Castro v. Department of Homeland Security: Keeping the Suspension Clause Out of Reach
By Chloe Kim*
Although the political branches have broad authority over immigration, they are still subject to constitutional limits. Thus, courts have routinely reviewed and curtailed immigration policies when they do not adequately protect the rights of noncitizens. In Castro v. Department of Homeland Security, the Third Circuit refused to conduct such a review by holding for the first time that a noncitizen within the United States can be denied the protections of the Suspension Clause without a formal suspension of the writ of habeas corpus, at least as long as the noncitizen has entered the country recently and surreptitiously. This holding not only has no basis in Supreme Court precedent but also has troubling consequences for many noncitizens who are fleeing torture and asylum.
Part I of this Comment provides an overview of the case, Castro v. United States. Part II surveys the legal history of the Suspension Clause, focusing on its purpose and reach. Part III argues that Castro was wrongly decided for two reasons. First, the case deviates from Supreme Court precedent, which has consistently held that the Suspension Clause should extend to noncitizens. Second, the Third Circuit reached the wrong conclusion by conflating two distinct rights: the right to petition a writ of habeas corpus and the right to due process. In doing so, the court erroneously held that the petitioners were not entitled to judicial review of their asylum petition. Part IV explains the real-life implications of the case. There is mounting evidence that immigration officers are not following required procedures in removal proceedings, and limiting judicial review of these processes will inadequately protect those seeking refuge in the United States.
I. Castro v. United States: Factual Background
To escape domestic abuse, gang violence, and persecution, twenty-eight mothers and their children fled their home countries of El Salvador, Honduras, and Guatemala and entered the United States. Shortly after crossing the border, they were arrested in Texas and placed in “expedited removal” proceedings. Although the families claimed that they faced persecution back at home, an asylum officer and an immigration judge concluded that the families did not have a credible fear of persecution and denied their asylum applications. The petitioners were then placed in a detention center in Pennsylvania, where they have been held, as of April 17, 2017. Alleging that the officers and the judge did not follow the proper procedures during the removal process, the petitioners filed habeas petitions in the Eastern District of Pennsylvania. The petitioners specifically claimed that that they were deprived of their substantive and procedural rights under statutes, regulations, and the Constitution.
The district court dismissed the case on jurisdictional grounds, and the Third Circuit affirmed based on a similar reasoning. First, the Third Circuit held that it did not have the ability to review whether the petitioners’ rights were violated during the removal process because 8 U.S.C. § 1252(e) limits judicial review of expedited removal proceedings. Second, the court held that this curtailment of judicial review did not violate the petitioners’ rights under the Suspension Clause because the petitioners made “very recent surreptitious entry into the United States” and thus fell outside the Suspension Clause’s protection.
After the Third Circuit denied an en banc hearing, the petitioners filed a writ of certiorari to the Supreme Court in December of 2016. In April of 2017, the Supreme Court denied certiorari.
II. Legal Background
The Suspension Clause of the Constitution states: “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.” By protecting the privilege of the writ of habeas corpus from suspension, the clause safeguards against arbitrary and lawless action by the state. As the Supreme Court explained in Boumediene v. Bush, the Suspension Clause was born of the Framers’ inherent distrust of a consolidated governmental power. To ensure that individual liberties were adequately protected, the Founders allocated power among three independent branches and established a writ of habeas corpus system “as an indispensable mechanism for monitoring the separation of powers.” Because the writ had been vulnerable to executive and parliamentary encroachment in England, the Founders took care to “specify the limited grounds for its suspension. Thus, if Congress limits the scope of habeas review, it must provide an adequate and effective substitute procedure to test the legality of a person’s detention to be constitutional under the Suspension Clause..
