Habeas Corpus in Retreat: How Expedited Removal Redefines Constitutional Protections for Non-Citizens

In Arizona, 72% of undocumented immigrants have lived in the U.S. for at least a decade. [1] Trump’s expedited removal policy allowed immigration officers to deport any undocumented person anywhere in the U.S. without a hearing, unless they could immediately prove two years of continuous presence. [2] The legality of Trump’s expedited removal process is tied to the likelihood of unjustified deportations and a violation of immigrants rights. In order to not be subjected to expedited removal, undocumented immigrants must prove their uninterrupted and continuous presence in the U.S. for at least two years. This burden of proof is extremely high.Therefore many undocumented immigrants who have been present for more than two years are not even able to prove it. This means the right to a trial is being violated for many undocumented immigrants. Due to the fact that immigration detention is classified as civil rather than criminal, the Supreme Court has consistently allowed forms of detention and restricted access to courts that would be unconstitutional in a criminal context. In Department of Homeland Security v. Thuraissigiam (2020), the Supreme Court’s interpretation of the Suspension Clause effectively redefined Habeas Corpus in the context of immigration proceedings from a constitutional safeguard of liberty into a procedural formality. When compared with earlier cases, the Court’s reasoning and rationale reveals a doctrinal shift away from judicial oversight over executive detention powers. 

Habeas Corpus was implemented into the Constitution through the Suspension Clause, which provides that the privilege of Habeas Corpus should not be suspended unless there is rebellion or invasion when the public safety would need it. [3] Habeas Corpus’s basic function is to ensure that the rights of the detained are protected by holding the jailer accountable to provide legal reasoning behind the detention. Habeas Corpus, according to precedent, has been understood as a check on government power, not a benefit limited to U.S. citizens. Immigration and Naturalization Service v. St. Cyr (2001) was argued in front of the U.S. Supreme Court in 2001. In this case, Enrico St. Cyr, who was at the time a lawful permanent resident, pled guilty in Connecticut court to a charge of selling a controlled substance. Under U.S. law this is a deportable offense, but at the time he pled guilty, he would have been eligible to apply for a discretionary waiver of removal under the Suspension Clause. A discretionary waiver allowed certain lawful permanent residents to avoid deportation if they demonstrated strong community ties, but this was a remedy eliminated by the Illegal Immigration Reform and Immigrant Responsibility Act in 1996. This Act repealed the discretionary waiver and replaced it with restrictive forms of relief that excluded most individuals with criminal convictions. [4] When St. Cyr was later placed in removal proceedings, the government argued that the federal courts did not have the jurisdiction to hear his challenge. Therefore, St. Cyr petitioned for a writ of Habeas Corpus instead, making the case a constitutional question about whether Congress can eliminate Habeas Corpus review for noncitizens facing deportation. The Supreme Court rejected the government's argument and held that Habeas Corpus jurisdiction under the Suspension Clause still applied to St. Cyr’s case, despite the 1996 reforms. [5] The Court denied Congress’s acts regarding Habeas Corpus jurisdiction because legislators were not clear enough as to where Habeas Corpus would no longer apply. The Supreme Court also stated that the constitution protects Habeas Corpus so acts cannot be read in a way that would conflict with the Suspension Clause. [6] Finally, the Supreme Court made sure to interpret “persons” in government custody, to include non-citizens. However the protections given through Habeas Corpus were restricted in 2020 with Department of Homeland Security v. Thuraissigiam (2020). The Supreme Court ruled that noncitizens apprehended at the border may be denied federal court Habeas Corpus review altogether, departing from the old sentiment that the Suspension Clause protects all persons under U.S. authority from unchecked detention. [7] By interpreting Habeas Corpus as a remedy from simple restraint rather than a check on executive immigration detention processes, the Court has changed the function of Habeas Corpus as defined by historical precedent.

A major reason courts have allowed immigration detention to operate with fewer constitutional safeguards is that it is classified as a civil form of custody. Because of the civil label, the Supreme Court has emphasized that detention in this context is not intended as a punishment, despite it mirroring criminal detention by physically confining people’s movement. [8] Immigration enforcement is framed as a regulatory, administrative process not as a punishment. Thus, the Supreme Court has repeatedly held that the government may detain noncitizens with lower procedural protections than those required in the criminal system. In Zadvydas v. Davis (2001), the efforts to deport Kestutis Zadvydas failed, and when he was held past the removal period he filed a Habeas Corpus action. While the district Court reasoned that his confinement would be permanent and thus violate the Constitution, the Court of Appeals concluded that it was not unconstitutional because his eventual deportation was possible leading this case to go to the Supreme Court. [9] The Court ruled that the Due Process Clause applies to all “persons” regardless of citizenship, making indefinite detention without the possibility of release unconstitutional once deportation is no longer a reasonable possibility. Then, two years later in Demore v. Kim (2003), the Court upheld the mandatory detention of lawful permanent residents facing removal, emphasizing Congress’s full power over immigration which leads it to be classified as a brief and legally permissible administrative step. In this case a lawful permanent resident, Hyung Kim, committed a felony that put him at risk of deportation from the U.S. After being convicted in a state court, the Immigration and Naturalization Service charged him with committing a deportable offense and detained him pending his removal hearing. Hyung Kim filed a Habeas Corpus action challenging this on the grounds that his due process rights were violated because the INS had made no determination that he posed a danger to society or was a flight risk to reason for his detention. [10] The Supreme Court’s reasoning that the mandatory detention of immigrants was constitutional as long as the detention was for a brief period of time was because they argued that detention was a part of the civil removal process. [11] These two cases reveal the evolution from recognizing that noncitizens have due process rights to limiting those rights in the name of civil detention. The civil label does more than classify immigration detention, it serves as the legal justification for withholding constitutional protections that would be guaranteed in criminal custody. It is because of the civil context that the Supreme Court can allow severe restrictions on liberty; such as mandatory detention, lack of bond hearings and narrow judicial review under the Constitution. In other words, the civil-criminal distinction has functioned not just as a classification, but as a mechanism for shrinking the reach of Habeas Corpus in immigration enforcement. 

