Castro v. United States Department of Homeland Security

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________

No. 16-1339
_____________

ROSA ELIDA CASTRO; A.A.G.C.;
LAURA LISSETH FLORES-PICHINTE; E.S.U.F.;
KAREN MARGARITA ZELAYA ALBERTO; S.E.A.Z;
KELLY GUTIERREZ RUBIO; G.J.S.G.;
GLADIS CARRASCO GOMEZ; B.J.R.C.;
WENDY AMPARO OSORIO MARTINEZ; D.S.R.O.;
CARMEN LEIVA-MENJIVAR; E.A.M.L.; A.M.M.L.;
DINA ISABEL HUEZO DE CHICAS; L.J.C.H.;
CINDY GISELA LOPEZ FUNEZ; W.S.M.L.;
LESLY GRIZELDA CRUZ MATAMOROS; C.N.V.C.;
JEYDI ERAZO ANDURAY; D.A.L.E.;
DINORA LEMUS; A.R.M.L.;
JENNYS MENDEZ DEBONILLA; A.B.B.M.;
MARTA ALICIA RODRIGUEZ ROMERO; W.A.M.R.;
C.A.M.R.; ROXANA AGUIRRE-LEMUS; C.A.A.;
CELIA PATRICIA SORIANO BRAN; J.A.A.S.;
MARIA DELMI MARTINEZ NOLASCO; J.E.L.M.;
GUADALUPE FLORES FLORES; W.J.B.F.;
CARMEN ALEYDA LOBO MEJIA; A.D.M.L.L.;
JULISSA CLEMENTINA HERNANDEZ JIMINEZ;
A.H.V.H.; *MARIA ERLINDA MEJIA MELGAR;
 *E.N.C.M.; *D.G.C.M.;
JETHZABEL MARTIZA AGUILAR MANICA;
V.G.R.A.; HEYMI LISSAMANCIA AREVALO-
MONTERROZA; R.N.F.A;
ELSA MILAGROS RODRIGUEZ GARCIA; J.M.V.G.;
ELIZABETH BENITEZ DE MARQUEZ; A.M.B.;
INGRID MARICELA ELIAS SORIANO; A.E.C.E.;
MARIBEL MARIA ESCOBAR RAMIREZ;
C.Y.L.E.; Y.I.L.E.; R.J.L.E.;
ANA MARICEL RODRIGUEZ-GRANADOS;
J.A.B.R.; V.E.B.R.;
ZULMA LORENA PORTILLO DE DIAZ; K.L.D.P.,
Appellants

v.

UNITED STATES DEPARTMENT OF
HOMELAND SECURITY;
UNITED STATES CUSTOMS AND BORDER
PROTECTION;
UNITED STATES CITIZENSHIP AND
IMMIGRATION SERVICES;
UNITED STATES IMMIGRATION AND
CUSTOMS ENFORCEMENT
SECRETARY OF DHS; ATTORNEY GENERAL OF
THE UNITED STATES;
COMMISSIONER OF CBP; DIRECTOR OF USCIS;
PHILADELPHIA FIELD DIRECTOR, CBP;
PHILADELPHIA ASSISTANT FIELD OFFICE
2
DIRECTOR, ICE; DIRECTOR, BERKS COUNTY
RESIDENTIAL CENTER

* Dismissed Pursuant to Court’s Order entered
May 13, 2016.
_____________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court Nos. 5-15-cv-06153, 5-15-cv-06403,
5-15-cv-06404, 5-15-cv-06406, 5-15-cv-06410,
5-15-cv-06411, 5-15-cv-06428, 5-15-cv-06429,
5-15-cv-06430, 5-15-cv-06431, 5-15-cv-06451,
5-15-cv-06472, 5-15-cv-06474, 5-15-cv-06475,
5-15-cv-06546, 5-15-cv-06547, 5-15-cv-06551,
5-15-cv-06553, 5-15-cv-06591, 5-15-cv-06592,
5-15-cv-06594, 5-15-cv-06595, 5-15-cv-06676,
5-15-cv-06677, 5-15-cv-06755, 5-15-cv-06788,
5-15-cv-06798, 5-15-cv-06863,5-16-cv-00069

District Judge: The Honorable Paul S. Diamond
_____________

Argued May 19, 2016

Before: SMITH, HARDIMAN, and SHWARTZ,
Circuit Judges

3
 (Opinion Filed: August 29, 2016)

Lee P. Gelernt [ARGUED]
American Civil Liberties Union
Immigrants’ Rights Project
125 Broad Street
18th Floor
New York, NY 10004

Jennifer C. Newell
American Civil Liberties Union Foundation
39 Drumm Street
San Francisco, CA 94111

Mary Catherine Roper
Molly M. Tack-Hooper
American Civil Liberties Union of Pennsylvania
P.O. Box 60173
Philadelphia, PA 19106

Witold J. Walczak
American Civil Liberties Union
313 Atwood Street
Pittsburgh, PA 15213
Counsel for Appellants

Joseph A. Darrow
Erez Reuveni [ARGUED]
United States Department of Justice
4
Office of Immigration Litigation
450 5th Street, N.W.
Washington, DC 20001
Counsel for Appellees

Ethan D. Dettmer
Gibson Dunn
555 Mission Street
Suite 3000
San Francisco, CA 94105
Counsel for Amici
Curiae Gabriel J.
Chin, Nancy
Morawetz, Hiroshi
Motomura, David
Thronson, Leti
Volpp, and
Stephen Yale-
Loehr

Jonathan H. Feinberg
Kairys Rudovsky Messing & Feinberg
718 Arch Street
Suite 501 South
Philadelphia, PA 19106

Mark C. Fleming
WilmerHale
60 State Street
5
Boston, MA 02109
Counsel for Amici
Curiae Erwin
Chermerinsky,
Eric M. Freedman,
Brandon L.
Garrett, Jonathan
L. Hafetz, Paul D.
Halliday, Randy A.
Hertz, Aziz Huq,
Lee Kovarsky,
Christopher N.
Lasch, James S.
Liebman, Gerald
L. Neuman, Kermit
Roosevelt,
Theodore W.
Ruger, Stephen I.
Vladeck and
Michael J. Wishnie

Bruce P. Merenstein
Nancy Winkelman
Schnader Harrison Segal & Lewis
1600 Market Street
Suite 3600
Philadelphia, PA 19103
Counsel for Amici
Curiae Tahirih
6
Justice Center,
David B.
Thronson, Young
Center for
Immigrant
Childrens Rights,
Sheila I. Velez-
Martinez, Shoba S.
Wadhia, Maureen
A. Sweeney,
Harvard
Immigration and
Refugee Clinic,
American Friends
Service, Farrin R.
Anello, Jon Bauer,
Lenni Benson,
Linda Bosniak,
Benjamin Casper,
Center for Gender
& Refugee Studies,
Denise Gilman,
Joanne
Gottesman,
Geoffrey A.
Hoffman, KIND,
Inc., National
Immigrant Justice
Center (NIJC),
7
 Sarah H. Paoletti,
Michele R.
Pistone, Galya
Ruffer and
Rebecca A.
Sharpless

Charles Roth
National Immigrant Justice Center
208 South LaSalle Street
Suite 1300
Chicago, IL 60604
Counsel for
Amicus Curiae
National
Immigrant Justice
Center (NIJC)

________________

OPINION
________________

SMITH, Circuit Judge.

Petitioners are twenty-eight families – twenty-
eight women and their minor children – who filed habeas
8
petitions in the United States District Court for the
Eastern District of Pennsylvania to prevent, or at least
postpone, their expedited removal from this country.
They were ordered expeditiously removed by the
Department of Homeland Security (DHS) pursuant to its
authority under § 235(b)(1) of the Immigration and
Nationality Act (INA), 8 U.S.C. § 1225(b)(1). Before
DHS could effect their removal, however, each
petitioning family indicated a fear of persecution if
returned to their native country. Nevertheless, following
interviews with an asylum officer and subsequent de
novo review by an immigration judge (IJ), Petitioners’
fear of persecution was found to be not credible, such
that their expedited removal orders became
administratively final. Each family then filed a habeas
petition challenging various issues relating to their
removal orders.

In this appeal we must determine, first, whether the
District Court has jurisdiction to adjudicate the merits of
Petitioners’ habeas petitions under § 242 of the INA, 8
U.S.C. § 1252.1 Because we hold that the District Court
does not have jurisdiction under the statute, we must also

1
From this point in this opinion, we will refer to
provisions of the INA by their location in the United
States Code.

9
determine whether the statute violates the Suspension
Clause of the United States Constitution. This is a very
difficult question that neither this Court nor the Supreme
Court has addressed. We hold that, at least as applied to
Petitioners and other similarly situated aliens, § 1252
does not violate the Suspension Clause. Consequently,
we will affirm the District Court’s order dismissing
Petitioners’ habeas petitions for lack of subject matter
jurisdiction.

I. STATUTORY FRAMEWORK

The statutory and regulatory provisions of the
expedited removal regime are at the heart of this case.
We will, therefore, provide an overview of the provisions
which form the framework governing expedited removal
before further introducing Petitioners and their specific
claims. First, we will discuss 8 U.S.C. § 1225(b)(1) and
its implementing regulations, which lay out the
administrative side of the expedited removal regime. We
will then turn to 8 U.S.C. § 1252, which specifies the
scope of judicial review of all removal orders, including
expedited removal orders.

A. Section 1225(b)(1)

10
 Under 8 U.S.C. § 1225(b)(1) and its companion
regulations, two classes of aliens are subject to expedited
removal if an immigration officer determines they are
inadmissible due to misrepresentation or lack of
immigration papers: (1) aliens “arriving in the United
States,” and (2) aliens “encountered within 14 days of
entry without inspection and within 100 air miles of any
U.S. international land border.”2 See 8 U.S.C.
§ 1225(b)(1)(A)(i) & (iii); Designating Aliens for
Expedited Removal, 69 Fed Reg. 48877-01 (Aug. 11,
2004). 3 If an alien falls into one of these two classes, and
2
Any aliens otherwise falling within these two categories
but who are inadmissible for reasons other than
misrepresentation or missing immigration papers are
referred for regular – i.e., non-expedited – removal
proceedings conducted under 8 U.S.C. § 1229a. See 8
U.S.C. § 1225(b)(2)(A).
3
The statute actually gives the Attorney General the
unfettered authority to expand this second category of
aliens to “any or all aliens” that cannot prove that they
have been physically present in the United States for at
least the two years immediately preceding the date their
inadmissibility is determined, regardless of their
proximity to the border. See 8 U.S.C.
§ 1225(b)(1)(A)(iii). Although DHS (on behalf of the
Attorney General) has opted to apply the expedited
removal regime only to the limited subset of aliens
11
she indicates to the immigration officer that she fears
persecution or torture if returned to her country, the
officer “shall refer the alien for an interview by an
asylum officer” to determine if she “has a credible fear of
persecution [or torture].” 8 U.S.C. § 1225(b)(1)(A)(ii) &
(B)(ii); 8 C.F.R. § 208.30(d). The statute defines the
term “credible fear of persecution” as “a significant
possibility, taking into account the credibility of the
statements made by the alien in support of the alien’s
claim and such other facts as are known to the officer,
that the alien could establish eligibility for asylum under
section 1158 of this title.” 8 U.S.C. § 1225(b)(1)(B)(v);
see also 8 C.F.R. § 208.30(e)(3) (“An alien will be found
to have a credible fear of torture if the alien shows that
there is a significant possibility that he or she is eligible
for withholding of removal or deferral of removal under
the Convention Against Torture.”).

