SCOTUS Rules Asylum Seekers Can’t Challenge Rejection in Court

A 7-2 decision by the highest court in the land is less decisive than the numbers suggest.

WaPo’s Robert Barnes (“Supreme Court agrees with Trump administration on limits on asylum seekers“):

The Supreme Court ruled Thursday that asylum seekers who are turned down by immigration officials do not have a right to make their case to a judge, a win for the Trump administration and its desire to quickly deport people who enter the United States illegally.

The ruling was 7 to 2, although the usual undercurrents of an ideological divide on the court were present. Two of the court’s liberals dissented, and the other two agreed only with the outcome in the specific case.

Justice Samuel A. Alito Jr., writing for the majority, rejected a lower court’s ruling that the Constitution guarantees a “meaningful opportunity” for asylum seekers to make their case to a judge if they are turned down in an initial screening.

Alito said the system set up by Congress weeds out “patently meritless claims” and provides for quickly removing those making them. Most pass their initial screening, he noted, but those who do not have no additional recourse.

At oral argument, the government said that allowing judicial review would prompt a “flood” of requests and place additional burdens on an immigration system already under strain.

The particular case in controversy was not auspicious:

The case involves Vijayakumar Thuraissigiam, who fled Sri Lanka in 2016 and was arrested in 2017 about 25 yards north of the Mexican border in San Ysidro, Calif. He was placed on a track for expedited removal.

That system, which dates to 1996, allows U.S. officials to quickly remove people who have just crossed the border illegally, but it has an exception for those seeking asylum.

Thuraissigiam, a farmer and a member of Sri Lanka’s Tamil minority, described being beaten by strangers in his home country. But an official said he did not establish a credible case that he was persecuted.

Thuraissigiam went to federal court, where a district judge said the law did not entitle him to review. But the U.S. Court of Appeals for the 9th Circuit disagreed.

Justice Stephen G. Breyer, joined by Justice Ruth Bader Ginsburg, agreed with the court that Thuraissigiam’s claims were too vague to make a credible case for asylum. But they said there was no need for the court to make further decisions that would affect other asylum seekers.

Justice Sonia Sotomayor wrote a toughly worded dissent, which was joined by Justice Elena Kagan.

“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,” Sotomayor wrote, adding that “our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the judiciary.”

A report by CNN‘s Ariane de Vogue and Priscilla Alvarez (“Supreme Court rules asylum seeker cannot challenge removal“) adds:

The ruling is a win for the Trump administration, which has attempted to dramatically limit who’s eligible for asylum in the US, though it likely won’t have an immediate impact since the vast majority of asylum seekers are currently barred from entering the country following new coronavirus border restrictions.

[…]

Currently, undocumented immigrants who are caught within 100 miles of a land border and within 14 days of arrival are subject to an expedited removal process and can be ordered removed without further hearing or review. If the individual seeks asylum, however, he or she is provided additional screening before an asylum officer, a supervisory officer and an immigration judge to determine whether the person has a credible fear of persecution or torture if returned to his or her home country.

“This is a devastating blow to the due process rights of asylum seekers who arrive at our border seeking protection,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.

The Trump administration wants to include undocumented immigrants anywhere in the US who cannot prove they’ve lived in the US continuously for two years or more. A federal judge has blocked the move but proceedings are ongoing.

“This throws a lot of questions into what rights individuals who have developed strong ties to the community have and whether this decision would undermine those rights,” Reichlin-Melnick said.

The ruling seems an obvious reading of the law in question, the Constitutionality of which was not only not challenged here but was upheld 6-3 by the Supreme Court in Demore v Kim way back in 2003. While most of the Constitution’s provisions apply equally to US citizens and mere “persons” under US jurisdiction, the courts have long held that the government has a legitimate interest in controlling borders and immigration.

Justice Sotomayor is right in the abstract when she declares “our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the judiciary.” But this ruling doesn’t preclude suits brought by US citizens or other US entities challenging blanket rules. Indeed, the courts have struck down some of the Trump Administration’s more outrageous policies vis-a-vis asylum seekers and illegal immigrants.

It seems untenable, though, to allow every individual asylum seeker to clog up the courts appealing the administrative decisions of the agency entrusted with making these decisions. But international law that grants asylum seekers a place at the head of the line is naturally going to be abused by “mere” economic migrants. That’s a decision Congress has properly delegated to the executive.

