Opinion analysis: Court confirms limitations on federal review for asylum seekers - SCOTUSblog

Opinion analysis: Court confirms limitations on federal review for asylum seekers - SCOTUSblog
by Kari Hong

In a 7-2 decision, the Supreme Court in Department of Homeland Security v. Thuraissigiam upheld a scheme of limited and narrow judicial review over expedited removal, a bare-bones administrative process created under the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Expedited removal allows an immigration official to make the immediate decision to deport a person without a hearing if the person is apprehended within 100 miles of a border and if they cannot prove they have lived in the country for more than two weeks.

Congress provided three exceptions to expedited removal, one of which involves asylum seekers. If a noncitizen expresses a fear of persecution, the officer must refer them to an asylum officer who conducts what is known as a credible fear interview. If the asylum officer finds a “significant possibility” that the applicant’s asylum claim would succeed, the applicant is given a full immigration hearing.

The narrow legal question for the court in this case was whether the asylum seeker can file in federal district court a petition for habeas corpus—a means of challenging unlawful confinement or vindicating federal rights—to review any legal or constitutional errors the asylum officer may have made. As the court explained, the simple answer in this case is no.

Vijayakumar Thuraissigiam, a member of the ethnic minority Tamil population in Sri Lanka, was apprehended within 25 feet of the U.S. border. He asked for asylum because he feared persecution in his home country after having been kidnapped and beaten. After a credible fear interview, an asylum officer found that there was no significant possibility that Thuraissigiam would qualify for asylum in a full hearing. An immigration judge upheld this decision after a cursory review. Thuraissigiam filed a habeas petition, alleging that the asylum officer had erred by not considering relevant facts about the identity and motives of his attackers, who he explained were government officials targeting him for his political opposition to them, and that the expedited asylum procedure itself violated due process because Thuraissigiam did not receive adequate safeguards, such as a competent translator and an opportunity to present country-condition reports.

The district court denied his claims, contending that under 8 U.S.C. § 1252(e)(2), Congress had limited the ability of federal courts to review expedited removal cases to only the narrow issues of whether Thuraissigiam was a citizen, whether the immigration officer had entered a valid removal order, and whether Thuraissigiam was wrongfully subjected to expedited removal because he had previously been granted lawful permanent residence, refugee status or asylum. The U.S. Court of Appeals for the 9th Circuit reversed, holding that the habeas review available to Thuraissigiam under Section 1252(e)(2) did not satisfy the requirements of the Constitution’s suspension clause, which guarantees the right to habeas corpus absent extraordinary situations (such as a national emergency).

Today the Supreme Court reversed the 9th Circuit and rejected Thuraissigiam’s argument that Section 1252(e)(2) violated the suspension clause and the due process clause. Writing for the majority, Justice Samuel Alito began by emphasizing the burden on the immigration system imposed by the credible fear process, “[e]ven without the added step of judicial review.” “If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited.”

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In Sotomayor’s view, Thuraissigiam’s habeas claim is a means to prevent the executive branch from creating an arbitrary administrative scheme plagued with errors, a right that has been the purpose of habeas since its inception. Invoking habeas is proper, not to secure Thuraissigiam’s immediate release from custody, but to grant him rightful access to laws that are supposed to be available to him.

Sotomayor also pointedly criticized the majority’s suggestion that Thuraissigiam’s “unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings.” “Both the Constitution and this Court’s cases,” she argued, “plainly guarantee due process protections to all ‘persons’ regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.” The decision “handcuffs the Judiciary’s ability to … safeguard individual liberty,” Sotomayor lamented, and “paves the way towards transforming already summary expedited removal proceedings into arbitrary administrative adjudications.”