Should the interviewing asylum officer determine
that the alien lacks a credible fear of persecution (i.e., if
the officer makes a “negative credible fear

described above, it has expressly reserved its authority to
exercise at a later time “the full nationwide enforcement
authority of [§ 1225(b)(1)(A)(iii)(II)].” See Designating
Aliens for Expedited Removal, 69 Fed Reg. 48877-01
(Aug. 11, 2004).

12
determination”), the officer orders the removal of the
alien “without further hearing or review,” except by an IJ
as discussed below. 8 U.S.C. § 1225(b)(1)(B)(iii)(I).
The officer is then required to “prepare a written record”
that must include “a summary of the material facts as
stated by the applicant, such additional facts (if any)
relied upon by the officer, and the officer’s analysis of
why, in the light of such facts, the alien has not
established a credible fear of persecution.” Id. §
1225(b)(1)(B)(iii)(II). Next, the asylum officer’s
supervisor reviews and approves the negative credible
fear determination, after which the order of removal
becomes “final.” 8 C.F.R. § 235.3(b)(7); id. §
208.30(e)(7). Nevertheless, if the alien so requests, she is
entitled to have an IJ conduct a de novo review of the
officer’s negative credible fear determination, and “to be
heard and questioned by the [IJ]” as part of this review.
8 U.S.C. § 1225(b)(1)(B)(iii)(III); 8 C.F.R. § 1003.42(d).
Assuming the IJ concurs in the asylum officer’s negative
credible fear determination, “[t]he [IJ]’s decision is final
and may not be appealed,” and the alien is referred back
to the asylum officer to effect her removal. 8 C.F.R.
§ 1208.30(g)(2)(iv)(A). 4

4
On the other hand, if the interviewing asylum officer, or
the IJ upon de novo review, concludes that the alien
possesses a credible fear of persecution or torture, the
13
B. Section 1252

Section 1252 of Title 8 defines the scope of
judicial review for all orders of removal. This statute
narrowly circumscribes judicial review for expedited
removal orders issued pursuant to § 1225(b)(1). It
provides that “no court shall have jurisdiction to review
. . . the application of [§ 1225(b)(1)] to individual aliens,
including the [credible fear] determination made under
[§ 1225(b)(1)(B)].” 8 U.S.C. § 1252(a)(2)(A)(iii).
Moreover, except as provided in § 1252(e), the statute
strips courts of jurisdiction to review: (1) “any individual
determination or to entertain any other cause or claim
arising from or relating to the implementation or
operation of an [expedited removal] order”; (2) “a
decision by the Attorney General to invoke” the
expedited removal regime; and (3) the “procedures and
policies adopted by the Attorney General to implement
the provisions of [§ 1225(b)(1)].” Id. § 1252(a)(2)(A)(i),
(ii) & (iv). Thus, the statute makes abundantly clear that
whatever jurisdiction courts have to review issues

alien is referred for non-expedited removal proceedings
under 8 U.S.C. § 1229a, “during which time the alien
may file an application for asylum and withholding of
removal.” 8 C.F.R. § 1208.30(g)(2)(iv)(B).

14
relating to expedited removal orders arises under
§ 1252(e).

Section 1252(e), for its part, preserves judicial
review for only a small subset of issues relating to
individual expedited removal orders:

Judicial review of any determination made
under [§ 1225(b)(1)] is available in habeas
corpus proceedings, but shall be limited to
determinations of—

(A) whether the petitioner is an alien,

(B) whether the petitioner was
ordered removed under
[§ 1225(b)(1)], and

(C) whether the petitioner can prove
. . . that the petitioner is [a lawful
permanent resident], has been
admitted as a refugee . . . or has been
granted asylum . . . .

15
Id. § 1252(e)(2). In reviewing a determination under
subpart (B) above – i.e., in deciding “whether the
petitioner was ordered removed under [§ 1225(b)(1)]” –
“the court’s inquiry shall be limited to whether such an
order in fact was issued and whether it relates to the
petitioner. There shall be no review of whether the alien
is actually admissible or entitled to any relief from
removal.” Id. § 1252(e)(5).

Section 1252(e) also provides jurisdiction to the
district court for the District of Columbia to review
“[c]hallenges [to the] validity of the [expedited removal]
system.” Id. § 1252(e)(3)(A). Such systemic challenges
include challenges to the constitutionality of any
provision of the expedited removal statute or its
implementing regulations, as well as challenges claiming
that a given regulation is inconsistent with law. See id.
§ 1252(e)(3)(A)(i) & (ii). Nevertheless, systemic
challenges must be brought within sixty days after
implementation of the challenged statute or regulation.
Id. § 1252(e)(3)(B); see also Am. Immigration Lawyers
Ass’n v. Reno, 18 F. Supp. 2d 38, 47 (D.D.C. 1998),
aff’d, 199 F.3d 1352 (D.C. Cir. 2000) (holding that “the
60–day requirement is jurisdictional rather than a

16
traditional limitations period”).5

II. FACTUAL AND PROCEDURAL
BACKGROUND

Petitioners are natives and citizens of El Salvador,
Honduras, and Guatemala who, over a period of several
months in late 2015, entered the United States seeking
refuge. While their reasons for fleeing their home
countries vary somewhat, each petitioner claims to have
been, or to fear becoming, the victim of violence at the
hands of gangs or former domestic partners. United
States Customs and Border Protection (CBP) agents

5
In its brief, as it did during oral argument, the
government repeatedly argues that many of Petitioners’
claims are of a systemic nature and should have been
brought in the district court for the District of Colombia
under § 1252(e)(3). In making this argument, however,
the government conveniently elides the fact that the
sixty-day deadline would clearly prevent Petitioners from
litigating their systemic claims in that forum, because
that deadline passed years ago.

17
encountered and apprehended each petitioner within
close proximity to the border and shortly after their
illegal crossing. In fact, the vast majority were
apprehended within an hour or less of entering the
country, and at distances of less than one mile from the
border; in all events, no petitioner appears to have been
present in the country for more than about six hours, and
none was apprehended more than four miles from the
border.6 And because none of the petitioners presented
immigration papers upon their arrest, and none claimed
to have been previously admitted to the country, they
clearly fall within the class of aliens to whom the
expedited removal statute applies. See Part I.A above.

After the CBP agents apprehended them and began
the expedited removal process, Petitioners each
expressed a fear of persecution or torture if returned to
their native country. Accordingly, each was referred to

6
For reasons explained in detail below, we consider the
facts regarding Petitioners’ entry and practically-
immediate arrest by immigration enforcement officials to
be crucial in resolving Petitioners’ Suspension Clause
argument. Accordingly, we grant the government’s
motion for judicial notice as well as its motion to file
under seal the documents subject to its motion for
judicial notice.

18
an asylum officer for a credible fear interview. As part
of the credible fear interview process, the asylum officers
filled out and gave to Petitioners a number of forms,
including a form memorializing the officers’ questions
and Petitioners’ answers during the interview. Following
the interviews – all of which resulted in negative credible
fear determinations – Petitioners requested and were
granted de novo review by an IJ. Because the IJs
concurred in the asylum officers’ conclusions, Petitioners
were referred back to DHS for removal without recourse
to any further administrative review. Each petitioning
family then submitted a separate habeas petition to the
District Court,7 each claiming that the asylum officer and
IJ conducting their credible fear interview and review
violated their Fifth Amendment procedural due process
rights, as well as their rights under the INA, the Foreign
7
Petitioners filed their habeas petitions in the Eastern
District of Pennsylvania because they are being detained
pending their removal at the Berks County Residential
Center in Leesport, Pennsylvania. While we are
uncertain whether venue was proper in the Eastern
District of Pennsylvania – § 1252 does not appear to
indicate where habeas petitions under § 1252(e)(2)
should be filed – none of the parties has argued that
venue was improper. In that venue is non-jurisdictional,
we need not resolve the issue. See Bonhometre v.
Gonzales, 414 F.3d 442, 446 n.5 (3d Cir. 2005).

19
Affairs Reform and Restructuring Act of 1998, the
United Nations Convention Against Torture, the
Administrative Procedure Act, and the applicable
implementing regulations.8 All the petitions were
reassigned to Judge Paul S. Diamond for the limited
purpose of determining whether subject matter
jurisdiction exists to adjudicate Petitioners’ claims.

Petitioners argued before the District Court that
§ 1252 is ambiguous as to whether the Court could
review their challenges to the substantive and procedural
soundness of DHS’s negative credible fear
determinations. As such, they argued that the Court

8
Though Petitioners assert on appeal that they each
raised “a variety” of claims in their habeas petitions,
Pet’rs’ Br. 33, they specifically point us to only two as
being uniform across all Petitioners: first, they claim that
the asylum officers conducting the credible fear
interviews failed to “prepare a written record” of their
negative credible fear determinations that included the
officers’ “analysis of why . . . the alien has not
established a credible fear of persecution,” 8 U.S.C.
§ 1225(b)(1)(B)(iii)(II); and second, they claim that the
officers and the IJs applied a higher standard for
evaluating the credibility of their fear of persecution than
is called for in the statute.

20
should construe the statute to allow review of their claims
in order to avoid “the serious constitutional concerns that
would arise” otherwise. JA 19. The District Court
roundly rejected this argument, concluding instead that
§ 1252 unambiguously forecloses judicial review of all of
Petitioners’ claims, and that to adopt Petitioners’
proposed construction would require the Court “to do
violence to the English language to create an ‘ambiguity’
that does not otherwise exist.” JA 20.

Turning then to the Suspension Clause issue, the
District Court separately analyzed what it termed as
Petitioners’ “substantive” challenges – those going to the
ultimate correctness of the negative credible fear
determinations – versus their challenges relating to the
procedures DHS followed in making those
determinations. Based on the Supreme Court’s decision
in Boumediene v. Bush, 553 U.S. 723 (2008), the Court
derived four “factors in determining the scope of an
alien’s Suspension Clause rights”: “(1) historical
precedent; (2) separation-of-powers principles; (3) the
gravity of the petitioner’s challenged liberty deprivation;
and (4) a balancing of the petitioner’s interest in more
rigorous administrative and habeas procedures against
the Government’s interest in expedited proceedings.” JA
25 (citations omitted). Applying these factors, the Court
determined that the Suspension Clause did not require
that judicial review be available to address any of
21
Petitioners’ claims, and therefore that § 1252(e) does not
violate the Suspension Clause. Thus, the Court
dismissed with prejudice the consolidated petitions for
lack of subject matter jurisdiction. Petitioners then filed
a timely notice of appeal with this Court. 9

III. ANALYSIS

Petitioners challenge on appeal the District Court’s
holding that it lacked subject matter jurisdiction under
§ 1252(e) to review Petitioners’ claims, as well as the
Court’s conclusion that § 1252(e) does not violate the
Suspension Clause. We review de novo the District
Court’s determination that it lacked subject matter
jurisdiction. 10 Great W. Mining & Mineral Co. v. Fox

9
A motions panel of this Court granted Petitioners’
motion for stay of removal pending the outcome of this
appeal, as well as Petitioners’ motion to expedite the
appeal. The panel also granted the motions of various
persons and entities for leave to file amicus briefs in
support of Petitioners. The Court thanks amici for their
valuable contributions in this appeal.
10
Although the District Court concluded that it lacked
subject matter jurisdiction and dismissed the petitions
accordingly, we nonetheless have jurisdiction under 28
22
Rothschild LLP, 615 F.3d 159, 163 (3d Cir. 2010).
Petitioners, as the side asserting jurisdiction, “bea[r] the
burden of proving that jurisdiction exists.” Nuveen Mun.
Trust ex rel. Nuveen High Yield Mun. Bond Fund v.
WithumSmith Brown, P.C., 692 F.3d 283, 293 (3d Cir.
2012).

