The habeas corpus suspension clause after Boumediene v. Bush

Columbia Law Review

Volumn 110, Issue 2, 2010, Pages 537-538

  Neuman, Gerald L ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77950470664     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (315)

1. Zechanah Chafee, Jr., The Most Important Human Right in the Constitution, 32 B.U. L. Rev. 143, 143 (1952).
2. -128 S. Ct. 2229 (2008).
3. Id. at 2258-2259
4. Id. at 2276-2277
5. Id. at 2262.
6. Id. at 2274.
7. See, e.g., Felker v. Turpin, 518 U.S. 651, 663-664 (1996) (holding that new statutory restrictions on successive habeas petitions did not violate Suspension Clause).
8. See, e.g., INS v. St. Cyr, 533 U.S. 289, 305 (2001) (interpreting statute to avoid "serious Suspension Clause issue").
9. U.S. Const, art. I, §9, cl. 2.
10. Henry Paul Monaghan, Doing Originalism, 104 Colum. L. Rev. 32, 38 n.37 (2004) (quoting The Federalist No. 37, at 229 (James Madison) (Clinton Rossiter ed., 1961)).
11. Pub. L. No.109-366, §7, 120 Stat. 2600, 2635-36 (2006) (codified at 28 U.S.C. § 2241(e) (2006)).
12. Boumediene v. Bush, 128 S. Ct. 2229, 2274 (2008).
13. Pub. L. No.109-148, tit. X, 119 Stat. 2739 (codified at 10 U.S.C. §801 (2006)).
14. Boumediene, 128 S. Ct. at 2272-2274
15. Justice Souter filed a short concurring opinion, joined by Justices Ginsburg and Breyer, emphasizing a few points in response to the dissents, but wholly consistent with the majority opinion. Id. at 2277-2279 (Souter, J., concurring).
16. The principal argument of the Roberts dissent was that the Suspension Clause had not been violated, even if it applied to the prisoners. Id. at 2279-80 (Roberts, C.J., dissenting).
17. The principal argument of the Scalia dissent was that the prisoners were not protected by the Suspension Clause because of their location and foreign nationality. Id. at 2293-2294 (Scalia, J., dissenting).
18. -533 U.S. 289, 313-314 (2001).
19. Boumediene, 128 S. Ct. at 2248, 2266-2267
20. St. Cyr, 533 U.S. at 314. The Court made clear that Congress was free to replace district court habeas jurisdiction over removal orders with an adequate and effective substitute remedy in the courts of appeals, id. at 314 &: n.38, and Congress subsequently amended the statute for that purpose in 2005,
21. see Gerald L. Neuman, On the Adequacy of Direct Review After the REAL ID Act of 2005, 51 N.Y.L. Sch. L. Rev. 133, 134 (2006) [hereinafter Neuman, Adequacy of Direct Review].
22. St. Cyr, 533 U.S. at 301 (footnote omitted) (quoting Felker v. Turpin, 518 U.S. 651, 663-664 (1996)).
23. Id. at 301-302
24. Id. at 302.
25. Id. at 303-305
26. That is, the four propositions confirmed in Boumediene do not entail the truth of the fifth, but rejection of the first or fourth proposition would have required rejection of the fifth.
27. St. Cyr, 533 U.S. at 337 (Scalia, J., dissenting).
28. Id. at 337-338
29. Id. at 304 n.24 (majority opinion);
30. see Gerald L. Neuman, The Habeas Corpus Suspension Clause After INS v. St. Cyr, 33 Colum. Hum. Rts. L. Rev. 555, 570-587 (2002) [hereinafter Neuman, Suspension After St. Cyr] (rebutting argument that Suspension Clause restricts only temporary suspensions).
31. -542 U.S. 507, 554, 558, 575 (2004) (Scalia, J., dissenting).
32. Boumediene v. Bush, 128 S. Ct. 2229, 2247 (2008) (quoting Hamdi, 542 U.S. at 536).
33. See id. at 2262 ("The MCA does not purport to be a formal suspension of the writ; and the Government, in its submissions to us, has not argued that it is.");
34. id. at 2274 ("[I]t suffices that the Government has not established that the detainees' access to the statutory review provisions at issue is an adequate substitute for the writ of habeas corpus. MCA §7 thus effectuates an unconstitutional suspension of the writ.").
35. Id. at 2240, 2264-65.
36. The Court also referred to an "adequate substitute" or a "constitutionally adequate substitute," apparently as synonyms for an "adequate and effective" substitute. The use of the latter phrase in the Suspension Clause context derives from United States v. Hayman, 342 U.S. 205, 209 (1952) ("inadequate or ineffective"), and 28 U.S.C. §2255 (2006) (same).
37. See Boumediene, 128 S. Ct. at 2271-2274 (finding reviewing authority of court of appeals inadequate substitute for the writ).
38. Id. at 2266-2267 (citations omitted).
39. Professor Meltzer notes that the year 1789 (date of the First Judiciary Act), rather than 1787 (date of the Philadelphia Convention) or 1788 (date of sufficient ratification), is probably not the appropriate baseline for an originalist account, and that it may have entered the Court's discourse on the Suspension Clause by inadvertence and then been propagated.
40. Daniel J. Meltzer, Habeas Corpus, Suspension, and Guantanamo: The Boumediene Decision, 2008 Sup. Ct. Rev. 1, 15 n.62. I will nonetheless continue to refer loosely to 1789 because the Court does (and refer to Guantanamo without an accent with the same alibi).
41. INS v. St. Cyr, 533 U.S. 289, 300-301 (2001) (citations omitted).
42. -128 S. Ct. at 2248 (citing St. Cyr, 533 U.S. at 300-01).
43. See St. Cyr, 533 U.S. at 341-42 (Scalia, J., dissenting) (arguing that at most Suspension Clause "guarantees the common-law right of habeas corpus, as it was understood when the Constitution was ratified");
44. see also Boumediene, 128 S. Ct. at 2297 (Scalia, J., dissenting) ("The writ as preserved in the Constitution could not possibly extend farther than the common law provided when that Clause was written.").
45. -128 S. Ct. at 2251 (emphasis added).
46. Id. at 2276.
47. Cf. Schenckloth v. Bustamonte, 412 U.S. 218, 256 (1973) (Powell, J., concurring) ("No one would now suggest that this Court be imprisoned by every particular of habeas corpus as it existed in the late 18th and 19th centuries.").
48. The adoption of that balancing methodology clearly refutes the fallacy Justice Scalia promoted in his dissent in St. Cyr, that the only possible interpretations of the Suspension Clause are that it preserves the writ as it existed when the Constitution was ratified, or that it is a "one-way ratchet," preserving every statutory expansion of the writ that Congress enacts.
49. See 533 U.S. at 341-42 Sc n.5 (Scalia, J., dissenting).
50. Id. at 301-02 (majority opinion);
51. see Gerald L. Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 987-1020 (1998) (describing history of habeas practice in deportation and analogous contexts).
52. -533 U.S. at 301.
53. -128 S. Ct. at 2262.
