The Supreme Court rejected an ACLU-backed bid to slow deportations Thursday, dealing a major victory to the Trump administration and denying some asylum seekers the right to make their case to a federal judge.
A Sri Lankan migrant named Vijayakumar Thuraissigiam, who was apprehended just 25 yards from the southern border after entering the country illegally, is at the center of the case. The legal question was whether asylum seekers can seek habeas corpus, the basic right to have your detention reviewed by a judge, when they are fast-tracked for removal.
"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 ACLU lawyer Lee Gelernt, who argued before the justices for Thuraissigiam. "This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger."
Thursday's decision follows a Tuesday ruling from a federal appeals court that allowed the Trump administration to expand fast-track deportations. Taken together, the rulings are a boon to Trump's efforts to speed the pace of deportations, burnishing his border hawk credentials ahead of the November election.
The bottom-line outcome was 7-2. Justice Samuel Alito delivered the majority opinion, which the Court's conservatives joined. Justices Stephen Breyer and Ruth Bader Ginsburg agreed with the result but did not join the majority. Justice Sonia Sotomayor dissented, joined by Justice Elena Kagan.
Thuraissigiam is a member of Sri Lanka's Tamil minority, who face abuse by the Sri Lankan government according to human rights groups. In January 2017, Thuraissigiam asked for asylum after he was intercepted entering the United States unlawfully. An immigration officer determined he did not have a "credible fear" of persecution and his superiors signed off, teeing up a quick deportation. Asylum seekers who fail the credible-fear test are placed in a speedy expulsion protocol called "expedited removal."
There were almost 100,000 credible-fear claims in 2018.
A 1996 immigration law dictates that courts can't review a credible-fear determination. Immigration authorities get the final word. Nonetheless, Thuraissigiam went to a federal judge and asked for a second chance at his asylum interview, arguing he should have passed the credible-fear stage. The judge refused. But the U.S. Court of Appeals for the Ninth Circuit revived Thuraissigiam's bid and ruled that the 1996 law violates the Constitution's suspension clause, which forbids rescinding habeas corpus except in case of emergency.
The High Court reversed the Ninth Circuit's ruling Thursday and said Thuraissigiam's claim went well beyond the scope of habeas corpus as understood when the Constitution was adopted.
"Habeas has traditionally been a means to secure release from unlawful detention, but [Thuraissigiam] invokes the writ to achieve an entirely different end," namely the right to stay in the United States and get a new credible-fear interview, Alito wrote.
"Claims so far outside the core of habeas may not be pursued through habeas," he wrote elsewhere, citing earlier cases from 2008 and 2011.
There was also a practical concern. Given that thousands of asylum seekers are placed in expedited removal, the government feared a ruling for Thuraissigiam would prompt a surge of habeas petitions in federal courts. That's contrary to the design of the 1996 law, Alito said.
"The potential for a flood would be, of course, far greater if this Court holds that there is a right to file a habeas-seeking review of a negative credible-fear determination," Justice Department lawyer Edwin Kneedler told the justices during oral arguments in March. By the Justice Department's count, about 100 asylum seekers sought habeas following the Ninth Circuit's decision in Thuraissigiam's case, he said.
In a separate opinion, Breyer agreed that Thuraissigiam should lose, but said the Court should not go further and explore "difficult questions" touching deportations and the suspension clause.
In dissent, Sotomayor said the majority needlessly "purges an entire class of legal challenges" to immigration detention and wrongfully limited the ancient writ of habeas corpus.
"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," Sotomayor wrote. "It will leave significant exercises of executive discretion unchecked in the very circumstance where the writ’s protections have been strongest."
The case is No. 19-161 Department of Homeland Security v. Thuraissigiam.