A. Statutory Jurisdiction under § 1252(e)

The government contends that § 1252
unambiguously forecloses judicial review of Petitioners’
claims, and that nearly every court to address this or
similar issues has held that the statute precludes
challenges related to the expedited removal regime.
Petitioners, on the other hand, argue that the statute can
plausibly be construed to provide jurisdiction over their
claims, and that, per the doctrine of constitutional
avoidance, the statute should therefore be so construed.
They also point to precedent purportedly supporting their
position.

U.S.C. § 1291 “to determine [our] own jurisdiction.”
White-Squire v. U.S. Postal Serv., 592 F.3d 453, 456 (3d
Cir. 2010) (quoting United States v. Ruiz, 536 U.S. 622,
628 (2002)).

23
 We review pure legal questions of statutory
interpretation de novo. Ki Se Lee v. Ashcroft, 368 F.3d
218, 221 (3d Cir. 2004). “The first step in interpreting a
statute is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the
particular dispute in the case.” Id. at 222 (internal
quotation marks and citations omitted). If the statute is
unambiguous, we must go no further. Roth v. Norfalco
LLC, 651 F.3d 367, 379 (3d Cir. 2011). The statute must
be enforced according to its plain meaning, even if doing
so may lead to harsh results. See Lamie v. U.S. Tr., 540
U.S. 526, 534, 538 (2004) (“[W]hen the statute’s
language is plain, the sole function of the courts—at least
where the disposition required by the text is not absurd—
is to enforce it according to its terms. . . . Our
unwillingness to soften the import of Congress’ chosen
words even if we believe the words lead to a harsh
outcome is longstanding.” (internal quotation marks and
citations omitted)). Thus, we begin with the statute’s
plain meaning.

As discussed in our overview of the expedited
removal regime, see Part I.B above, § 1252 makes
abundantly clear that if jurisdiction exists to review any
claim related to an expedited removal order, it exists only
under subsection (e) of the statute. See 8 U.S.C.
§ 1252(a)(2)(A). And under subsection (e), unless the
petitioner wishes to challenge the “validity of the
24
system” as a whole rather than as applied to her, the
district courts’ jurisdiction is limited to three narrow
issues. See id. § 1252(e)(2) & (3). Petitioners in this
case concede that two of those three issues do not apply
to them; that is, they concede they are aliens, id.
§ 1252(e)(2)(A), and that they have not previously been
lawfully admitted to the country, id. § 1252(e)(2)(C).
Nevertheless, they argue that their claims fall within the
third category of issues that courts are authorized to
entertain: “whether [they have been] ordered removed
under [§ 1225(b)(1).]” Id. § 1252(e)(2)(B).

At first glance, it is hard to see how this latter grant
of jurisdiction can be of any help to Petitioners, since
they do not dispute that an expedited removal order is
outstanding as to each. Indeed, their argument seems
even more untenable in light of § 1252(e)(5), the first
sentence of which clarifies that when a court must
“determin[e] whether an alien has been ordered removed
under [§ 1225(b)(1)], the court’s inquiry shall be limited
to whether such an order in fact was issued and whether
it relates to the petitioner.” Id. § 1252(e)(5). How could
the government’s alleged procedural deficiencies in
ordering the Petitioners’ expedited removal undermine
the fact that expedited removal orders “in fact w[ere]
issued” and that these orders “relat[e] to the
petitioner[s]”? Id.

25
 Nevertheless, Petitioners argue that the second
sentence of § 1252(e)(5) creates a strong inference that
courts have jurisdiction to review claims like theirs. This
sentence states, “There shall be no review of whether the
alien is actually inadmissible or entitled to any relief
from removal.” Id. Petitioners argue that because this
sentence explicitly prohibits review of only two narrow
questions, we should read it to implicitly authorize
review of other questions related to the expedited
removal order, such as whether the removal order
resulted from a procedurally erroneous credible fear
proceeding. Furthermore, Petitioners argue that the
government’s proposed construction of § 1252(e)(2)(B)
and (e)(5) would render the second sentence of
§ 1252(e)(5) superfluous since the first sentence – which
would essentially limit courts’ review “only [to] whether
the agency literally issued the alien a piece of paper
marked ‘expedited removal,’” Pet’rs’ Br. 15 – would
already prevent review of the questions foreclosed by the
second sentence. Based on these arguments, Petitioners
claim that the statute is at least ambiguous as to whether
their claims are reviewable and that we should construe
the statute in their favor in order to avoid the “serious
constitutional problems” that may ensue if we read it to
foreclose habeas review. Sandoval v. Reno, 166 F.3d
225, 237 (3d Cir. 1999).

Petitioners are attempting to create ambiguity
26
where none exists.11 Their reading of the second
sentence in § 1252(e)(5) may be creative, but it
completely ignores other provisions in the statute –
including the sentence immediately preceding it – that
clearly evince Congress’ intent to narrowly circumscribe
judicial review of issues relating to expedited removal
orders. See, e.g., 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o
court shall have jurisdiction to review . . . the application
of [§ 1225(b)(1)] to individual aliens, including the
[credible fear] determination made under
[§ 1225(b)(1)(B)].”).

As for their argument that the government’s
construction renders superfluous the second sentence of
§ 1252(e)(5), we think the better reading is that the

11
And because we conclude that the statute is
unambiguous, we are unable to employ the canon of
constitutional avoidance to reach Petitioners’ desired
result. See Miller v. French, 530 U.S. 327, 341 (2000)
(“[T]he canon of constitutional doubt permits us to avoid
[constitutional] questions only where the saving
construction is not plainly contrary to the intent of
Congress. We cannot press statutory construction to the
point of disingenuous evasion even to avoid a
constitutional question.” (internal quotation marks and
citations omitted)).

27
second sentence simply clarifies the narrowness of the
inquiry under the first sentence, i.e., that “review should
only be for whether an immigration officer issued that
piece of paper and whether the Petitioner is the same
person referred to in that order.” M.S.P.C. v. U.S.
Customs & Border Prot., 60 F. Supp. 3d 1156, 1163-64
(D.N.M. 2014), vacated as moot, No. 14-769, 2015 WL
7454248 (D.N.M. Sept. 23, 2015); see also id. (“Rather
than being superfluous . . . the second sentence seems to
clarify that Congress really did mean what it said in the
first sentence.”); Diaz Rodriguez v. U.S. Customs &
Border Prot., No. 6:14-CV-2716, 2014 WL 4675182, at
*2 (W.D. La. Sept. 18, 2014), vacated as moot sub nom
Diaz-Rodriguez v. Holder, No. 14-31103, 2014 WL
10965184 (5th Cir. Dec. 16, 2014) (“The second sentence
of Section 1252(e)(5) . . . is most fairly interpreted as a
clarification and attempt by Congress to foreclose narrow
interpretations of the first sentence of Section
1252(e)(5).”).12

12
Furthermore, even if our reading of the statute means
that the second sentence is superfluous, the canon against
surplusage does not always control and generally should
not be followed where doing so would render ambiguous
a statute whose meaning is otherwise plain. See Lamie,
540 U.S. at 536 (explaining that “our preference for
avoiding surplusage constructions is not absolute,” and
28
 By reading the INA to foreclose Petitioners’
claims, we join the majority of courts that have addressed
the scope of judicial review under § 1252 in the
expedited removal context. See, e.g., Shunaula v.
Holder, 732 F.3d 143, 145-47 (2d Cir. 2013) (observing
that § 1252 “provides for limited judicial review of
expedited removal orders in habeas corpus proceedings”
but otherwise deprives the courts of jurisdiction to hear
claims related to the implementation or operation of a
removal order, and holding that an alien’s claims
disputing that he sought to enter the country through
fraud or misrepresentation and asserting that he was not
advised that he was in an expedited removal proceeding
or given the opportunity to consult with a lawyer “f[ell]
within this jurisdictional bar”); Brumme v. I.N.S., 275
F.3d 443, 448 (5th Cir. 2001) (characterizing argument
that courts have jurisdiction under § 1252(e)(2)(B) to
determine whether the expedited removal statute “was
applicable in the first place” as an attempt to make “an
end run around” the “clear” language of § 1252(e)(5)); Li
v. Eddy, 259 F.3d 1132, 1134-35 (9th Cir. 2001), opinion
vacated as moot, 324 F.3d 1109 (9th Cir. 2003) (“With
respect to review of expedited removal orders, . . . the
statute could not be much clearer in its intent to restrict

that “applying the rule against surplusage is, absent other
indications, inappropriate” where applying the rule would
make ambiguous an otherwise unambiguous statute).

29
habeas review. Accordingly, only two issues were
properly before the district court: whether the order
removing the petitioner was in fact issued, and whether
the order named [the petitioner].” (citation omitted));
Khan v. Holder, 608 F.3d 325, 329-30 (7th Cir. 2010)
(accord); Diaz Rodriguez, 2014 WL 4675182, at *2
(rejecting proposed construction similar to Petitioners’
argument in this case; “The expedited removal statutes
are express and unambiguous. The clarity of the
language forecloses acrobatic attempts at
interpretation.”).

Petitioners claim that the Ninth Circuit and two
district courts in other circuits have construed § 1252 to
allow judicial review of claims that the aliens in question
had been ordered expeditiously removed in violation of
the expedited removal statute. In Smith v. U.S. Customs
and Border Protection, 741 F.3d 1016 (9th Cir. 2014),
Smith, a Canadian national, was ordered removed under
§ 1225(b)(1) when, upon presenting himself for
inspection at the United States-Canada border, the CBP
agent concluded that he was an intending immigrant
without proper work-authorization documents. Smith
filed a habeas petition under § 1252(e)(2)(B), claiming
that Canadians are exempt from the documentation
requirements for admission, which meant that the CBP
agent exceeded his authority in ordering Smith removed.
Therefore (Smith’s argument went), he was not “ordered
30
removed under [§ 1225(b)(1)].” Id. at 1021. The Ninth
Circuit “[a]ccept[ed] [Smith’s] theory at face value” only
to then reject Smith’s argument on the merits. Id.
Although the Supreme Court has disapproved of the
practice, see Steel Co. v. Citizens for a Better
Environment, 523 U.S. 83, 93-94 (1998), the court
appears merely to have assumed hypothetical jurisdiction
in order to dispose of the appeal on easier merits grounds.
We therefore assign no weight to either Smith’s outcome
or its reasoning.

In American-Arab Anti-Discrimination
Commission v. Ashcroft, 272 F. Supp. 2d 650 (E.D.
Mich. 2003), several Lebanese aliens were ordered
removed under § 1225(b)(1), years after entering the
United States using fraudulent documentation. They
filed habeas petitions challenging their expedited
removal orders, and the district court concluded that it
had jurisdiction “under the circumstances here . . . to
determine whether the expedited removal statute was
lawfully applied to petitioners in the first place.” Id. at
663. To support this conclusion, the court latched onto
the language in § 1252(e)(5) limiting the scope of habeas
review under § 1252(e)(2)(B) to “whether [the expedited
removal order] relates to the petitioner,” reasoning that
an order “relates to” a person only if it was lawfully
applied to the person. Id. We find the court’s
construction of the statute to be not just unsupported, but
31
also flatly contradicted by the plain language of the
statute itself. See 8 U.S.C. § 1252(a)(2)(A)(iii) (“[N]o
court shall have jurisdiction to review . . . the application
of [§ 1225(b)(1)] to individual aliens.” (emphasis
added)). Accordingly, we decline to follow it.