54. -339 U.S. 763 (1950). The Eisentrager petitioners were German nationals serving a sentence in an Allied prison in occupied Germany after conviction for war crimes by a U.S. military commission in China.
55. Id. at 765-66.
56. The Court held that they were not entitled to challenge their detention by habeas corpus. Id. at 777-81.
57. The Boumediene majority interpreted this decision as resting on "[p]radical considerations" rather than solely on the nationality and extraterritorial location of the petitioners. 128 S. Ct. at 2257.
58. Boumediene, 128 S. Ct. at 2259. The Court described these as three factors, but the first two have subcomponents.
59. Id. at 2257.
60. Cf. id. at 2270-2271 (discussing scope of review of military trials of enemy soldiers in U.S. territory as illustrated by In re Yamashita, 327 U.S. 1 (1946), and Ex parte Quirin, 317 U.S. 1 (1942)).
61. See, e.g., id. at 2246 (describing habeas corpus as "an essential mechanism in the separation-of-powers scheme");
62. id. at 2259 ("an indispensable mechanism for monitoring the separation of powers");
63. id. at 2277 ("Within the Constitution's separation-of-powers structure, few exercises of judicial power are as legitimate or as necessary as the responsibility to hear challenges to the authority of the Executive to imprison a person."). It may deserve emphasis that habeas corpus played this role in the new system of separated powers adopted by the federal and state constitutions. Professors Halliday and White have cautioned against projecting U.S. conceptions of separated powers back onto English legal history, where they were not operative.
64. Paul D. Halliday &: G. Edward White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 594-595 & n.43 (2008).
65. Boumediene, 128 S. Ct. at 2269.
66. Id. at 2267.
67. -533 U.S. 289, 301 (2001).
68. -128 S. Ct. at 2266 (quoting St. Cyr, 533 U.S. at 302).
69. Id. at 2267.
70. For example, the passage could be understood as articulating the requirements of the Suspension Clause in full generality, without an implied limitation to the specific context of executive detention, and it is followed by mention of the lesser scope of review applicable after conviction by a court of record. Id. at 2268.
71. Subsequently, the Court leaves open the degree of review that would be required after conviction by a military commission that afforded adequate adversarial proceedings, id. at 2270-71
72. despite its executive character. Cf. Armann v. McKean, 549 F.3d 279, 286 (3d Cir. 2008)
73. (holding that "full and fair consideration" standard of Burns v. Wilson, 346 U.S. 137 (1953) (plurality opinion), still controls habeas review of court-martial conviction of servicemember), cert, denied, 130 S. Ct. 77 (2009).
74. It is also unclear to what extent the Court's reference to erroneous "application" of law requires review of so-called mixed questions of law and fact, involving the application of a legal standard to undisputed findings of fact, as opposed to "pure" questions of law like the one actually involved in St. Cyr. The circuits are currently in vigorous conflict on this point with regard to review of orders of removal of aliens.
75. Compare Viracacha v. Mukasey, 518 F.3d 511, 515 (7th Cir.) (only "pure" questions of law), cert, denied, 129 S. Ct. 451 (2008),
76. with Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.) (mixed questions of law and fact), reh'g en banc denied, 504 F.3d 973 (2007) (with dissents),
77. and JeanPierre v. U.S. Att'y Gen., 500 F.3d 1315, 1321 (11th Cir. 2007) (mixed questions of law and fact). For discussion of the need for review of mixed questions of law in immigration proceedings,
78. see Neuman, Adequacy of Direct Review, supra note 19, at 141, 154-55;
79. Aaron G. Leiderman, Note, Preserving the Constitution's Most Important Human Right: Judicial Review of Mixed Questions Under the REAL ID Act, 106 Colum. L. Rev. 1367 (2006);
80. cf. Richard H. Fallon, Jr. &: Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2095-111 (2007) (discussing habeas review of pure and mixed questions of law).
81. Boumediene, 128 S. Ct. at 2271-2272
82. Id. at 2281 (Roberts, C.J., dissenting). The majority rejected this argument. Id. at 2270 (majority opinion) ("Even when the procedures authorizing detention are structurally sound, the Suspension Clause remains applicable and the writ relevant.").
83. For example, in Zadvydas v. Davis, 533 U.S. 678 (2001), the Court held that regardless of the procedures offered, the executive lacked the authority to detain indefinitely a stateless immigrant who could not be successfully deported.
84. Boumediene, 128 S. Ct. at 2277 ("The Framers decided that habeas corpus, a right of first importance, must be a part of [the legal] framework [that reconciles liberty and security].").
85. Id. at 2260;
86. see also id. at 2262 ("[B]efore today the Court has never held that noncitizens detained by our Government in territory over which another country maintains de jure sovereignty have any rights under our Constitution. . . . [But under the current] circumstances the lack of a precedent on point is no barrier to our holding."). The dissenters also characterized the Suspension Clause as conferring a right, though they did so for the purpose of subsuming it under their general view that foreign nationals have no extraterritorial constitutional rights.
87. See, e.g., id. at 2293 (Scalia, J., dissenting) ("[T]he Court confers a constitutional right to habeas corpus on alien enemies . . . .").
88. Id. at 2246 (majority opinion).
89. Id.
90. Id.
91. Id. at 2259.
92. Id. at 2263. In context, the Court meant the issues raised by denying the petitioners access to habeas, not the issues raised by judicial interference with military detention.
93. Id. at 2277. But cf. id. at 2298 (Scalia, J., dissenting) ("'Manipulation' of the territorial reach of the writ by the Judiciary poses just as much of a threat to the proper separation of powers as 'manipulation' by the Executive.").
94. Id. at 2259 (majority opinion).
95. Id. at 2269.
96. Boumediene v. Bush, 476 F.3d 981, 994-95 (D.C. Cir. 2007) (Rogers, J., dissenting), rev'd, 128 S. Ct. 2229 (2008).
97. -494 U.S. 259, 267 (1990).
98. See Brief for Amici Curiae Coalition of Non-Governmental Organizations in Support of Petitioners at 11, Boumediene, 128 S. Ct. 2229 (Nos. 06-1195, 06-1196), 2007 WL 2428372, at *11 ("Petitioners should prevail regardless of whether they have constitutional rights because . . . the MCA violates separation of powers principles.");
99. Brief of the Cato Institute as Amicus Curiae in Support of Petitioners at 7, Boumediene, 128 S. Ct. 2229 (Nos. 06-1195, 06-1196), 2007 WL 2441584, at *7 (" [I]t is simply incorrect to analyze the issue in this case in terms of the 'constitutional rights of aliens.' At its core, habeas is a separation of powers principle.") (emphasis omitted).
100. -128 S. Ct. at 2255-58;
101. see Gerald L. Neuman, The Extraterritorial Constitution After Boumediene v. Bush, 82 S. Cal. L. Rev. 259, 263-65, 272 (2009) [hereinafter Neuman, Extraterritorial].
