DEPARTMENT OF HOMELAND SECURITY, ET AL., Petitioners, v. VIJAYAKUMAR THURAISSIGIAM, Respondent
Interviewer(s): Samuel A. Alito, Jr., Stephen G. Breyer, Elena Kagan, John G. Roberts, Jr., Ruth Bader Ginsburg, Brett M. Kavanaugh, Sonia Sotomayor
Interviewee(s): Lee Gelernt, Edwin S. Kneedler

John G. Roberts, Jr.: We'll hear argument next in Case 19-161, the Department of Homeland Security versus Thuraissigiam. Mr. Kneedler.

Edwin S. Kneedler: Mr. Chief Justice, and may it please the Court: Congress established the expedited removal system in 1996 for aliens who arrive at our borders or enter illegally and have no entry documents.

Such aliens are clearly inadmissible and have no right to be in this country. Congress reasonably concluded that a full-blown removal hearing was not necessary to make that determination.

Congress was also concerned, however, for -- about the possibility for delay and abuse of the asylum system if every time such a clearly inadmissible alien sought asylum.

What it did then was to provide for a three-tiered administrative screening system to first determine whether the alien had a credible fear -- fear of persecution. Respondent contends that the Suspension Clause requires a fact-laden judicial review of the negative fear -- credible-fear determination made in that screening process. Congress, however, while it preserved habeas corpus, tailored it to the special circumstances of expedited removal by limiting it to whether the alien is eligible for expedited removal and whether such an order was entered. Congress's judgment that that approach was necessary for the control of immigration and control of the borders is entitled to great weight and it is consistent with the Suspension Clause. First, Congress has repeatedly said that an alien seeking admission is entitled only to the procedures Congress has provided.

And it has held for more than 100 years that Congress may vest the determination of whether an individual alien is excludable in an executive officer.

Indeed, it said that a determination by such an officer acting within his jurisdiction is due process for purposes of the Constitution.

And when such an order is issued under this system, that expedited removal order establishes the government's right to detain him. A fortiori, that is true when what -- when you have a situation involving an inadmissible alien who seeks review of a negative screening determination for possible relief from removal, notwithstanding his inadmissibility.

Sonia Sotomayor: Mr. Kneedler, it's one thing when an alien comes and has no protected ground to stay here.

There's no legal right to stay.

And so expedited proceedings are okay because they have no right to be here. But, when someone's seeking asylum, they have a statutory right to stay if they meet the elements of the statute.

So that's a vastly different question of whether the Suspension Clause -- which predated the Due Process Clause by 100 years -- the Suspension Clause, at the time, it was viewed as permitting anyone who had a legal claim to stay to file a habeas petition. I don't know how that right all of a sudden gets transformed merely because there's a second constitutional right to due process.

Edwin S. Kneedler: Well --

Sonia Sotomayor: Meaning those are two different provisions of the Constitution, one predated the other, and the finality era cases were very clear, if you have a claimed right to be in the United States, whether you're on the shore from a boat that's landed or you're from Puerto Rico and you think that your citizenship gives you a right to come in, a whole slew of cases from the finality era under the Suspension Clause who said you have a habeas right. So I don't know how that's the same thing.

You assume the person has no clear right, but they do have a right to stay if they meet the criteria of the Asylum Act.

Edwin S. Kneedler: Several responses to that.

Those finality -- those finality era cases all uniformly hold that a court may not review a -- the determination in an individual case whether the alien has satisfied the conditions for removal. And -- and so -- and -- and the Court has held that Congress may vest that determination in an executive officer and that that is sufficient.

And for habeas corpus purposes, that sufficient determination establishes the executive's power to detain the individual.

Stephen G. Breyer: Suppose -- suppose that Congress passed a law which said -- we'll make it an alien who has been here for some time, but perhaps illegally, walking down the street and an officer picks him up and puts him in prison. And he would like to say to a court: Judge, the officer was wrong on the law.

He has no such right.

But we have a statute that says: Judge, you can only review whether he did order him put in prison.

Would you say that's consistent with the purpose of habeas, which, after all, since I guess the 17th century, 16th century, 15th century, maybe earlier, has said the purpose of habeas is to review the lawfulness of what the -- of what the officer has done, not to just review whether he ordered him put in jail.

And that right became a right of the people, not just the king. The king wanted to see if his officers were following the law.

Now they may have a lot of discretion and so forth, but, here, we have a statute which says: Judge, you cannot determine whether the officer has followed the law.

All you can determine is whether he issued an order saying keep him in jail or send him wherever or whatever. I mean, the inconsistency with habeas and the right of the people to bring it to see if the king's or the president's or whoever's officers are following the law would seem fairly seriously undermined, wouldn't it?

Edwin S. Kneedler: Well, that is -- what you're describing is quite different from what we have here.

Again, Respondent, like any -- almost any alien in expedited removal, does not challenge the fact that he has no right to be in the country. What he -- what he seeks is review of a -- of a screening determination that he is -- doesn't have a credible fear entitling him to or enabling him to get relief, notwithstanding his inadmissibility.

Stephen G. Breyer: Yeah, he's saying I have a right to be here because I have a -- a claim for asylum.

Edwin S. Kneedler: But it's -- it's very -- it's very different.

And there -- and no one has pointed to any -- anything at -- at -- at common law or in the finality determination cases of a situation where a person is inadmissible, concededly, but wants to receive relief from removal.

And that's significant. Asylum, for example, is the --

Elena Kagan: I guess I just don't understand this, Mr. Kneedler, because, on certain conditions, if he shows certain things, he has a right to asylum.

And what he's trying to get is a hearing that adequately determines whether he can show those things.

Edwin S. Kneedler: Well --

Elena Kagan: So, you know, on certain conditions, he has a right to release. He has a right to live in this country.

And that's exactly what he's challenging --

Edwin S. Kneedler: But --

Elena Kagan: -- is whether -- is -- is his getting a fair hearing to determine that question.

Edwin S. Kneedler: This is a very different context where someone is saying not that he has a right under domestic law to be in this country but that he -- he doesn't want to be sent back to another country because his -- of his fear of conditions there. This is directly like the rule of non-inquiry that has been applied for many, many years in extradition, which is one of the analogies that Respondent draws.

A court may not review the determination in the extradition context of the executive's determination about whether a person -- the treatment the person might experience in another country.