FILED UNDER: Borders and Immigration, Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. CSK says:

    A 7-3 decision? Maybe you want to correct your sub-head. [Fixed–jj]

  2. Jay L Gischer says:

    At oral argument, the government said that allowing judicial review would prompt a “flood” of requests and place additional burdens on an immigration system already under strain.

    You know, there’s a straightforward way to reduce the strain on the immigration system: devote more resources to it. Spend more on courts, on field officers, on case workers, and so on.

    Democrats are not standing in the way of this. They have voted in favor of this multiple times. The only sticking point? The DREAMers.

    All of this, every last bit of wrangling, would be resolved except that there is a cadre of Republicans who cannot abide the idea that people who born elsewhere but grew up in America, know no other home, and speak no other language, would be allowed to become citizens.

    Bills passed the Senate. Plenty of people like Rubio and Bush and McCain and Romney were ok with this. So this isn’t a “Republican” thing. Or even a “conservative” thing. That group, the Freedom Caucus, did it by threatening to blow everything up – to dethrone the Speaker and so on – if the rest of the Republicans didn’t go along with them.

    I wonder when that other group will turn the tables. The tactics that worked for the Freedom Caucus can work against them, too. So far, it isn’t looking good. So far, we see people like John Bolton still pledging allegiance to some idealized Republican Party that doesn’t exist any more, but makes for convenient sound bites.

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  3. James Joyner says:

    @Jay L Gischer: While I hate the propaganda term “DREAMer,” I’m inclined to agree that it would be unconscionable to remove them. Still, while I’m sure under-resourcing of the sub-agency that deals with that issue has a cascading effect, their are specialist Asylum Officers who deal with the matters at hand here.

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  4. Jay L Gischer says:

    James, can you think of another simple, short way to refer to this group? I don’t know one.

    And yeah, practical realities are practical realities, and if we had an atmosphere of trust in our national politics, we could maybe accommodate them better.

  5. Gustopher says:

    @Jay L Gischer: DACA Dudes and Dudettes.

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  6. Jay L Gischer says:

    I just want to note that whatever you call them, removing the DACA Dudes and Dudettes would not only be unconscionable, it would do harm to the US as a whole. By and large, this group consists of people who make a positive contribution to the country. Why would we send them away?

  7. Gustopher says:

    This is where I really miss Doug.

    On the surface reading, it seems like an administration in bad faith could deny every asylum claim and that there would be no one who could challenge them — but someone with any legal expertise and vague familiarity would possibly be able to explain that this isn’t the case.

    I hope Doug is well these days.

    A friend who works as a translator for asylum seekers told me a while back that there have been almost no accepted claims this year. Everything is either stuck in limbo or denied.

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  8. wr says:

    @James Joyner: “While I hate the propaganda term “DREAMer,”

    You can get rid of “Dreamer” the day we stop referring to anyone who happened to be alive during the 1940s as “the greatest generation.”

    I mean, as long as we’re getting rid of rhetorical abominations…

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  9. Just nutha ignint cracker says:

    Why would we send them away?

    Because they’re not us and there’s a whole new generation of “not us” to send off to die in the Middle East–and promise stuff to that we have no intentions of delivering on?

    They’ve served their usefulness. It’s time for them to move on. There are other prairies to strip mine and forests to denude clearcut, if you will.

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  10. CSK says:

    @wr:
    Tom Brokaw inflicted the term “greatest generation” on us. My father, who was one of them, couldn’t stand it.

  11. DrDaveT says:

    @James Joyner:

    Still, while I’m sure under-resourcing of the sub-agency that deals with that issue has a cascading effect, there are specialist Asylum Officers who deal with the matters at hand here.

    The competence and probity of the officials who deal with these questions is not immutable, and is not independent of the amount and quality of oversight exercised over them, or the potential for appeal of their decisions. You might just as easily argue that the actions of the police should not be subject to review or appeal, given that they are trained specialists in law enforcement…

  12. Just nutha ignint cracker says:

    You might just as easily argue that the actions of the police should not be subject to review or appeal, given that they are trained specialists in law enforcement…

    Indeed, some people do argue just that. I seem to hear such an argument on nearly every episode of Blue Bloods. Usually from the fat, balding loudmouth who was granted a promotion to Lieutenant by the Commish, so he could qualify for a job at One PP (if I recall the story line correctly).