102. See, e.g., Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 848 (1986) (explaining that Article III, Section 1 protects both waivable personal right to independent judge and unwaivable structural principle);
103. Austin v. New Hampshire, 420 U.S. 656, 662 (1975) (explaining that Privileges and Immunities Clause of Article IV "implicates not only the individual's right to nondiscriminatory treatment but also, perhaps more so, the structural balance essential to the concept of federalism");
104. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1132 (1991) (emphasizing structural significance of many provisions of Bill of Rights).
105. See, e.g., Jurney v. MacCracken, 294 U.S. 125, 149-50 (1935) (upholding on habeas the arrest of private citizen by sergeant at arms of Senate to punish him for destroying documents in contempt of Senate);
106. McGrain v. Daugherty, 273 U.S. 135, 175 (1927) (upholding on habeas the arrest of reluctant witness by deputy sergeant at arms of Senate);
107. Marshall v. Gordon, 243 U.S. 521, 545-46 (1917) (discharging on habeas a district attorney arrested by sergeant at arms of House for contempt, on grounds that punishing defamatory letter was not within implied congressional contempt power);
108. cf. Josh Chafetz, Executive Branch Contempt of Congress, 76 U. Chi. L. Rev. 1083, 1152-53 (2009) (proposing renewed exercise of direct enforcement of contempt power by House and Senate).
109. See 128 S. Ct. at 2267-2268, 2270.
110. See id. at 2267-68 (citing Ex parte Pattison, 56 Miss. 161, 164 (1878);
111. People v. Martin, 7 N.Y. Leg. Obs. 49, 56 (1848);
112. Ex parte Foster, 5 Tex. Ct. App. 625, 644 (1879)).
113. I do not mean to argue that the majority inappropriately generalized from the examples it happened to cite, which were conveniently at hand in William S. Church's late nineteenthcentury treatise on habeas corpus, A Treatise of the Writ of Habeas Corpus (San Francisco, Bancroft-Whitney 1886), noted in Boumediene, 128 S. Ct. at 2268, but simply to show how the Court's interpretation of the content of the Suspension Clause was influenced by precedents that did not themselves implicate the separation of powers dimension of habeas corpus.
114. Boumediene, 128 S. Ct. at 2248 (citation omitted).
115. Id. at 2251. The three concurring Justices, however, stated that "no one who reads the Court's opinion in Rasul [v. Bush, 542 U.S. 466 (2004) (upholding statutory habeas jurisdiction over Guantanamo detainees),] could seriously doubt that the jurisdictional question must be answered the same way in purely constitutional cases, given the Court's reliance on the historical background of habeas generally in answering the statutory question."
116. Id. at 2278 (Souter, J., concurring).
117. Id. at 2261-62 (majority opinion). Kennedy had first expressed this approach in his concurring opinion in United States v. Verdugo-Urquidez, 494 U.S. 259, 277-78 (1990) (Kennedy, J., concurring). I discuss the majority's adoption of the functional approach in Neuman, Extraterritorial, supra note 72, at 261-274
118. But see Al Maqaleh v. Gates, 604 F. Supp. 2d 205, 230-31 (D.D.C. 2009) (finding Suspension Clause applicable to U.S. detention in Afghanistan of non-Afghan prisoners captured outside Afghanistan), interlocutory appeal docketed, Nos. 09-5265, 09-5266, 09-5267 (D.C. Cir. July 30, 2009).
119. Boumediene, 128 S. Ct. at 2258-2259
120. Id. at 2297 (Scalia, J., dissenting) (citation omitted) ("[T]he Court's conclusion that 'the common law [does not] yiel[d] a definite answer to the questions before us,' leaves it no choice but to affirm the Court of Appeals." (citation omitted)).
121. Id. at 2306.
122. Id. at 2266-2267 (majority opinion).
123. Id. at 2266. The majority characterizes this proposition as "uncontroversial," id., and the dissenters do not question it,
124. see id. at 2283 (Roberts, C.J., dissenting) ("Because the central purpose of habeas corpus is to test the legality of executive detention, the writ requires most fundamentally an Article III court able to hear the prisoner's claims and, when necessary, order release.").
125. Id. at 2271 (majority opinion).
126. Id.
127. See, e.g., Wilkinson v. Dotson, 544 U.S. 74, 85 (2005) (Scalia, J., concurring) (citing Rev. Stat. §761 (1873));
128. In re Bonner, 151 U.S. 242, 261 (1894) (delaying discharge of prisoner in interests of justice in order to permit correction of illegal sentence); 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure §§33.1, 33.3-33.4 (5th ed. 2005) (discussing habeas remedies other than immediate release).
129. See supra Part I.A.2.
130. -424 U.S. 319, 335 (1976).
131. Boumediene, 128 S. Ct. at 2266-2267
132. Id. at 2267.
133. See, e.g., Clarke D. Forsythe, The Historical Origins of Broad Federal Habeas Review Reconsidered, 70 Notre Dame L. Rev. 1079, 1094 (1995) ("At common law, the allegations in the 'return' were deemed conclusive and could not be controverted by the prisoner.");
134. Brief for the Respondents at *37 n.15, Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (No.03-6696), 2004 WL 724020 (citing Forsythe, supra);
135. see also Motion for Leave to File Supplemental Brief and Supplemental Brief for Respondents at 5, Boumediene, 128 S. Ct. 2229 (Nos. 06-1195, 06-1196), 2007 WL 4547846 ("[T]he common-law rule against controverting the return was not modified until the habeas statute of 1816 . . . .").
136. Specifically, the Court stated: The idea that the necessary scope of habeas review in part depends upon the rigor of any earlier proceedings accords with our test for procedural adequacy in the due process context.
137. See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (noting that the Due Process Clause requires an assessment of, inter alia, "the risk of erroneous deprivation of [a liberty interest;] and the probable value, if any, of additional procedural safeguards").
138. This principle has an established foundation in habeas corpus jurisprudence as well .... Boumediene, 128 S. Ct. at 2268 (emphasis omitted).
139. Id. at 2270 (citing Swain v. Pressley, 430 U.S. 372 (1977), and United States v. Hayman, 342 U.S. 205 (1952)).
140. -342 U.S. 205. Hayman had argued that his conviction was tainted by ineffective assistance of counsel due to an undisclosed conflict of interest.
141. Id. at 208. The trial court, applying the recently enacted §2255 motion procedure,
142. see 28 U.S.C. §2255 (2006), investigated the facts at an ex parte hearing, and concluded that Hayman had consented to his attorney's representation of a principal witness against him. 342 U.S. at 208-09. The court of appeals held that the ex parte hearing was authorized by §2255, and that the motion procedure therefore did not provide a constitutionally adequate substitute for habeas corpus.
143. Id. at 209. The Supreme Court then reversed, holding that §2255 did not permit the trial court to resolve the factual dispute ex parte, and also that the savings clause allowing resort to habeas when the motion procedure was inadequate or ineffective made it unnecessary to reach the Suspension Clause issue.
144. Id. at 220, 223. The Court observed in Massaro v. United States, 538 U.S. 500, 504-05 (2003), that questions of ineffective assistance of counsel frequently require collateral review rather than direct appeal, because the relevant facts do not appear on the original trial record.
