An immigrant subject to expedited removal can argue for asylum based on a “credible fear of persecution” if they are returned to their country of origin, under the Illegal Immigration Reform and Immigrant Responsibility Act. However, the Act states that federal courts may not review a determination that an immigrant seeking asylum lacks such fear, pursuant to a writ of habeas corpus. In Department of Homeland Security v. Thuraissigiam, the issue was whether this limitation on habeas review violated either the Suspension Clause or the Due Process Clause of the Constitution. The Ninth Circuit held that it violated both, creating a circuit split.

The Court, in a 7-2 decision by Justice Alito, reversed on both counts. First, the majority held that the Act’s limitation did not violate the Suspension Clause because the end Thuraissigiam sought – review of his asylum claim – was not the end habeas corpus is meant to grant, which is a release from unlawful detention. The majority also held that since Thuraissigiam was detained almost immediately upon crossing the border, he was not entitled to protection under the Due Process Clause. Justice Thomas filed a concurrence to explain his view of the original meaning of the Suspension Clause, and how the Act’s limitation did not implicate it. Justice Breyer, joined by Justice Ginsburg, concurred in the judgment, arguing that the majority should have limited itself to an as applied challenge, rather than broadly ruling that the Act was constitutional under all circumstances.

Justice Sotomayor, joined by Justice Kagan, dissented, arguing that the Act’s restriction violated both Clauses. A link to the opinion is here: https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf