Fewer Rights in Pennsylvania than Guantanamo: Some Reactions to the Third Circuit’s Decision in Castro v. Dep’t of Homeland Security

On August 29, 2016, the Court of Appeals for the Third Circuit issued its decision in Castro v. Dept. of Homeland Security, a consolidated set of habeas corpus petitions brought by asylum-seekers subject to expedited removal orders and detained within the Eastern District of Pennsylvania (likely at the Berks County Residential Center).  The Third Circuit held that the petitioners, who had been detained by U.S. Customs and Border Protection shortly after crossing the border into the United States, did not have the constitutional right to challenge their detentions in federal court other than in a very limited way under 8 U.S.C. §1252(e).  Unlike the Guantanamo Bay detainees whose habeas petitions were found by the Supreme Court to be constitutionally protected in Boumediene v. Bush, 553 U.S. 723 (2008), the Third Circuit ruled, recent unlawful entrants such as the Castro petitioners were not protected by the Suspension Clause of the U.S. Constitution, and had been stripped by Congress of their right to seek judicial review except under extremely limited circumstances not applicable here.  Given that the petitioners had no claim to be U.S. citizens or to have already been granted a lawful immigration status, they could only seek review of whether they were the persons referred to in pieces of paper signed by immigration officers that purported to be expedited removal orders.  Since they did not dispute that, the case was at an end, and the Third Circuit affirmed the district court’s order dismissing the habeas petitions for lack of subject-matter jurisdiction.

  Professor Steve Vladeck of the University of Texas School of Law (who I note, in the interest of full disclosure, was a law-school classmate of the author of this blog post) has described the Third Circuit’s opinion as “breathtaking”.  Professor Vladeck writes that it was “simply nuts” for the Third Circuit to conclude that under Boumediene “non-citizens physically present within the United States are less entitled to Suspension Clause protections than enemy belligerents captured on foreign battlefields and detained outside the territorial United States.”  This author is inclined to agree with that sentiment.  Boumediene arose because the Bush Administration had tried to keep detainees in a sort of Constitution-free zone in Guantanamo Bay, Cuba, purportedly outside the jurisdiction of U.S. courts.  (Fortunately, the Supreme Court did not let the Bush Administration “switch the Constitution . . . off” in this way, Boumediene, 553 U.S. at 765, and the ultimate outcome of Boumediene is a testament to the crucial importance of habeas review: on remand, petitioner Lakhdar Boumediene was found by the District Court to be detained without sufficient basis, was released, and as of 2012 was living in France.)  Pennsylvania is a far cry from Guantanamo Bay, and it seems very peculiar to suggest that non-citizens detained in Pennsylvania, clearly within the jurisdiction of the United States, could have a lesser constitutional right to habeas corpus than non-citizens detained in Guantanamo.

One might wonder whether the Third Circuit could have reached the same result by acknowledging the applicability of the Suspension Clause, but holding the petitioners in Castro to lack relevant constitutional rights which they could enforce through a habeas petition even if the courts had jurisdiction over such a petition.  Indeed, the government appears to have made such an argument in briefing quoted by the Third Circuit: “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.’”  Castro, slip op. at 65.   However, there would be a problem with this approach.  While applicants for admission to the United States may have limited due process rights under current Supreme Court case law, they do have some due process rights, and it appears to have been those rights which the Castro petitioners were seeking to assert.

The Supreme Court’s decision in U.S. ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), cited by the Third Circuit to support its decision in Castro, held that “Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”  Knauff, 338 U.S. at 544.  Assuming for the sake of argument that the petitioners in Castro qualify for constitutional purposes as aliens denied entry into the United States, they would thus still be entitled, as a matter of due process, to “the procedure authorized by Congress”.  It appears that the Castro petitioners were attempting to assert that they did not receive the benefit of this Congressionally authorized procedure.

The Third Circuit’s decision in Castro describes two claims which were said to be “uniform across all Petitioners” in the case:

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.

Castro, slip op. at 20 n.8.  These claims, grounded in the governing statute, assert that the petitioners did not receive “the procedure authorized by Congress,” Knauff, 338 U.S. at 544.  That statutory procedure includes a written record of a credible fear review, and determination according to a specified legal standard.  It is alleged by the Castro petitioners that, contrary to the statutory procedure, no such record was prepared and the specified standard was not used.  Thus, these claims would appear to be valid even under the limited degree of due process that applies under Knauff to “an alien denied entry”—even assuming for the sake of argument that this limited due process is appropriate to apply to an alien who has in fact effected an entry, albeit illegally.