145. More precisely, "the private interest that will be affected by the official action" and "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, 424 U.S. at 335.
146. Boumediene, 128 S. Ct. at 2269.
147. Id. at 2270.
148. Id. at 2276. Whether the dissenters agreed with the incorporation of balancing methodology into Suspension Clause doctrine is unclear. In an ambiguous passage, Chief Justice Roberts appeared to go further than the majority in equating Suspension Clause analysis and due process balancing.
149. Id. at 2283 (Roberts, C.J., dissenting). This acceptance of balancing occurred, however, in the context of an argument that the Court's earlier decision in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), had already identified the constitutionally necessary procedures for conducting the detentions and that the CSRTs provided them. Elsewhere, Roberts entertained other possible standards, including a 1789 baseline that he understood as providing no review at all. Boumediene, 128 S. Ct. at 2287 (Roberts, C.J., dissenting). All four dissenters joined in both dissenting opinions.
150. On the distinction between constitutional norms and the doctrines adopted to implement them,
151. see generally Mitchell N. Berman, Constitutional Decision Rules, 90 Va. L. Rev. 1 (2004) (proposing taxonomy of decision rules adopted to give effect in adjudication to constitutional provisions);
152. Richard H. Fallon, Jr., Foreword Implementing the Constitution, 111 Harv. L. Rev. 56 (1997) (explaining and illustrating Supreme Court's adoption of multifactor tests that supplement Constitution's meaning in order to implement it effectively).
153. See, e.g., Hamdi, 542 U.S. at 528-29 (plurality opinion) (applying Mathews v. Eldridge to determine procedure required by due process for detaining citizen as enemy combatant);
154. id. at 565-67, 575-76 (Scalia, J., dissenting) (arguing that early nineteenthcentury state precedents and his resulting interpretation of Suspension Clause, rather than Mathews v. Eldridge, should determine required procedure);
155. Dusenbery v. United States, 534 U.S. 161, 167-68 (2002) (holding adequacy of method of notice in administrative forfeiture proceeding should be decided by analogical reasoning from Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950), rather than by applying Mathews v. Eldridge);
156. Weiss v. United States, 510 U.S. 163, 177-78 (1994) (rejecting application of Mathews v. Eldridge to fairness of military trial procedures, and applying deferential review as articulated in Middendorf v. Henry, 425 U.S. 25 (1976));
157. id. at 197-99 (Scalia, J., concurring in the judgment) (arguing that consistent historical practice is sufficient basis to uphold practice of military judges without fixed terms);
158. United States v. James Daniel Good Real Prop., 510 U.S. 43, 53-61 (1993) (applying Mathews v. Eldridge to civil forfeiture procedure, and limiting nineteenth-century precedents to exigencies of their period);
159. id. at 67 (Rehnquist, C.J., dissenting in part) (criticizing "[t]he Court's fixation on Mathews" and arguing that historical practices and Fourth Amendment doctrine should govern);
160. Medina v. California, 505 U.S. 437, 443-45 (1992) (expressing reluctance to apply Mathews v. Eldridge to state criminal procedures); id. at 453-455 (O'Connor, J., concurring in the judgment) (defending application of Mathews v. Eldridge to criminal procedure).
161. I put "accuracy" in scare quotes because in the context of review of issues of law, legal validity rather than factual accuracy is the object of the inquiry, and it is not immediately clear what guarantees of correctness could suffice.
162. See supra Part I.A.4 (discussing this distinction).
163. These three questions are the subject of a vast literature, and were previously discussed against the background of the reasoning of the St. Cyr decision in Neuman, Suspension After St. Cyr, supra note 27, at 595-621. I do not repeat all the legal and historical arguments included in that article here, but rather reexamine the issues in light of Boumediene.
164. See, e.g., William F. Duker, A Constitutional History of Habeas Corpus 126-80 (1980) (arguing Clause was intended to restrict Congress's power to suspend state habeas for federal prisoners);
165. Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale LJ. 1425, 1509-10 (1987) [hereinafter Amar, Sovereignty and Federalism] (same).
166. As a result of Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), and Ex parte Bollman, 8 U.S. (4 Cranch) 75 (1807), the Supreme Court could not exercise original jurisdiction over a writ challenging executive detention unless the detainees were "Ambassadors, other public Ministers [or] Consuls,"
167. see U.S. Const, art. III, §2.
168. -62 U.S. (21 How.) 506 (1858).
169. -80 U.S. (13 Wall.) 397 (1872).
170. See, e.g., Duker, supra note 106, at 152-155 (describing decisions as erroneous); Amar, Sovereignty and Federalism, supra note 106, at 1510 (arguing for interpretation of decisions as "attributing to Congress a desire for exclusive federal court jurisdiction in habeas proceedings against federal officers").
171. E.g., Francis Paschal, The Constitution and Habeas Corpus, 1970 Duke L.J. 605, 607-608
172. -8 U.S. (4 Cranch) at 95.
173. Id.
174. On the other hand, the proponents of the Military Commissions Act might indeed (if they had thought of the question) have preferred giving a state the opportunity to deny habeas rights to the Guantanamo detainees over the certainty that a federal court would afford them.
175. Boumediene v. Bush, 128 S. Ct. 2229, 2247, 2262 (2008).
176. See Gasquet v. Lapeyre, 242 U.S. 367, 369 (1917) (holding that Suspension Clause does not restrict action of states);
177. Barron v. Mayor of Bait., 32 U.S. (7 Pet.) 243, 248-49 (1833) (explaining that Article I, Section 9 limits federal government and not states). Whether the Fourteenth Amendment should protect some corresponding right may be a harder question, but thus far the Supreme Court has not held that it does.
178. Boumediene, 128 S. Ct. at 2246.
179. See Neuman, Suspension After St. Cyr, supra note 27, at 597-598 (discussing geographical facts of Bollman, and their implications for obligation theory of Suspension Clause).
180. Swain v. Pressley, 430 U.S. 372, 385 (1977) (Burger, C.J., concurring in the judgment). Of course, the significance of this claim would depend upon the meaning of the term "competent jurisdiction," which might be limited by a broad category of jurisdictional error.
181. See supra Parts I.A.4, I.B.1.
182. Boumediene, 128 S. Ct. at 2270 (citation omitted).
183. Consider, for example, convictions for petty offenses or misdemeanors by the current magistrate judges or the former U.S. commissioners. Cf. United States v. Bryson, 981 F.2d 720, 721 (4th Cir. 1992) (holding magistrate judge lacked nonconsensual jurisdiction over §2255 proceeding challenging his earlier acceptance of guilty plea). United States district judges are not "inferior courts" within the meaning of common law habeas doctrine.
184. Boumediene, 128 S. Ct. at 2267.
185. Id. at 2268.
186. -100 U.S. 371, 376-377 (1879).
187. See, e.g., Lester B. Orfield, Federal Criminal Appeals, 45 Yale L.J. 1223, 1224-25 (1936) (noting first creation of appeal from district courts to circuit courts in 1879 and from circuit courts to Supreme Court in 1889). A right of appeal might be an adequate substitute, but a discretionary remedy such as certiorari would not. Habeas corpus is a "writ of right," a remedy available by right to those who meet the relevant criteria.
