President Trump’s efforts to speed up deportation of thousands of unauthorized immigrants were boosted Thursday when the U.S. Supreme Court ruled in a California case that those migrants generally have no right to challenge their expulsion orders in court.
The ruling upheld procedures known as “expedited removal” that were established by Congress in 1996 and expanded by the Trump administration to apply to immigrants who have been in the U.S. for less than two years and are potentially subject to deportation.
Under standard procedures, an undocumented immigrant who contests deportation is entitled to a hearing in immigration court, an arm of the Justice Department, and can appeal an unfavorable decision to a federal appeals court.
Under expedited removal, immigrants receive only a hearing before a Customs and Border Protection officer, who can order them deported.
Those who claim asylum are referred to an asylum officer, also an executive branch employee, who decides whether they have a “credible fear” of persecution in their homeland. If so, their cases are taken out of expedited removal and referred to the standard review process. If not, they can make a final appeal to the immigration court and then face deportation without the right to make their case in federal court.
Thursday’s ruling overturned a March 2019 decision by the Ninth U.S. Circuit Court of Appeals in San Francisco that would have allowed immigrants facing expedited removal to appeal denials of asylum to a federal court, where judges are appointed for life. By denying such review, the appeals court said, the 1996 law violated the constitutional rights of immigrants — like those of anyone on U.S. soil — to an independent review of whether the officers had held fair hearings and followed proper legal standards.
The Supreme Court said the constitutional right known as habeas corpus provides judicial review for claims of illegal confinement, but not for claims of the right to stay in the country.
“We have no evidence that (habeas corpus) as it was known in 1789 (when the Constitution took effect) could be used to require that aliens be permitted to remain in a country other than their own,” Justice Samuel Alito said in the majority opinion. And the constitutional right to due process of law does not apply to deportations, Alito said, because “Congress is entitled to set the conditions for an alien’s lawful entry.”
He was joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh. In dissent, Justice Sonia Sotomayor said the majority had distorted past rulings, including one in 2001 that said the Constitution authorized “some judicial intervention in deportation cases.”
“Both the Constitution and this court’s cases plainly guarantee due process protections to all ‘persons’ regardless of their immigration status, a guarantee independent of the whims of the political branches,” said Sotomayor, joined by Justice Elena Kagan.
In a separate opinion, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said they found no evidence that the immigrant in this case faced persecution in his homeland and that there was no need to address the constitutional issues.
The case involved Vijayakumar Thuraissigiam, a native of Sri Lanka who entered California from Mexico in February 2017 and was arrested near the border. He said he had been beaten and tortured by government officers in his homeland for supporting a candidate from the Tamil minority group.
In expedited-removal proceedings, an asylum officer found he had no credible fear of persecution. Thuraissigiam, who remains in U.S. custody, wanted a federal judge to review his claims that the officer failed to consider evidence about conditions in Sri Lanka, did not communicate properly with his translator, applied improper legal standards and did not state reasons for the adverse decision.
His lawyer, Lee Gelernt of the American Civil Liberties Union, said the court’s ruling “means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger.”
The decision “deprives noncitizens of the core right to judicial review of executive actions,” said Stanford law Professor Lucas Guttentag.
But the Justice Department said the ruling “allows the Trump administration to continue to defend our borders, uphold the rule of law, and keep Americans safe.”
The case is DHS vs. Thuraissigiam, 19-161.
Bob Egelko is a San Francisco Chronicle staff writer. Email: [email protected] Twitter: @BobEgelko