Elena Kagan: But you don't contest, do you -- I guess I'm just not really quite understanding this argument, because you don't contest that, under this statute, if he shows certain things, he has a right to remain in this country as a -- per the asylum statute.

Edwin S. Kneedler: Well, for -- again, asylum is discretionary.

He does not have a right under -- under the asylum statute.

And Congress, in affording a right to go through this screening process, was not required to attach to it judicial review. If -- if -- if Congress knew that was coming, maybe it wouldn't have provided for asylum at all.

And for withholding and CAT protection, as -- as was clear from the prior argument, that does not afford a right to be in this country.

It is simply a withholding of being sent to another country. This Court's unanimous decision in Munaf is very much on point in that respect. The Court there held that it is not for a court in habeas corpus, even involving a citizen, to review the conditions of the place where the person would be sent. Here, we have an alien in expedited removal who is assimilated to one at the border, who has no right to be in the country to begin with.

Stephen G. Breyer: He might.

I mean, there might be circumstances where, even on your argument, the claim is a claim that this particular judge, who is an immigration official, this particular individual behaved unlawfully, contrary to the Constitution. He didn't even come into the room. You've read their brief.

He did it for religious reasons.

He's against us.

He did it because -- I mean, there are certain claims that it's possible Congress cannot take away without, let's say, a hearing, which they've had, and the individual lost it. I'm having a hard time, because I can think of analogies distinguishing it from a case that's like this.

But what happened, he's walking down the street and thrown into jail. And -- and there, he claims, you know -- do you see the analogies?

Edwin S. Kneedler: Well --

Stephen G. Breyer: Tell me why there are no --

Edwin S. Kneedler: -- actually, I don't see the analogy because this is a very different and limited and focused context where an alien who -- who has entered illegally has no right to be in the country and, nonetheless, is asking for basically mercy under the statutes that Congress has enacted.

Stephen G. Breyer: Maybe that's it.

Edwin S. Kneedler: But under the -- under the --

Stephen G. Breyer: I -- I don't know. You'd have to at least, if he has a right to mercy under the statute -- look --

Edwin S. Kneedler: It's not -- it's not --

Stephen G. Breyer: -- there are all the Chinese cases and so forth, you know, the Chinese exclusion cases and so forth, which analogizes it very much for habeas purposes in terms -- being put into jail, I mean, for habeas purposes.

And so, if you accept all those cases, then what?

Edwin S. Kneedler: Even looking at it in that way, what those courts repeatedly hold, all the way back to the Court's decision in Ekiu more than 100 years ago, is the fact-finding, the -- the -- the -- whether the person as a matter of fact comes within the scope of the statute, may be committed entirely to an executive officer. And that is due process.

And once the executive officer acting within his jurisdiction makes that determination, that establishes the executive's ability to detain the person. And that is particularly true, as I say, where the question is not whether the person is entitled to come into this country because of domestic considerations but where the claim is based on please don't send me back to another country because of conditions in that country. And that is squarely, in addition, in the realm of the rule of non-inquiry, where Congress may, if it wants to, after a full removal hearing, it has provided for review of CAT claims and withholding claims. But this is a -- this is a -- a system deliberately designed by Congress to be a quick screening so that the system does not get bogged down in delay in which aliens would be here for a long period of time and maybe get released into the population because there's no sufficient bed space. What Congress did was try to accommodate the interest in affording a person to at least make a claim of asylum and the need for expedited removal by having the screening system. And what Respondent is seeking here is basically a fact-laden review.

No statutory interpretation question is involved here.

What he wants is a fact-laden review of the determination that he has not established a credible fear. Even in the context of whether an alien is excludable, that was not reviewable under the long line of this Court's decisions during the finality era, but, in addition, because of the nature of the -- of the screening involved here concerning fears of conditions in another country, a situation in which, again, this Court unanimously in Munaf held was not necessary -- did not have to be reviewed under habeas corpus for a United States citizen to --

Brett M. Kavanaugh: Does -- does your --

Edwin S. Kneedler: -- examine the condition --

Brett M. Kavanaugh: Sorry.

Does your constitutional principle change at some point based on how long the non-citizen has been in the country, even though unlawfully?

Edwin S. Kneedler: Well, we think Congress is entitled to make a judgment about -- about how long the -- that period should be.

And Congress has established a two-year limitation. And we think that that judgment is entitled to great respect. Significantly, though, what's at issue here --

Brett M. Kavanaugh: Is there an outer boundary to that, do you think?

Edwin S. Kneedler: There -- there may well be, but I -- but, again, this is an act of Congress, and we think Congress's judgment along those lines should be respected.

Stephen G. Breyer: I wasn't going to bring it up, but I will.

Why? Why? The normal way, I think -- this is just my view -- but the normal way that courts have dealt with the kind of problem you're raising is you say something like: There's tremendous discretion on the part of the Executive Branch or sometimes it's a political question.

We won't even review it. But Boumediene says that the detainee has the right to go into court under habeas and to make his claim. Now the judge, which Boumediene didn't really talk about, may have tremendous discretion, may not, may say it's up to the Executive Branch, may say all the things that you said.

I don't know. But what you can't do, at least under Boumediene, is to take away his right to go into court and to make his claim to the judge. What is your response?

Edwin S. Kneedler: My response is Congress did not take away habeas corpus.

Congress preserved habeas corpus.

And as Boumediene itself said, habeas is a flexible, adaptable remedy. And what Congress did here was tailor it to the specific circumstances of expedited removal.

Again, and -- and even -- even in the -- in -- under traditional habeas and immigration contexts --

Stephen G. Breyer: I see.

Edwin S. Kneedler: -- courts did not review factual determinations.

And, in particular, they should not be required to review -- Congress doesn't have to provide --

Sonia Sotomayor: So is your -- so is your position, so I understand it -- let's assume -- and I'm borrowing Justice Breyer's assumption -- that there is an error of law, either of law or of fact -- application of facts to law. And I know you'll dispute that, mixed questions, but assuming there's a mixed question or there's an error of law, are you still saying that habeas relief is unwarranted, cannot be given? Because, as I understand this statute, there are only three reasons that you can get judicial review, and none of them have to do with errors of law.

Edwin S. Kneedler: Yes.

We think Congress is not required by the Suspension Clause to provide for review of errors of law --

Sonia Sotomayor: So how -- how do you --

Edwin S. Kneedler: -- in this -- in this context.