The last case Petitioners point us to is Dugdale v.
U.S. Customs and Border Protection, 88 F. Supp. 3d 1
(D.D.C. 2015). Dugdale was an alien who had lived for
extended periods in the United States but who was
ordered removed pursuant to § 1225(b)(1) after trying to
return to the country following a visit to Canada. He
filed a habeas petition to challenge his removal order
under § 1252(e)(2). In his petition he claimed, inter alia,
that because his removal order was not signed by the
supervisor of the issuing immigration officer, he was not
actually “ordered removed” under § 1225(b)(1). See id.
at 6. Addressing this argument, the court recognized that
the “[c]ase law on this question is scarce.” Id.
Nevertheless, the court ultimately concluded “that a
determination of whether a removal order ‘in fact was
issued’ fairly encompasses a claim that the order was not
lawfully issued due to some procedural defect.” Id.
(quoting 8 U.S.C. § 1252(e)(5)). Because the claim that
the supervisor failed to sign the removal order “f[ell]
within that category of claims,” id., the court exercised
its jurisdiction, and ordered further briefing to determine
if the CBP had complied with its own regulations in
32
issuing his removal order.

Even if we were to agree with Dugdale that
§ 1252(e)(2)(B) encompasses claims alleging “some
procedural defect” in the expedited removal order, we
would nonetheless find Petitioners’ claims easily
distinguishable. The procedural defect that Dugdale
alleged was at least arguably related to the question
whether a removal order “in fact was issued.”
Petitioners’ claims here, on the other hand, have nothing
to do with the issuance of the actual removal orders;
instead, they go to the adequacy of the credible fear
proceedings. Furthermore, to treat Petitioners’ claims
regarding the procedural shortcomings of the credible
fear determination process as though they were “claim[s]
that the order was not lawfully issued due to some
procedural defect” would likely eviscerate the clear
jurisdiction-limiting provisions of § 1252, for it would
allow an alien to challenge in court practically any
perceived shortcoming in the procedures prescribed by
Congress or employed by the Executive – a result clearly
at odds with Congress’ intent.

In a final effort to dissuade us from adopting the
government’s proposed reading of the statute, Petitioners
suggest a variety of presumably undesirable outcomes
that could stem from it. For instance, they argue that
under the government’s reading, a court would lack
33
jurisdiction to review claims that, in ordering the
expedited removal of an alien, “the government refused
to provide a credible fear interview, manifestly applied
the wrong legal standard, outright denied the applicant an
interpreter, or even refused to permit the applicant to
testify.” Pet’rs’ Br. 18; see also Brief for National
Immigrant Justice Center as Amicus Curiae 5-21
(suggesting several other factual scenarios in which
courts would lack jurisdiction to correct serious
government violations of expedited removal statute). To
this, we can only respond as the Seventh Circuit did in
Khan when acknowledging some of the possible
implications of the jurisdiction-stripping provisions of
§ 1252: “To say that this [expedited removal] procedure
is fraught with risk of arbitrary, mistaken, or
discriminatory behavior . . . is not, however, to say that
courts are free to disregard jurisdictional limitations.
They are not . . . .” 608 F.3d at 329. 13

13
Of course, even though our construction of § 1252
means that courts in the future will almost certainly lack
statutory jurisdiction to review claims that the
government has committed even more egregious
violations of the expedited removal statute than those
alleged by Petitioners, this does not necessarily mean that
all aliens wishing to raise such claims will be without a
remedy. For instance, consider the case of an alien who
34
 For these reasons we agree with the District
Court’s conclusion that it lacked jurisdiction under
§ 1252 to review Petitioners’ claims, and turn now to the
constitutionality of the statute under the Suspension
Clause.

B. Suspension Clause Challenge

The Suspension Clause of the United States
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.”

has been living continuously for several years in the
United States before being ordered removed under
§ 1225(b)(1). Even though the statute would prevent him
from seeking judicial review of a claim, say, that he was
never granted a credible fear interview, under our
analysis of the Suspension Clause below, the statute
could very well be unconstitutional as applied to him
(though we by no means undertake to so hold in this
opinion). Suffice it to say, at least some of the arguably
troubling implications of our reading of § 1252 may be
tempered by the Constitution’s requirement that habeas
review be available in some circumstances and for some
people.

35
U.S. Const. art. I, § 9, cl. 2. The government does not
contend that we are in a time of formal suspension.
Thus, the question is whether § 1252 operates as an
unconstitutional suspension of the writ by stripping
courts of habeas jurisdiction over all but a few narrow
questions. As the party challenging the constitutionality
of a presumptively constitutional statute, Petitioners bear
the burden of proof. Marshall v. Lauriault, 372 F.3d
175, 185 (3d Cir. 2004).

Petitioners argue that the answer to the ultimate
question presented on appeal – whether § 1252 violates
the Suspension Clause – can be found without too much
effort in the Supreme Court’s Suspension Clause
jurisprudence, especially in I.N.S. v. St. Cyr, 533 U.S.
289 (2001), and Boumediene v. Bush, 553 U.S. 723
(2008), as well as in a series of cases from what has been
termed the “finality era.” The government, on the other
hand, largely views these cases as inapposite, and instead
focuses our attention on what has been called the
“plenary power doctrine” and on the Supreme Court
cases that elucidate it. The challenge we face is to
discern the manner in which these seemingly disparate,
and perhaps even competing, constitutional fields
interact. Ultimately, and for the reasons we will explain
below, we conclude that Congress may, consonant with
the Constitution, deny habeas review in federal court of
claims relating to an alien’s application for admission to
36
the country, at least as to aliens who have been denied
initial entry or who, like Petitioners, were apprehended
very near the border and, essentially, immediately after
surreptitious entry into the country.

We will begin our discussion with a detailed
overview of the Supreme Court’s relevant Suspension
Clause precedents, followed by a summary of the Court’s
plenary power cases. We will then explain how we think
these two areas coalesce in the context of Petitioners’
challenges to their expedited removal orders.

1. Suspension Clause Jurisprudence

The Supreme Court has held that a statute
modifying the scope of habeas review is constitutional
under the Suspension Clause so long as the modified
scope of review – that is, the habeas substitute – “is
neither inadequate nor ineffective to test the legality of a
person’s detention.” Swain v. Pressley, 430 U.S. 372,
381 (1977) (citing United States v. Hayman, 342 U.S.
205, 223 (1952)). The Court has weighed the adequacy
and effectiveness of habeas substitutes on only a few
occasions, and only once, in Boumediene, has it found a
substitute wanting. See Boumediene, 553 U.S. at 795
(holding that “the [Detainee Treatment Act] review
procedures are an inadequate substitute for habeas
37
corpus,” and therefore striking down under the
Suspension Clause § 7 of the Military Commissions Act,
which stripped federal courts of habeas jurisdiction over
Guantanamo Bay detainees). Thus, Boumediene
represents our only “sum certain” when it comes to
evaluating the adequacy of a given habeas substitute such
as § 1252, and even then the decision “leaves open as
many questions as it settles about the operation of the
[Suspension] Clause.” Gerald L. Neuman, The Habeas
Corpus Suspension Clause After Boumediene v. Bush,
110 Colum. L. Rev. 537, 578 (2010).

Before we delve into Boumediene, however, we
must examine the Supreme Court’s decision in St. Cyr,
another case on which Petitioners heavily rely. Although
the Court in St. Cyr ultimately dodged the Suspension
Clause question by construing the jurisdiction-stripping
statute at issue to leave intact courts’ habeas jurisdiction
under 28 U.S.C. § 2241, the opinion offers insight into
“what the Suspension Clause might possibly protect.”
Neuman, supra, at 539 & n.8.

St. Cyr was a lawful permanent resident alien who,
in early 1996, pleaded guilty to a crime that qualified him
for deportation. St. Cyr, 533 U.S. at 293. Under the
immigration laws prevailing at the time of his conviction,
he was eligible for a waiver of deportation at the
Attorney General’s discretion. Id. Nevertheless, by the
38
time he was ordered removed in 1997, Congress had
enacted 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. Among the
myriad other revisions to our immigration laws that these
enactments effected, AEDPA and IIRIRA stripped the
Attorney General of his discretionary power to waive
deportation, and replaced it with the authority to “cancel
removal” for a narrow class of aliens that did not include
aliens who, like St. Cyr, had been previously “convicted
of any aggravated felony.” 8 U.S.C. § 1229b(a)(3).
When St. Cyr applied to the Attorney General for waiver
of deportation, the Attorney General concluded that
AEDPA and IIRIRA stripped him of his waiver authority
even as to aliens who pleaded guilty to the deportable
offense prior to the statutes’ enactment. 533 U.S. at 297.
St. Cyr filed a habeas petition in federal district court
under § 2241, claiming that the provisions of AEDPA
and IIRIRA eliminating the Attorney General’s waiver
authority did not apply to aliens who pleaded guilty to a
deportable offense before their enactment. Id. at 293.

The government contended that AEDPA and
IIRIRA stripped the courts of habeas jurisdiction to
review the Attorney General’s determination that he no
longer had the power to waive St. Cyr’s deportation. Id.
at 297-98. The Court ultimately disagreed with the
39
government, construing the judicial review statutes to
permit habeas review under § 2241. To support this
construction, the Court relied heavily on the doctrine of
constitutional avoidance, under which courts are
“obligated to construe the statute to avoid [serious
constitutional] problems” if such a saving construction is
“fairly possible.”14 Id. at 299-300 (internal quotation
marks and citations omitted). In the Court’s review, the
government’s proposed construction of the jurisdiction-
stripping provisions would have presented “a serious
Suspension Clause issue.” Id. at 305.

To explain why the Suspension Clause could
possibly have been violated by a statute stripping the
courts of habeas jurisdiction under § 2241, the Court
began with the foundational principle that, “at the
absolute minimum, the Suspension Clause protects the
writ ‘as it existed in 1789.’” Id. at 301 (quoting Felker v.
Turpin, 518 U.S. 651, 663-64 (1996)). Looking to the
Founding era, the Court found evidence that “the writ of
habeas corpus was available to nonenemy aliens as well
as to citizens” as a means to challenge the “legality of
Executive detention.” Id. at 301-02. In such cases,

14
The Court also relied on “the longstanding rule
requiring a clear statement of congressional intent to
repeal habeas jurisdiction.” 533 U.S. at 298.

40
habeas review was available to challenge “detentions
based on errors of law, including the erroneous
application or interpretation of statutes.” Id. at 302.

Even while discussing the Founding-era evidence,
however, the Court in St. Cyr was “careful not to
foreclose the possibility that the protections of the
Suspension Clause have expanded along with post–1789
developments that define the present scope of the writ.”
Boumediene, 553 U.S. at 746. Indeed, the Court
discussed at some length the “historical practice in
immigration law,” St. Cyr, 533 U.S. at 305, with special
focus on cases from what may be termed the “finality
era.” See id. at 306-07. In order to understand the role
that these finality-era cases appear to play in St. Cyr’s
Suspension Clause analysis, and because Petitioners
place significant weight on them in their argument that
§ 1252 violates the Suspension Clause, we will describe
them in some depth.

