On Thursday, the Supreme Court ruled that migrants in the accelerated deportation process cannot appeal negative asylum decisions in federal court, and found that the speedy transfers do not violate due process rights or constitutional protections against illegal detention.
In a 7-2 decision drafted by Judge Samuel Alito, the court said that asylum seekers who the government is trying to deport summarily do not have the right to seek habeas corpus. The opinion of Alito, a conservative jurist appointed by President George W. Bush, said that a 1996 immigration law that authorized these rapid deportations for those who cross the border is constitutional.
The ruling overturns a decision by the Ninth Circuit Court of Appeals that determined that a provision in the 1996 law prohibiting judicial oversight of expedited removals violates due process and suspension clauses in the Constitution. The suspension clause stipulates that the right of habeas corpus can only be suspended in times of rebellion or invasion.
Alito joined the rest of the conservatives of the high court in the administration’s decision, as well as liberal judges Ruth Bader Ginsburg and Stephen Breyer, who presented a concurring opinion. Judges Sonia Sotomayor and Elena Kagan disagreed.
Lee Gelernt, the attorney for the American Civil Liberties Union who argued against the 1996 law before the Supreme Court in March, denounced Thursday’s decision. “This decision does not comply with the fundamental principle of the Constitution that persons deprived of liberty have their day in court, and this includes asylum seekers,” said Gelernt. “This decision means that some people facing faulty deportation orders can be forcibly removed without judicial supervision, putting their lives in serious danger.”
At the center of the case behind Thursday’s ruling is Vijayakumar Thuraissigiam, a Sri Lankan migrant who was detained by US officials on the southern border and placed in the “accelerated expulsion” process created by the 1996 law.
Border crusaders prosecuted under this law face summary deportations unless they can demonstrate to an asylum officer that they have a credible fear of being persecuted or tortured in their home countries. A supervisor must sign the asylum officer’s finding.
If the asylum seeker is found to have a credible fear of being hurt, he or she is taken to a full and often lengthy process before an immigration judge and allowed to apply for relief from deportation, such as asylum. If the credible fear finding is negative, migrants can file an appeal with an immigration judge. Judges can either dismiss or affirm the asylum officer’s finding, subjecting the asylum seeker to deportation.
Thuraissigiam told an asylum officer that he was brutally assaulted in Sri Lanka and hospitalized as a result, an account the US official found credible. However, the asylum officer and a supervisor determined that Thuraissigiam did not establish why he was persecuted. An immigration judge affirmed his negative decision.
The asylum-seeker then filed a habeas corpus petition with a federal district court, saying he would face persecution if he were deported because of his membership in the Tamil minority in Sri Lanka, a country plagued by ethnic conflict. A federal judge dismissed the petition, citing the 1996 immigration law.
Thuraissigiam’s lawyers appealed and received a favorable ruling from the Ninth Circuit Court of Appeals, which was overturned on Thursday.
In his ruling, Alito said that Thuraissigiam was offered due process through the provisions of the 1996 law and that he was not entitled to other constitutional protections because he was detained 25 yards on US soil. “A foreigner who is detained shortly after the illegal entry cannot be said to have ‘made an entry,'” Alito wrote.
Alito also said that Thuraissigiam’s prosecution did not violate the suspension clause because, in his opinion, the Sri Lankan migrant was not only asking for a “release from custody, but an additional opportunity to obtain asylum.”
“Although the defendant does not claim a right of release, the Government is pleased to release him, provided that the release occurs in the cockpit of an airplane bound for Sri Lanka,” Alito continued.
In his dissent, Sotomayor said that the majority misinterpreted the protections that the Constitution offers to anyone on US soil, including migrants who cross the border without authorization. “In doing so, the Tribunal reverses established constitutional law and paves the way to transform expedited and summary removal proceedings into arbitrary administrative arbitrations,” he wrote.
The U.S. Department of Homeland Security did not respond to a request for comment on Thursday’s ruling.