Moreover, the Supreme Court in Boumediene, as acknowledged by the Third Circuit, had held that at a bare minimum any “constitutionally adequate habeas corpus proceeding” must “entitle[] the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law,” Boumediene, 553 U.S. at 773 (quoting INS v. St. Cyr, 533 U.S.289, 302 (2001)); Castro, slip op. at 48-49.  Thus, the constitutional habeas proceeding protected by Boumediene should, if available to the Castro petitioners, have entitled them to challenge whether their cases had been handled in accordance with 8 U.S.C. §1225(b)(1), as they were attempting to do.

To deny the Castro petitioners even the right to judicial oversight of whether they received “the procedure authorized by Congress”, therefore, the Third Circuit really did have to find them to lack Suspension Clause rights.  It was not merely a question of alternate analytic routes to the same result.  The outcome of Castro can only be justified on the basis that an applicant for asylum detained shortly after entry and held within the continental United States has less of a constitutional right to habeas corpus than an accused terrorist detained at Guantanamo Bay, and so cannot even enforce in court any constitutional or statutory rights which she may have.  This is a highly dubious proposition.

The Castro opinion’s rejection of jurisdiction over essentially statutory claims by the petitioners is particularly problematic because 8 U.S.C. §1252(e) itself can be read to permit such claims, implying that they should be allowed under the doctrine of constitutional doubt without the need to strike down the restrictions on habeas as unconstitutional.  Even the limited habeas review which §1252(e)(2) purports to allow with respect to “any determination made under section 1225(b)(1)” includes “determinations of . . . whether the petitioner was removed under such section.”  8 U.S.C. §1252(e)(2)(B).  The Third Circuit asserted in Castro that this means “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.”  Castro, slip op. at 28 (quoting 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)).  But just because an immigration officer has signed a piece of paper purporting to be an expedited removal order under section 1225(b)(1) does not necessarily mean that the order has been issued “under such section”.

Article VI of the U.S. Constitution provides that “treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land” along with statutes.  No one would understand that to mean that a purported treaty, signed by the President but not ratified by the Senate, was the supreme law of the land.  This is because such a purported treaty would not truly have been made “under the authority of the United States” given the President’s failure to comply with governing procedures.  Similarly here, one could argue that a purported expedited removal order issued without compliance with the statutory requirements of a written record, a proper standard, and so on, is not actually issued “under” section 1225(b)(1), because it violates 8 U.S.C. §1225(b)(1)(B)(iii)(II) and other relevant statutory provisions.  At the least, this argument should have been enough for the Castro petitioners to invoke the doctrine of constitutional doubt.  The Third Circuit, however, held that in asserting constitutional doubt regarding the meaning of §1252(e)(5), the petitioners in Castro “were attempting to create ambiguity where none exists.”  Castro, slip op. at 26-27.

The courts may not be able, under the statute, to review “whether the alien is actually inadmissible or entitled to any relief from removal,” 8 U.S.C. §1252(e)(5), as the Third Circuit pointed out.  Castro, slip op. at 26.  However, “[i]n determining whether an alien has been ordered removed under section 1225(b)(1),” the courts are authorized by the statute to review whether “such an order in fact was issued and whether it relates to the petitioner.”  8 U.S.C. §1252(e)(5).  The reference to “such an order” relates back to another reference to removal “under section 1225(b)(1)”—and, once again, 8 U.S.C. § 1225(b)(1)(B)(iii)(II), relating to the necessity of a written record, is just as much a part of 1225(b)(1) as any other part, so that it is at least unclear whether an order issued in violation of 8 U.S.C. § 1225(b)(1)(B)(iii)(II) is issued “under section 1225(b)(1)”.  In its assertion that there is no relevant ambiguity in the statute, as in its constitutional analysis, the Castro panel opinion strikes this author as unpersuasive.

Depressing though the decision in Castro may be, however, it is important to note that even the Third Circuit’s decision in Castro does not foreclose all habeas corpus petitions brought to review expedited removal orders.  Beyond the restricted review that it saw as permitted by 8 U.S.C. §1252(e), the Castro opinion conceded that the statutory limitations on habeas corpus might be unconstitutional as applied to, for example, “an alien who has been living continuously for several years in the United States before being ordered removed under § 1225(b)(1).”  Castro, slip op. at 34-35 n.13.  For reasons explained by this author in a previous article, some long-term nonimmigrant residents may have the sorts of constitutional rights to which the Third Circuit referred here even if returning from a brief trip abroad, along the lines of the rights possessed by the permanent resident who was placed in exclusion proceedings after returning from a brief trip abroad in Landon v. Plasencia, 459 U.S. 21 (1982).  Thus, even under Castro, there may be scope for habeas review of an expedited removal proceeding against a long-term nonimmigrant resident.  In that sense, for some potential habeas petitioners, all is not yet lost.