The culmination of this doctrinal shift appears in Department of Homeland Security v. Thuraissigiam (2020), where the Supreme Court transformed Habeas Corpus into a tool limited to request physical release, not to review procedure or rights violations for people in expedited removal proceedings. Unlike Zadvydas v. Davis (2001) and Demore v. Kim (2003), where the Supreme Court recognized Habeas Corpus jurisdiction even while they narrowed its scope, the majority in DHS v. Thuraissigiam (2020) redefined Habeas Corpus itself. Writing for a five justice majority, Justice Alito argued that the Suspension Clause protects only the traditional “core” use of Habeas Corpus; a request for simple release from unlawful physical custody. [12] Because in this case Vijayakumar Thuraissigiam, an asylum seeker apprehended just yards inside the U.S. border, was not seeking release into the country but rather review of the procedure used to reject his asylum claim, the Supreme Court concluded that Habeas Corpus practice was used not to free a prisoner, but to challenge the legality of executive detention, including the fairness of legal process. [13] The Supreme Court’s reasoning in DHS v. Turaissigiam (2020) recast immigration detention as a civil administrative holding in which constitutional review is optional rather than required. Which contrasts with INS v. St. Cyr where the Court treated Habeas Corpus as a necessary backstop against congressional attempts to strip judicial review. The dissent, led by Justice Sotomayor, explained that the majority's narrow constitutional reading of the Suspension Clause created a class of people who are detained by the government yet denied a fundamental safeguard against unlawful imprisonment. [14] DHS v. Thuraissigiam (2020) marks a point where the civil classification of immigration detention became the legal basis for excluding certain non-citizens by allowing a practical suspension of Habeas Corpus. 

DHS v. Thuraissigiam (2020) allowed the expedited removal system to operate beyond the reach of the Suspension Clause. The Suspension Clause had been interpreted to guarantee that anyone detained by the government, citizen or non-citizen, must have access to a court to challenge the legality of their custody, a principle that was confirmed in INS v. St. Cyr (2001). [15] But the expedited removal statute authorizes the government to deport certain noncitizens without a hearing and limits the judicial review, only allowing for a narrow Habeas Corpus inquiry into identity and status. [16] By treating expedited removal as part of a civil regulatory system rather than a deprivation of liberty, the Supreme Court allowed the limitation of judicial review. Instead of striking down the restrictions that the expedited removal statute implemented as violations of the Suspension Clause, the Supreme Court majority opinion in DHS v. Turaissigian (2020) reinterpreted Habeas Corpus as a remedy only for physical release, not for correcting legal or constitutional errors. By accepting Congress’s creation of a class of people that can be detained and deported without full access to the courts, the court permitted what earlier rulings treated as unconstitutional; a functional suspension of Habeas Corpus without the conditions required by the constitution. The decision did not merely narrow Habeas Corpus; it redefined its purpose, allowing procedural due process rights to depend on immigration status rather than the Constitution. The majority justified its ruling by relying on two longstanding doctrines; Congress’s plenary power over immigration and the controversial legal label that noncitizens at the U.S. border have not entered under the constitution. Using this legal framing, the Supreme Court could claim that the restricted judicial review in the expedited removal statute is a permissible exercise of congressional authority over border admissions. The dissent exposed that the Suspension Clause stops operating as an independent constitutional guarantee when the government shields its actions from judicial review. Habeas Corpus has been reduced to a procedural formality, one that keeps thousands of immigrants today in vulnerable positions unable to challenge the legality of their detention.

Edited by Arjun Ratan and Christina Park

[1] “Profile of Undocumented Immigrants in Arizona,” Migration Policy Institute, 2023, https://www.migrationpolicy.org/data/unauthorized-immigrant-population/state/AZ.

[2] “Expedited Removal Explainer,” American Immigration Council, February 20, 2025, www.americanimmigrationcouncil.org/fact-sheet/expedited-removal/. 

[3] U.S. Constitution. Art. I, § 9, cl. 2, “Suspension of Habeas Corpus Clause,” National Constitution Center, https://constitutioncenter.org/the-constitution/articles/article-i/clauses/756.

[4] “Illegal Immigration Reform and Immigrant Responsibility Act,” Legal Information Institute, https://www.law.cornell.edu/wex/illegal_immigration_reform_and_immigrant_responsibility_act. 

[5] Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).

[6] Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).

[7] Department of Homeland Security v. Thuraissigiam. 591 U.S. ___ (2020).

[8] Smith, Hillel R., “Immigration Detention: A Legal Overview,” Congress.gov, September 16, 2019, https://www.congress.gov/crs-product/R45915. 

[9] Zadvydas v. Davis, 533 U.S. 678 (2001), Slip Opinion. 

[10] Demore v. Kim, 538 U.S. 510 (2003), Slip Opinion.

[11] Demore v. Kim, 538 U.S. 510 (2003), Slip Opinion.

[12] Department of Homeland Security v. Thuraissigiam. 591 U.S. ___ (2020).

[13] Department of Homeland Security v. Thuraissigiam. 591 U.S. ___ (2020).

[14] Department of Homeland Security v. Thuraissigiam. 591 U.S. ___ (2020).

[15] Immigration and Naturalization Service v. St. Cyr, 533 U.S. 289 (2001).

[16] “Expedited Removal Explainer,” American Immigration Council, February 20, 2025, www.americanimmigrationcouncil.org/fact-sheet/expedited-removal/.