188. Boumediene, 128 S. Ct. at 2267 (quoting Rollin C. Hurd, A Treatise on the Right of Personal Liberty, and on the Writ of Habeas Corpus and the Practice Connected with It 222 (Albany, W.C Little & Co., 2d ed. 1876));
189. R.J. Sharpe, The Law of Habeas Corpus 58 (2d ed. 1989). The Boumediene decision includes an important reminder that discretionary reopening is not an adequate substitute for the writ. 128 S. Ct. at 2273-2274
190. See 128 S. Ct. at 2270. The Court's citations included Frank v. Mangum, 237 U.S. 309 (1915), which involved the question of mob intimidation of a trial court, shown by evidence outside the trial record, and United States v. Hayman, 342 U.S. 205 (1952), which involved the question of ineffective counsel due to conflicted representation, shown by evidence outside the trial record, cf. supra note 96 and accompanying text (discussing Hayman). Assuming that such issues are within the mandatory scope of the writ (which they might or might not be), a criminal appeal limited to the trial record would not provide an adequate substitute.
191. -128 S. Ct. at 2248 (quoting INS v. St. Cyr, 533 U.S. 289 (2001)).
192. St. Cyr, 533 U.S. at 302 (footnotes omitted).
193. See, e.g., 128 S. Ct. at 2247 (citing Preiser v. Rodriguez, 411 U.S. 475 (1973));
194. id. at 2264, 2276 (citing Felker v. Turpin, 518 U.S. 651 (1996));
195. id. at 2267 (citing Chessman v. Teets, 354 U.S. 156 (1957));
196. id. at 2268 (citing Brown v. Allen, 344 U.S. 443 (1953), and Ex parte Royall, 117 U.S. 241 (1886)).
197. Id. at 2248.
198. See, e.g., Hertz & Liebman, supra note 88, at §7.2d (advocating this approach and citing cases that support it);
199. Jordan Steiker, Incorporating the Suspension Clause Is There a Constitutional Right to Federal Habeas Corpus for State Prisoners?, 92 Mich. L. Rev. 862 (1994) (advocating this approach at length).
200. See, e.g., Vicki C. Jackson, Holistic Interpretation: Fitzpatrick v. Bitzer and Our Bifurcated Constitution, 53 Stan. L. Rev. 1259, 1267-69 (2001) (defending reinterpretation of Fifth Amendment in light of Fourteenth Amendment within broader methodology of synthesizing older and newer constitutional provisions);
201. Richard A. Primus, Boiling Alone, 104 Colum. L. Rev. 975, 982-89 (2004) (describing development of "reverse incorporation").
202. Neuman, Suspension After St. Cyr, supra note 27, at 585.
203. Similar issues can also arise with regard to postconviction relief for a federal prisoner who claims innocence, but they arise more often for state prisoners given the greater frequency of capital sentences in the states.
204. See, e.g., Henry J. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 166-67 (1970) (arguing that federal habeas relief for most constitutional errors should be conditioned on showing of innocence, and that sufficient demonstration of innocence should be itself basis of relief);
205. Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629, 1699-714 (2008) (marshalling arguments for due process innocence standard, particularly given advent of DNA exoneration, while finding its adoption by the Court unlikely).
206. But see Carol S. Steiker & Jordan M. Steiker, The Seduction of Innocence: The Attraction and Limitations of the Focus on Innocence in Capital Punishment Law and Advocacy, 95 J. Crim. L. & Criminology 587, 615-16 (2005) (warning that concentration on innocence claims distracts from other forms of unjust conviction and unjust sentencing).
207. See Garrett, supra note 136, at 1686-1692 (describing several ways that innocence is currently taken into account in federal postconviction law).
208. -506 U.S. 390, 400-411 (1993).
209. Id. at 417;
210. see also Dist. Att'y's Office v. Osborne, 129 S. Ct. 2308, 2321 (2009) ("Whether such a federal right exists is an open question.").
211. House v. Bell, 547 U.S. 518, 555 (2006) (internal quotation marks omitted). The Court found that the petitioner had made a sufficiently strong gateway showing of probable innocence (more precisely, "that more likely than not any reasonable juror would have reasonable doubt" of his guilt given the subsequently available evidence,
212. id. at 538)
213. that he should be permitted to raise previously defaulted claims of ineffective assistance of counsel and prosecutorial misconduct. Id. at 534-54. The Court also concluded that the showing was insufficient to support a "hypothetical freestanding innocence claim."
214. Id. at 555.
215. In re Davis, 130 S. Ct. 1, 1 (2009). The order transferred an original writ of habeas corpus from the Supreme Court to the district court for a hearing and factfinding. Id.
216. Id. at 3 (Scalia, J., dissenting, joined by Thomas, J.). A concurrence rejected the view that courts "must treat even the most robust showing of actual innocence identically on habeas review to an accusation of minor procedural error."
217. Id. at 2 (Stevens, J., concurring, joined by Ginsburg and Breyer, JJ.).
218. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.' " (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990))).
219. Detention resulting from an erroneous interpretation of state law is not ipso facto detention in violation of due process.
220. E.g., Pulley v. Harris, 465 U.S. 37, 41-42 (1984);
221. Engle v. Isaac, 456 U.S. 107, 119-21 & n.21 (1982). The jurisdictional situation might change if Congress someday enacted legislation implementing the obligations of the United States under the International Covenant on Civil and Political Rights, which prohibits unlawful deprivations of liberty, and requires a judicial remedy to redress them.
222. See International Covenant on Civil and Political Rights arts. 9(1), 9(4), adopted Dec. 16, 1966, S. Exec. Doc. E, 95-2 (1978), 999 U.N.T.S. 171. That is unlikely to happen soon.
223. For a more detailed argument as of 2002, see Neuman, Suspension After St. Cyr, supra note 27, at 600-603
224. Pub. L. No.104-208, 110 Stat. 3009-3546 (codified in scattered sections of 8 U.S.C.).
225. Immigration and Nationality Act of 1952, ch. 477, 66 Stat. 163 (codified as amended in 8 U.S.C.). After numerous amendments, including those made by IIRIRA, the INA continues to provide the basic structure for regulating migration to the United States.
226. See Thomas Alexander Aleinikoff et al., Immigration and Citizenship: Process and Policy 213 (6th ed. 2008) (explaining these terms).
227. See, e.g., Demore v. Kim, 538 U.S. 510, 513 (2003) (upholding statutory provisions requiring mandatory detention of certain aliens prior to hearing on their deportability);
228. Zadvydas v. Davis, 533 U.S. 678, 682 (2001) (interpreting statute as imposing limits on how long alien who has been ordered removed can be detained when foreign governments refuse to receive him).
