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.
Vijayakumar Thuraissigiam had made it twenty-five yards into the United States when he was arrested.1 He had fled his native country of Sri Lanka, where Thuraissigiam claimed to have faced severe persecution as a Tamil man2 and supporter of a Tamil political candidate.3 He alleged that, in 2007, he was “detained and beaten” by Sri Lankan officers, who instructed him not to support the Tamil candidate.4 But Thuraissigiam maintained his support, backing the candidate in 2014 — prompting Sri Lankan officials to once again punish him.5 Thuraissigiam alleged that government intelligence officers approached him on his farm and shoved him into a van,6 after which they bound and beat him “during an interrogation about his political activities.”7 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 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 He crossed just west of the San Ysidro Port of Entry in Southern California.10
After arresting Thuraissigiam, U.S. immigration authorities promptly placed him in expedited removal proceedings.11 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 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 Thuraissigiam therefore never saw his asylum application formally adjudicated in an ordinary removal hearing.14 Thuraissigiam’s case was instead returned to the Department of Homeland Security (DHS) for his expedited removal.15
Though convinced that the government had committed numerous errors in issuing its negative credible fear determination,16 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 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 But the Supreme Court, in Department of Homeland Security v. Thuraissigiam,19 disagreed, employing an originalist account of the Suspension Clause at odds with the Ninth Circuit’s reasoning.20
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 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 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 Once fictitiously “assimilated to [the] status” of a noncitizen on the “threshold of initial entry,” Thuraissigiam was denuded of comprehensive constitutional rights.24 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 For Thuraissigiam, who faced expedited removal, that meant virtually no process at all.26
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 Numerous commentators have observed the flaws in that doctrine.28 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
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 Indeed, as far back as the 1903 case of Yamataya v. Fisher,31 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 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
Thuraissigiam’s novel use of the entry fiction occurred in a few paragraphs bereft of any meaningful analysis,34 and the academy is only beginning to analyze it.35 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 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.
* 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