous concern given the move’s potential to vastly erode the constitutional rights of noncitizens inside the United States: taken to its logical extreme, it “could mean that any undocumented individual can be summarily detained and removed by immigration officials without judicial review.”36×36. Kim, supra note 30, at 1312. In its current form, as well as when Thuraissigiam was apprehended, expedited removal reaches noncitizens detained within one hundred air miles of a U.S. international land or sea border who have not demonstrated continuous presence in the country for more than fourteen days. See Thuraissigiam, 140 S. Ct. at 1964 n.2; Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,877 (Aug. 11, 2004); Press Release, U.S. Dep’t of Homeland Sec., Department of Homeland Security Streamlines Removal Process Along Entire U.S. Border (Jan. 30, 2006), https://www.hsdl.org/?abstract&did=476965 [https://perma.cc/7HHJ-5KCX]. But in the interim, the Trump Administration attempted to expand expedited removal to its statutory maximum, reaching noncitizens nationwide who could not demonstrate continuous presence in the country for two years or more. See Designating Aliens for Expedited Removal, 84 Fed. Reg. 35,409, 35,409 (July 23, 2019); see also Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 10–11 (D.D.C. 2019) (enjoining proposed expansion), rev’d sub nom. Make the Rd. N.Y. v. Wolf, 962 F.3d 612 (D.C. Cir. 2020). The Biden Administration recently rescinded that attempted expansion, restoring expedited removal to the way it had existed before July 23, 2019. See Rescission of the Notice of July 23, 2019, Designating Aliens for Expedited Removal, 87 Fed. Reg. 16,022, 16,022 (Mar. 21, 2022). Even the current reach of expedited removal is substantial, however, as more than half of the U.S. population lives within a hundred miles of the border. See Gerald Neuman, The Supreme Court’s Attack on Habeas Corpus in DHS v. Thuraissigiam, Just Sec. (Aug. 25, 2020), https://www.justsecurity.org/72104/the-supreme-courts-attack-on-habeas-corpus-in-dhs-v-thuraissigiam [https://perma.cc/3DTQ-7UB4]. In order to aid scholars’ and jurists’ efforts to grapple with entry fiction’s paradigm shift, this Essay provides a novel conceptual framework to understand it.

It begins by contextualizing the historical use of the doctrine in a manner responsive to the principal separation-of-powers critique from which it suffers. Specifically, it understands entry fiction’s historical work as a kind of deference to the political branches’ political choice at the border — where those branches enjoy plenary power to set the terms of an arriving noncitizen’s admission. That understanding blunts the force of the separation-of-powers critique from a functionalist perspective of the doctrine, which cares more about the degree of one branch’s encroachment on another than the formalist perspective does, which concerns itself with the fact of encroachment. The Essay then probes the entry fiction’s novel use, arguing that its conceptual work is fundamentally distinct, offending the separation of powers in a different way. In the novel context, the immigration authorities have not made an ex ante political choice at the border to which courts may defer, as that noncitizen has evaded them. Thus, the entry fiction becomes a tool for the judiciary to act as a third political branch: courts pretend that a noncitizen is still at the border and, meeting her there, ask a purely political question (“Should she be let in?”) and answer it themselves (“No.”). The Essay submits that such judicial aggrandizement is indefensible no matter what view of the separation of powers one takes.

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* Yale Law School, J.D. 2019. Many thanks to Tobias Kuehne for invaluable feedback on an earlier draft. I am also grateful to the editors of the Harvard Law Review for their excellent editorial
support.