Supreme Court OKs government’s quick removal of immigrants who cross border illegally

Immigrants try to cross a wall at the Tijuana border.
In a photo taken from the Mexican side of the border in Tijuana, immigrants on U.S. soil try to jump a second wall before border police arrived and arrested them on Dec. 2, 2018.
(Ramon Espinosa / Associated Press)

The Supreme Court on Thursday upheld the government’s power to arrest, question and quickly remove immigrants who are caught crossing the border illegally.

In a victory for the Trump administration, the justices rejected the claim that immigrants who seek asylum have a right to a full federal court review through a writ of habeas corpus, even if their claims are judged to be not credible.

The 7-2 decision came in the case of a Sri Lankan immigrant who was caught late at night 25 yards north of the border with Mexico near San Ysidro, Calif. He was interviewed by an asylum officer who concluded he did not have a “credible fear of persecution,” which would trigger a further hearing. A supervisor and immigration judge agreed his claim did not deserve further review.

But last year, the U.S. 9th Circuit Court of Appeals issued a broad ruling in his case holding that the federal law authorizing “expedited removal” of border crossers was unconstitutional in cases such as his.

Lawyers for Vijayakumar Thuraissigiam, the Sri Lankan man, said due to “communication problems,” the asylum officer did not learn of his full story. It included his being detained and beaten by army officers for supporting a Tamil political candidate. The 9th Circuit ruled it would violate the Constitution’s right of habeas corpus and due process of law to deny a federal court review for such cases.


The Justice Department appealed and argued the ruling could unravel the “expedited removal” process set by Congress in 1996 and lead to a “flood” of lengthy appeals.

The Supreme Court agreed and reversed the 9th Circuit, ruling neither habeas corpus nor due process of law gives those who cross the border illegally a right to have a full review of their claims in the federal courts.

“While aliens who have established connections in this country have due process rights in deportation proceedings, the court has long ago held Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights” beyond those set in the 1996 law, said Justice Samuel A. Alito Jr. in Department of Homeland Security vs. Thuraissigiam. He was referring to the right to be interviewed by an asylum officer and a review by an immigration judge.

Over the last five years, 77% of those interviewed by an asylum officer were found to have a credible claim, he said. As a result, the “expedited removal” process is limited to one in four of those who make an asylum claim.

Alito said habeas corpus “has traditionally been a means to secure release from unlawful detention.” In the case of the Sri Lankan man, “the government is happy to release him, provided the release occurs in the cabin of a plane bound for Sri Lanka,” he said. But instead of seeking his release, the migrant’s goal is “to obtain authorization to stay in this country.”

The 9th Circuit had cited the high court’s rulings extending habeas corpus rights to the detainees at Guantanamo Bay in Cuba, but Alito said those detainees sought to be released and go home, not permission to live in the United States.

Justices Stephen G. Breyer and Ruth Bader Ginsburg concurred in the result, but did not join Alito’s opinion.


Justices Sonia Sotomayor and Elena Kagan dissented. “Today’s decision handcuffs the judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive discretion unchecked [and] increases the risk of erroneous immigration decisions that contravene governing statutes and treaties,” Sotomayor wrote.

ACLU attorney Lee Gelernt, who argued the case, said he was disappointed.

“This 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. This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger,” he said.