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The U.S. Supreme Court has held that a statute modifying the scope of habeas review is constitutional under the Suspension Clause so long as the modified scope of review--that is, the habeas substitute--is neither inadequate nor ineffective to test the legality of a person's detention. The Court has weighed the adequacy and effectiveness of habeas substitutes on only a few occasions, and only once, in Boumediene, has it found a substitute wanting.
Petitioners are twenty-eight families — twenty-eight women and their minor children — who filed habeas petitions in the United States District Court for the Eastern District of Pennsylvania to prevent, or at least postpone, their expedited removal from this country. They were ordered expeditiously removed by the Department of Homeland Security (DHS) pursuant to its authority under § 235(b)(1) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1225(b)(1). Before DHS could effect their removal, however, each petitioning family indicated a fear of persecution if returned to their native country. Nevertheless, following interviews with an asylum officer and subsequent de novo review by an immigration judge (IJ), Petitioners' fear of persecution was found to be not credible, such that their expedited removal orders became administratively final. Each family then filed a habeas petition challenging various issues relating to their removal orders.
Does the statute violate the Suspension Clause of the United States Constitution?
The court agreed with the district court's conclusion that it lacked jurisdiction under 8 U.S.C.S. § 1252 to review petitioners' claims. Congress may, consonant with the U.S. Constitution, deny habeas review in federal court of claims relating to an alien's application for admission to the country, at least as to aliens who have been denied initial entry or who, like petitioners, were apprehended very near the border and, essentially, immediately after surreptitious entry into the country. As recent surreptitious entrants deemed to be "aliens seeking initial admission to the United States," petitioners were unable to invoke the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, despite their having effected a brief entrance into the country prior to being apprehended for removal.