University of Miami Law Review


For centuries, the writ of habeas corpus has been used to test the legality of restraints on a person’s freedom. The Founders, recognizing the significance of the protection, incorporated the writ into the Suspension Clause of our Constitution. In the last century, the Supreme Court has repeatedly held that noncitizens may invoke the Suspension Clause. Courts, especially in the immigration context, also expanded the definition of “in custody” for the purpose of habeas corpus to included non-detained persons in removal proceedings. The Supreme Court has departed from such precedent and gave new meaning to habeas corpus in the immigration context—a major undertaking with serious consequences for asylum seekers.
This Comment analyzes the Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam. It focuses on the Court’s departure from precedent to project new meaning onto habeas corpus in the immigration context. In critiquing such departure, the Comment discusses the erosion of asylum protections in the last twenty-five years. This Comment suggests that Congress must take action to rebuild asylum law.