The Suspension Clause has been interpreted to apply broadly. For example, in Boumediene, the Supreme Court held that the protection of the Clause extends to noncitizens designated as enemy combatants and detained in Guantanamo Bay. Because the petitioners there sought to apply the Suspension Clause extraterritorially, the Court identified three factors that were relevant in determining the Clause’s scope: “(1) the citizenship and status of the detainee and the adequacy of the process through which that status determination was made; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ [of habeas corpus].” Applying this framework, the Court held that the detainees were entitled to the protection of the Clause. The Court began by noting that the petitioners were not citizens. Nonetheless, the Court continued, emphasizing that the petitioners disputed that they were enemy combatants, and that they were not afforded sufficient procedural protections during the military tribunal hearings in which this designation was made. As to the second factor, the Court noted that the government had absolute and indefinite control over the Guantanamo Naval station, and that the station was “within the constant jurisdiction of the United States” in every practical sense. Lastly, the Court recognized that there were costs to applying the Suspension Clause to military detentions abroad but did not find this concern to be dispositive. Weighing all these considerations together, the Court held that the petitioners were entitled to the protection of the Suspension Clause. Therefore, if Congress wanted to strip them of the privilege of the writ of habeas corpus, it was required to provide them with an adequate and effective substitute.. Because Congress failed to do so, Section 7 of the Military Commissions Act of 2006, which prevented the petitioners from challenging the conditions of their detention through a writ of habeas corpus, was unconstitutional.
The Supreme Court has also interpreted the Suspension Clause to apply broadly in the immigration context. In INS v. St. Cyr, the Court reviewed the constitutionality of two statutes that stripped the federal courts of jurisdiction to review a habeas petition filed by a noncitizen who was found to be deportable. St. Cyr was a permanent resident alien, who had been convicted of aggravated felony. After his conviction, Congress enacted two statutes, the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 110 Stat. 1214, and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), 110 Stat. 3009-546, which stripped the Attorney General’s discretionary power to waive deportation for noncitizens who had been previously convicted of aggravated felony. St. Cyr filed a habeas petition in federal district court, arguing that he was eligible for the Attorney General’s discretionary waiver because his conviction occurred before AEDPA and IIRIRA were enacted.
The Supreme Court rejected the government’s argument that AEDPA and IIRIRA stripped the courts of habeas jurisdiction to review the case. The Court held that there would be serious constitutional problems if Congress could strip the courts of jurisdiction to review noncitizens’ removal orders. “At the absolute minimum, the Suspension Clause protects the writ [of habeas corpus] as it existed in 1789” and found evidence that in 1789, “the writ . . . was available to nonenemy aliens” to challenge executive detentions. The Court also reviewed finality-era cases, a term which refers to cases decided between the passage of the Immigration Act of 1891 and the Immigration and Nationality Act of 1952. Although the statutes during this period contained language that stripped courts of jurisdiction to review the executive’s immigration-related determinations, the Court routinely reviewed immigrants’ challenges through habeas corpus. Because “some judicial intervention in deportation cases is unquestionably required by the Constitution,” the Court construed the jurisdiction-stripping statutes to leave courts’ habeas jurisdiction under 28 U.S.C. § 2241 intact.
III. Case Analysis
If the Third Circuit had stayed faithful to the Supreme Court’s precedent, it would have concluded that the Suspension Clause protects all persons in the U.S., including the petitioners in Castro. In Boumediene, the Court held that even alleged enemy combatants who had never stepped foot in U.S. sovereign territory could invoke the protections of the Suspension Clause. In reaching that conclusion, the Court never suggested that those protections should be denied to those within U.S. territory. Instead, the Court extended the reach of the Clause extraterritorially to those who have no connection to the U.S. The Third Circuit cursorily dismissed the case in a footnote, stating that the framework of Boumediene was “of limited utility” because “there [wa]s no question that [the] [p]etitioners were apprehended within the sovereign territory of the United States.” Such a brief dismissal was unjustified. Even if the extraterritorial factors from Boumediene were not applicable, the Third Circuit should have taken note of the Court’s reasoning behind its broad application of the Suspension Clause. Instead, the Third Circuit ignored the case altogether and reached an absurd conclusion: that a constitutional protection, which applies to noncitizens designated as enemy combatants and detained in foreign territory, does not apply to noncitizens who are seeking asylum and detained in Pennsylvania.
