Hello, this is Summary Judgment, a podcast offering easy-to-understand explanations of major court cases as they are decided. I’m Alan Mygatt-Tauber.
This week we’re discussing Osorio-Martinez v. Sessions, a Third Circuit Court of Appeals case challenging the deportation of minors who have been granted Special Immigrant Juvenile status.
This case is a follow-on to an earlier 2017 case, Castro v. Department of Homeland Security. Four children of Salvadoran and Honduran origin and their mothers challenged the Department of Homeland Security’s decision to seek their expedited removal from the United States. In the earlier case, the Court had ruled it lacked jurisdiction to hear their claims due to a jurisdiction-stripping provision of the Immigration and Nationality Act. Because the plaintiffs lacked sufficient ties to the United States, they could not challenge the jurisdiction-stripping provision under the Suspension Clause of the Constitution. However, following the court’s decision in Castro and before they have been deported, the children have been granted Special Immigrant Juvenile, or SIJ, status. This status is a protective classification designed by Congress to safeguard abused, abandoned, or neglected alien children who are able to meet rigorous eligibility requirements. The status comes with a host of statutory and regulatory rights and protections.
Each of the petitioners fled physical and sexual violence perpetrated by gangs in their home countries of Honduras and El Salvador. Each crossed the border from Mexico into the United States in late 2015 and were apprehended within 4 miles of the border almost immediately. They were moved to Leesport, Pennsylvania for detention. Each was ordered expeditiously removed.
All sought asylum, but were denied. Their initial challenges were denied because the Court was limited to review of whether an immigration officer issued an expedited removal order and whether the Petitioner is the same person referred to in that order. While that litigation was pending, the children applied for SIJ status and in late 2016 they received it. One benefit of SIJ status is the right to apply to have their status changed to that of lawful permanent resident. The Court noted that, until recently, DHS had never attempted to remove children who had received SIJ status at all, much less on an expedited basis.
The Government argued that this case was precluded by the Third Circuit’s earlier decision in Castro. The Court agreed with the Government that Castro’s holding that the Court lacked jurisdiction was binding. However, it held that this raised a new issue, unexamined in Castro, about whether the jurisdiction-stripping provision, as applied to SIJ designees, violated the Suspension Clause of the Constitution, which holds that Congress may only suspend the writ of habeas corpus in cases of invasion or insurrection.
The Court began with an examination of the statutory basis for its jurisdiction. It noted that for certain aliens, including SIJ designees, Congress has provided status and statutory protections that may not be revoked without specified process, included judicial review.
After examining the details of expedited removal and the numerous requirements to achieve SIJ status, the Court then addressed the meat of plaintiffs’ arguments – namely that achieving SIJ status means the expedited orders of removal are unenforceable and therefore the Court can hear their claims. However, as the Court noted in Castro, the only thing the Court is allowed to review is whether the order was issued and whether it concerns the plaintiff. Nothing in SIJ status changes the limitations of the jurisdiction-stripping statute. Therefore, if the jurisdiction-stripping statute is legal, the Court is bound by it.
This is where the Court departs from its earlier decision in Castro. Because it determines the INA strips the Court of jurisdiction, it must then determine if such stripping violates the Suspension Clause of Article I, Section 9 of the Constitution. Under this clause, Congress may only suspend the writ of habeas corpus when in cases of rebellion or invasion the public safety may require it.
Here, the Third Circuit relied upon the two step framework set out by the Supreme Court in the 2008 case of Boumediene v. Bush, which examined whether the clause applied to detainees at Guantanamo Bay. First, the court must determine if the petitioners are prohibited from invoking the Suspension Clause due to some attribute of the petitioner or to the circumstances surrounding his arrest or detention. Second, if the petitioner is not prohibited from invoking the clause, the Court then looks to whether the substitute for habeas is adequate and effective to test the legality of the detention or removal.
In Castro, the Court did not reach this question because it determined that as aliens captured within hours of arriving, they did not have significant ties to the United States which would allow them to invoke the Suspension Clause. Here, however, SIJ status, granted by the Secretary of Homeland Security, did create such ties and therefore the Court had to inquire as to the constitutionality of the jurisdiction-stripping statute.
Relying on the rigorous eligibility criteria for SIJ status, their legal relationship with the United States, the relationship between SIJ status and lawful permanent resident status, and Congress’s virtually unfettered or plenary power over immigration, the Court concluded under Boumediene step one that the plaintiffs were not barred from invoking the Suspension Clause. Therefore, the Court examined whether the INA provided any alternative to habeas that adequately and effectively allowed them to challenge their detention.
In a very short portion of the opinion, the Court concluded that the INA provided no alternative to the plaintiffs. Because the jurisdiction-stripping provision confined the Court’s review to the narrow questions of whether the removal order was issued and applied to the plaintiffs, it did not provide the Court the opportunity to determine if the expedited removal procedures were applied lawfully to the plaintiffs and thus precluded review of the erroneous application or interpretation of relevant law, which the court described as the “uncontroversial” minimum demanded by habeas corpus. As such, the law did not provide an adequate and effective alternative and was thus unconstitutional. It therefore reversed the District Court and ordered that the removal of the plaintiffs be stayed, pending further proceedings consistent with its opinion.
The decision of the unanimous court here strikes me as correct. It also strikes me as unnecessary, as the Court should have reached the same conclusion a year earlier in Castro. The Court held that the Suspension Clause did not apply to plaintiffs in their initial appeal because they lacked sufficient connections to the United States. This standard comes from a 1990 case called United States v. Verdugo-Urquidez, which held that the Fourth Amendment did not apply to the search of an alien’s home in Mexico because that alien lacked sufficient connections to the United States. However, the Court rested its decision on the specific language of the Fourth Amendment, which provides protection to “the people.” The Court determined “the people” was a term of art that meant people with substantial connections to the United States.
The Suspension Clause, however, does not contain similar phrasing. Indeed, it does not talk about who may invoke it at all. Rather, it is a limitation on the power of Congress, not a right granted to individuals. This textual analysis is bolstered by the fact that the Suspension Clause resides in Article I, Section 9, which lists other limitations on the power of Congress, such as the prohibition on Bills of Attainder and ex post facto laws. No court has ever held that an alien may not invoke those limits on Congress’s power, regardless of the nature of his or her ties to the United States.
Furthermore, Boumediene itself dealt with aliens held in Guantanamo Bay, Cuba, outside the United States. The only ties the aliens there had was that they were being held by the United States military. Yet the Supreme Court had no trouble finding they had the ability to invoke the Suspension Clause. There was no discussion of their ties to the United States, and for good reason – other than their detention by military authorities, they had none. The same is true of the plaintiffs here and in Castro.
For these reasons, while I agree with the Court’s ultimate conclusion here, I believe the plaintiff’s status as Special Immigrant Juveniles is irrelevant to their ability to challenge their detention in this case.
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