WASHINGTON—The Trump administration told the Supreme Court that a foreigner who entered the country unlawfully and was thrice denied asylum during administrative proceedings doesn’t have the legal right to challenge an expedited removal order in the courts.
If the government loses the appeal in the case, known as Department of Homeland Security (DHS) v. Thuraissigiam, the flow of illegal aliens and would-be asylees to the United States could accelerate at a time when the Trump administration has been trying to curb the flow of such people into the country.
In ruling on the case, the Supreme Court could clarify what, if any, due process rights aliens stopped at the border possess.
In a friend-of-the-court brief, the Immigration Law Reform Institute says such detained aliens don’t possess “any rights beyond what the INA [Immigration and Nationality Act] provides.”
The case goes back to 2017, when Vijayakumar Thuraissigiam, an ethnic Tamil, a group that has been persecuted in Sri Lanka, was arrested 25 yards north of the U.S.–Mexico border in San Ysidro, California, after entering the country unlawfully. His case was processed under the expedited removal system instead of the slower-moving traditional removal system.
While trying to demonstrate he had a credible fear of persecution in his homeland, Thuraissigiam claimed he had been detained and beaten in 2007 by Sri Lankan army officers for supporting a Tamil political candidate and that in 2014, government officials kidnapped and tortured him.
A U.S. asylum officer, a supervisory asylum officer, and an immigration judge all rejected his refugee claim, and the file was sent to DHS for the man’s deportation. He brought an application in court seeking release from detention. U.S. District Court Judge Anthony J. Battaglia of the Southern District of California denied Thuraissigiam’s appeal, stating that he lacked subject matter jurisdiction under federal law.
At the urging of the American Civil Liberties Union (ACLU), the 9th Circuit Court of Appeals unanimously reversed the district court ruling, finding the claimant was entitled to challenge his detention in federal court.
Deputy Solicitor General Edwin Kneedler told the Supreme Court during oral arguments March 2 that the appeals court was wrong, because federal law gives Thuraissigiam no right to go to court after going through the government’s administrative process.
“Congress has repeatedly said that an alien seeking admission is entitled only to the procedures Congress has provided,” Kneedler said.
When an immigration official rules that “an individual alien is excludable,” then that finding constitutes “due process, for purposes of the Constitution,” and “that expedited removal order establishes the government’s right to detain him.”
Justice Sonia Sotomayor challenged Kneedler’s explanation of the law.
“It’s one thing when an alien comes and has no protected ground to stay here. There’s no legal right to stay. And so expedited proceedings are okay because they have no right to be here. But when someone’s seeking asylum, they have a statutory right to stay if they meet the elements of the statute.”
Justice Brett Kavanaugh posed a question to ACLU attorney Lee Gelernt.
“You are saying a non-citizen who arrives at a port of entry, has never been in the United States, not lawfully admitted to the United States, nonetheless has a right under the U.S. Constitution to judicial review of the executive’s decision to say they’re not admissible?”
“The answer is yes,” Gelernt said.
Justice Stephen Breyer told Kneedler that centuries ago when habeas corpus, which governs whether a person’s detention is lawful, was developed, “The king wanted to see if his officers were following the law.”
“Now they may have a lot of discretion and so forth, but here we have a statute which says: Judge, you cannot determine whether the officer has followed the law. All you can determine is whether he issued an order saying keep him in jail or send him wherever or whatever.”
If that is the case, habeas rights “would seem fairly seriously undermined” by the INA, Breyer said.
Kneedler said the Supreme Court has held for more than a hundred years that the determination of whether a person “comes within the scope of” the INA, “may be committed entirely to an executive officer.”
If judicial review were to be “added on top of” the administrative processes prescribed by the INA, “it would really bog down the system. And we think Congress’s judgment that that is not constitutionally required is entitled to great respect,” Kneedler told Chief Justice John Roberts.