Asylum applicants who are not returning residents, however, should also have rights under the Suspension Clause, no less than the detainees at Guantanamo Bay who were held to have such rights in Boumediene.  And in exercising those rights, they should have resort to the courts to ensure that they have at least received “the procedure authorized by Congress”—as it appears the petitioners in Castro did not.

The purpose of the Suspension Clause is to ensure that the government can be held to account in court when it detains someone, whether that someone is a suspected terrorist or a woman fleeing persecution with her child.  The Third Circuit panel in Castro denied the petitioners in the case that Constitutionally guaranteed ability to demonstrate that they were being held pursuant to an erroneous application or interpretation of the law.  We can hope, however, that the Third Circuit on rehearing en banc, or the Supreme Court on certiorari, may restore it to them.


By David A. Isaacson

Earlier this month, President Obama announced that the United States would soon be re-establishing diplomatic relations with Cuba.  The White House website indicates that the President will be “working to re-establish an embassy in Havana in the next coming months.”  U.S. immigration law currently treats natives and citizens of Cuba differently from people from other countries in a variety of respects.  This new development raises the question whether resumption of diplomatic relations with Cuba will have any impact on that different treatment of Cuban nationals.
Perhaps the best-known aspect of U.S. immigration law that provides distinctive treatment to natives and citizens of Cuba is Public Law 89-732 of 1966, generally known as the Cuban Adjustment Act (CAA).  (Its official title was “An Act to adjust the status of Cuban refugees to that of lawful permanent residents of the United States, and for other purposes.”)  Under the CAA, natives or citizens of Cuba who have been admitted or paroled into the United States, and have been physically present for a total of one year (until the Refugee Act of 1980 the requirement was two years) are eligible for adjustment of status to that of a lawful permanent resident.  Eligibility for adjustment under the CAA also extends to the spouse and child of a Cuban applicant, even if not themselves Cuban, so long as they reside with the Cuban native or citizen in the United States or qualify as abused spouses and children of a qualkifying Cuban principal under amendments to the Violence Against Women Act.
Applicants for adjustment of status under the CAA must in general be admissible, although they are not subject to the bars to adjustment of status at INA §245(c).  Also, according to the 1967 decision of the former INS in Matter of Mesa, the public-charge ground of inadmissibility which is currently at INA 212(a)(4)does not apply to adjustment under the CAA.  Adjustment under the CAA is a discretionary benefit, but USCIS has said in its Adjudicator’s Field Manual that its officers should, “in weighing the discretionary factors, keep in mind the nature of the CAA and the political situation in [Cuba].”
Unlike applicants for asylum under INA §208 or refugee status under INA §207, applicants under the CAA, which predates both of those provisions, do not need to show a well-founded fear of persecution on a protected ground or otherwise establish that they meet the definition of a refugee under INA §101(a)(42).   One recent proposed amendment to the CAA would have required applicants under the CAA to attest to their status as political refugees and face potential loss of their status if they were to return to Cuba, but current law has no such requirement.
The CAA itself does not depend on the presence or absence of U.S. diplomatic relations with Cuba.  Thus, with respect to potential applicants whom DHS chooses to admit or parole into the United States, adjustment under the CAA will remain available.  However, there is a related benefit granted to natives and citizens of Cuba under U.S. immigration law, which may determine whether they can seek adjustment under the CAA at all, and which will be affected by the resumption of diplomatic relations.
Under section 235(b)(1) of the INA, most applicants for admission to the United States are subject to an expedited removal process whereby they can face quick removal from the United States unless they establish either a credible fear of persecution or that they were previously admitted as lawful permanent residents or granted refugee status or asylum.  (This author has previously discussed how judicial review of an expedited removal order may be available for certain returning nonimmigrants.)  However, INA 235(b)(1)(F)states that these provisions “shall not apply to an alien who is a native or citizen of a country in the Western Hemisphere with whose government the United States does not have full diplomatic relations and who arrives by aircraft at a port of entry.”  This provision appears to have been enacted for the benefit of natives and citizens of Cuba, the only “country in the Western Hemisphere with whose government the United States [did] not have full diplomatic relations” when the modern expedited-removal process was enacted in 1996 by IIRIRA.  Under section 235(b)(1)(F), natives and citizens of Cuba who arrive at a U.S. airport cannot be subjected to expedited removal.
At least if one reads section 235(b)(1)(F) literally, however, resumption of diplomatic relations with Cuba will remove Cuban natives and citizens from its coverage, leaving them subject to expedited removal at airports.  Perhaps one could argue that the provision refers to a fixed set of countries with which the United States had no diplomatic relations as of the enactment of IIRIRA, but a contrary literal reading is at least possible. Since one who is expeditedly removed after failing to establish a credible fear of persecution generally will not then be paroled or admitted into the United States, greater availability of expedited removal for natives and citizens of Cuba following resumption of diplomatic relations with Cuba would indirectly reduce the availability of adjustment under the CAA.
DHS is not required to place Cuban natives or citizens into expedited removal proceedings simply because they are eligible for such treatment, however.  As the BIA clarified in Matter of E-R-M- & L-R-M-, a case involving natives and citizens of Cuba who had applied for admission at a land port of entry rather than an airport and thus were not covered by 235(b)(1)(F), DHS has prosecutorial discretion to place arriving aliens in removal proceedings under INA §240 even if they would otherwise be amenable to expedited removal.  DHS also has discretion to parole such arriving aliens under INA §212(d)(5) rather than placing them into any sort of removal proceedings.
For this reason, the resumption of diplomatic relations will not have an effect on the availability of CAA relief unless DHS wishes it to.  However, natives and citizens of Cuba who are considering arriving at a U.S. airport in order to seek parole and ultimately adjustment of status under the CAA should keep in mind that, following the resumption of diplomatic relations with Cuba, they will be at greater risk of expedited removal.