The Third Circuit’s decision also contradicts St. Cyr, in which the Supreme Court held that “some judicial intervention in deportation cases is unquestionably required by the Constitution.” The Third Circuit provided two justifications for not following this precedent. First, the court stated that St. Cyr was not controlling because that case involved the rights of a lawful permanent resident. This distinction is not principled. Although St. Cyr was a permanent resident alien, the Supreme Court’s analysis in St. Cyr did not depend on his immigration status. Rather, the Court held that the writ of habeas corpus should be available to St. Cyr because “[t]he writ of habeas corpus has always been available to review the legality of Executive detention” and the habeas “jurisdiction was regularly invoked on behalf of noncitizens, particularly in the immigration context.” Thus, the reasoning of St. Cyr applies equally to the petitioners in Castro. Second, the Third Circuit noted that the Court in St. Cyr merely held that denying habeas review to the noncitizen there might violate the Suspension Clause by invoking the constitutional avoidance doctrine. But just because the Court found a way to interpret the statute in St. Cyr to avoid a serious constitutional problem did not entitle the Third Circuit to ignore the detailed reasoning behind why such a problem would exist if Congress could strip the court’s power to review habeas petitions.
Although the Third Circuit acknowledged that the Suspension Clause has been interpreted to apply broadly, it decided to not give much weight to this jurisprudence by invoking a different doctrine: the plenary power doctrine. Under this doctrine, courts give substantial deference to the political branches in exclusion cases because those branches have “plenary power over aliens at the border seeking initial admission.” For example, in United States ex rel. Knauff v. Shaughnessy, the Supreme Court upheld the Attorney General’s deny admission of a noncitizen without a hearing because the Attorney General claimed that Knauff’s admission would be prejudicial to the interests of the United States. Knauff, a German wife of a United States citizen, filed a habeas petition to test the Attorney General’s right to exclude her without a hearing for security reasons. The Court held that “[w]hatever the procedure authorized by Congress [wa]s, it [wa]s due process as far as an alien denied entry is concerned.” Because the Attorney General followed the regulations, and the regulations were reasonable in light of the national emergency of World War II, the Court upheld the Attorney General’s decision to exclude Knauff.
Similarly, in Shaughnessy v. United States ex rel. Mezei, the Supreme Court upheld the Attorney General’s decision to exclude a noncitizen from the United States on security grounds. Although Mezei had previously lived in the United States for many years, the Attorney General detained him on Ellis Island after he left for nineteen months “apparently to visit his dying mother in Rumania.” Because no other country would admit him either, Mezei was detained on Ellis Island indefinitely. Asserting unlawful exclusion and indefinite detention, Mezei filed a habeas petition. Because Mezei was “on the threshold of initial entry,” the Court cited Knauff and held that whatever the procedure authorized by Congress was due process. But the Court limited this holding to only those like Mezei, who have not yet entered the country. Notably, the Court emphasized that “aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.” Because Mezei was on the threshold of initial entry, the Court held Mezei stood on a different footing and was not entitled to the same due process.
Relying on these plenary power cases, the Third Circuit concluded that the petitioners in Castro could not invoke the Suspension Clause to challenge their applications for admission. This reasoning is flawed for two reasons. First, the Third Circuit conflated two distinct constitutional rights: the right to petition a writ of habeas corpus and the right to due process. The plenary power cases interpreted the noncitizens’ rights under due process, not under the Suspension Clause. In fact, in all the plenary power cases, the Court had to recognize the petitioners’ right to petition a writ of habeas under the Suspension Clause in order to reach the question of whether their due process rights were violated. Thus, these cases directly contradict the Third Circuit’s conclusion that the petitioners could not invoke the Suspension Clause.
Second, the Third Circuit ignored an important distinction that the Supreme Court has made between “noncitizens on the threshold of initial entry” and noncitizens who have already entered the country. Although noncitizens who have not yet entered the country have limited due process rights, noncitizens “who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process.” In Castro, the Third Circuit ignored this clear distinction from Mezei and declared that noncitizens who made a “very recent surreptitious entry” should be treated no differently than noncitizens who have not entered the country. This goes against the clear line that the Supreme Court has drawn in the plenary power cases. Thus, there is no legal basis under the plenary power doctrine for the Third Circuit to deny the petitioners in Castro the right to invoke the Suspension Clause’s protection.