Sonia Sotomayor: All right.

So how do you deal with the finality -- the era cases? You're absolutely right that they said that fact-finding by the executive could be done by the executive.

But all of them presume that there was still a habeas right to challenge errors of law.

Edwin S. Kneedler: Well, those cases don't actually hold in our view that the Suspension Clause required that.

But putting it to one side, they did not involve the situation here where what a person is -- is seeking is review not of a statutory right to come into the country because of domestic -- satisfying domestic requirements but review of a desire not to be sent to another country because of conditions here -- there. And we think that --

Sonia Sotomayor: I'm sorry.

The whole idea of freedom -- life, liberty, and freedom, is -- and what the finality area -- era cases showed, is that you have a right to remain if you have a right to remain. And so, if they have a right, a legal right, a legal error's been committed with respect to asylum, it doesn't matter whether they're seeking release here or not to be turned back somewhere else, your freedom has been stopped.

That's what all of these Chinese exclusion cases were about, people at the shore, people who were stopped at a border.

The shore is equivalent to a border, so I -- I -- I -- I'm having trouble with your argument because you're turning around what the idea of habeas is.

Edwin S. Kneedler: No.

Sonia Sotomayor: It's when the government stops your liberty of remaining --

Edwin S. Kneedler: Well --

Sonia Sotomayor: -- if you have a right to remain.

You have a right not to go someplace else.

Edwin S. Kneedler: -- I -- I -- I don't think the Court can look just at the finality cases, although we think they answer the question here because this is a fact-laden review. The Court also has to --

Sonia Sotomayor: No, but you're going further now.

Edwin S. Kneedler: No, but the Court also has to consider the rule of non-inquiry cases in which the Court has repeatedly held, all the way back to Neely, with a lineage as -- as old as our immigration laws, that habeas review is not available to review the conditions or what will happen to the person when he goes to another country --

Sonia Sotomayor: That's not the issue.

Edwin S. Kneedler: -- even for questions of law.

Sonia Sotomayor: The -- the focus is -- of habeas is not the issue of where you're going to be released to.

The issue is are you going to be -- be released here.

Edwin S. Kneedler: But -- but -- but if someone --

Sonia Sotomayor: So you're right.

Edwin S. Kneedler: -- if someone is sought for extradition purposes and they are in the United States and -- and they are claiming don't send me to another country that has requested my extradition because of what the procedures will be there, what treatment I will be -- I will receive there, the rule of non-inquiry has sustained the ability of -- of Congress not to provide for judicial review.

And that was true in Munaf --

Elena Kagan: I guess I'm not --

Edwin S. Kneedler: -- in this Court's unanimous decision.

Elena Kagan: -- quite understanding why that would be.

If you look at the finality era cases, these were people who had basically no connection at all to the United States, some who had not entered the country, not citizens, not nothing. And you're saying that they were entitled to a kind of proceeding that this person is not just because he has, you know, sort of the -- the best kind of claim you can make to stay in this country, which is that, if we turn you back, you'll be subject to torture or persecution? Why should that be -- person be treated less well in terms of the kinds of procedures he can invoke than the person in the finality era cases which had no connection at all and -- and -- and who had no fear of persecution or torture?

Edwin S. Kneedler: Again, in the finality era -- era cases, the courts did not review the fact-based determination about whether someone came within the statute.

And they specifically did not include the situation where the -- where the claim is about conditions in another country.

In the -- in this Court's decision in Munaf, it might have been claimed that the Secretary of State was somehow misinterpreting CAT when he decided that the -- that the person should be -- or the Department of Defense, whoever -- stayed in an extradition case might be misunderstanding the interpretation of the treaty.

Elena Kagan: But your --

Edwin S. Kneedler: But the Court didn't suggest --

Elena Kagan: -- your view, you know, does not only speak to pure factual matters.

Your view applies to legal matters and mixed questions as well.

Edwin S. Kneedler: But there's no statutory interpretation question here.

But -- but just -- just to --

Elena Kagan: Well, there's a view as to whether the hearing officer filed the -- followed the appropriate procedures.

Edwin S. Kneedler: But that is a fact-laden review that would require unpacking what happened, would require the -- the -- the -- the record --

Elena Kagan: Usually, we don't think that, you know, did you follow the law as to the procedural requirements that the law states as a fact-laden review.

Edwin S. Kneedler: But --

Elena Kagan: We think it's a pretty common thing for courts to do.

Edwin S. Kneedler: No --

Elena Kagan: It's like, did this executive officer follow the procedures that he was supposed to follow?

Edwin S. Kneedler: No, the courts -- there are no decisions in the finality era that are pointed to that -- that provide for that kind of review.

But, again, in Munaf, in -- in --

Elena Kagan: But why should that kind of review be so different? I mean, that's a pretty basic question.

Did the executive officer follow the rules that he was supposed to follow?

Edwin S. Kneedler: If I could just step back for a moment, the -- the -- the common law, the finality era cases, all the sources that are looked at, nothing affirmatively establishes a right of judicial review of this sort of screening determination that Congress decided could be attached to the expedited removal system.

And Congress's judgment in those -- in that situation should be entitled to great respect --

John G. Roberts, Jr.: Mister --

Edwin S. Kneedler: -- especially against the background of the rule of non-inquiry.

John G. Roberts, Jr.: I -- I think you've been trying to make a point about Munaf, and I --

Edwin S. Kneedler: Yes.

John G. Roberts, Jr.: -- I wonder if you could tell me what it is.

Edwin S. Kneedler: Yes.

No -- no, the -- the point is that there was no review in habeas of the determination that the person should be turned over to Iraqi authorities where the claim was, if I'm turned over there, that person -- you know, I may -- I may -- may be mistreated.

John G. Roberts, Jr.: Right.

So what is -- what is the analogy to this situation?

Edwin S. Kneedler: The same thing here, where the person is saying: Don't -- don't -- I want a court to determine whether -- to review an executive determination as to whether I will be tortured in another country. And in Munaf, the Court didn't try to separate whether the executive had decided a question of law, a question of fact.

It was sufficient that the executive had made a determination regarding conditions in another country. Here, there's even less review because it's an initial preliminary screening to see whether the person has even made a credible-fear showing about conditions in another country. And we think that that is squarely within the realm of things that habeas corpus does not have to be available to second-guess the executive's determination. Otherwise, you could have considerable delay.

