Key Takeaways
- In DHS v. Thuraissigiam (2020), the Supreme Court held that limits on habeas review of expedited removal orders do not violate the Suspension Clause.
- The Court also held that a noncitizen stopped shortly after crossing the border has only the procedural rights Congress provides by statute.
- In 2025 the government expanded expedited removal to people anywhere in the country who cannot show two years of continuous presence, and the D.C. Circuit allowed that expansion in 2026.
Can a person seeking asylum at the border get a federal judge to review the government's decision to deport him? After Department of Homeland Security v. Thuraissigiam, often the answer is no.
In this TalksOnLaw Brief, Cristina Rodríguez, Sol and Lillian Goldman Dean and Professor of Law at Yale Law School, and Adam Cox, Robert A. Kindler Professor of Law at New York University School of Law, co-authors of The President and Immigration Law, explain a 2020 decision they describe as one almost no one has heard of but that is highly consequential.
The Case
Vijayakumar Thuraissigiam, a Sri Lankan national, was apprehended in 2017 shortly after crossing into the United States without authorization. An asylum officer found that he lacked a credible fear of persecution, and he was ordered removed through expedited removal. He filed a habeas petition arguing that the process violated his rights. Writing for the Court, Justice Alito held that the statute limiting habeas review did not violate the Suspension Clause, reading the writ as understood in 1789 as a means of securing release from custody rather than obtaining further review of an asylum claim. The Court also held that a noncitizen in his position has only the due process rights Congress has provided by statute.
Due Process and Habeas Corpus
The professors explain that the Fifth Amendment's Due Process Clause protects all “persons,” not only citizens, and that courts have long applied it to immigration detention and removal. The writ of habeas corpus has likewise been understood as a safeguard against government abuse. In their view, the decision calls both protections into serious question for people at the border.
Why Expedited Removal Matters
Expedited removal was added to the immigration code in 1996 to speed the removal of people clearly not entitled to be in the country, and was first applied to people arriving at ports of entry without documents. The danger, they explain, is that some people arrive with valid claims, such as asylum based on a fear of persecution at home, and a brief screening interview may be the only process they receive. Under the Court's reasoning, whatever happens in that interview, federal courts have essentially no role. They note that the ruling could also reach people who lack legal status and have been in the country less than two years. By contrast, even in the Chinese exclusion cases of the late nineteenth century, when the Court was highly permissive of racist policies, it never questioned its own authority to review such decisions.
What to Know Now
The professors' concern about broader reach has become a live issue. In January 2025, the Department of Homeland Security expanded expedited removal to the full extent the statute allows, covering noncitizens anywhere in the United States who cannot show two years of continuous presence. A federal district court blocked the expansion, but in June 2026 a divided D.C. Circuit panel vacated that order in Make the Road New York v. Mullin, concluding that the government may use expedited removal as broadly as Congress authorized; litigation continues. Thuraissigiam itself remains good law, and courts are now weighing whether its limits on due process extend to people already living in the country, not only recent border crossers. Supporters see the decision as respecting Congress's power over admission and keeping removal efficient; critics argue it leaves asylum seekers with little protection against error.