The finality-era cases came about during an
approximately sixty-year period when federal
immigration law rendered final (hence, the “finality” era)
the Executive’s decisions to admit, exclude, or deport
aliens. This period began with the passage of the

41
Immigration Act of 1891, ch. 551, 26 Stat. 1084,15 and
concluded when Congress enacted the Immigration and
Nationality Act of 1952, Pub. L. No. 82-414, 66 Stat.
163, which permitted judicial review of deportation
orders through declaratory judgment actions in federal
district courts. See Shaughnessy v. Pedreiro, 349 U.S.
48, 51-52 (1955).16 During this period, and despite the
15
Section 8 of the Act contained the finality provision:
“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 1891, § 8, 26 Stat. 1084,
1085.
16
Between the 1891 and 1952 Acts, Congress revised the
immigration laws on several occasions, each time
maintaining a similar finality provision. See, e.g.,
Immigration Act of 1907, § 25, 34 Stat. 898, 907 (“[I]n
every case where an alien is excluded from admission
into the United States, under any law or treaty now
existing or hereafter made, the decision of the appropriate
immigration officers, if adverse to the admission of such
alien, shall be final, unless reversed on appeal to the
Secretary of Commerce and Labor.”); Immigration Act
of 1917, § 19, 39 Stat. 874, 890 (“In every case where
any person is ordered deported from the United States
42
statutes’ finality provisions appearing to strip courts of
all jurisdiction to review the Executive’s immigration-
related determinations, the Supreme Court consistently
recognized the ability of immigrants to challenge the
legality of their exclusion or deportation through habeas
corpus. Based on this, Petitioners contend that the
finality-era cases “establishe[d] a constitutional floor for
judicial review,” Pet’rs’ Br. 26, and that the Suspension
Clause was the source of this floor. In making this
argument, Petitioners rely especially on Heikkila v.
Barber, 345 U.S. 229 (1953), in which the Court derived
from its finality-era precedents the principle that the
statutes’ finality provisions “had the effect of precluding
judicial intervention in deportation cases except insofar
as it was required by the Constitution.” Id. at 234-35
(emphasis added); see also id. at 234 (“During these
years, the cases continued to recognize that Congress had
intended to make these administrative decisions
nonreviewable to the fullest extent possible under the
Constitution.” (emphasis added; citing Fong Yue Ting v.
United States, 149 U.S. 698, 713 (1893) (“The power to
exclude or to expel aliens . . . is vested in the political
departments of the government, and is to be regulated by
treaty or by act of congress, and to be executed by the
executive authority according to the regulations so

under the provisions of this Act, or of any law or treaty,
the decision of the Secretary of Labor shall be final.”).

43
established, except so far the judicial department . . . is
required by the paramount law of the constitution, to
intervene.” (emphasis added)))).

Indeed, the Heikkila decision brings us back to St.
Cyr and helps us understand the significance that the
Court apparently assigned to the finality-era cases in its
Suspension Clause discussion. First, the Court in St. Cyr
noted that the government’s proposed construction of the
AEDPA and IIRIRA jurisdiction-stripping provisions
“would entirely preclude review of a pure question of law
by any court.” 533 U.S. at 300. Such a result was
problematic because, under “[the Suspension] Clause,
some ‘judicial intervention in deportation cases’ is
unquestionably ‘required by the Constitution.’” Id.
(quoting Heikkila, 345 U.S. at 235). In short, the Court
found in the finality-era cases evidence that, as a matter
of historical practice, aliens facing removal could
challenge “the Executive’s legal determinations,”17
17
As support for this proposition, the Court also cited
Gegiow v. Uhl, 239 U.S. 3 (1915). See St. Cyr, 533 U.S.
at 306 & n.28. Gegiow involved Russian immigrants
whom immigration officers had ordered deported after
concluding that the aliens were “likely to become public
charges.” 239 U.S. at 8 (internal quotation marks
omitted). The immigrants sought and obtained habeas
review of the Executive’s determination. According to
44
including “Executive interpretations of the immigration
laws.” Id. at 306-07.

We turn now to Boumediene. In Boumediene the
Court addressed two main, sequential questions. First,
the Court considered whether detainees at the United
States Naval Station at Guantanamo Bay, Cuba, “are

the Supreme Court, the only reason the Executive
provided to support its conclusion that the aliens were
deportable was that they were not likely to find work in
the city of their ultimate destination (Portland, Oregon)
due to the poor conditions of the city’s labor market. Id.
at 8-9. In order to avoid the force of earlier Supreme
Court precedent holding that “[t]he conclusiveness of the
decisions of immigration officers under [the prevailing
immigration statute’s finality provision] is
conclusiveness upon matters of fact,” id. at 9 (citing
Nishimura Ekiu v. United States, 142 U.S. 651 (1892)),
the Court presented the question on review as one of law,
rather than one of fact: “whether an alien can be declared
likely to become a public charge on the ground that the
labor market in the city of his immediate destination is
overstocked.” Id. at 9-10. And because the Court
ultimately concluded that such a consideration was not an
appropriate grounds for ordering the aliens deported, it
reversed the order. Id. at 10.

45
barred from seeking the writ or invoking the protections
of the Suspension Clause either because of their status . .
. as enemy combatants, or their physical location . . . at
Guantanamo Bay.” 553 U.S. at 739. Then, after
determining that the detainees were entitled to the
protections of the Suspension Clause, the Court
addressed the question “whether the statute stripping
jurisdiction to issue the writ avoids the Suspension
Clause mandate because Congress has provided adequate
substitute procedures for habeas corpus.” Id. at 771.

In answering the first question regarding the
detainees’ entitlement vel non to the protections of the
Suspension Clause, the Court primarily looked to its
“extraterritoriality” jurisprudence, i.e., its cases
addressing where and under what circumstances the
Constitution applies outside the United States. From
these precedents the Court developed a multi-factor test
to determine whether the Guantanamo detainees were
covered by the Suspension Clause:

[A]t least three factors are relevant in
determining the reach of the Suspension
Clause: (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;
46
 and (3) the practical obstacles inherent in
resolving the prisoner's entitlement to the
writ.

Id. at 766. Based on these factors, the Court concluded
that the Suspension Clause “has full effect at
Guantanamo Bay.” 18 Id. at 771.

The Court next considered the adequacy of the
habeas substitute provided to the detainees by Congress.
The Detainee Treatment Act (DTA) granted jurisdiction
to the Court of Appeals for the D.C. Circuit “only to
assess whether the CSRT [Combat Status Review
Tribunal19] complied with the ‘standards and procedures

18
While the Court obviously analyzed how these factors
apply to the Guantanamo detainees in much greater depth
than our brief summary might suggest, we refrain from
expositing its analysis further. That is because, as we
explain in greater detail below, we think this multi-factor
test provides little guidance in addressing Petitioners’
entitlement to the protections of the Suspension Clause in
this case.
19
CSRTs are the military tribunals established by the
Department of Defense to determine if the Guantanamo
detainees are “enemy combatants” who are therefore
47
specified by the Secretary of Defense’ and whether those
standards and procedures are lawful.” Id. at 777 (quoting
DTA § 1005(e)(2)(C), 119 Stat. 2742). Under the DTA,
the D.C. Circuit lacked jurisdiction “to inquire into the
legality of the detention generally.” Id.

In assessing the adequacy of the DTA as a habeas
substitute, the Court acknowledged the lack of case law
addressing “standards defining suspension of the writ or
[the] circumstances under which suspension has
occurred.” Id. at 773. It also made clear that it was not
“offer[ing] a comprehensive summary of the requisites
for an adequate substitute for habeas corpus.” Id. at 779.
Having pronounced these caveats, the Court then began
its discussion of what features the habeas substitute
needed to include to avoid violating the Suspension
Clause. To begin, the Court recognized what it
considered to be two “easily identified attributes of any
constitutionally adequate habeas corpus proceeding,” id.:
first, the Court “consider[ed] it uncontroversial [ ] that
the privilege of habeas corpus entitles the prisoner to a
meaningful opportunity to demonstrate that he is being
held pursuant to ‘the erroneous application or

subject to indefinite detention without trial pending the
duration of the war in Afghanistan. See 553 U.S. at 733-
34.

48
interpretation’ of relevant law,” id. (quoting St. Cyr, 533
U.S. at 302); and second, “the habeas court must have the
power to order the conditional release of an individual
unlawfully detained,” id.

In addition to these two seemingly irreducible
attributes of a constitutionally adequate habeas substitute,
the Court identified a few others that, “depending on the
circumstances, [ ] may be required.” Id. (emphasis
added). These additional features include: the ability of
the prisoner to “controvert facts in the jailer’s return,” see
id. at 780; “some authority to assess the sufficiency of the
Government’s evidence against the detainee,” id. at 786;
and the ability “to introduce exculpatory evidence that
was either unknown or previously unavailable to the
prisoner,” id. at 780; see also id. at 786. To determine
whether the circumstances in a given case are such that
the habeas substitute must also encompass these
additional features, the Court discussed a number of
considerations, all of which related to the “rigor of any
earlier proceedings.” Id. at 781. In short, the Court
established a sort of sliding scale whose focus was “the
sum total of procedural protections afforded to the
detainee at all stages, direct and collateral.” Id. at 783.

Applying these principles, the Court ultimately
concluded that the DTA did not provide the detainees an
adequate habeas substitute. The Court believed the DTA
49
could be construed to provide most of the attributes
necessary to make it a “constitutionally adequate
substitute” for habeas – including the detainees’ ability to
challenge the CSRT’s legal and factual determinations,
as well as authority for the court to order the release of
the detainees if it concluded that detention was not
justified. Id. at 787-89. Nevertheless, the DTA did not
afford detainees “an opportunity . . . to present relevant
exculpatory evidence that was not made part of the
record in the earlier proceedings.” Id. at 789. This latter
deficiency doomed the DTA as a habeas substitute.
Because of this, the Court held that the Military
Commissions Act, which stripped federal courts of their
§ 2241 habeas jurisdiction with respect to the CSRT
enemy combatant determinations, “effects an
unconstitutional suspension of the writ.” Id. at 792.

2. Plenary Power Jurisprudence

Against the backdrop of the Court’s most relevant
Suspension Clause precedents, we direct our attention to
the plenary power doctrine. Because the course of this
doctrine’s development in the Supreme Court sheds
useful light on the current state of the law, a brief
historical overview is first in order.

The Supreme Court has “long recognized [that] the
50
power to expel or exclude aliens [i]s a fundamental
sovereign attribute exercised by the Government’s
political departments largely immune from judicial
control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977)
(internal quotation marks and citation omitted). “[T]he
Court’s general reaffirmations of this principle have been
legion.” Kleindienst v. Mandel, 408 U.S. 753, 765-766 &
n.6 (1972) (collecting cases). The doctrine first emerged
in the late nineteenth century in the context of the
Chinese Exclusion Act, one of the first federal statutes to
regulate immigration.

The case that first recognized the political
branches’ plenary authority to exclude aliens, Chae Chan
Ping v. United States, 130 U.S. 581 (1889), involved a
Chinese lawful permanent resident who, prior to
departing the United States for a trip abroad, had
obtained a certificate entitling him to reenter the country
upon his return. Id. at 581-82. While he was away,
however, Congress passed an amendment to the Chinese
Exclusion Act that rendered such certificates null and
void. Id. at 582. Thus, after immigration authorities
refused him entrance upon his return, the alien brought a
habeas petition to challenge the lawfulness of his
exclusion, arguing that the amendment nullifying his
reentry certificate was invalid. Id. The Court upheld the
validity of the amendment, reasoning that “[t]he power of
exclusion of foreigners [is] an incident of sovereignty
51
belonging to the government of the United States as a
part of those sovereign powers delegated by the
constitution,” and therefore that “the right to its exercise
at any time when, in the judgment of the government, the
interests of the country require it, cannot be granted away
or restrained on behalf of any one.” Id. at 609; see also
id. (concluding that questions regarding the political
soundness of the amendment “are not questions for
judicial determination”).

