Supreme Court Allows Expedited Removal of Asylum Seekers

The Wall Street Journal reported that the Supreme Court, in a 7-2 decision, upheld a federal law that immigrants apprehended within 14 days of entering the U.S. and found less than 100 miles from the border are not entitled to habeas corpus proceedings as outlined in the U.S. Code Section 1252 "Judicial review of orders of removal." 

Justice Alito delivered the opinion of the Court, in which Justices Roberts, Thomas, Gorsuch, and Kavanaugh joined. Justice Breyer filed an opinion concurring in the judgment, in which Justices Ginsburg joined. Justices Sotomayor and Kagan dissented.

The question presented before the High Court was whether the denial of due process for an undocumented immigrant, Vijayakumar Thuraissigiam from Sri Lanka was constitutional under the Suspension Clause.

Thuraissigiam is Tamil, an ethnic minority group often victimized by the majority Sinhalese government in Sri Lanka. He claimed that he fled his country because he was being tortured. He traveled several months to arrive in Mexico, where he ultimately crossed the U.S. border, was apprehended within 25 miles of the border, and asked for asylum under the United Nations Convention Against Torture (UNCAT). UNCAT is an international human rights treaty to prevent the return of immigrants to a country where they would be tortured or subject to acts of cruel, inhuman, or degrading treatment. 

In the opinion, Justice Alito wrote, "an inadmissible alien who was apprehended almost immediately after illegally crossing the U.S. border and was placed into expedited removal proceedings. An asylum officer conducted a credible-fear interview and found that respondent lacked a credible fear of persecution on a protected ground or a credible fear of torture. Upon de novo review, an immigration judge reached the same conclusions and respondent's expedited-removal order became final. Respondent then filed a petition for writ of habeas corpus, which the district court dismissed for lack of jurisdiction because it did not raise the kinds of habeas challenges to expedited-removal orders that are permitted under 8 U.S.C. 1252(e)(2). The court of appeals reversed, concluding that Section 1252(e)(2) violated the Suspension Clause, U.S. Const. Art. I, § 9, Cl. 2, as applied to respondent."

The Court concluded that "As applied here, §1252(e)(2) does not violate the Suspension Clause..Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope when the Constitution was drafted and ratified."

US Mexico Border

"Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asylum. His claims, therefore, fall outside the scope of the writ as it existed when the Constitution was adopted."

SCOTUS' judgment noted that "More than a century of precedent establishes that, for aliens seeking initial entry, 'the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.'"

In her dissenting opinion, Justice Sotomayor wrote: "Today’s decision handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.”

The outcome of this case will affect thousands of immigrants seeking asylum who will face expedited deportation from the U.S. 

Lee Gelernt, an American Civil Liberties Union attorney who argued Mr. Thuraissigiam’s case said, “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. This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger.”