Review Limited for Immigrants Seized Right After Entry

Bloomberg Law’s combination of innovative analytics, research tools and practical guidance provides you with everything you need to be a successful litigator.

By Melissa Heelan Stanzione

Aug. 31 — A group of Central Americans who illegally entered the U.S. and were apprehended shortly after crossing the border have no right to habeas review of their asylum claims, the U.S. Court of Appeals for the Third Circuit held Aug. 29 ( Castro v. DHS, 2016 BL 280821, 3d Cir., No. 16-1339, 8/29/16 ).

The court's analysis was “poorly reasoned” because it gives more rights to judicial review to enemy combatants captured on foreign battlefields than immigrants detained in the United States, one legal scholar told Bloomberg BNA Aug. 30.

Habeas corpus review can be used to challenge the legality in federal court of an imprisonment or detention.

Boumediene Test Doesn't Apply

The Third Circuit's opinion by Judge D. Brooks Smith held that U.S. Supreme Court precedent precluded the immigrants from invoking the suspension clause.

The suspension clause says that habeas review will not be suspended unless “public safety” requires it, such as during a rebellion or invasion.

In Boumediene v. Bush, 553 U.S. 723 (2009), (76 U.S.L.W. 1766, 6/17/08), the Supreme Court held that enemy combatants detained at Guantanamo Bay Naval Base, Cuba, have habeas rights.

The high court established a multi-factor test to determine whether the Guantanamo detainees were covered by the suspension clause.

The Third Circuit, however, rejected application of the test in this case, saying in a footnote it provides “little guidance.”

Privilege, Not a Right

Instead it determined that the petitioners' suspension clause claim fails because the Supreme Court has concluded that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.”

Because the issues that the petitioners challenge “all stem from the Executive’s decision to remove them from the country, they cannot invoke the Constitution, including the Suspension Clause, in an effort to force judicial review beyond what Congress has already granted them,” the court said.

‘Habeas Is Different.'

The most important thing that the Third Circuit missed about Boumediene is that habeas is different, Stephen I. Vladeck, a constitutional law professor at the University of Texas at Austin, told Bloomberg BNA.

Vladeck was an amicus in support of the petitioners in Castro.

In Boumediene, the Supreme Court said it doesn't matter if the petitioners have or don't have constitutional rights because the suspension clause is different, Vladeck said.

“And the Guantanamo cases have borne that out. A number of detainees have won their habeas cases not because their constitutional rights were violated but because the government had no affirmative authority to hold them in the first place,” Vladeck said.

Vladeck also questioned the court's reasoning for rejecting the multi-factor test from Boumediene.

The court said in footnote 25 that Boumediene is irrelevant because the practical concerns in that case simply aren't present here, he said.

“I agree! And therefore the suspension clause should apply,” Vladeck said.

“I don't understand how someone can read Boumediene and read Castro and think the two are consistent,” Vladeck said.

Next Step?

Even though the Third Circuit doesn't go en banc that often, this was a “fairly one-sided panel” and it wouldn't be shocking “given the potential consequences of the decision” if the circuit was inclined to review it en banc, he said.

The Department of Justice declined to comment.

Judges Thomas M. Hardiman and Patty Shwartz joined the opinion.

The American Civil Liberties Union represented the immigrants. The Department of Justice represented the government.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Full text at

Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Litigation on Bloomberg Law