229. See United States v. Jung Ah Lung, 124 U.S. 621, 626 (1888) (holding that detention of an arriving passenger to prevent his entry was subject to habeas corpus challenge). As the district court in that case stated: If the denial, therefore, to the petitioner of the right to land, thus converting the ship into his prison-house, to be followed by his deportation across the sea to a foreign country, be not a restraint of his liberty within the meaning of the habeas corpus act, it is not easy to conceive any case that would fall within its provisions. In re Jung Ah Lung, 25 F. 141, 142 (D. Cal. 1885), affd, 124 U.S. 621 (1888).
230. See, e.g., In re Kaine, 55 U.S. (14 How.) 103, 111-12 (1853) (discussing habeas corpus review of extradition);
231. Ex parte D'Olivera, 7 F. Cas. 853, 854 (C.C.D. Mass. 1813) (No.3967) (Story, Circuit Justice) (reviewing on habeas detention of deserters from foreign vessel). Both these decisions were cited in INS v. St. Cyr, 533 U.S. 289, 302 n.16, 305-06 (2001).
232. See 8 U.S.C. §1252 (2006) (setting out structure of judicial review for final orders of removal).
233. -533 U.S. at 314.
234. Id.
235. See REAL ID Act of 2005, Pub. L. No.109-13, div. B, §106, 119 Stat. 231, 310-311 (amending 8 U.S.C. §1252).
236. See generally Neuman, Adequacy of Direct Review, supra note 19 (explaining effect of 2005 amendments).
237. -128 S. Ct. 2229, 2267 (2008).
238. This section summarizes an argument that I first made as coauthor of the Brief Amicus Curiae of Law Professors in Support of Petitioner, Nken v. Mukasey, 129 S. Ct. 1749 (2009) (No.08-681), 2008 WL 5433362.
239. Deportation may be used as an alternative to extradition in situations where an extradition treaty is lacking, or extradition is regarded as too cumbersome, or other obstacles arise. See, e.g., INS v. Doherty, 502 U.S. 314, 318-20 (1992) (reviewing deportation proceedings against Irish Republican Army terrorist for purpose of imprisonment after extradition had been denied);
240. Rodrigo Labardini, Life Imprisonment and Extradition: Historical Development, International Context, and the Current Situation in Mexico and the United States, 11 Sw. J.L. & Trade Am. 1, 19 (2005) (noting continual use of deportation in lieu of extradition from United States to Mexico, and vice versa). The Suspension Clause is also relevant to U.S. citizens in the context of extradition, because the United States does not oppose the practice of extraditing its own nationals.
241. See, e.g., 1 Restatement (Third) of the Foreign Relations Law of the United States, introductory note at 558 (1987) (describing U.S. acceptance of extradition of nationals);
242. Ethan A. Nadelmann, The Evolution of United States Involvement in the International Rendition of Fugitive Criminals, 25 N.Y.U. J. Int'l L. & Pol. 813, 847-52 (1993) (discussing history of U.S. policy on extradition of nationals).
243. U.S. law recognizes asylum claims from refugees who have a well-founded fear of persecution on grounds of race, religion, nationality, political opinion, or membership in a particular social group at the hands of private actors whom the state of nationality is unable or unwilling to control. See INS v. Elias-Zacarias, 502 U.S. 478, 483-484 (1992) (finding that asylum applicant had not sufficiently demonstrated motive of rebel group that threatened him). Persons who fear death on other grounds are not eligible for asylum, id. at 483, but they might benefit from a stay of removal if there were other legal objections to their deportation.
244. In re Kaine, 55 U.S. (14 How.) 103, 133-34 (1853) (Nelson, J., dissenting). Justice Nelson cited a version of Matthew Bacon, A New Abridgement of the Law (originally published in 1736) and several English cases. Id. at 134. Only Justice Curtis expressed a nuanced disagreement with this account, see id. at 122 (Curtis, J., concurring in the judgment) (arguing that custody does not actually change until habeas court so orders), and the Court divided on another issue. Rollin Hurd quoted this passage in his treatise, see Hurd, supra note 126, at 324, and the full Court paraphrased it in Barth v. Clise, 79 U.S. (12 Wall.) 400, 402 (1871) (citing Hurd, Kaine, and their sources).
245. Habeas Corpus Act of 1679, 31 Car. 2, c. 2, §§9, 12;
246. see 9 W.S. Holdsworth, A History of English Law 118 (1926) ("No persons are allowed to alter a prisoner's place of confinement, except in certain specific cases defined by the Act. No prisoners may be sent to Scotland, Ireland, or parts beyond the seas." (citation omitted));
247. Dallin H. Oaks, Habeas Corpus in the States-1776-1865, 32 U. Chi. L. Rev. 243, 252-53 (1965) (describing 1679 Act and its influence in the states). The 1679 Act applied only to criminal proceedings, but the reforms were extended to the common law writ by analogy. Id. at 253.
248. See, e.g., United States v. Shipp, 203 U.S. 563, 571-72 (1906) (discussing contempt proceeding against sheriff and others for letting lynch mob take possession of prisoner while his habeas appeal was pending before Supreme Court);
249. United States v. Davis, 25 F. Cas. 775, 775 (C.C.D.D.C. 1840) (No.14,926) (holding custodian in contempt for removing alleged slaves from District of Columbia to avoid writ for their freedom); In re Hamilton, 11 F. Cas. 319, 319 (S.D.N.Y. 1867) (No. 5976) (discussing commitment of officer for contempt of writ by transferring petitioner from Philadelphia to New York).
250. See, e.g., 111. Rev. Stat. 1845, ch. 48, sec. 14 (imposing criminal penalty for transfer with intent to avoid effect of writ);
251. Mass. Rev. Stat. 1836, ch. III, sec. 32 (imposing forfeiture of four hundred dollars for transfer with intent to avoid effect of writ);
252. N.Y. Rev. Stat. 1829, pt. III, ch. IX, tit. I, sec. 61 (punishing as misdemeanor transfer with intent to avoid effect of writ);
253. Wis. Rev. Stat. 1849, ch. 124, sec. 32 (same); Hurd, supra note 126, at 237 (mentioning statutes of six states).
254. See Sup. Ct. R. 34, 117 U.S. 708 (1886). This Rule was adopted to implement the restoration of the Supreme Court's jurisdiction in appeal over federal habeas corpus decisions, which had been conferred in 1867, Act of Feb. 5, 1867, ch. 28, §1, 14 Stat. 385 (current version at 28 U.S.C. §2251 (2006)), repealed in 1868, Act of Mar. 27, 1868, ch. 34, §2, 15 Stat. 44;
255. see Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514-15 (1869) (upholding repeal), and restored in 1885, Act of March 3, 1885, ch. 353, 23 Stat. 437.
256. "[P] ending such proceedings or appeal . . . any proceeding against such person . . . under the authority of any State ... in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void," and the appeal shall be taken "under such regulations and orders ... for the custody and appearance of the person alleged to be restrained of his or her liberty ... as may be prescribed by the Supreme Court, or, in default of such, as the judge hearing said cause may prescribe." Ch. 28, §1, 14 Stat, at 386 (authorizing stay).
