The Supreme Court has distributed for its April 13 conference the petition for certiorari filed in Castro v. DHS, challenging the Third Circuit’s controversial 2016 ruling denying habeas corpus review to petitioners recently seized on U.S. soil. My prior posts on Castro are here, here, and here. The Third Circuit denied en banc rehearing in October by an 8-4 vote, with Judges McKee, Greenaway, Vanaskie, and Restrepo voting in favor.
The cert issues are summarized by Scotusblog thus:
(1) Whether the U.S. Court of Appeals for the 3rd Circuit erred in holding that the petitioners are not entitled to judicial review of their statutory, regulatory and constitutional claims, even by habeas corpus, and are “prohibited from invoking the protections of the suspension clause” to challenge their removal; and (2) whether the 3rd Circuit erred in concluding, contrary to every other circuit to address the issue, that persons who have entered the United States may be “assimilated” to the constitutional status of noncitizens arriving at our borders, and thereby denied constitutional rights.
Castro’s petition is supported by four amicus briefs, filed on behalf of the American Bar Association as well as various scholars and organizations. (All the filings are available on Scotusblog.) The brief filed on behalf of 90 immigration-law professors describes the Third Circuit’s ruling as “unprecedented” and “an extreme departure from established law” that “threatens to disrupt fundamental rights and legal precepts far beyond the instant case.” The ABA’s brief is just as hard-hitting: “This Court should immediately review the Third Circuit’s unprecedented decision to deny constitutional habeas protection to persons on U.S. soil.”
Opposing cert, the government’s brief argues that “the court of appeals’ decision is far narrower than petitioners suggest, and creates no conflict with any decision of this Court or any other circuit,” and that the Supreme Court, “has repeatedly indicated that aliens do not instantaneously gain constitutional rights in connection with their admission the moment they cross the border clandestinely.”