IV. Real-Life Implications of Castro
Because the Third Circuit dismissed the case on jurisdictional grounds, it never considered the merits of the case. This sets a troubling precedent that eliminates an important safeguard for many noncitizens seeking refuge in our country. Judicial review of expedited removal proceedings is critical because there is mounting evidence that immigration officers are not following required procedures and denying the admissions of asylum seekers with valid claims.
In theory, expedited removal proceedings provide some procedural safeguards for asylum seekers. For example, when a Customs and Border Patrol (CBP) officer first encounters a noncitizen, the officer is required to inform the noncitizen about the possibility of seeking protection in the U.S. and ask about his or her fear of returning home. If the noncitizen indicates such fear, then the CBP officer must refer the noncitizen to an asylum officer, who determines whether the noncitizen has a “credible fear of persecution.” If the asylum officer makes a negative determination, then an immigration judge must review this determination. If the immigration judge concurs, then the determination is final.
In practice, however, these protections are “frequently misapplied or ignored altogether.” In half of the inspections that the U.S. Commission on International Religious Freedom (USCIRF) observed, CBP officers failed to properly advise noncitizens that U.S. law protects those facing persecution. Many officers also failed to ask the required fear-related questions, and, even when they did, often wrote down inaccurate information or responses. Moreover, in fifteen percent of the cases that USCIRF observed, noncitizens who expressed a fear of returning home were not referred to asylum officers, even though the CBP officers were required to refer them for a credible fear interview. Congress also acknowledged that “some immigration officers ‘m[ight] not always be following INS procedures designed to ensure that potential asylum claimants are properly referred’ for credible fear interviews.”
Even when they are referred to asylum officers, noncitizens are victimized by other procedural failures. Because interpretation services are often inadequate or unavailable, some noncitizens cannot communicate their fears to the asylum officers. Additionally, the credible fear standard is meant to be “a low screening standard for admission into the usual full asylum process.” Nonetheless, some asylum officers apply an erroneously high standard to potential asylum claims. In such cases, noncitizens should have a right to seek review of the negative credible fear determination by an immigration judge. However, this right is often illusory. As one of the amicus briefs in Castro notes, attorneys at some detention facilities are not notified of a review hearing until the evening prior to the hearing. In other cases, they never receive notice of the hearing at all. As a result, noncitizens may not be able to consult with counsel or other individuals after the immigration judge has upheld a negative credible fear determination, which is considered final.
Given such mounting evidence of procedural failures, it is critical for courts to review expedited removal proceedings to ensure that noncitizens’ rights are adequately protected. The Third Circuit in Castro refused to implement this important check by denying the protection of the Suspension Clause to those who entered the U.S. recently and surreptitiously. This not only violates precedent, but also creates uncertainty because courts will now have to determine whether noncitizens in the country have entered “recently” or “surreptitiously” enough to be deprived of the protection of the Suspension Clause.
As Judge Pregerson noted recently, the expedited removal process is fraught with procedural deficiencies:
[T]he deportation process can begin and end with a CBP officer untrained in the law. . . . There is no hearing, no neutral decision-maker, no evidentiary findings, and no opportunity for administrative or judicial review. This lack of procedural safeguards in expedited removal proceedings creates a substantial risk that noncitizens subjected to expedited removal will suffer an erroneous removal.
Nonetheless, the Third Circuit in Castro abandoned its responsibility to protect noncitizens from such a perilous process by depriving the petitioners of the protection of the Suspension Clause. Because the Supreme Court has denied certiorari, Castro remains good law in the Third Circuit. In light of the troubling legal and real-life implications of Castro, courts in other jurisdictions should depart from Castro and restore the proper role of judiciary in safeguarding the liberties of all persons in this country.