Obama’s Paradoxical Deportation Policies

President Obama has been called the Deporter in Chief as he has presided over nearly 2 million deportations during his presidency – higher than that of any other President. On the other hand, President Obama has also rolled out some of the most innovative prosecutorial discretion policies, which include granting deferred action to hundreds of thousand immigrants who came to the United States when they were young.

A revealing article in the Los Angeles Times shows that the high number of deportations is largely misleading. The likelihood of an undocumented individual already in the United States who has developed ties being deported has lessened considerably under President Obama. Even people with removal orders can seek a stay of removal if they establish that they are deserving of prosecutorial discretion under the Morton June 17, 2011 Memo.  Young immigrants who arrived in the United States prior to the age of 16 and who meet other conditions can apply for deferred action, along with work authorization, under the Deferred Action for Childhood Arrivals (DACA) program.

The people who are being deported, and are part of the increased statistics, are those who recently crossed the border without inspection and are apprehended within 100 miles from the border. Under previous administrations, such people were informally bused back outside the United States in what was known as “voluntary returns.” Under the Obama administration, these people are fingerprinted and issued formal deportation orders. INA section 235(b)(1), which was enacted by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, granted authority to expeditiously remove persons at the border who are deemed inadmissible under INA sections 212(a)(6)(C) for making a material misrepresentation or 212(a)(7) for not possessing valid visa documents. On August 11, 2004, DHS promulgated a rule to expand expedited removal to persons who are present in the United States without having been admitted or paroled and who are apprehended within 100 miles from the southern border and who also cannot prove that they were physically present in the country continuously for the preceding 14 days. This rule was expanded to all borders on January 30, 2006.

This is not to suggest that the increased use of expedited removal to recent border crossers does not have devastating effects and should not be remedied through immigration reform measures, since many of these crossers are entering the United States to join family members. Still, it is the expanded use of expedited removal that has resulted in an increase of deportations, when under prior administrations, such persons were informally returned from the United States without terming them as deportations. Once a recent border crosser is expeditiously removed, a reentry into the United States also carries severe criminal penalties unlike a ‘voluntary return.” On the other hand, a person who has been in the United States for a longer period is less likely be placed in the removal proceedings, and even if this person is issued a Notice to Appear before an Immigration Judge, he or she can have a shot at requesting prosecutorial discretion under President Obama’s administration than before, which will result in either administrative closure or termination of the case. Unfortunately, the majority of people who came to the attention of the immigration enforcement authorities within the interior, resulting in deportation proceedings,  are those who got arrested for minor offenses.

