Refugees Daily - Internal Global Press Review

Supreme Court Eases Path to Deport Asylum Seekers; Court rules 'expedited removal' process complies with Constitution; noncitizens apprehended near border can be removed without court review



WASHINGTON—The Supreme Court on Thursday smoothed the government's path to deport unauthorized immigrants seeking asylum, ruling that a noncitizen apprehended shortly after crossing the border has no constitutional right to challenge immigration officials' "expedited removal" orders in federal court.

In an opinion by Justice Samuel Alito, the court's conservative majority held that such noncitizens are entitled only to the administrative process Congress provided, which allows asylum seekers to make their claims before immigration officers; if they are denied, their claims can be reviewed by an immigration judge, who is a Justice Department employee and not part of the independent federal judiciary.

A 1996 immigration law "crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims," Justice Alito wrote. "It was Congress's judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings."

Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined the opinion, while two liberal justices, Stephen Breyer and Ruth Bader Ginsburg, agreed on narrower grounds. Two other liberals, Justices Sonia Sotomayor and Elena Kagan, dissented.

The case involved Vijayakumar Thuraissigiam, a Tamil from Sri Lankawho was apprehended 25 yards inside U.S. territory after crossing from Mexico near San Ysidro, Calif. in 2017; he asked for asylum. Asylum seekers are entitled to a fuller examination of their claims, including federal court review, if an immigration officer determines they have a credible fear of persecution over factors such as their race or political opinions.

An immigration officer believed Mr. Thuraissigiam's claim that in his homeland he had been abducted and badly beaten by men in a white van, but didn't find evidence the episode was related to his Tamil ethnicity and denied Mr. Thuraissigiam's claim to asylum. A supervisor backed that decision, which was affirmed by an immigration judge. Mr. Thuraissigiam sought federal court review through habeas corpus, a process used to challenge unlawful detention, arguing that immigration officers failed to sufficiently probe his claims.

After obtaining a lawyer, Mr. Thuraissigiam said his treatment was part of the Sri Lankan government's pattern of repressing Tamils.

"In particular, there is a well-documented pattern of Sri Lankan security forces kidnapping Tamils in white vans, blindfolding them, and torturing them—widely known as the 'white van' abductions," Mr. Thuraissigiam's brief said, citing reports from news media and the United Nations High Commissioner for Refugees.

A federal appeals court in San Franciscofound that the expedited removal law, which bars judicial review of immigration-officer decisions, was unconstitutional.

Justice Alito said the appeals court erred by extending habeas rights beyond their use when the Constitution was drafted. At the time, the process could only be used to get out of custody—and Mr. Thuraissigiam could easily recover his freedom by dropping his case.

"The Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka," Justice Alito wrote. But "we have no evidence that the writ as it was known in 1789 could be used to require that aliens be permitted to remain in a country other than their own, or as a means to seek that permission."

"This ruling fails to live up to the Constitution's bedrock principle that individuals deprived of their liberty have their day in court, and this includes asylum seekers," said Lee Gelernt, an American Civil Liberties Union attorney who argued Mr. Thuraissigiam's case. "This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger."

Justice Department spokeswoman Alexa Vance said that "the decision upholds the constitutionality of expedited removal...and reaffirms the proper scope of habeas relief in the immigration context." The "decision allows the Trump administration to continue to defend our borders, uphold the rule of law, and keep Americans safe," she said.

Justice Alito noted that about half of asylum seekers do establish a credible fear of persecution, which allows them to remain in the U.S. while additional proceedings determine whether they meet the more stringent requirements for lawful residency. Nearly 100,000 noncitizens sought asylum in 2018, the court said; in that year, about 15% of claims ultimately were upheld.

In 2017, the expedited removal process applied only to those found within 100 miles of the border; last week, a federal appeals court in Washington greenlighted Trump administration rulessubjecting any unauthorized immigrant who has been present less than two years to the process.

In a concurring opinion, Justice Breyer, joined by Justice Ginsburg, concluded that habeas corpus wasn't available under the circumstances of Mr. Thuraissigiam's case, but warned that the court's broader ruling raised uncertainty about immigration law.

Justice Sotomayor, in a dissent joined by Justice Kagan, said the majority misread the historical scope of habeas rights and undercut the principles animating much of immigration law.

English precedents, including a habeas grant that freed a slave from transport to Jamaica, "carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory," Justice Sotomayor wrote.

Michelle Hackman contributed to this article.