[*] J.D., University of California, Berkeley, School of Law, 2018; B.A., Harvard College, 2008.
 See Zadvydas v. Davis, 533 U.S. 678, 690 (2001) (limiting detention of noncitizens after removal order to six months because “permitting indefinite detention of an alien would raise a serious constitutional problem.”), https://supreme.justia.com/cases/federal/us/533/678; Boumediene v. Bush, 553 U.S. 723, 765 (2008) (striking down a statute that stripped federal courts’ jurisdiction to hear habeas actions because it effected an “unconstitutional suspension of the writ” for noncitizens detained in Guantanamo Bay), https://supreme.justia.com/cases/federal/us/553/723.
 835 F.3d 422, 425, 450 (3d Cir. 2016), http://law.justia.com/cases/federal/appellate-courts/ca3/16-1339/16-1339-2016-08-29.html.
 Castro v. U.S. Dep’t of Homeland Security (Castro Dist. Ct.), 163 F. Supp. 3d 157, 159 (E.D. Penn. 2016), https://www.leagle.com/decision/infdco20160218d90.
 See id. 8 U.S.C. § 1225(b)(1) allows the Attorney General to apply expedited removal to a noncitizen who is “arriving in the United States” or who “has not affirmatively shown . . . that the alien has been physically present in the United States continuously for the 2-year period” and who is inadmissible under 8 U.S.C. § 1182(a)(6)(c) (“misrepresenting a material fact to procure a visa, other documentation, or admission into the United States”) or § 1182(a)(7) (“not in possession of . . . a valid entry document”).
 Petition for Writ of Certiorari at 6, Castro v. U.S. Dep’t of Homeland Security (No. 16-812), http://www.scotusblog.com/wp-content/uploads/2017/01/16-812-cert-petition.pdf [https://perma.cc/6HDB-NXQ4].
 Id. at 9. Two of the twenty-eight families agreed to removal due to personal circumstances, but have remained part of the case and continue to seek asylum. Id. at 6 n.2. On May 3, a mother and child were deported to Honduras. Since then, at least nine other families have been deported. Brian X. McCrone, Inside ICE’s Berks County Residential Center: Pennsylvania’s Controversial Immigrant Family Detention Facility, N.B.C. New York, Jul. 28, 2017, http://www.nbcnewyork.com/news/national-international/Inside-Look-at-ICE-Berks-County-Residential-Center-1-Million-Boon-for-Local-Government-437112913.html [https://perma.cc/UE92-NPHQ].
 Id. at 13. (For example, petitioners alleged that the asylum officer and immigration judge applied an erroneous legal standard in evaluating their asylum claims, and that the asylum officer did not provide a written analysis explaining the basis for the denial of their claims in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II).)
 Castro Dist. Ct., 163 F. Supp. 3d at 165-168 (holding that the court lacks jurisdiction to review the petitioner’s claim under the Immigration Nationality Act and that this jurisdictional restriction is constitutional); Castro, 835 F.3d at 450.
 Castro, 835 F.3d at 428. 8 U.S.C. § 1252(e)(2) limits judicial review of any determination made under the expedited removal proceedings to determinations of: (A) whether the petitioner is an alien, (B) whether the petitioner was ordered removed under such section, and (C) whether the petitioner can prove by a preponderance of the evidence that the petitioner is an alien lawfully admitted for permanent residence, has been admitted as a refugee, or has been granted asylum.
 Id. at 448-49. Judge Hardiman concurred, dubitante. He joined the opinion in full, but expressed doubt in the majority’s reasoning that the petitioners were prohibited from invoking the Suspension Clause. Nonetheless, he concluded that the court could have reached the same result on the ground that the statute provided an adequate substitute for habeas review under the Suspension Clause. Id. at 450 (Hardiman, J., concurring).
 April 17, 2017 Order List, Supreme Court of the United States, https://www.supremecourt.gov/orders/courtorders/041717zor_09m1.pdf [https://perma.cc/5R2E-RVBB].
 U.S. Const. art. I, § 9, cl. 2.
 553 U.S. 723, 742 (2008).
 Id. at 743, 765.