There are 9,000 -- as we point out in our brief, there are 9,000 negative credible-fear determinations that have been made in recent years, 100,000 credible -- credible-fear referrals. If judicial review is added on top of this, with close parsing of the limited administrative record that this process provides for, it would really bog down the system.

And we think Congress's judgment that that is not constitutionally required is entitled to great respect. Otherwise, you will have protracted proceedings.

It could -- it could lead to aliens being released into the country.

That, in turn, could create an incentive to come to the country and -- and be released and undermine the whole point of Congress enacting the expedited removal system.

John G. Roberts, Jr.: Thank you, counsel. Mr. Gelernt.

Lee Gelernt: Mr. Chief Justice, and may it please the Court: The statute here eliminates any meaningful role for the courts, even to ensure that the statutes and regulations were followed. During the 60-year finality period, Congress also tried to exclude the courts, leaving only that review that was "required" by the Constitution. This Court, nonetheless, continued to review legal claims in habeas.

It did so while expressly rejecting the government's argument that deportation was not the type of restraint that triggers habeas.

It did so critically in cases to review statutory and regulatory limits, even where the Court expressly held that those particular non-citizens lacked constitutional procedural due process rights. It did so where the non-citizen was seeking initial entry, where the non-citizen was in the country illegally, and, most critically in response to what the government said, in cases where the non-citizen was removable and seeking only to challenge the denial of relief from removal. The finality era cases are consistent with the common law and answer each of the government's arguments.

The government has cited no common law support. Moreover, the government's undefined meaningful ties test is unworkable.

It would also mean that asylum seekers and potentially millions of other unknowns, non-citizens, inside the country could be summarily expelled without any judicial review or without even any administrative review. The Suspension Clause is a check on the political branches.

This Court has never before allowed the elimination of judicial review over the legality of deportations.

The Court once again should preserve habeas review as it did during the Chinese exclusion era, the finality era, and throughout the country's history. The political branches undoubtedly have enormous power in the immigration area, but the one thing it cannot do, and this Court has never allowed them to do, is remove a check on themselves. So I want to address what I -- what I see as the government's fundamental point now. Their opening brief made very broad arguments about having no habeas at all.

What they've retreated to now is, well, you were found inadmissible, you're in the country illegally, and you're only challenging relief, and no finality era addresses that. That's absolutely wrong.

And let me just give the Court two cases.

One is Accardi, decided the year after Heikkila v. Barber said the only review under this regime is that which is required by the Constitution. Accardi came into court and said, yes, I'm in the country illegally, but I'd like to apply for a discretionary form of relief that will allow me to stay in the country, suspension of deportation.

The Court reviewed it in habeas, found a regulatory violation, and sent the case back for a new hearing. Let me give you one other that involves refugees, Tod v. Waldman.

They came to this country seeking initial entry.

The general admissibility rule was you had to be literate. The Jewish refugees in that case said: But I'm -- we are refugees; therefore, we can stay, notwithstanding being illiterate.

The Court found that that was true on the merits and sent the case back for a new hearing. The critical conceptual point and the reason those cases are right -- and I think the government will concede this when they get up on reply -- is that the predicate for removing someone is both you have to find that they are removable and you have to find that the CFI process was conducted legally and they were legally denied the forms of relief to which they were applying in the CFI process. You may not remove a person until the CFI process is concluded.

The government will -- I think, has never disputed and will concede again that Mr. Thuraissigiam could not be removed based just on the inadmissibility. Congress has set up a system where you are allowed to apply for asylum, withholding, and Convention Against Torture relief. And I would -- I would note, importantly, that those latter two forms of relief are mandatory --

Samuel A. Alito, Jr.: Well, what --

Lee Gelernt: -- not discretionary.

Samuel A. Alito, Jr.: -- what's unusual about this situation is that your client really doesn't want to be released.

And the government makes this point over and over in its brief. The government could take him to the airport, give him a ticket and say, you are released, and he could leave.

That's not what he wants. And the fundamental point of habeas is to secure release from what's claimed to be unlawful executive custody. So what is your answer to that?

Lee Gelernt: Right.

So our client does ultimately want release, but what he has asked for is a new hearing, which is consistent with the way immigration works in criminal cases in habeas, what this called -- Court called conditional release, which is for the benefit of the government. He would be thrilled to just be outright released and have the order vacated. What he -- then he would be in this country, and he would apply for asylum affirmatively.

Samuel A. Alito, Jr.: Well, he wants to be -- he wants to be released in this country so that he can remain in this country.

He doesn't simply want to be released.

And, therefore, it does seem like what he wants is review of his entitlement to remain in this country, not simply what habeas provides, which is release from custody.

Lee Gelernt: Well, absolute, Your Honor, he wants review of the removal order, which entails custody.

The custody will be illegal if the removal order is.

But let me -- let me offer three points about this. The first is we think the government is raising an issue that's already ultimately been decided by this Court.

Congress began regulating immigration in 1875.

Soon thereafter, the government made the exact argument that they're making now. Well, this isn't really habeas.

We're just restraining you from coming in the country or restraining you from leaving.

And the Court specifically could not have been more specific in rejecting that argument.

That's the Nishimura Ekiu case in 1892.

It was the Chin Yow case a few years later.

And even before Ekiu was Jung Ah Lung.

For the next 60 years in finality, reviewed those cases. And the other point I would make about that is, if the government's right that habeas doesn't even apply to deportation, then even lawful permanent residents would not be entitled to habeas --

Brett M. Kavanaugh: Well --

Lee Gelernt: -- because the restraint point would be the same with respect to them.

Samuel A. Alito, Jr.: In the --

Brett M. Kavanaugh: -- that's not what they're saying at all, though.

They're -- they're making a very clear distinction between inadmissibility and deportation in relying on Landon versus Plasencia and many other cases, so I think that's an overstatement of their position.

Lee Gelernt: So you're absolutely right, Justice Kavanaugh.

And I -- I'm simply responding to their independent argument, what they called an independent argument in the opening brief and trying to respond to Justice Alito's question that this isn't classic habeas. They do try and get out from under that by then going to a meaningful ties test and using Plasencia, so you're absolutely right. But, with respect to Justice Alito's question, those cases specifically answer it, the exact same arguments were made.

Ekiu could not have been more clear.

