A Judicial Takeover of Asylum Policy?

A foreign national who entered the country illegally is seeking to overturn a major provision of the United States immigration system that will, as he repeatedly said in his Supreme Court brief and oral argument, affect “millions” of cases. He has initiated a constitutional challenge to current immigration law that allows for “expedited” removal hearings for those illegal aliens who have been present in the country for fewer than two years. The Court heard oral argument in the case of Department of Homeland Security v. Thuraissigiam on March 2.

Vijayakumar Thuraissigiam claims that Congress has unlawfully and unconstitutionally suspended the application of habeas corpus to immigration law. Two particular constitutional provisions are at issue: Article I, Sec. 8 of the Constitution grants Congress the power “to establish an uniform Rule of Naturalization,” while the “Suspension Clause,” along with other prohibitions on the power of Congress in Article I, Sec. 9, holds 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.” With its origins in the Magna Carta, a habeas writ is a court order that requires a custodial holding authority to bring a person into court so as to examine whether there is a legal basis on which the person may be held.

In their briefs and oral arguments, both Thuraissigiam and the government rely heavily on two precedents. Landon v. Plasencia (1982) is the foundation of the government’s argument and was emphasized by Justice Kavanaugh in oral argument. There, the Court in an 8-1 decision ruled that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.”

In Boumediene v. Bush (2008), Congress had passed legislation, stemming from the War on Terror and the Iraq and Afghanistan wars, directed at the controversial status of detainees at Guantanamo Bay Naval Base in Cuba. In the legislation, Congress established that the federal courts did not have jurisdiction to hear habeas petitions from officially designated “enemy combatants” held in custody. In a 5-4 decision, the Court ruled against the government and held the applicable statutory provisions unconstitutional, noting that the Suspension Clause “has full effect at Guantanamo Bay.”

Before the contemporary legislative revisions of the last 60 years, which established a more detailed and multi-faceted immigration system, the rough historical practice had been to recognize the habeas privilege in immigration cases.

A Seventh Hearing

Under current immigration law, a person arrested for illegal entry who has been in the country for fewer than two years is allowed four levels of administrative hearings. The Thuraissigiam case was heard at all four levels. A Tamil native of Sri Lanka, Thuraissigiam was apprehended at the Mexican border. Since he had no visa or entry permit, he was declared to be an “inadmissible alien” by a Customs and Border Protection officer who designated him for “expedited removal” from the country. Claiming that he would be persecuted and tortured if he was returned to Sri Lanka, he applied for asylum and was then referred to an asylum officer who made a finding that there was no credible fear of persecution or torture. He availed himself of more statutory due process by appealing to a supervisory asylum officer who came to the same conclusion. Invoking more process still, he testified before an immigration judge who became the third official to arrive at the same conclusion. Thus, his case on the merits of his asylum claim was heard and denied three times.

Nonetheless, he then filed a petition for a writ of habeas corpus in federal district court. In recent years, Congress has amended immigration law and statutorily removed the jurisdiction of the courts over expedited removal hearings except to allow for a strictly limited habeas review concerning several specific, factual questions. That is, the law does not provide for judicial review of the merits of any particular claim for asylum. With no jurisdiction and with no grounds for habeas relief, the district court dismissed Thuraissigiam’s petition. The Ninth Circuit disagreed, holding that the statutory constraints on habeas review violated the Suspension Clause. The Supreme Court will now serve as the seventh hearing, appeal, or review of this case.

Arguments, Written and Oral

Thuraissigiam argues in his brief that if the Supreme Court could find in Boumediene that “enemy combatants” who have never entered the country must have habeas corpus available to them, then surely it should apply to a non-citizen who is in the country. He contends that, in addition to all the statutory procedural due process that he has been allowed below, he still has constitutional rights guaranteed by the Suspension Clause. And he brings his case to the Supreme Court not just for himself but for “millions of people living in the United States” who could, like himself, be subject to “summary removal, without either administrative or judicial review.” He further argues that the Court should not only apply the constitutional provision to him but also review and re-evaluate the facts of his claim for asylum.

At oral argument, he expanded his argument to say that “the statute here eliminates any meaningful role for the courts.” He said that until recent amendments to immigration law, the common-law rule of universal access to habeas was followed by Congress. The Suspension Clause is a “check on the political branches,” and “the one thing” that Congress may not do is “remove a check” on itself. Justice Alito made the point that a person seeking habeas wants to be released from custody, but what Thuraissigiam “wants is review of his entitlement to remain in this country, not simply what habeas provides.”

Upon being pressed by Justices Alito, Kavanaugh, Breyer, and Ginsburg, counsel for Thuraissigiam argued that habeas would allow him to have the merits of his claim to asylum reconsidered because “no asylum officer” should “reasonably have concluded” that he had not met the “very low standard” for asylum. The conclusion at all levels below—that he was not eligible for asylum—was an “egregious” misapplication of the laws to the facts, he said. The law, if upheld, means “that asylum seekers and potentially millions of other unknowns, non-citizens, inside the country could be summarily expelled without any judicial review or without even any administrative review.”

The government argued in its brief that, in light of Plasencia’s holding about the lack of constitutional rights of aliens seeking admission, “Congress has made the judgment that aliens unlawfully present for less than two years are not guaranteed full removal hearings.” Second, the government argued that Thuraissigiam is not seeking “the type of relief that the Clause protects,” namely, a mere release from custody. Upon removal from this country, he will no longer be in “custody” and will be free to return to his own country. The law has provided Thuraissigiam with “a multilevel administrative review process in which an alien subject to expedited removal received three opportunities to demonstrate that he has a credible fear of persecution or torture.” And the government agreed with Thuraissigiam in part about the larger social impact of the case, quoting the Secretary of Homeland Security in 2004 that “nearly 1 million” aliens were apprehended for illegal entry at the border.

At oral argument, the government’s attorney was confronted by Justices Breyer, Sotomayor, and Kagan with repeated references to the previous era when habeas broadly applied to immigration cases. Justice Sotomayor maintained that there was a difference between someone who “has no protected ground to stay here” and someone seeking asylum which is provided by statute. Breyer said that Boumediene stood for the principle “that the detainee has the right to go into court under habeas and to make his claim.” The attorney for the government replied that Congress did provide for habeas, albeit in a limited manner, and that the contemporary system saved the federal courts from being overwhelmed by immigration cases. Sotomayor stated that there is a need for a review of errors “of law” as well as the “application of facts to the law.”

In order to streamline the adjudication of immigration cases and to deal with the seemingly permanent phenomenon of mass illegal entry into the country, Congress has statutorily set up an “expedited” administrative system complete with multiple levels of appeals to deal with a certain class of entrants into the country: illegal aliens who have been in the country for fewer than two years. But the system includes limitations on federal court jurisdiction and the writ of habeas corpus. Thuraissigiam would repeal that statutory structure and make both the law and the facts in every individual petition for asylum—and there could be millions in the future—a matter for the federal courts.

This case highlights what three years of relentless media advocacy and judicial resistance to the Trump administration on the issue of immigration have obscured: an alien seeking admission has no constitutional rights against removal, including the right to habeas corpus review.