257. Act of June 19, 1934, ch. 673, 48 Stat. 1177 (current version at 28 U.S.C. §2251).
258. See, e.g., Panetti v. Quarterman, 551 U.S. 930, 948-50 (2007) (discussing stay of execution on habeas when prisoner lacks mental competence to be executed);
259. Lonchar v. Thomas, 517 U.S. 314, 320 (1996) (discussing standard for stay of execution pending habeas corpus review of sentence);
260. Barefoot v. Estelle, 463 U.S. 880, 892-96 (1983) (same).
261. -129 S. Ct. 1749 (2009).
262. Act of Sept. 26, 1961, Pub. L. No.87-301, sec. 5, §106, 75 Stat. 650, 651.
263. See Aleinikoff et al., supra note 148, at 1151 (describing IIRIRA changes to judicial review).
264. As the Ninth Circuit has observed: In any case raising legal issues, INS's interpretation would require a more substantial showing for a stay of deportation than it would for a reversal on the merits. This would effectively require the automatic deportation of large numbers of people with meritorious claims, including every applicant who presented a case of first impression. Andreiv v. Ashcroft 253 F.3d 477, 482 (9th Cir. 2001) (en banc).
265. See Nken, 129 S. Ct. at 1755 (citing cases).
266. Id. at 1757-1758
267. Id. at 1759.
268. Id. at 1760.
269. Id.
270. Id. Elaborating how the usual standards for stays would apply in the removal context, the Court observed that the ordinary consequences of removal should not itself count as irreparable injury, emphasizing the Solicitor General's concession that "[a]liens who are removed may continue to pursue their petitions for review, and those who prevail can be afforded effective relief by facilitation of their return, along with restoration of the immigration status they had upon removal." Id. at 1761.
271. Cf. id. at 1768 (Alito, J., dissenting) ("And Congress is free to regulate or eliminate the relief that federal courts may award, within constitutional limits that the Court does not invoke here." (citing INS v. St. Cyr, 533 U.S. 289, 299-300 (2001))).
272. E.g., Comprehensive Immigration Reform Act of 2006, S. 2611, 109th Cong. § 227(c) (as read and placed on calendar Apr. 24, 2006); H.R. 688, 109th Cong. §530(b) (2005).
273. -8 U.S.C. §§1225(b)(1), 1252(a)(1), 1252(e) (2006).
274. See 8 U.S.C. §1225(b)(1)(A)(i) (cross-referencing inadmissibility grounds under 8 U.S.C. §1182(a)(6)(C), 1182(a)(7)). The relevant criteria are colloquially described as having fraudulent documents or no documents, but in fact arriving aliens whose papers are facially in order are nonetheless subject to expedited removal if (1) the inspector believes that the alien is giving false answers to oral questions; (2) the inspector believes that the alien has committed immigration fraud at some time in the past; (3) the inspector believes that the consul issued the wrong kind of documents to the alien. See Am. Immigration Lawyers Ass'n v. Reno, 18 F. Supp. 2d 38, 56-57 (D.D.C. 1998), aff d, 199 F.3d 1352, 1354 (D.C. Cir. 2000) (upholding application of expedited removal to aliens with facially valid visas); Inspection and Expedited Removal of Aliens, 62 Fed. Reg. 10,312, 10,318 (Mar. 6, 1997) (explaining basis and purpose of expedited removal regulations).
275. -8 U.S.C. §1225 (b)(1) (A) (iii)(I). The authority extends to aliens who are inadmissible on the same grounds as at the border, who have not been admitted or paroled into the United States, and who fail to show to the satisfaction of the officer that they have been present within the United States continuously for the preceding two years. Id. §1225(b)(1)(A)(iii)(II).
276. See, e.g., Notice of Designation of Aliens Subject to Expedited Removal Proceedings, 67 Fed. Reg. 68,925, 68,926 (Nov. 13, 2002) (extending expedited removal to aliens found anywhere in United States who allegedly arrived illegally by sea within preceding two years);
277. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48,877, 48,878 (Aug. 11, 2004) (extending expedited removal to aliens encountered within 100 miles of U.S. land border who allegedly arrived illegally within preceding two weeks, but limiting immediate application of rule to sectors of border with Mexico); DHS Announces Expedited Removal Along Northern Border and All Coastal Areas, 83 Interpreter Releases 253 (2006) (describing extension of implementation from southern border region to northern border and seacoasts).
278. -8 U.S.C. §1228(b). The procedure applies to aliens who have not been lawfully admitted to permanent residence (e.g., temporary visitors and illegal entrants) and who have been convicted of an "aggravated felony" (as defined in 8 U.S.C. §1101 (a) (43)). An "immigration judge" is the immigration law equivalent of an administrative law judge.
279. See, e.g., Flores-Ledezma v. Gonzales, 415 F.3d 375, 379, 381-82 (5th Cir. 2005) (contrasting §238(b) proceedings with normal removal proceedings and holding that executive discretion to choose which method to use does not violate equal protection); Aleinikoff et al., supra note 148, at 1093-1094 (describing §238(b) procedure).
280. See, e.g., U.S. Comm'n on Int'l Religious Freedom, Report on Asylum Seekers in Expedited Removal (2005) (2 volumes) [hereinafter U.S. CIRF, Asylum Seekers] (providing critical evaluation of expedited removal and its effect on refugees by government body);
281. David A. Martin, Two Cheers for Expedited Removal in the New Immigration Laws, 40 Va. J. Int'l L. 673, 682-88 (2000) (mixed evaluation of expedited removal by scholar who had served as INS General Counsel);
282. Michele R. Pistone & John J. Hoeffner, Rules Are Made to Be Broken: How the Process of Expedited Removal Fails Asylum Seekers, 20 Geo. Immigr. L.J. 167 (2006) (critical evaluation of expedited removal, primarily in relation to refugees).
283. Martin, supra note 186, at 695.
284. Pistone & Hoeffner, supra note 186, at 173.
285. Id. at 173, 184.
286. Id. at 173.
287. See Martin, supra note 186, at 682 & n.34 (observing that regulations added supervisory review despite seemingly inconsistent statutory language);
288. Pistone & Hoeffner, supra note 186, at 184-188 (describing evidence that supervisory review is lax).
289. See Martin, supra note 186, at 679.
290. Id.
291. -338 U.S. 537, 544 (1950). The notion that procedural due process does apply for returning permanent residents, though only if they have not been absent too long, rests on Kwong Hai Chew v. Colding, 344 U.S. 590, 596-98 & n.8 (1953), and Landon v. Plasencia, 459 U.S. 21, 32-35 (1982).
292. For Henry Hart's classic condemnation of the Knauff doctrine, see Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L. Rev. 1362, 1391-96 (1953).
293. Am. Immigration Lawyers Ass'n v. Reno, 199 F.3d 1352, 1356-57 (D.C. Cir. 2000), aff'g 18 F. Supp. 2d 38, 58-60 (D.D.C. 1998).
294. -8 U.S.C. §1252(e)(2) (2006).
295. See id. §1252(e)(5) (limiting review to existence of expedited removal order that applies to petitioner and barring review of its merit).