We know that we're simply -- you're simply asking to remain in the country, and they said that is nonetheless proper for habeas.

John G. Roberts, Jr.: But there's the -- just following up on Justice Alito's point and the government's reliance on it, Munaf does say that there they were not seeking simply release.

They wanted humanitary protection to get out of -- out of the country.

Release was the last thing they wanted. And -- and to -- this case is arguably the same since, again, the release could be provided under their normal practice to these individuals by taking them out of the country to another country.

They don't want that to happen.

They want to be released into the -- into the population.

And Munaf made, I think, pretty clear that that type of humanitarian release was not the purpose of -- of habeas.

Lee Gelernt: Well, Your Honor, a few -- a few points on that.

I think Munaf was different because they didn't want to be released where they were arrested, which was Iraq.

They came to Iraq.

They didn't want to be released there. What they wanted, I think as the opinion makes clear, is affirmative help from the United States to fly them back to the United States.

Our client simply wants release where he was arrested. Now the government says: Well, we can release him in Sri Lanka, but, of course, that would be denying him relief on the merits. That's exactly what he fears. And so I think what the government is sort of implying is: Well, you can get out of this, just simply give up.

I mean, if that were true, contempt cases wouldn't fall under habeas.

John G. Roberts, Jr.: I -- I think that the analogy that they press depends upon the fact that it's conceded that the individual does not have a right to be in the United States.

Lee Gelernt: Right.

And so no immigrant -- and I want to be clear about this -- has an absolute, substantive right to be in the United States.

And that's not what habeas does. The value of the Suspension Clause as the framers saw it was not to create rights but to ensure that the grave power of restraint is never used except in accordance with law.

So, if Congress were to limit, further limit statutory rights, maybe even take the momentous step of withdrawing from our refugee treaties, then they would be reducing -- but habeas would still lie to make sure that you are not restrained, except in accordance with positive law.

That's the value for the framers. So the government's discussion about he has no absolute right to be here is -- is sort of beside the point for habeas.

Habeas was not designed to create substantive rights.

It was to ensure that the -- the law was followed. And so I want to turn to what the government --

Brett M. Kavanaugh: But -- but on the -- on the question of history, you make a point. But, on the question of precedent in Landon versus Plasencia -- and I just want to get your reaction to this, you know what sentence it is -- Justice O'Connor writing for eight justices says: "The 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." So that's a statement of law for eight justices.

Why is that statement wrong or, if it's not wrong, why doesn't it control here?

Lee Gelernt: Well, I -- I think what the Court was saying there, as we understand it, was specific to due process.

The entire case was about due process.

There was no question of judicial review or habeas. And I think what the Court was doing was distinguishing between different people at a port who had procedural due process rights. That was the context of the sentence.

I think it would be a --

Brett M. Kavanaugh: For context, the sentence says no constitutional rights.

Lee Gelernt: Right.

But I think it would be a lot in a case that didn't involve judicial review to take one sentence and say we're wiping away all the finality era cases. We're not discussing them. The difference between due process and habeas is stark.

As Justice Sotomayor pointed out, the Suspension Clause predated due process. Due process and habeas have never been hinged in this Court's cases. So you take Mizai and Knauff, which established no procedural due process for people at the ports.

They expressly held that they didn't have procedural due process, but then they went on in habeas to review the statutory and regulatory claims. They had very few statutory and regulatory claims on the merits, but the courts still reviewed them to make sure that the positive law was being followed.

Samuel A. Alito, Jr.: But wasn't it true in the -- in the finality era cases that the individuals, once it was determined that they had not been properly detained, they did have a right to be in the United States, because, in those -- in that era -- for most of that era, or much of that era, there were not very many restrictions on immigration to the United States.

And that's the difference between that case and this case.

Lee Gelernt: Well, I don't think so, Your Honor, I think for -- for two reasons.

One is the -- the inadmissibility of relief point, as I said before, there were finality era cases. That's the Accardi case, suspension of deportation, even though they were concededly removal.

That's Tod v. Waldman, even though the refugees were -- were illiterate and therefore inadmissible.

They were excused from that. But the other point is that the Court throughout the finality era always reviewed whether they fell within the statute or not. That's the Gegiow case, Ekiu.

All of those finality era cases were looking at whether they fell within the statute. There were restrictions.

I mean, obviously, there weren't as many as now, but there absolutely were restrictions on all the cases we cite on pages 13 through 15 of our brief, are all cases where the Court is looking at did they fall within the statute or the regulations.

Samuel A. Alito, Jr.: In any of those cases -- and it's -- it's -- did the court say anything more than -- when relief was granted, did they -- was the relief anything other than you are released?

Lee Gelernt: Well, absolutely.

And so the relief --

Samuel A. Alito, Jr.: Other than Accardi and the other case you cited.

Lee Gelernt: Right.

Samuel A. Alito, Jr.: Which are -- which are in a -- perhaps in a category of their own.

But in -- for most of those finality era cases, wasn't the relief just you are released?

Lee Gelernt: No, Your Honor.

Those cases established the principle in immigration that the government would get the benefit of a new hearing, that they didn't simply have to release the person and let them go, that there would be a new hearing where there was a legal defect the government could potentially fix. So that's in addition to the cases --

Samuel A. Alito, Jr.: Yeah.

Okay.

But at the end of that --

Lee Gelernt: -- Muler, Johnson. Right.

Samuel A. Alito, Jr.: -- at the end of that, the relief -- is there any indication at the end of the whole process, what the person would get, what the alien would get, is anything other than release, which is what habeas provides?

Lee Gelernt: Well, that's -- that's what would happen here, Your Honor.

So we would -- if we had a new hearing and passed, we would be able to apply in a full hearing for asylum or withholding.

And if we won, he would be allowed to remain in the country. The reason we're not asking for full release is not because for -- it's for our benefit.

It's for the government's benefit. What this Court said in Boumediene is the Court doesn't have to, in habeas, permit -- permit full release.

It can give the government another chance. So the cases are legion in -- on our brief of where they sent it back for a new hearing.

Maybe the person failed and then was deported.

Maybe they passed and were allowed to stay.

But it would be a new hearing.

Stephen G. Breyer: Doesn't --

Sonia Sotomayor: Counsel --

Stephen G. Breyer: Just on -- on that particular thing, it seemed to me in the discussion, not so much from the brief, that the government, taking the Chinese cases and so forth, was saying, but, of course, he can seek a writ of habeas corpus.