In subsequent decisions from the same period, the
Court upheld and even extended its reasoning in Chae
Chan Ping. For instance, in Nishimura Ekiu v. United
States, 142 U.S. 651 (1892), another exclusion (as
opposed to deportation) case, a Japanese immigrant was
denied entry to the United States because immigration
authorities determined that she was “likely to become a
public charge.” Id. at 662 (internal quotation marks and
citation omitted). The Court concluded that the statute
authorizing exclusion on such grounds was valid under
the sovereign authority of Congress and the Executive to
control immigration. Id. at 659 (stating that the power
over admission and exclusion “belongs to the political
department[s] of the government”). In a statement that
perfectly encapsulates the meaning of the plenary power
doctrine, the Court declared:

It is not within the province of the judiciary
52
 to order that foreigners who have never been
naturalized, nor acquired any domicile or
residence within the United States, nor even
been admitted into the country pursuant to
law, shall be permitted to enter, in
opposition to the constitutional and lawful
measures of the legislative and executive
branches of the national government. As to
such persons, the decisions of executive or
administrative officers, acting within powers
expressly conferred by congress, are due
process of law.

Id. at 660.20

20
While the Court recognized Nishimura Ekiu’s
“entitle[ment] to a writ of habeas corpus to ascertain
whether the restraint [of her liberty] is lawful,” id. at 660,
the scope of the Court’s habeas review was limited to
inquiring whether the immigration officer ordering the
exclusion “was duly appointed” under the statute and
whether the officer’s decision to exclude her “was within
the authority conferred upon him by [the Immigration
53
 The following year, in Fong Yue Ting v. United
States, 149 U.S. 698 (1893), the Court extended the
plenary power doctrine to deportation cases as well.
Fong Yue Ting involved several Chinese immigrants who
were ordered deported pursuant to the Chinese Exclusion
Act because they lacked certificates of residence and
could not show by the testimony of “at least one credible
white witness” that they were lawful residents. Id. at
702-04. The aliens sought to challenge their deportation
orders, claiming, inter alia, that the Exclusion Act
violated the equal protection clause of the Fourteenth
Amendment. See id. at 724-25 (citing Yick Wo v.
Hopkins, 118 U.S. 356 (1886)). As it had done in Chae

Act of 1891].” Id. at 664. Thus, Nishimura Ekiu cannot
help Petitioners because, as we noted above, they have
conceded that they fall within the class of aliens for
whom Congress has authorized expedited removal, and
that the immigration officials ordering their removal are
duly appointed to do so. See 8 U.S.C.
§ 1225(b)(1)(A)(iii). That said, it would be a different
matter were the Executive to attempt to expeditiously
remove an alien that Congress has not authorized for
expeditious removal – for example, an alien who claims
to have been continuously present in the United States for
over two years prior to her detention. Such a situation
might very well implicate the Suspension Clause in a
way that Petitioners’ expedited removal does not.

54
Chan Ping and Nishimura Ekiu, the Court declined to
intervene or review the validity of the immigration
legislation:

The question whether, and upon what
conditions, these aliens shall be permitted to
remain within the United States being one to
be determined by the political departments
of the government, the judicial department
cannot properly express an opinion upon the
wisdom, the policy, or the justice of the
measures enacted by congress in the
exercise of the powers confided to it by the
constitution over this subject.

Id. at 731; see also id. at 707 (“The right of a nation to
expel or deport foreigners who have not been naturalized,
or taken any steps towards becoming citizens of the
country, rests upon the same grounds, and is as absolute
and unqualified, as the right to prohibit and prevent their
entrance into the country.”).

Thus, the Court’s earliest plenary power decisions
established a rule leaving essentially no room for judicial
intervention in immigration matters, a rule that applied
equally in exclusion as well as deportation cases.

55
 Yet not long after these initial decisions, the Court
began to walk back the plenary power doctrine in
significant ways. In Yamataya v. Fisher, 189 U.S. 86
(1903), a Japanese immigrant was initially allowed to
enter the country after presenting herself for inspection at
a port of entry. Id. at 87. Nevertheless, just a few days
later, an immigration officer sought her deportation
because he had concluded, after some investigation, that
she “was a pauper and a person likely to become a public
charge.” Id. About a week later, the Secretary of the
Treasury ordered her deported without notice or hearing.
Id. Yamataya then filed a habeas petition in federal
district court to challenge her deportation, claiming that
the failure to provide her notice and a hearing violated
due process. Id. The Court acknowledged its plenary
power precedents, including Nishimura Ekiu and Fong
Yue Ting, see id. at 97-99, but clarified that these
precedents did not recognize the authority of immigration
officials to “disregard the fundamental principles that
inhere in ‘due process of law’ as understood at the time
of the adoption of the Constitution.” Id. at 100.
According to these “fundamental principles,” the Court
held, no immigration official has the power

arbitrarily to cause an alien who has entered
the country, and has become subject in all
respects to its jurisdiction, and a part of its
population, although alleged to be illegally
56
 here, to be taken into custody and deported
without giving him all opportunity to be
heard upon the questions involving his right
to be and remain in the United States.

Id. at 101.21

Thus, Yamataya proved to be a “turning point” in
the Court’s plenary power jurisprudence. Henry M. Hart,
Jr., The Power of Congress to Limit the Jurisdiction of
Federal Courts: An Exercise in Dialectic, 66 Harv. L.
Rev. 1362, 1390 n.85 (1953). Indeed, as Professor Hart
explains, it was at this point that the Court “began to see
that the premise [of the plenary power doctrine] needed
to be qualified – that a power to lay down general rules,
even if it were plenary, did not necessarily include a

21
Although the Court recognized the due process rights
of recent entrants to the country – even entrants who are
subsequently determined “to be illegally here” – it
explicitly declined to address whether very recent
clandestine entrants like Petitioners enjoy such rights.
See Yamataya, 189 U.S. at 100. For obvious reasons, and
as we explain below, we consider this carve-out in the
Court’s holding to be of particular importance in
resolving this appeal.

57
power to be arbitrary or to authorize administrative
officials to be arbitrary.” Id. at 1390; see also Charles D.
Weisselberg, The Exclusion and Detention of Aliens:
Lessons from the Lives of Ellen Knauff and Ignatz Mezei,
143 U. Pa. L. Rev. 933, 947-48 & n.62 (1995)
(discussing Yamataya’s significance to the development
of the plenary power doctrine). Yamataya, then,
essentially gave way to the finality-era cases upon which
Petitioners and amici place such considerable weight.
Hart, supra, at 1391 & n.86 (noting the “[t]housands” of
habeas cases challenging exclusion and deportation
orders “whose presence in the courts cannot be explained
on any other basis” than on the reasoning of Yamataya).

Nevertheless, Yamataya did not mark the only
“turning point” in the development of the plenary power
doctrine. Nearly fifty years after Yamataya, the Court
issued two opinions – United States ex rel. Knauff v.
Shaughnessy, 338 U.S. 537 (1950) and Shaughnessy v.
United States ex rel. Mezei, 345 U.S. 206 (1953) – that
essentially undid the effects of Yamataya, at least for
aliens “on the threshold of initial entry,” as well as for
those “assimilated to that status for constitutional
purposes.” Mezei, 345 U.S. at 212, 214 (internal
quotation marks and alterations omitted); see also Hart,
supra, at 1391-92 (explaining the significance of Knauff
and Mezei for the Court’s plenary power jurisprudence,
noting specifically that by these decisions the Court
58
“either ignores or renders obsolete every habeas corpus
case in the books involving an exclusion proceeding”).

In Knauff, the German wife of a United States
citizen sought admission to the country pursuant to the
War Brides Act. 338 U.S. at 539 (citing Act of Dec. 28,
1945, ch. 591, 59 Stat. 659 (1946)). She was detained
immediately upon her arrival at Ellis Island, and the
Attorney General eventually ordered her excluded,
without a hearing, because “her admission would be
prejudicial to the interests of the United States.” Id. at
539-40. The Court upheld the Attorney General’s
decision largely on the basis of pre-Yamataya plenary
power principles and precedents:

[T]he decision to admit or to exclude an
alien may be lawfully placed with the
President, who may in turn delegate the
carrying out of this function to a responsible
executive officer of the sovereign, such as
the Attorney General. The action of the
executive officer under such authority is
final and conclusive. Whatever the rule may
be concerning deportation of persons who
have gained entry into the United States, it is
not within the province of any court, unless
expressly authorized by law, to review the
determination of the political branch of the
59
 Government to exclude a given alien. . . .
Whatever the procedure authorized by
Congress is, it is due process as far as an
alien denied entry is concerned.

Id. at 543-44 (citing, inter alia, Nishimura Ekiu, 142 U.S.
at 659-60 and Fong Yue Ting, 149 U.S. at 713-14). Thus,
with its holding in Knauff, the Court effectively
“reinvigorated the judicial deference prong of the plenary
power doctrine.” Weisselberg, supra, at 956.

Similar to Knauff, Mezei involved an alien
detained on Ellis Island who was denied entry for
undisclosed national security reasons. Unlike Knauff,
however, Mezei had previously lived in the United States
for many years before leaving the country for a period of
approximately nineteen months, “apparently to visit his
dying mother in Rumania [sic].” 345 U.S. at 208. And
unlike Knauff, Mezei had no choice but to remain in
custody indefinitely on Ellis Island, as no other country
would admit him either. Id. at 208-09. In these
conditions, Mezei brought a habeas petition to challenge
his exclusion (and attendant indefinite detention). Id. at
209. Nevertheless, the Court again upheld the
Executive’s decision, essentially for the same reasons
articulated in Knauff. “It is true,” the Court explained,
“that aliens who have once passed through our gates,
even illegally, may be expelled only after proceedings
60
conforming to traditional standards of fairness
encompassed in due process of law.” Id. at 212 (citing,
inter alia, Yamataya, 189 U.S. at 100-01). In contrast,
aliens “on the threshold of initial entry stan[d] on
different footing: ‘Whatever the procedure authorized by
Congress is, it is due process as far as an alien denied
entry is concerned.’” 22 Id. (quoting Knauff, 338 U.S. at
544).

Thus, Knauff and Mezei essentially restored the
political branches’ plenary power over aliens at the
border seeking initial admission. And since these
decisions, the Court has continued to signal its
commitment to the full breadth of the plenary power

22
Although Mezei (like Knauff) was indisputably on
United States soil when he was ordered excluded and
when he filed his habeas petition, the Court “assimilated”
Mezei’s status “for constitutional purposes” to that of an
alien stopped at the border. See id. at 214 (internal
quotation marks and citation omitted). This analytical
maneuver is often referred to as the “entry fiction” or the
“entry doctrine.” See, e.g., Jean v. Nelson, 727 F.2d 957,
969 (11th Cir. 1984) (en banc), aff’d, 472 U.S. 846
(1985). As explained below, the entry fiction plays an
important, albeit indirect, role in our analysis of
Petitioners’ Suspension Clause challenge.

61
doctrine, at least as to aliens at the border seeking initial
admission to the country. 23 See Fiallo, 430 U.S. at 792
(“This Court has repeatedly emphasized that over no
conceivable subject is the legislative power of Congress
more complete than it is over the admission of aliens.
Our cases have long recognized the power to expel or
exclude aliens as a fundamental sovereign attribute
23
The Court has departed from its reasoning in Knauff
and Mezei in other respects, including for lawful
permanent residents seeking reentry at the border, see
Landon v. Plasencia, 459 U.S. 21, 32-33 (1982) (holding
that such aliens are entitled to protections of Due Process
Clause in exclusion proceedings), as well as for resident
aliens facing indefinite detention incident to an order of
deportation following conviction of a deportable offense,
compare Zadvydas v. Davis, 533 U.S. 678, 692-95 (2001)
(concluding that resident aliens ordered deported have
liberty interest under Fifth Amendment in avoiding
indefinite detention incident to deportation, and
distinguishing Mezei on grounds that petitioners had
already entered U.S. before ordered deported), with id. at
702-05 (Scalia, J., dissenting) (arguing that Mezei
controlled question whether aliens ordered deported had
liberty interest to remain in United States such that they
are entitled to due process in decision to hold them
indefinitely, and stating that such aliens have no right to
release into the United States).

