A divided U.S. Supreme Court bolstered the government’s ability to quickly deport people who enter the country illegally, siding with the Trump administration and refusing to give asylum seekers a broad right to make their case to a federal judge.
Ruling against a Sri Lankan man arrested near the Mexican border, the justices said the Constitution doesn’t give asylum seekers the right to request a court order letting them stay in the country. The vote was 7-2, though only the court’s five conservative justices joined the most sweeping reasoning.
The decision could have a broad impact, potentially affecting the rights of millions of people who have never had legal status in the country.
Writing for the court, Justice Samuel Alito said asylum bids would go beyond what the Constitution’s framers envisioned when they adopted protections for so-called habeas corpus petitions, which typically seek release from detention.
“The relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted,” Alito wrote in the court’s lead opinion. Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined Alito’s opinion.
Justices Stephen Breyer and Ruth Bader Ginsburg said in a concurring opinion they would have issued a much narrower ruling limited to the circumstances in the case before court. Justices Sonia Sotomayor and Elena Kagan dissented.
The ruling “purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and stable bulwark of our liberties,” Sotomayor wrote for the dissenters.
The case centered on “expedited removal,” a streamlined deportation process set up by Congress in 1996. The process gives federal judges only a limited role. Until recently, those eligible included only people who are arrested within 100 miles of the border less than two weeks after crossing and then are deemed by immigration officials not to have a credible fear of being persecuted.
In a separate case, a federal appeals court this week upheld the Trump administration’s expansion of the expedited removal program to cover people who have been in the U.S. as long as two years and are no longer near the border.
The Supreme Court case involved Vijayakumar Thuraissigiam, who says he would be subject to persecution as an ethnic Tamil if he were returned to Sri Lanka. Thuraissigiam says he went into hiding and then fled the country after a group of men kidnapped and beat him in 2014. He crossed into the U.S. near San Ysidro, California, and was arrested 25 yards north of the border.
The high court’s ruling “fails to live up to the Constitution’s bedrock principle that individuals deprived of their liberty have their day in court, and this includes asylum seekers,” said Lee Gelernt, an American Civil Liberties Union lawyer who argued the case for Thuraissigiam.
“This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger,” Gelernt said.
Trump campaign adviser Jason Miller gave the ruling a thumbs-up on Twitter.
The San Francisco-based 9th U.S. Circuit Court of Appeals had said Thuraissigiam could invoke the Constitution’s suspension clause, which protects the right of people to file habeas corpus petitions. The appeals court said immigrants must be given a “meaningful opportunity” to show they meet the criteria for asylum.
Thuraissigiam’s lawyers said the hearing before the immigration judge often lasts just a few minutes and almost always occurs without witnesses. By law, that hearing must take place no later than seven days after the asylum officer’s determination.
The immigrant may then turn to federal court, but U.S. immigration law effectively limits that review to claims of mistaken identity, Thuraissigiam’s lawyers said.