Of course, he can. Now we're before the judge on the writ.

What's your argument, the judge says. And then I think their point is that he can't argue that there was a factual mistake below. Now, if you read the statute, it says he can't argue anything.

Lee Gelernt: Right.

Stephen G. Breyer: It says all he can say is, was there or was there not a notice.

So that can't be right, I don't think.

But, as applied to your case, maybe there is some kind of -- of limitation on the extent to which the judge can look at the factual findings, et cetera.

That's quite different from saying none at all. All right.

If we take that view, should we then send it back to the Ninth Circuit -- or was it the Ninth? Yeah.

Okay.

Send it back to whatever circuit in order for them to determine whether, under this statute, how it applies, does it mean since nobody can make any argument, no matter how outlandishly the service acted, let them work out in the first instance whether there's room for limitations on what kinds of arguments you can make, how much discretion.

Lee Gelernt: Right.

Stephen G. Breyer: What -- what would -- what do you think of that?

Lee Gelernt: Yeah.

So -- so I think you -- I want to answer all the different --

Stephen G. Breyer: Yeah.

Lee Gelernt: -- things packed into your question.

I think a remand to flesh out our particular claims would not be inappropriate since the court of appeals and district court didn't unpack our particular claims. But I want to address two -- two other points that you made.

One is in the Martinez brief, which was -- Martinez was the companion case to Heikkila v. Barber -- and I would just refer the Court to the -- to the SG's brief in that case -- the government was very clear that the Suspension Clause requires some review, that the finality era statutes limited review to the constitutional requirement.

The government says, well, we conceded only statutory claims. That's even more than I understand them to be conceding now.

But they also lopped off part of the quote, which was "anything contrary to law." That's on page 20 of their brief. The point about the facts, I think, is a critical one, because Mr. Kneedler kept saying "fact-laden." So I think that's conspicuous in that he's not saying historical facts.

He knows we are not challenging the historical facts.

We don't claim a right to challenge the historical facts. Our position is twofold.

One is that, during the finality or contrary to what the government said respectfully, the courts routinely reviewed mixed questions.

That's the Rowoldt case, where the Court said: Look, you have to be meaningfully associated with the Communist Party, and then went on to look extensively at the facts.

What did he do at the Communist bookstore? What was the purpose? Those are the cases on page 50 of our brief, mixed questions. But the -- the more fundamental point I want to make is we are okay if the Court wants to reserve whether all application of law to fact is reviewable.

Our -- our point here is that there has to be review at least for gross misapplications of the statute because, at that point, where no one reasonably could conclude that on these historical facts you didn't meet the statutory standard, at that point, what you're seeing is really a misunderstanding of the legal standard.

Ruth Bader Ginsburg: What are the concrete issues that could be raised on habeas in this case?

Lee Gelernt: So, Your Honor, our two principal claims are statutory and regulatory. And let me -- let me deal with the statutory claim. What we're saying is, on these historical facts, no asylum officer could reasonably have concluded that he did not meet the low significant possibility standard, the very low standard, which is a significant possibility of ultimately satisfying the asylum standard, which in itself is just a one-in-ten chance. And I'm going into the merits now, but the reason we say that we are okay with a standard that says egregious error, clear error, no reasonable adjudicator, because, at that point, you are reaching a legal error, is because the asylum officer, by statute, is required to look at the reports on country conditions. Every report, as the amicus briefs from the asylum experts and the Sri Lanka experts point out, there is an exact M.O. in how Tamil people are persecuted in Sri Lanka.

They -- men arrive in a white van.

They abduct the person.

They blindfold the person.

They beat and torture him.

The asylum officer in our case accepted every one of those historical facts but yet still said he didn't even meet the low significant possibility standard.

That's impossible. So, if this Court were to send it back and say, at least where there's a legal error, which means the misapplication was so egregious that there had to be a misunderstanding of the legal standard, that would satisfy us.

We would prevail.

We do believe that the historical cases show application of law to fact was routinely reviewed, always even where they were fact-laden, but that is not necessary in our case.

Samuel A. Alito, Jr.: But the -- see, what you've just said illustrates how far-reaching the argument that you are making is, because, as I understand it, there was nothing in the administrative record -- now maybe your client didn't understand what was going on, but all he said was that people drove up and they beat me. And that's it. And he -- the officer said: Are you a member of a political party? And he said no. So that -- you're saying that, on those facts, knowing nothing more than the fact that he was beaten up in Sri Lanka and he's a Tamil, that that's enough to provide that -- that provides a sufficient basis for asylum?

Lee Gelernt: Right.

Well, so -- so two -- two things, Justice Alito.

One is that, of course, the merits are not up here, and if we lose, we lose.

But I do want to point out that there were far more facts that showed he precisely fit the pattern. And I would also say, just to put a pin in it, that the amicus briefs show why people from Sri Lanka or other countries would not either understand what was being asked or want to reveal that it was the government. But it was much more specific than that.

It was men in a van.

That's -- that's what's always used.

It's called the white van phenomena.

He repeatedly said he thought he was arrested.

He was blindfolded.

That's part of the M.O. So it was the exact pattern.

That's why we think we could prevail.

But, ultimately, this Court just needs to decide is there habeas review and at least for legal errors where the egregious -- the application was so egregious that there had to be a misunderstanding of this thing. I want to focus also on --

Sonia Sotomayor: Can I -- can I just --

Lee Gelernt: Yes.

Sonia Sotomayor: -- I want to understand the limits of your theory.

I thought the court below said there had to be habeas relief for review of facts and law.

Are you disavowing the broadness of my understanding of what the -- the court below said?

Lee Gelernt: I would just put it as I read the court of appeals' decision differently and that --

Sonia Sotomayor: Okay.

Lee Gelernt: -- there was not review of historical facts.

And we are not pressing that.

Nor the exercise of discretion.

We believe mixed questions, legal claims and constitutional claims, but, again, even if this Court wants to narrow it to only egregious -- egregious application, because I'm still --

Sonia Sotomayor: Why are you using the word "egregious"? Where -- that almost seems like whole cloth.

It's either mixed or not.

Lee Gelernt: Well, Your Honor, I think if you wanted to say for this -- purposes of this case only legal claims and reserve whether mixed questions.