62
exercised by the Government’s political departments
largely immune from judicial control.” (internal
quotation marks and citations omitted)); Landon v.
Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long
held that an alien seeking initial admission to the United
States requests a privilege and has no constitutional
rights regarding his application, for the power to admit or
exclude aliens is a sovereign prerogative.” (citing Knauff,
338 U.S. at 542; Nishimura Ekiu, 142 U.S. at 659-60)).

3. Application to Petitioners and the Expedited
Removal Regime

Having introduced the prevailing understandings
of the Suspension Clause and of the political branches’
plenary power over immigration, we now consider the
relationship between these two areas of legal doctrine
and how they apply to Petitioners’ claim that the
jurisdiction-stripping provisions of § 1252 violate the
Suspension Clause.

Petitioners argue that under the Supreme Court’s
Suspension Clause jurisprudence – especially St. Cyr and
the finality-era cases – courts must, at a minimum, be
able to review the legal conclusions underlying the
Executive’s negative credible fear determinations,
including the Executive’s interpretation and application
63
of a statute to undisputed facts. 24 And because
§ 1252(e)(2) does not provide for at least this level of
review, Petitioners claim that it constitutes an inadequate
substitute for habeas, in violation of the Suspension
Clause.

24
Petitioners at times claim that they should also be
entitled to raise factual challenges due to the “truncated”
nature of the credible fear determination process.
Notwithstanding Boumediene’s holding that habeas
review of factual findings may be required in some
circumstances, we think Petitioners’ argument is readily
disposed of based solely on some of the very cases they
cite to argue that § 1252 violates the Suspension Clause.
See, e.g., St. Cyr, 533 U.S. at 306 (noting that in finality-
era habeas challenges to deportation orders “the courts
generally did not review factual determinations made by
the Executive”); Heikkila, 345 U.S. at 236 (noting that
“the scope of inquiry on habeas corpus” “has always
been limited to the enforcement of due process
requirements,” and not to reviewing the record to
determine “whether there is substantial evidence to
support administrative findings of fact”); Gegiow, 239
U.S. at 9 (“The conclusiveness of the decisions of
immigration officers under [the finality provision of the
Immigration Act of 1907] is conclusiveness upon matters
of fact.”).

64
 The government, on the other hand, claims that the
plenary power doctrine operates to foreclose Petitioners’
Suspension Clause challenge. In the government’s view,
Petitioners should be treated no differently from aliens
“on the threshold of initial entry” who clearly lack
constitutional due process protections concerning their
application for admission. Mezei, 345 U.S. at 212. And
because Petitioners “have no underlying procedural due
process rights to vindicate in habeas,” Respondents’ Br.
49, the government argues that “the scope of habeas
review is [ ] irrelevant.” Id.

Petitioners raise three principal arguments in
response to the government’s contentions above. First,
they claim that to deny them due process rights despite
their having indisputably entered the country prior to
being apprehended would run contrary to numerous
Supreme Court precedents recognizing the constitutional
rights of all “persons” within the territorial jurisdiction of
the United States. See, e.g., Mathews v. Diaz, 426 U.S.
67, 77 (1976) (explaining that the Fifth Amendment
applies to all aliens “within the jurisdiction of the United
States,” including those “whose presence in this country
is unlawful, involuntary, or transitory”). Second, they
argue that even if the Constitution does not impose any
independent procedural minimums that the Executive
must satisfy before removing Petitioners, the Executive
must at least fairly administer those procedures that
65
Congress has actually prescribed in the expedited
removal statute. Cf. Dia v. Ashcroft, 353 F.3d 228, 238-
39 (3d Cir. 2003) (en banc) (holding that Fifth
Amendment entitles aliens to due process in deportation
proceedings, and explaining that these rights “ste[m]
from those statutory rights granted by Congress and the
principle that ‘[m]inimum due process rights attach to
statutory rights.’” (quoting Marincas v. Lewis, 92 F.3d
195, 203 (3d Cir. 1996))). Third, Petitioners claim that,
regardless of the extent of their constitutional or statutory
due process rights, habeas corpus stands as a
constitutional check against illegal detention by the
Executive that is separate and apart from the protections
afforded by the Due Process Clause.

We agree with the government that Petitioners’
Suspension Clause challenge to § 1252 must fail, though
we do so for reasons that are somewhat different than
those urged by the government. As explained in Part
III.B.1 above, Boumediene contemplates a two-step
inquiry whereby courts must first determine whether a
given habeas petitioner is prohibited from invoking the
Suspension Clause due to some attribute of the petitioner
or to the circumstances surrounding his arrest or
detention. Cf. Boumediene, 553 U.S. at 739. Only after
confirming that the petitioner is not so prohibited may
courts then turn to the question whether the substitute for
habeas is adequate and effective to test the legality of the
66
petitioner’s detention (or removal). As we explain
below, we conclude that Petitioners cannot clear
Boumediene’s first hurdle – that of proving their
entitlement vel non to the protections of the Suspension
Clause.25

The reason Petitioners’ Suspension Clause claim
falls at step one is because the Supreme Court has
unequivocally concluded that “an alien seeking initial
admission to the United States requests a privilege and
has no constitutional rights regarding his application.”
Landon, 459 U.S. at 32. Petitioners were each
apprehended within hours of surreptitiously entering the
United States, so we think it appropriate to treat them as

25
In evaluating Petitioners’ rights under the Suspension
Clause, we find Boumediene’s multi-factor test,
referenced earlier in this opinion, to provide little
guidance. As we explain above, the Court derived the
factors from its extraterritoriality jurisprudence in order
to assess the reach of the Suspension Clause to a territory
where the United States is not sovereign. See 553 U.S. at
766. In our case, of course, there is no question that
Petitioners were apprehended within the sovereign
territory of the United States; thus, the Boumediene
factors are of limited utility in determining Petitioners’
entitlement to the protections of the Suspension Clause.

67
“alien[s] seeking initial admission to the United States.”
Id. And since the issues that Petitioners seek to 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. As such, we need not reach the second
question under the Boumediene framework, i.e., whether
the limited scope of review of expedited removal orders
under § 1252 is an adequate substitute for traditional
habeas review.26

Petitioners claim that St. Cyr and the finality-era
cases firmly establish their right to invoke the Suspension
Clause to challenge their removal orders. 27 For two main
26
And because we hold that Petitioners cannot even
invoke the Suspension Clause to challenge issues related
to their admission or removal from the country, we have
no occasion to consider what constitutional or statutory
due process rights, if any, Petitioners may have.
27
Petitioners also rely on this Court’s decision in
Sandoval v. Reno, 166 F.3d 225 (3d Cir. 1999), which is
factually and analytically very similar to St. Cyr.
Because St. Cyr essentially subsumes Sandoval, however,
our reasons for rejecting St. Cyr’s significance in our
case apply equally to Sandoval.

68
reasons we think Petitioners’ reliance on these cases is
flawed. First, St. Cyr involved a lawful permanent
resident, a category of aliens (unlike recent clandestine
entrants) whose entitlement to broad constitutional
protections is undisputed. Cf. Landon, 459 U.S. at 32.
Second, as stated earlier, St. Cyr discussed the
Suspension Clause (and therefore the finality-era cases)
only to explain what the Clause “might possibly protect,”
Neuman, supra, at 539 & n.8, not what the Clause most
certainly protects – and even in this hypothetical posture
the opinion was non-committal when discussing the
significance of the finality-era cases to the Suspension
Clause analysis. See 533 U.S. at 304 (“St. Cyr’s
constitutional position finds some support in our prior
immigration cases . . . . [T]he ambiguities in the scope of
the exercise of the writ at common law . . . , and the
suggestions in this Court’s prior decisions as to the extent
to which habeas review could be limited consistent with
the Constitution, convince us that the Suspension Clause
questions that would be presented by the INS’ reading of
the immigration statutes before us are difficult and
significant.” (emphases added; citing Heikkila, 345 U.S.
at 234-35)). Indeed, the Court had good reason to tread
carefully when it came to the meaning of the finality-era
cases; after all, none of them even mentions the
Suspension Clause, let alone identifies it as the

69
constitutional provision establishing the minimum
measure of judicial review required in removal cases.28
28
It was largely for this reason that the District Court
below declined to assign much weight to the finality-era
cases in its analysis of Petitioners’ Suspension Clause
argument. Petitioners and amici contend that the
Suspension Clause was the only “logical” constitutional
provision that the Court in Heikkila could have relied
upon when explaining that “the Constitution” required a
certain level of judicial review of immigration decisions.
See Brief for Scholars of Habeas Corpus Law, Federal
Courts, and Constitutional Law as Amicus Curiae 12.
Given the tentative and hypothetical nature of the Court’s
Suspension Clause analysis in St. Cyr, we too are hesitant
to extract too much Suspension Clause-related guidance
from a series of cases whose precise relationship (if any)
to the Suspension Clause is far from clear. This is
especially so in light of Justice Scalia’s dissent in St. Cyr
in which he forcefully critiqued the majority’s reliance
on the finality-era cases generally and Heikkila
specifically:
The Court cites many cases which it says
establish that it is a “serious and difficult
constitutional issue” whether the Suspension
Clause prohibits the elimination of habeas
jurisdiction effected by IIRIRA. Every one
of those cases, however, pertains not to the
70
 meaning of the Suspension Clause, but to
the content of the habeas corpus provision of
the United States Code, which is quite a
different matter. The closest the Court can
come is a statement in one of those cases to
the effect that the Immigration Act of 1917
“had the effect of precluding judicial
intervention in deportation cases except
insofar as it was required by the
Constitution,” Heikkila, 345 U.S., at 234-35.
That statement (1) was pure dictum, since
the Court went on to hold that the judicial
review of petitioner’s deportation order was
unavailable; (2) does not specify to what
extent judicial review was “required by the
Constitution,” which could (as far as the
Court’s holding was concerned) be zero;
and, most important of all, (3) does not refer
to the Suspension Clause, so could well have
had in mind the due process limitations upon
the procedures for determining deportability
that our later cases establish.

533 U.S. at 339 (Scalia, J., dissenting) (some citations
omitted).

Nevertheless, we need not resolve this issue in our case,
for even if St. Cyr definitively established the import of
71
We therefore conclude that St. Cyr and the finality-era
cases are not controlling here.

Another potential criticism of our position – and
particularly of our decision to treat Petitioners as
“alien[s] seeking initial admission to the United States”
who are prohibited from invoking the Suspension Clause
– is that it appears to ignore the Supreme Court’s
precedents suggesting that an alien’s physical presence in
the country alone flips the switch on constitutional
protections that are otherwise dormant as to aliens
outside our borders. See Mathews, 426 U.S. at 77
(“Even one whose presence in this country is unlawful,
involuntary, or transitory is entitled to th[e] constitutional
protection [of the Due Process Clause].”); Zadvydas, 533
U.S. at 693 (“It is well established that certain
constitutional protections available to persons inside the
United States are unavailable to aliens outside of our
geographic borders. But once an alien enters the country,
the legal circumstance changes, for the Due Process
Clause applies to all ‘persons’ within the United States,
including aliens, whether their presence here is lawful,

the finality-era cases to the Suspension Clause, we still
think the distinction between a lawful permanent resident
and a very recent surreptitious entrant makes all the
difference in this case. More on this below.