As an aside and consistent with the topic of this article, there are instances when it can be more beneficial for a person to be placed in removal proceedings than not. Pursuant to INA section 240A(b), an individual who meets 10 years of physical presence, good moral character for this entire period and can demonstrate exceptional and extremely unusual hardship to qualifying relatives who are either citizens or permanent residents can obtain cancellation of removal, leading to lawful permanent resident status. The hardship standard is extremely high and needs to be substantially beyond the hardship that would ordinarily be expected to result from the alien’s deportation, as demonstrated in cases such as Matter of Monreal, 23 I&N Dec. 53 (BIA 2001); Matter of Andazola, 23 I&N Dec. 319 (BIA 2002) where cancellation was denied; and Matter of Recinas, 23 I&N  Dec. 467 (BIA 2002) where it was granted. Another advantage of being in removal proceedings is to escape the 3 year bar based on unlawful presence of more than 180 days but less than 1 year pursuant to INA section 212(a)(9)(B)(i)(I). Departing the United States under a grant of voluntary departure, which is issued prior to the alien accruing 1 year of unlawful presence, and after the commencement of proceedings, may allow this alien to reenter the United States without being subject to the 3-year bar. Finally, another tactical advantage to being placed in removal proceedings is when an application for adjustment of status is denied, and the best way to get a second chance is to have an Immigration Judge review the adjustment application de novo in proceedings. The irony is that ICE is often  reluctant to put a person under these circumstances in removal proceedings because it is does not have the resources, and is also of the view that as an enforcement agency,  it is contrary to the agency’s mission to place someone in removal so that he or she can ultimately secure an immigration benefit.  One note of caution is that those who came into the United States on a visa waiver should not consider requesting a removal proceeding as they have waived their right to a removal hearing under INA section 217(b).

President Obama used the increased deportation statistics to show that he was enforcing the law, but this has backfired among his critics. Those who favor stricter enforcement are not satisfied with the record increase in deportations by pointing to the Administration’s expanded prosecutorial discretion policies that has resulted in the deferring of thousands of deportations. Enforcement advocates in Congress use the President’s expanded prosecutorial discretion policies, while conveniently ignoring the spike in deportations, as an excuse to delay immigration reform and cooperating with the President.  At the same time, immigration advocates and allies have criticized President Obama for increasing deportations without truly bringing about genuine immigration reform. After the passage of the S. 744, the Senate’s immigration reform bill last year, there is now a stalemate where the prospects of immigration reform in the House have almost evaporated despite unanimous agreement that the immigration system is broken.

If President Obama desires to cement his legacy with respect to immigration reform, he may not be able to achieve it through this Congress. In the past, President Obama has indicated that he does not have the authority to further expand prosecutorial discretion, but this may have to change. The only way for the President to fulfill the promise he has made to so many who voted for him is to go about it on his own through administrative policy changes. The Executive branch can expand deferred action to a broader group of people, which could include family members of DACA recipients and those who have US citizen children. The prosecutorial discretion guidelines under the Morton Memo ought to be further strengthened to ensure that they are not ignored by ICE officials, as many are wont to do. The parole in place policy for relatives of military personnel can be expanded to benefit those who are on the pathway to permanent residency if they are beneficiaries of employment and family immigrant visa petitions. In an eloquent New York Times editorial entitled Yes He Can, On Immigration, the following is worth extracting:

Mr. Obama may argue that he can’t be too aggressive in halting deportations because that will make the Republicans go crazy, and there’s always hope for a legislative solution. He has often seemed like a bystander to the immigration stalemate, watching the wheels spin, giving speeches and hoping for the best.

It’s hard to know when he will finally stir himself to do something big and consequential.

The President must no longer fear doing something big and consequential on the immigration front. Some may justifiably fear that if the President ameliorates the plight of undocumented people through administrative reform measures, another President can quickly undo them; and therefore it is best for Congress to enact immigration reform. Administrative remedies are clearly no substitute for comprehensive immigration reform passed through Congress, but it would be hard for a future President to undo wise administrative reform measures that provide a fix to a broken immigration system. For example, DACA benefits have already been granted to hundreds of thousands of young immigrants who have been able to graduate from college and find jobs. It would be politically imprudent for a future President to undo DACA. Indeed, S. 744, the bipartisan reform bill that was passed by the Senate, incorporates DACA and places DACA recipients on a faster track to permanent residency. If President Obama implements bold administrative measures, it would be difficult for a future administration to undo them, and it is likely that a future Congress will have no choice but to readily adopt them into law.