I'm simply saying that when it becomes so egregious, when no adjudicator could reasonably have concluded on these facts that it met the standard, I think at that point, it would be a legal error because it would be a misunderstanding, because I think what this Court has pointed out in the past is you can't just have the adjudicator put boilerplate language for the standard, because then you really don't know.

I mean, someone who's writing an opinion over and over about the same things will get the standard -- at least boilerplate, get it right. Here, it's even worse because these are preprinted forms with the standard.

So you'll really never actually know if the asylum officer is understanding what these statutory terms mean, except through the application. And at some point, where the application is so -- either no reasonable adjudicator, clear error, egregious, I think that does rise to a legal error. I -- I want to also make a point about --

Ruth Bader Ginsburg: May I just ask you, if you're not trying to get any mileage out of the fact that the alien was on U.S. soil, he didn't have any documentation, he surreptitiously got here, you're not distinguishing him because he managed to get to U.S. soil from somebody who never got here, who was never in the United States in the first place?

Lee Gelernt: We -- we are distinguishing them, Your Honor.

Ruth Bader Ginsburg: You are?

Lee Gelernt: We -- we believe someone outside the country, unless for some reason U.S. forces were overseas restraining him, and that would be a different situation.

That's not the typical deportation. I think if they were outside the country, they wouldn't be restrained because they would have -- and there might also be extraterritoriality issues. We're simply saying where the person is on U.S. soil and the body controls.

And so --

Ruth Bader Ginsburg: And does that -- that cover the person who comes to the port of entry and is stopped there?

Lee Gelernt: Yes, Your Honor.

And so I -- I may have misunderstood.

John G. Roberts, Jr.: Yes what? Your concession or -- or not?

Lee Gelernt: I'm sorry, Your Honor?

John G. Roberts, Jr.: I -- I didn't understand your "yes." Is it that the person at the port of entry is covered or not covered by your position?

Lee Gelernt: They are covered by habeas, and the reason is because the ports of entry are typically on U.S. soil.

An airport or even a land port will generally be 100 feet or so into U.S. soil.

Elena Kagan: Do you think there's a way of distinguishing that case from yours?

Lee Gelernt: I think, historically, the Court has not for habeas.

I think the Court could reserve questions about people at ports because our person entered the country. Historically, the Court has said habeas applies when you're in U.S. soil.

At ports, it's a different procedure, for procedural due process, because that's more context-specific, and the Court has drawn a line for due process purposes at least between people who have entered and people at the port.

I think Your Honor could reserve that question on habeas for this case because our person did enter --

John G. Roberts, Jr.: But -- but --

Lee Gelernt: -- the country and it wasn't at a port.

John G. Roberts, Jr.: -- that's a significant expansion, it seems to me, from someone who's here, and anybody can get to a port of entry, right?

Lee Gelernt: Well, Your Honor, so -- so that goes to, I think, the burden.

I mean, there are 9,000 cases in the universe that could have been in habeas.

The government points out, in their -- in their reply, they go to 100,000. Well, those are people who -- who didn't need habeas because they passed.

So we're talking about 9,000 -- 9,000 people.

I -- I was --

John G. Roberts, Jr.: That includes the people at -- at a port of entry?

Lee Gelernt: Yes, it does, Your Honor.

And so what I would -- give the Court a couple of statistics about that.

Since the Ninth Circuit issued its ruling, and that's basically a year ago now, there have been as our count 9500 people who failed their CFI and who could have filed a habeas under our rule.

Only 30 have.

One-third of one percent, three out of every thousand. The reasons are practical.

People are removed so quickly.

They're at the border. They can't find lawyers.

Even in regular immigration proceedings, pro se from an immigration judge to the Board of Immigration Appeals is only three percent.

It's much harder at the border. The other thing that will happen is the district courts will lay down some standards.

Whatever non-profits are filing habeas will know we can't challenge historical facts.

We can't challenge credibility.

Your -- your claim is frivolous.

We're not going to file it. And you get no mileage out of filing because there's no automatic stay of removal. So just by filing doesn't mean you'll get to stay --

Brett M. Kavanaugh: Can I --

Lee Gelernt: -- in the country.

Brett M. Kavanaugh: -- can I pick up on the Chief Justice's question? You're saying a non-citizen who arrives at a port of entry, has never been in the United States, not lawfully admitted to the United States, nonetheless has a right under the U.S. Constitution to judicial review of the executive's decision to say they're not admissible?

Lee Gelernt: Right.

So let me -- let me make two points.

Brett M. Kavanaugh: Is that correct?

Lee Gelernt: Yeah, I think it's -- yes, Your Honor, sorry, the answer is yes.

The reason is from the finality era cases, that's the very first finality era case.

And, in fact, most of the cases, someone at a port of entry -- that's Nishimurh/Ekiu -- comes by boat, gets here, wants to be admitted.

The Court says no review of facts, which is the part of the opinion that the government was quoting, doesn't quote the second part, which is undoubtedly there has to be habeas for the -- for the review of the legality. The point I want to point out -- the reason I'm using the 9,000 number and the reason the government's using that is because those are the asylum numbers.

People who come here as a tourist reach a port and say, I'd like to go to Disneyland, they're not going to sit in detention and file a habeas if someone says, no, you're a tourist visa.

That's why judicial review has been available forever at a port, but you don't see mountains of -- of habeas cases.

John G. Roberts, Jr.: Well, I don't think this concerns --

Lee Gelernt: There's just no grounds --

John G. Roberts, Jr.: I don't think the concern is people who come here to go to Disneyland.

Lee Gelernt: Well, I -- I think the people who come here and don't have asylum claims or those type of claims and are clearly inadmissible are not going to file habeas petitions.

No one's going to file them because there's not going to be a ground to stay here. That's the reason in asylum cases people file them, but it's all -- it's -- again, as a practical matter, it's not very many, 30 out of 9500, since the Ninth Circuit.

That's the country-wide, 30 out of 9500. The other point I want to make about the burden is the district courts will be able to dispose of these very quickly.

They don't have to review credibility determinations. They're not reviewing historical facts. The administrative record is puny.

In -- in the printed booklets here, it's 28 pages. It's about a seven-minute read.

The only other thing they would look at, which is subsumed within the record, is the few pages of country reports on Sri Lanka, which would have told them if someone's abducted in a van and blindfolded, that is almost certainly by the government forces seeking to persecute Tamils on -- on political grounds.

