Deportation in the Shadows of Due Process: The Dangerous Implications of DHS v. Thuraissigiam

Abstract

The deportation of many thousands of "people who were previously integral members of U.S. society" and who have long "been part of the social fabric of the United States" is-as Beth Caldwell notes-a human rights tragedy of immense proportions that should not be forgotten.' However, an ever-expanding array of fast-track, unreviewable, discretionary immigration enforcement mechanisms raise equally compelling-if distinct-concerns. Even as we attend to how "deportation is particularly cruel for people who grew up in the United States," we must not acquiesce in the relegation of recent entrants-or, indeed, recent re-entrants-to a rightless realm of unreviewable arbitrary enforcement. This is especially true for those fleeing from persecution and other severe harms and for unaccompanied minors.

The Supreme Court's approval of such mechanisms in Department of Homeland Security v. Thuraissigiam may affect due process, habeas corpus, and the necessity of judicial review of agency action dangerously and corrosively.' Justice Alito, writing for a 5-4 majority, concluded that neither the Suspension Clause 6 nor the Due Process Clause mandate habeas corpus (or any other) judicial review of a summary government denial of an asylum claim brought by a noncitizen on U.S. soil. As Justice Sotomayor poignantly noted in her dissent, the Court held "that the Constitution's due process protections do not extend to noncitizens ... , who challenge the procedures used to determine whether they may seek shelter in this country or whether they may be cast to an unknown fate." This precludes any means to ensure the "integrity" of an expedited removal order and "upends settled constitutional law."" Moreover, it "paves the way toward transforming already summary expedited removal proceedings into arbitrary administrative adjudications." As bleak as this is, Justice Sotomayor may actually have understated the dangers of Thuraissigiam as its ramifications for the future of habeas corpus are also worrisome.