The Supreme Court will consider a major case Monday concerning the rights of some asylum seekers to challenge their expedited removal.
The Trump administration is asking the Supreme Court to reverse an opinion of the 9th Circuit Court of Appeals that would allow some individuals who have been denied asylum the opportunity to make a claim in federal court. If the opinion stands, it could open the courthouse doors to more asylum seekers.
The dispute comes as President Donald Trump has made immigration enforcement and restrictions on asylum claims a centerpiece of his agenda. Just last week, the same federal appeals court ruled against Trump’s so called “remain in Mexico” policy, which required non-Mexican asylum seekers to wait in Mexico while their asylum cases were being considered. The court’s opinion is currently on hold.
At the center of the case is Vijayakumar Thuraissigiam, a native citizen of Sri Lanka and a member of an ethnic minority group. Upon illegally entering the United States, he was arrested 25 yards north of the Mexican border and placed in expedited removal proceedings. He applied for asylum out of fear of persecution in Sri Lanka. An asylum officer determined he had not established a credible fear of persecution. A supervising officer and an immigration judge affirmed the decision. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding in federal court. He was placed in expedited removal – a proceeding that allows the government to deport an individual deemed inadmissible with no further review.
Thuraissigiam’s lawyers at the ACLU went to federal district court arguing that the expedited removal violated his constitutional rights. A district court said that the law did not authorize the court to hear his claims. The 9th Circuit Court of Appeals agreed, but said that the law violates a part of the Constitution, the Suspension Clause, which would allow Thuraissigiam, even as a noncitizen, to have a “meaningful opportunity” to demonstrate that he is being held against the law.
Stephen Yale-Loehr, an immigration professor at Cornell Law School, says the case is important because it “squarely raises constitutional issues.”
“Here the Court must decide whether newly arrived immigrants have the same right to challenge their detention in federal court as U.S. citizens,” he said. Yale-Loehr noted that nearly half of all removals from the United States occur through expedited removal. “If the Court holds that the Constitution applies to arriving immigrants, the number of such deportations will surely decrease,” he said.
The Trump administration argues in briefs that the law, which sharply limits judicial review to final orders of removal, was passed so that the asylum system would not be abused. Solicitor General Noel Francisco argued in court briefs that there is a difference between someone who entered the country lawfully “and became part of the population” and someone who entered “clandestinely” who has “been here for too brief a period to have become, in any real sense, a part of our population.”
He said Congress designed the expedited removal system “as a critical tool for protecting the nation’s borders and enforcing its immigration laws.”
Thuraissigiam’s lawyers at the ACLU argued in court briefs that the lower court got it right, telling the justices, “Mr. Thuraissigiam has procedural due process rights as a ‘person’ who entered the country.”
They noted that he fled his home in Sri Lanka to escape torture and likely death and that his claim for asylum was denied after a “cursory and inadequate review.