Brett M. Kavanaugh: You're -- you're reviewing mixed questions, though, correct?

Lee Gelernt: But only as part of the record, which, again, is very, very small.

Brett M. Kavanaugh: That's very -- that's very difficult in many cases, though.

I don't know that that's going to be that easy.

Lee Gelernt: Well, I think certainly there's going to be deference, but I think, Your Honor, even to decide our case, we are -- we are okay with you saying not every mixed question where we have a difference of judgment needs to be reversed. But at least where it's so egregious that you can't possibly have under -- understood the standard, we believe we go back to district court and the district court looks at the few pages from the U.S. State Department reports on Sri Lanka, there is no way that the -- the district court could say, well, the asylum officer clearly understood what was going on. Maybe the asylum officer didn't think he could use circumstantial evidence and, therefore, made dispositive our client not telling him who persecuted him.

If that's true, that's a pure error of law. But either way, at some point, the egregious standard, because I don't think the government gave you a clear answer on even -- and this goes back to Justice Breyer's question to me on exactly what's reviewable. The government's talking about fact-laden questions, but what if they just didn't give you a hearing at all? What if they didn't give you a translator? What if they said we're not going to give you asylum because of your religion, your race? The government is taking the position that even those errors are not reviewable.

That cannot possibly be.

The Suspension Clause -- sorry.

John G. Roberts, Jr.: Thank you, counsel.

Lee Gelernt: Thank you, Your Honor.

John G. Roberts, Jr.: Five minutes, Mr. Kneedler.

Edwin S. Kneedler: Yes, several points. First of all, by our count, since the Ninth Circuit's decision, there have been 100 habeas cases filed, and the -- the potential for a flood would be, of course, far greater if this Court holds that there is a right to file a habeas seeking review of a negative credible-fear determination. This Court's decision in St. Cyr referred to review of pure questions of law and constitutional claims, in other words, statutory interpretation.

And the -- the finality era cases really fit into that mold even -- even where they do apply. There's no suggestion that when the Court said that Congress could vest the determination of -- of inadmissibility, much less a -- not passing a credible-fear screening for somebody who's inadmissible, but even -- even for determining excludability, Congress didn't -- or the Court didn't suggest there was an exception for something that might be characterized as an egregious misapplication or -- or review of the facts.

Sonia Sotomayor: We're still going to my basic question to you earlier.

Putting aside his claim, let's talk about a pure legal claim, they didn't hold any interview with me at all.

Edwin S. Kneedler: I'm sorry? I -- I didn't --

Sonia Sotomayor: They didn't hold an interview with me at all.

Edwin S. Kneedler: The --

Sonia Sotomayor: Is there habeas relief in that case? A pure matter of law.

The statute requires --

Edwin S. Kneedler: Well, it's not a pure matter of law.

The question of whether there was a hearing is -- there's a factual element to that.

But there -- this system at the administrative level builds in protections for that.

There's supervisory review.

There --

Sonia Sotomayor: Counsel --

Edwin S. Kneedler: -- there are forms for notice.

Sonia Sotomayor: -- you're nitpicking.

Get to the point.

Edwin S. Kneedler: No, I don't think --

Sonia Sotomayor: Which is a pure --

Edwin S. Kneedler: -- I don't think --

Sonia Sotomayor: -- question of law.

Edwin S. Kneedler: I -- I don't think there --

Sonia Sotomayor: Would there --

Edwin S. Kneedler: No.

Sonia Sotomayor: -- be habeas relief?

Edwin S. Kneedler: I -- I think the answer is no.

And one could say the same thing in -- with respect to the finality --

Sonia Sotomayor: So why --

Edwin S. Kneedler: -- era cases.

Sonia Sotomayor: -- bother doing anything? What -- what good is the statutes? What good are the regulations?

Edwin S. Kneedler: Congress determined that -- that habeas should be limited in -- in -- in this context, again, for credible -- specifically with respect to credible-fear determinations. There's no common law precedent for this.

There's no finality era precedent for this.

And in that context, Congress's judgment should count for something. Now I also want to point out that, as I understand Respondent's claim --

Sonia Sotomayor: Shouldn't the Court count for something? Hasn't it been under --

Edwin S. Kneedler: This Court has never -- has never --

Sonia Sotomayor: -- under --

Edwin S. Kneedler: -- has never --

Sonia Sotomayor: -- under the habeas?

Edwin S. Kneedler: This Court has never said that.

And, again, Munaf --

Sonia Sotomayor: Mr. Kneedler?

John G. Roberts, Jr.: I'm sorry. Could you answer, Mr. Kneedler?

Sonia Sotomayor: Mr. Kneedler, let me finish my question.

Edwin S. Kneedler: Yeah, sorry.

Sonia Sotomayor: We have the great writ.

It was there to ensure that the executive acts according to law.

What's left if you tell me that there are laws, but there's no judicial review of whether those laws are being followed or not? That's my question.

Edwin S. Kneedler: And -- and -- and my answer is Munaf and -- and -- and the 100-year-old precedent that Munaf stood for, where a determination about whether somebody should return to another country because of conditions there is simply a --

Sonia Sotomayor: It's not returning.

He was there.

The question was a legal one, which was whether or not he should be turned over by the American forces or not.

The court said, even if he should have been, we're not going to step in in this situation.

Edwin S. Kneedler: But the -- but the court drew on the rule of non-inquiry, which applies in the extradition context, which is about sending someone out from the United States to another country. I want to make another point.

When Respondent talks about review for egregious errors, I think he's talking about bringing in stuff that is outside the administrative record and trying to demonstrate to the Court that if only the review -- the asylum officer or the IJ had looked at this, it would have reached a different conclusion. That is -- that goes far beyond even traditional administrative review.

But the administrative proceedings in this case, for example, the asylum officer's record are just notes.

They're not a verbatim transcript.

They are there to assist the immigration judge in this self-contained internal review of whether someone has made even the showing necessary for a threshold credible-fear screening. They are not designed for judicial review.

And the suggestion that there would be judicial review in habeas corpus, unprecedented under this Court's decisions or the common law, would -- would require effectively to change the administrative system as well, but Congress determined that the -- that the three-tier screening that it provided and limited judicial review is necessary, is essential to get control of the nation's borders.

John G. Roberts, Jr.: Thank you, counsel.

The case is submitted.