296. It purports to channel all challenges to the constitutionality of the statute or the regulations into an action in the District Court for the District of Columbia, which must be commenced within sixty days of the first implementation of the statute (i.e., in 1997) or regulation. Id. §1252(e)(3). The effort to confine all constitutional challenges to this long-closed statutory window would seem clearly unconstitutional with regard to subsequent victims, at least if they have any constitutional rights. See Gerald L. Neuman, Federal Courts Issues in Immigration Law, 78 Tex. L. Rev. 1661, 1676-1679 (2000) (explaining provision and arguing against its constitutionality).
297. Knauff, 338 U.S. at 540.
298. Id. at 540, 542-547
299. INS v. St. Cyr, 533 U.S. 289, 306-08 & nn.28-30 (2001).
300. Li v. Eddy, 259 F.3d 1132, 1136 (9th Cir. 2001), vacated as moot, 324 F.3d 1109 (9th Cir. 2003). The holding in Li v. Eddy was reaffirmed in Garcia de Rincon v. Department of Homeland Security, 539 F.3d 1133, 1141 (9th Cir. 2008); see also Vaupel v. Ortiz, 244 F. App'x 892, 895-96 (10th Cir. 2007) (accepting restriction on habeas corpus jurisdiction and citing Li v. Eddy). The nonprecedential Vaupel decision goes further than the Ninth Circuit, because it refuses to review the question whether an alien paroled into the United States and then rearrested twenty months later can be subjected to expedited removal as if he were just arriving. It is not self-evident that the statute authorizes expedited removal in this situation, or that it precludes review of whether expedited removal even applies. The Tenth Circuit rejected the view of a district court that the statute does not preclude review of the threshold question whether the agency has extended expedited removal beyond the settings in which it is authorized. Vaupel, 244 F. App'x at 895 (disagreeing with Am.-Arab Anti-Discrimination Comm. v. Ashcroft, 272 F. Supp. 2d 650 (E.D. Mich. 2003) (finding on habeas that section 235(b)(1) does not authorize belated expedited removal of aliens who have been paroled) ). The Tenth Circuit's decision comes close to holding that anything that the agency calls an expedited removal order is an expedited removal order insulated from judicial review. Perhaps the decision is implicitly limited to people whom the Tenth Circuit deems to lack Suspension Clause rights.
301. And also interesting to compare it with the D.C. Circuit's decision in Rasul v. Myers, 563 F.3d 527, 529 (D.C. Cir. 2009), which insisted even after Boumediene that the detainees at Guantanamo who had Suspension Clause rights did not have due process rights under precedents that it would follow until the Supreme Court expressly overruled them.
302. See, e.g., Brady McCombs, 'Catch-and-Release' Is Reality for Now, Ariz. Daily Star, Jan. 31, 2009, at Al (lamenting that Tucson sector Border Patrol agents cannot process more than a few dozen interior expedited removals per day without diverting resources from border);
303. Press Release, U.S. Customs & Border Prot. Pub. Affairs, Dep't of Homeland Sec., Border Patrol Agents Seize Nearly a Ton of Drugs in Arizona (Feb. 25, 2008), available at http://www.cbp.gov/xp/cgov/newsroom/news-releases/ archives/ 2008-news-releases/feb-2008/02252008-2.xml (on file with the Columbia Law Review) (noting that Mexican national arrested on reservation, smuggling marijuana on horseback, would be processed for expedited removal).
304. Congress evidently drafted this provision of IIRIRA in the hope of persuading the courts to overrule existing due process doctrine, by relabeling the deportation of unlawful entrants as denial of admission rather than deportation, and by conflating expedited removal from the interior with expedited removal at the border. Cf. Alison Siskin & Ruth Ellen Wasem, Cong. Research Serv., Immigration Policy on Expedited Removal of Aliens 13 (2008) ("Proponents of expanding expedited removal point to the law which states that aliens subject to expedited removal have not 'entered' [sic] the United States, and therefore are not entitled to these rights."); Martin, supra note 186, at 688-690 (explaining how expedited removal from the interior could be upheld through revision of Knauff doctrine).
305. That is, indicates, but does not hold, because St. Cyr ultimately rested on statutory interpretation. See St. Cyr, 533 U.S. at 300 ("Because of [the Suspension] Clause, some 'judicial intervention in deportation cases' is unquestionably 'required by the Constitution.'" (quoting Heikkila v. Barber, 345 U.S. 229, 235 (1953))).
306. See, e.g., Office of Immigration Statistics, Dep't of Homeland Sec., Immigration Enforcement Actions: 2008, at 4 tbl.2 (2009) (giving annual figures for expedited removals without differentiating between interior and border removals). Expedited removals in fiscal year 2008 totaled 113,500. Id.
307. The Southern Border in Crisis: Resources and Strategies to Improve National Security, Joint Hearing Before the Subcomm. on Immigration, Border Sec. and Citizenship and Subcomm. on Terrorism, Tech. and Homeland Sec. of the S. Comm. on the Judiciary, 109th Cong. 8 (2005) (statement of Wesley Lee, Acting Dir. of Detention and Removal Operations, Immigration and Customs Enforcement, Dep't of Homeland Sec). (The August 2004 regulation implementing interior removal in the vicinity of the U.S.-Mexico border is cited supra note 183.)
308. Id.
309. Information about the operation of expedited removal is not easily available, because outsiders (and even relatives and counsel) are generally barred from the proceedings. The most comprehensive study was conducted by the United States Commission on International Religious Freedom under a mandate from Congress, which had access to evaluate the implementation of the credible fear process at the border in 2003-2004. 2 U.S. CIRF, Asylum Seekers, supra note 186, at 3. The Commission found widespread noncompliance with the applicable procedures, including inaccurate documentation by inspectors and idiosyncratic interpretation of relevant legal standards. The Commission has continued to criticize the failure of DHS to adopt its recommended reforms. See, e.g., U.S. Comm'n on Int'l Religious Freedom, Annual Report 241-242 (2009).
310. See, e.g., St. Cyr, 533 U.S. at 306 (discussing traditional "some evidence" review in deportation cases); United States ex rel. Vajtauer v. Comm'r of Immigration, 273 U.S. 103, 106 (1927) (applying "some evidence" standard).
311. Again, the statute does permit habeas review of whether the individual facing expedited removal is a citizen or permanent resident (or an admitted refugee or asylee). See 8 U.S.C. §1252(e)(2)(C) (2006). It does not permit review of whether a lawfully admitted student has been mistaken for an undocumented alien, or whether an asylum seeker has been wrongly denied referral to a credible fear review.
312. Boumediene v. Bush, 128 S. Ct. 2229, 2270 (2008). They may, however, be facing death or imprisonment in another country.
313. Id. at 2266 (quoting St. Cyr, 533 U.S. at 302).
314. Id. at 2277.
315. Id. at 2246-47 (quoting Resolution of the New York Ratifying Convention (July 26, 1788), in 1 Debates in the Several State Conventions on the Adoption of the Federal Constitution 328 (Jonathan Elliot ed., Philadelphia, J.B. Lippincott & Co., 2d ed. 1876)).