72
unlawful, temporary, or permanent.” (citations omitted));
see also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886);
Yamataya, 189 U.S. at 100-01; Mezei, 345 U.S. at 212;
Leng May Ma v. Barber, 357 U.S. 185, 187 (1958);
Plyler v. Doe, 457 U.S. 202, 210 (1982). Again, this
criticism is misplaced for two principal reasons.

First, and perhaps most fundamentally, most of the
cases cited above did not involve aliens who were
seeking initial entry to the country or who were
apprehended immediately after entry. See, e.g., Yick Wo,
118 U.S. at 358 (long-time resident alien); Mathews, 426
U.S. at 69 (lawfully admitted resident aliens); Plyler, 457
U.S. at 206 (undocumented resident aliens); Zadvydas,
533 U.S. at 684-85 (long-time resident aliens). And as
for the cases that did involve arriving aliens, the Court
rejected the aliens’ efforts to invoke additional
protections based merely on their presence in the
territorial jurisdiction of the United States.29 See Mezei,
29
Petitioners make much of the fact that the Court
extended constitutional due process protections to the
alien in Yamataya despite her short stint in the United
States. See 189 U.S. at 87, 100-01. Petitioners’ reliance
on this case ignores other language in the opinion clearly
distinguishing Yamataya – an alien who was initially
admitted to the country and who “ha[d] become . . . a part
of its population” before being ordered deported, id. at
73
345 U.S. at 207 (former resident alien held on Ellis
Island seeking readmission after extended absence); Leng
May Ma, 357 U.S. at 186 (arriving alien allowed into the
country on parole pending admission determination).
Thus, Petitioners can draw little support from these latter
cases.

Second, the Supreme Court has suggested in
several other opinions that recent clandestine entrants
like Petitioners do not qualify for constitutional
protections based merely on their physical presence
alone. See Yamataya, 189 U.S. at 100-01 (withholding
judgment on question “whether an alien can rightfully
invoke the due process clause of the Constitution who
has entered the country clandestinely, and who has been
here for too brief a period to have become, in any real
sense, a part of our population, before his right to remain
is disputed”); Wong Yang Sung v. McGrath, 339 U.S. 33,
49-50 (1950) (“It was under compulsion of the
Constitution that this Court long ago held [in Yamataya]

101 – from very recent clandestine entrants like
Petitioners, see id. at 100. Thus, while Yamataya might
apply in some future case where the alien ordered
removed has been in the country for a period of time
sufficient “to have become, in [some] real sense, a part of
our population,” id., that simply is not this case.

74
that an antecedent deportation statute must provide a
hearing at least for aliens who had not entered
clandestinely and who had been here some time even if
illegally.” (emphasis added)); Kwong Hai Chew v.
Colding, 344 U.S. 590, 596 n.5 (1953) (“The Bill of
Rights is a futile authority for the alien seeking admission
for the first time to these shores. But once an alien
lawfully enters and resides in this country he becomes
invested with the rights guaranteed by the Constitution to
all people within our borders.” (emphasis added));
Landon, 459 U.S. at 32 (1982) (“[O]nce an alien gains
admission to our country and begins to develop the ties
that go with permanent residence his constitutional status
changes accordingly.” (emphasis added)); United States
v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (stating
in dicta that “aliens receive constitutional protections
when they have come within the territory of the United
States and developed substantial connections with this
country” (emphasis added)). At a minimum, we
conclude that all of these cases call into serious question
the proposition that even the slightest entrance into this
country triggers constitutional protections that are
otherwise unavailable to the alien outside its borders.
Such a proposition is further weakened by the Court’s
adoption of the “entry fiction” to deny due process rights
to aliens even though they are unquestionably within the
territorial jurisdiction of the United States. In other
words, if entitlement to constitutional protections turned
entirely on an alien’s position relative to such a rigid
75
conception as a line on a map, then the Court’s entry-
fiction cases such as Mezei would run just as contrary to
this principle as our holding in this case does. 30

We thus conclude that, as recent surreptitious
entrants deemed to be “alien[s] seeking initial admission
to the United States,” Petitioners are unable to invoke the
Suspension Clause, despite their having effected a brief
entrance into the country prior to being apprehended for
removal. 31

30
This is not to say that an alien’s location relative to the
border is irrelevant to a determination of his rights under
the Constitution. Indeed, we think physical presence is a
factor courts should consider; we simply leave it to courts
in the future to evaluate the Suspension Clause rights of
an alien whose presence in the United States goes
meaningfully beyond that of Petitioners here.
31
In addition to the above, it is worth noting that when
the Court in Landon stated that certain aliens lack
constitutional rights regarding their application for
admission, it did not categorize aliens based on whether
they have entered the country or not; rather, the Court
focused (as IIRIRA and the expedited removal regime
focus) on whether the aliens are “seeking initial
76
 ***

admission to the United States.” Landon, 459 U.S. at 32
(emphasis added); see also, e.g., 8 U.S.C. § 1225(b)(1)
(conditioning aliens’ eligibility for expedited removal, in
part, on inadmissibility, even if aliens are physically
present in the United States). Arguably, this suggests
that, at least in some circumstances, an alien’s mere
physical presence in the country is of little constitutional
significance unless that alien has previously applied for
and been granted admission. See David A. Martin, Two
Cheers for Expedited Removal in the New Immigration
Laws, 40 Va. J. Int’l L. 673, 689 n.55 (2000) (arguing
that “by emphasizing admission over entry, [Landon]
may give more weight to” the constitutional significance
of IIRIRA’s focus on aliens’ admissibility rather than
physical location). Then again, Landon relied on Knauff
to support its statement that “an alien seeking initial
admission . . . has no constitutional rights regarding his
application.” See Landon, 459 U.S. at 32 (citing, inter
alia, Knauff, 338 U.S. at 542). And since Knauff focused
on whether the alien had “entered” the country, “initial
admission” in Landon may simply be synonymous with
“initial entry.” At all events, our opinion should not be
read to place tremendous weight on this possible
distinction.

77
 Our holding rejecting Petitioners’ Suspension
Clause claims is true to the arc traced by the Supreme
Court’s plenary power cases in recent decades. It is also
consistent with the Court’s analytical framework for
evaluating Suspension Clause challenges. Even if
Petitioners would be entitled to constitutional habeas
under the finality-era cases, those cases, as explained
above, no longer represent the prevailing view of the
plenary power doctrine, at least when it comes to aliens
seeking initial admission. Instead, we must look to
Knauff, Mezei, and other cases reaffirming those sea-
changing precedents, all of which point to the conclusion
that aliens seeking initial admission to the country – as
well as those rightfully assimilated to that status on
account of their very recent surreptitious entry – are
prohibited from invoking the protections of the
Suspension Clause in order to challenge issues relating to
their application for admission. 32

32
Of course, as we recognized above, this is not to say
that the political branches’ power over immigration is
limitless in all respects. We doubt, for example, that
Congress could authorize, or that the Executive could
engage in, the indefinite, hearingless detention of an alien
simply because the alien was apprehended shortly after
clandestine entrance. Cf. Zadvydas, 533 U.S. at 695
(noting that the question before the Court – “whether
78
aliens that the Government finds itself unable to remove
are to be condemned to an indefinite term of
imprisonment within the United States” – does not
implicate questions regarding “the political branches’
authority to control entry into the United States”). And
we are certain that this “plenary power” does not mean
Congress or the Executive can subject recent clandestine
entrants or other arriving aliens to inhumane treatment.
Cf. Wong Wing v. United States, 163 U.S. 228, 237
(1896) (noting that “[n]o limits can be put by the courts
upon the power of congress to protect, by summary
methods, the country from the advent of aliens whose
race or habits render them undesirable as citizens, or to
expel such if they have already found their way into our
land, and unlawfully remain therein,” but distinguishing
such valid exercises of power from a law allowing the
Executive to subject deportable aliens to hard labor
without a jury trial); Zadvydas, 533 U.S. at 704 (Scalia,
J., dissenting) (noting the difference between the rights of
aliens not to be tortured or “subjected to the punishment
of hard labor without a judicial trial” and the right to
remain in the country after being deemed deportable);
Lynch v. Cannatella, 810 F.2d 1363, 1373 (5th Cir. 1987)
(“The ‘entry fiction’ that excludable aliens are to be
treated as if detained at the border despite their physical
presence in the United States determines the aliens’
rights with regard to immigration and deportation
79
 IV. CONCLUSION

We are sympathetic to the plight of Petitioners and
other aliens who have come to this country seeking
protection and repose from dangers that they sincerely
believe their own governments are unable or unwilling to
address. Nevertheless, Congress has unambiguously
limited the scope of judicial review, and in so doing has
foreclosed review of Petitioners’ claims. And in light of
the undisputed facts surrounding Petitioners’
surreptitious entry into this country, and considering
Congress’ and the Executive’s plenary power over
decisions regarding the admission or exclusion of aliens,
we cannot say that this limited scope of review is
unconstitutional under the Suspension Clause, at least as
to Petitioners and other aliens similarly situated. We will
therefore affirm the District Court’s order dismissing
Petitioners’ habeas petitions for lack of subject matter
jurisdiction.

proceedings. It does not limit the right of excludable
aliens detained within United States territory to humane
treatment.” (footnote omitted)). But to say that the
political branches’ power over immigration is subject to
important limits in some contexts by no means requires
that the exercise of that power must be subject to judicial
review in all contexts.

80
Rosa Elida Castro et al. v. U.S. Department of Homeland
Security, No. 16-1339

HARDIMAN, Circuit Judge, concurring dubitante.

I join Judge Smith’s excellent opinion in full, but I
write separately to express my doubt that the expression
of the plenary power doctrine in Landon v. Plasencia
completely resolves step one of the Suspension Clause
analysis under Boumediene. Although Landon appears to
preclude “alien[s] seeking initial admission to the United
States” from invoking any constitutional protections
“regarding [their] application[s],” the question of what
constitutional rights such aliens are afforded was not
squarely before the Supreme Court in that case because
the petitioner was a returning permanent resident. 459
U.S. 21, 23, 32 (1982). Nor did the Court in Landon
purport to resolve a jurisdictional question raising the
possibility of an unconstitutional suspension of the writ
of habeas corpus.1

1
Landon may also be at odds with the proposition
that “the Suspension Clause protects the writ ‘as it
existed in 1789.’” INS v. St. Cyr, 533 U.S. 289, 301
(2001) (quoting Felker v. Turpin, 518 U.S. 651, 663–64
(1996)); see also Boumediene v. Bush, 553 U.S. 723, 746
(2008). See generally Paul D. Halliday & G. Edward
White, The Suspension Clause: English Text, Imperial
Context, and American Implications, 94 Va. L. Rev. 575,
675–76 (2008) (“A sample of newspapers from the 1780s
provides four instances of the use of the writ by slaves in
 Despite my uncertainty about Landon’s dispositive
application here, I am convinced that we would reach the
same result under step two of Boumediene’s framework.
Unlike the petitioners in Boumediene—who sought their
release in the face of indefinite detention—Petitioners
here seek to alter their status in the United States in the
hope of avoiding release to their homelands. That prayer
for relief, in my view, dooms the merits of their
Suspension Clause argument that 8 U.S.C. § 1252(e)
provides an “inadequate or ineffective” habeas substitute.
United States v. Hayman, 342 U.S. 205, 223 (1952).

Connecticut, New Jersey, Pennsylvania, and Maryland.
These suggest that the use of the writ was not confined to
native-born British-American citizens of European
ancestry, and that American usage was paralleling that in
England and its colonies. Indeed, it is difficult to imagine
that Americans were not aware of reports of the decision
in Somerset’s Case of 1772, in which Chief Justice
Mansfield ruled that a slave in England could not be held
in custody.”).

2