By Rithiga Rahulotchanan
On 25 June 2020, the US Supreme Court delivered its highly anticipated decision in the case of Department of Homeland Security v Thuraissigiam. The court ruled for the expedient removal of Vijayakumar Thuraissigiam, a Tamil refugee who fled Sri Lanka after an attempted white van abduction in 2014. The holding in this case represents the Trump administration’s effort to speed up the removal of thousands of migrants by failing to grant federal court hearings, violating the judiciary’s constitutional duty to safeguard individual liberty.
The facts of the case
Thuraissigiam is a member of Sri Lanka’s Tamil ethnic minority, a group which has faced persecution on the island for over thirty years. After unknown men abducted him in a white van and tortured him, he was hospitalised for eleven days. His lawyers stated that he was targeted due to his work for the Tamil National Alliance (TNA) and his political activism. White van abductions have been taking place on the island for decades, predominantly targeting Sri Lankan Tamils who openly express their dissent for the Sri Lankan government. A brief from professors of Sri Lankan politics[1], which was submitted to the court during this case, stated that “the abduction that Mr. Thuraissigiam recounted at his credible fear interview mirrors the notorious pattern of ‘white van abductions’ perpetrated by the Sri Lankan government” and is ”consistent with rampant and well-documented human rights abuses against Sri Lankan Tamils”.
After recovering from the attack, Thuraissigiam fled Sri Lanka and began a gruelling eight-month journey to seek refuge in the United States. He was detained by US Immigration and Customs Enforcement (ICE) a mere 25 yards north of the US-Mexican border and was immediately placed in expedited removal proceedings, allowing his deportation to Sri Lanka. The Illegal Immigration and Immigrant Responsibility Act of 1996 created expedited removal, which was significantly expanded by the federal government. In 2004, the United States Department of Homeland Security published an immediately effective notice in the Federal Register expanding the application of expedited removal to undocumented immigrants apprehended within 100 miles of the US border within fourteen days of their arrival.
Under Trump’s administration, individuals subject to expedited removal rarely see the inside of a courtroom, especially since US Customs and Border Protection (CBP) officials have started to administer the “credible fear” interviews, instead of an asylum officer in US Citizenship and Immigration Services. CBP officials do not undergo the extensive training undertaken by asylum officers to administer interviews in a non-adversarial way. Furthermore, they are typically armed and, in many documented cases, they have sought to intimidate and use excessive force against asylum seekers. These issues are particularly problematic as the immigration officer making the decision has almost unchecked authority.
During Thuraissigiam’s interview with an immigration officer, there was a notable absence of a lawyer, as well as issues with translation, violating the interview requirements imposed by statute and regulations. The officer believed Thuraissigiam’s testimony; however, it was deemed insufficient for asylum. It was decided that he did not face a credible fear of persecution because he could not identify the assailants or definitively establish their motives.
Thuraissigiam appealed this decision before an immigration judge, who upheld the original decision approving his expedited removal to Sri Lanka which would return him to the hands of his torturers. After this decision, the American Civil Liberties Union (ACLU) decided to represent Thuraissigiam and filed a federal habeas petition against his removal order. Federal habeas corpus is a procedure under which a federal court may review the legality of an individual’s incarceration. The ACLU argued that by denying asylum seekers access to a federal judge, the Habeas Corpus Suspension Clause of the US Constitution was being violated.
Article One, Section 9, Clause 2 of the US Constitution’s Suspension Clause demands that:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
The District Court dismissed this petition. The ACLU’s argument that “that the jurisdictional limitations of §1252(e) violate the Suspension Clause” was rejected, and the Court asserted that neither the Constitution nor the writ of habeas corpus guarantee judicial review to asylum seekers like Thuraissigiam under The Illegal Immigration and Immigrant Responsibility Act. On appeal, a three-judge panel of the United States Court of Appeals for the Ninth Circuit reversed the district court’s dismissal for lack of jurisdiction, and concluded that the expedited removal statute was unconstitutional as it violated the Suspension Clause and the Due Process Clause.
Following this decision, The Department of Homeland Security filed a petition for a writ of certiorari in the Supreme Court of the United States. Certiorari is a writ by which a higher court may conduct a judicial review of a case tried in a lower court. The Department of Homeland Security was granted certiorari on 18 October 2019 to review "whether, as applied to respondent, Section 1252(e)(2) is unconstitutional under the Suspension Clause".
The issue in this case
Whether the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, which limits habeas corpus judicial review of the decisions of immigration officers, violates the Suspension Clause of Article One of the US Constitution.
The decision
The ACLU made the following argument in court:
“Our briefing argues that for as long as Congress has regulated immigration, the U.S. Supreme Court has recognized that deportation involves a restraint on liberty triggering habeas corpus, which is a primary check against the government’s ability to detain people without legal justification. Accordingly, the U.S. Supreme Court has never permitted a noncitizen’s expulsion without affording the opportunity for judicial review—and should not do so now.”
The two sides disagreed about the effect of a ruling allowing judicial review. In a 7–2 opinion on judgment, the majority ruled that as under §1252(e)(2), the limits of review that a federal court may conduct on a petition for a writ of habeas corpus do not violate the Suspension Clause, reversing the Ninth Circuit's decision and remanding the case back for further review. The Supreme Court’s decision was delivered by Justice Alito, with which Justices Roberts, Thomas, Gorsuch and Kavanaugh agreed:
"It would extend the writ of habeas corpus far beyond its scope 'when the Constitution was drafted and ratified'" and “the Court is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause.”
Alito also stated that the claims of due process would only be extended to those "who have established connections in this country" and not to individuals like Thuraissigiam, who had just entered the country. Justices Breyer and Ginsburg agreed with the decision but maintained that it only applied to Thuraissigiam’s case, whilst Justices Sotomayor filed a dissenting opinion, in which Justice Kagan joined:
"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 will leave significant exercises of executive discretion unchecked in the very circumstance where the writ's protections 'have been strongest'. And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties."
How will this decision affect asylum seekers?
The US Supreme Court’s decision in this case sets a dangerous precedent regarding the status of non-citizens seeking asylum in the US. During the case, it was stated that there are 9500 cases who fit the same category as Thuraissigiam; denying judicial review in these cases will lead to unsafe deportations and unchecked decisions.
This case follows from the Supreme Court’s longstanding history of unconstitutional decisions regarding the rights of non-citizens. This precedent will play a role in judging further cases of refugees seeking asylum from the US-Mexican border. For the first time in generations, the court expanded the plenary power doctrine to people who had already crossed the border, holding that asylum seekers like Thuraissigiam have “only those rights regarding admission that Congress has provided by statute.” As Justice Sotomayor explained in her dissent, expanding this doctrine gives a constitutional seal of approval to IIRIRA’s elimination of “any meaningful judicial oversight” at the border.
Furthermore, the ACLU notes that after border patrol agents started conducting interviews instead of trained asylum officers last year, approval rates dropped sharply. The ACLU also previously stated that deportations are occurring within a much quicker window, making it difficult for asylum seekers to challenge the immigration officer’s decision. In light of the outcome of this case, asylum seekers are likely to be placed in expedited removal proceedings almost immediately, reflecting the Trump administration’s move towards a ruthless and unconstitutional approach to deportation.