The Supreme Court on Thursday reinforced the ability of President Donald Trump’s government to quickly deport undocumented immigrants, concluding that asylum seekers cannot appeal to federal courts if they are denied that protection as soon as they are detained.
The decision, which in practice limits the legal rights of thousands of undocumented immigrants who arrive at the southern border and some who are already in the U.S., gives Trump a victory just one week after the Supreme Court handed him a setback in the case of the undocumented youths known as “dreamers.
TRUMP’S PUSH TO EXPAND EXPRESS DEPORTATIONS
The ruling encourages Trump’s longstanding campaign to restrict the right of undocumented immigrants to seek asylum in the U.S., and confirms the Supreme Court’s tendency to support that strategy: in March, the court left in place the program that sends thousands of migrants to Mexico to wait for their appointments before immigration judges.
By a seven to two vote, the conservative majority of the high court concluded that “a foreigner on the threshold of entry into the country cannot claim extensive rights under the due process clause” of the U.S. Constitution, in the words of the judge who wrote the case, Samuel Alito.
One of the two judges who voted against the decision was Hispanic Sonia Sotomayor, who warned that the decision would give “unchecked” power to the federal government and “increase the risk of erroneous immigration decisions” by immigration agents at the border, which may contravene U.S. laws and treaties.
“This country has repeatedly reaffirmed its commitment to provide sanctuary to those who escape oppression and persecution,” and that is not consistent with Thursday’s ruling, Sotomayor said.
THE DETAILS OF THE CASE
The case involved Vijayakumar Thuraissigiam, a member of Sri Lanka’s ethnic Tamil minority who was arrested in 2017 in San Ysidro, California, a few metres from the border with Mexico, and applied for asylum.
His request was processed under a process called “expedited deportation” which since 1996 has allowed the Government to expedite, without court supervision, the removal of those undocumented migrants who have crossed the border in the last two weeks and are detained less than 100 miles from the border.
Thuraissigiam argued that he had been tortured and had a “credible fear” of persecution if deported to his country, a prerequisite for obtaining asylum. When the Government rejected his application, the immigrant filed a “habeas corpus” petition in a federal court, and the case went all the way to the Supreme Court.
Although it is very rare for undocumented immigrants who are denied asylum to go to federal court – only 30 in the last year, according to the American Civil Liberties Union (ACLU) – the Trump administration argued that guaranteeing that right would place an undue burden on the immigration and judicial system.
FEWER RIGHTS THAN GUANTANAMO PRISONERS
The ACLU, which defended Thuraissigiam before the Supreme Court, warned Thursday that the case “contradicts the basic principle of the Constitution that persons deprived of their liberty have the right to be heard in a court of law.
“This decision means that some people facing improperly issued deportation orders may be deported without any judicial supervision, putting their lives in grave danger,” ACLU attorney Lee Gelernt, who handled the case, said in a statement.
Aaron Reichlin-Melnick, an immigration law expert at the American Immigration Council, went further, saying on Twitter: “As of today, al-Qaeda prisoners in Guantanamo Bay have more access to the right of habeas corpus than asylum seekers fleeing danger.
The analyst was referring to the Supreme Court’s 2008 decision that Guantánamo (Cuba) detainees had the right to take their cases to the civil courts, a ruling made on the basis of a petition by one of the prisoners for “habeas corpus”, an appeal that allows detainees to ask a judge to assess the legality of their arrest.
WITH IMPACT BEYOND THE BORDER
In addition, many immigration experts fear that Thuraissigiam’s precedent will not only apply to undocumented immigrants subject to express deportation proceedings at the border, but also to many of those detained within the U.S. by Immigration and Customs Enforcement (ICE) agents.
As part of his efforts to expand “expedited deportations” as much as possible, Trump announced last year that this process would also apply to those undocumented immigrants detained throughout the U.S. who have been in the country less than two years.
On Tuesday, a federal court in Washington validated that policy, and the Supreme Court ruling “confirms” that the federal government’s power to apply such “expedited deportation” also within the country “cannot be reviewed” by a court, an immigration attorney in Boston, Massachusetts, Matt Cameron, said on Twitter.