 Id. at 743, 745.
 See Swain v. Pressley, 430 U.S. 372, 381 (1977) (citing United States v. Hayman, 342 U.S. 205, 223 (1952)).
 Boumediene, 553 U.S. at 732.
 Id. at 727.
 Id. at 767.
 Id. at 769.
 Boumediene, 553 U.S. at 771.
 Id. at 733.
 533 U.S. 289, 298-290 (2001), https://supreme.justia.com/cases/federal/us/533/289/case.pdf [https://perma.cc/9M8V-9X4D].
 Id. at 293.
 Id. at 301 (internal quotation marks and citations omitted). The two statutes at issue were the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA).
 Id. at 301-02.
 The immigration laws between 1891 and 1952 contained similar finality provision. See e.g., Immigration Act of 1891, § 8, 26 Stat. 1084, 1085 (“All decisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the superintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.”); Immigration Act of 1907, § 25, 34 Stat. 898, 907 (“[I]n every case where an alien is excluded from admission into the United States, . . ., the decision of the appropriate immigration officers, if adverse to the admission of such aliens, shall be final, unless reversed on appeal to the Secretary of Commerce and Labor.”)
 See Heikkila v. Barber, 345 U.S. 229, 234-35 (1953), https://supreme.justia.com/cases/federal/us/345/229/case.html [https://perma.cc/78PX-WVPC] (reviewing precedents from finality-era and concluding that “this background of a quarter of a century of consistent judicial interpretation . . . clearly had the effect of precluding judicial intervention in deportation cases except insofar as it was required by the Constitution.”) (emphasis added).
 Id. at 300, 326 (internal quotation marks and citation omitted).
 553 U.S. at 771.
 See id.
 835 F.3d at 445, n.25.
 St. Cyr, 533 U.S. at 300.
 835 F.3d at 446-47.
 St. Cyr, 533 U.S. at 305 (citations omitted and emphasis added).
 Id. at 435.
 Id. at 443.
 338 U.S. at 537, 539 (1950).
 Id. at 540.
 Id. at 544.
 Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953), https://supreme.justia.com/cases/federal/us/345/206/case.html [https://perma.cc/EHT9-TCRF].
 Id. at 208.
 Id. at 219-220.
 Id. at 209.
 Id. at 212.
 Mezei, 345 U.S. at 212.
 Castro, 835 F.3d at 449.
 See e.g., Mezei, 345 U.S. at 213 (“Concededly, his movements are restrained by authority of the United States, and he may by habeas corpus test the validity of his exclusion.”), Knauff, 338 U.S. at 540 (“To test the right of the Attorney General to exclude her . . . , habeas corpus proceedings were instituted in the Southern District of New York.”); see also Boumediene, 553 U.S. at 785 (holding that Suspension Clause rights are distinct from due process rights).
 Mezei, 345 U.S. at 212.
 Castro, 835 F.3d at 449.
 Amicus Brief of Refugee and Human Rights Organizations and Scholars, Castro v. U.S. Dep’t of Homeland Security (No. 16-812), at 8 [hereinafter Amicus Brief], http://www.scotusblog.com/wp-content/uploads/2017/01/16-812-Refugee-Organization-Cert-Amicus-Brief.pdf [https://perma.cc/4GE2-KPRC].
 Id.; 8 U.S.C. § 1225(b)(1)(A)(ii).
 Amicus Brief at 10; 8 C.F.R. § 1208.30(g)(2).
 Amicus Brief at 11.
 Id. at 12.
 Id. at 13.
 Id. at 14.
 Amicus Brief at 11 (quoting H.R. Rep. No. 105-480, pt.3, at 17 (1998)).
 Id. at 9 (citations omitted).
 Id. at 16.
 Id. at 18.
 United States v. Peralta-Sanchez, 874 F.3d 1124, 1144 (9th Cir. 2017) (Pregerson, J., dissenting) (footnotes omitted), http://law.justia.com/cases/federal/appellate-courts/ca9/14-50393/14-50393-2017-02-07.html.