The U.S. Supreme Court building. | Michael A. McCoy/Getty Images
Just a week after granting a reprieve to the so-called Dreamers, the Supreme Court dealt a major defeat to immigrant rights advocates by upholding a fast-track deportation process that the Trump administration is seeking to expand.
The procedure, called "expedited removal," forces allegedly undocumented immigrants out of the country with little or no review by the judicial branch.
In a 7-2 decision Thursday, the justices held that the Constitution’s clause barring suspension of habeas corpus rights in peacetime does not preclude Congress from sharply limiting the rights of some foreigners to challenge their deportation in the federal courts.
While the ruling is a victory for the President Donald Trump and his high-profile effort to crack down on illegal immigration, the legislation the justices upheld Thursday, which limits federal court involvement in expedited removal cases, was actually signed into law by President Bill Clinton in 1996.
The case the justices decided Thursday involved a Sri Lankan man, Vijayakumar Thuraissigiam, picked up by the Border Patrol about 25 yards from the Mexican border in 2017. Thuraissigiam maintains that he could be persecuted in Sri Lanka because of his Tamil heritage and political views, but it’s unclear whether he relayed those concerns clearly during the initial immigration proceedings. His lawyers say the translation was poor and he did not understand the questions being asked.
Justice Samuel Alito’s majority opinion, which was joined by all the court’s Republican appointees, said Congress has the right to create an expedited immigration process in cases involving individuals like Thuraissigiam who have weak ties to the U.S. at the time of their detention. Alito also held the ancient writ of habeas corpus has no application to an immigrant who is not really seeking release, but legal status in the U.S.
“Simply releasing him would not provide the right to stay in the country that his petition ultimately seeks. Without a change in status, he would remain subject to arrest, detention, and removal,” Alito wrote. “The Government is happy to release him — provided the release occurs in the cabin of a plane bound for Sri Lanka …The relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted.”
Alito also said allowing further judicial challenge threatened to bog down an asylum system that is already overwhelmed with a huge surge of cases
“The past decade has seen a 1,883% increase in credible-fear claims,” wrote Alito, an appointee of President George W. Bush. “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.”
The two dissenters were Democratic appointees: Justices Sonia Sotomayor and Elena Kagan. They said the majority decision abdicated the court’s responsibility to interpret the law and to protect individuals from arbitrary power.
“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, joined by Kagan. “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.”
Sotomayor also faulted Alito for suggesting constitutional principles should be interpreted with an eye to governmental efficiency.
“The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary,” she wrote.
The high court’s two other Democratic appointees, Justices Stephen Breyer and Ruth Bader Ginsburg, sided with the majority but took a more fact-specific approach, limited to circumstances closely resembling the case before the court. They agreed Thuraissigiam could be thrown out of the country without further legal process.
However, Breyer and Ginsburg stressed that their views could well be different if the immigrant facing deportation had been in the U.S. longer or was captured far from the border. “Addressing more broadly whether the Suspension Clause protects people challenging removal decisions may raise a host of difficult questions,” Breyer wrote, joined by Ginsburg.
Breyer wrote that he would not use the current case to make sweeping conclusions about the availability of habeas corpus to immigrants or the rights of foreign citizens under specific circumstances.
The high court ruling blessing expedited removal proceedings comes as the Trump administration is moving to broaden the use of that fast-track process. In recent years, it was used within 100 miles of the southern border and for individuals who allegedly entered illegally within the past two weeks. The Trump administration moved last year to allow authorities to invoke the sped-up process for deportation proceedings against immigrants anywhere in the country alleged to have entered the country anytime in the previous two years. A judge in Washington blocked that expansion last September, but on Tuesday a federal appeals court panel unanimously voted to lift that injunction, effectively greenlighting more widespread use of the fast-track deportation procedure.