Legal Docket - Judicial review of immigration matters

NICK EICHER, HOST: It’s Monday morning and we’re open for business here on The World and Everything in It. Today is the 13th of April, 2020. 

Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Grateful to have work to do, and good morning!

Well, kind of sad day for me: the last oral argument, at least for now. Twenty cases sooner than I’d expected, but as we know, the justices postponed all of the remaining oral arguments because of the coronavirus precautions.

So this last case is another one dealing with deportation proceedings. Specifically, the scope of review that courts have over them. Courts have limited review in immigration matters, so disputes arise quite often. 

Here are the facts. 

In 2016, a man from Sri Lanka named Vijayakumar Thuraissigiam came into the United States illegally at the southern border. Border patrol arrested him almost immediately.

EICHER: Thuraissigiam fit the criteria for what’s called “expedited removal proceedings.” No court hearing required. 

That process created in 1996 applies to individuals in the country illegally for less than two years and who are apprehended within 100 miles of the border. 

Immigration authorities interviewed him to determine if he had credible fear of return. They weren’t convinced. 

But Thuraissigiam argues he ought not be subject to expedited removal. 

So he asks the Supreme Court to expand what courts can review in immigration matters, given the facts of his case.

REICHARD: Thuraissigiam says he fled Sri Lanka because he is a member of an ethnic minority group persecuted by the government there.

Thuraissigiam’s lawyer, Lee Gelernt, pointed to something more fundamental than the immigration process: and that’s the right to habeas corpus. That’s Latin for “you may have the body.” Habeas corpus is the right to have a court review the rationale for continuing to imprison someone. 

It’s in Article I, section 9 of the Constitution. Lawyers know it as the Suspension Clause. It says the federal government cannot suspend that right except in extraordinary circumstances, such as rebellion or invasion. Here’s Gelernt:

GELERNT: The Suspension Clause is a check on the political branches. The political branches undoubtedly have enormous power in the immigration area, but the one thing it cannot do, and this court has never allowed them to do, is remove a check on themselves.

Keep in mind immigration judges are not judicial branch. They’re executive branch, a part of the Department of Justice.

Defending the government, Deputy Solicitor General Edwin Kneedler emphasized Congressional intent. 

This exchange is with Justice Elena Kagan:

KAGAN: On certain conditionsif he shows certain things he has a right to asylum. And what he’s trying to get is a hearing that adequately determines whether he can show those things…

KNEEDLER: Again, asylum is discretionary. He does not have a right under the asylum statute. And Congress in affording a right to go through this screening process, was not required to attach to it judicial review. If Congress knew that was coming maybe it wouldn’t have provided for asylum at all…

But Gelernt countered that deportation is a restraint on liberty and that triggers habeas corpus. 

Justice Samuel Alito saw a problem with that.

ALITO: What’s unusual about this situation is that your client really doesn’t want to be released…The government could take him to the airport, give him a ticket, and say, you are released, and he could leave. That’s not what he wants. And the fundamental point of habeas is to secure release from what’s claimed to be unlawful executive custody.

Well, sure his client wants release, came the reply. But the whole point of habeas is to ensure the rule of law. That’s first.

Justice Stephen Breyer seemed to favor that analysis, as he addresses the government lawyer.

BREYER: And that right became a right of the people, not just the king. The king wanted to see if his officers were following the law. Now they may have a lot of discretion and so forth, but, here, we have a statute which says: Judge, you cannot determine whether the officer has followed the law. I mean, the inconsistency with habeas and the right of the people to bring it to see if the king’s or the president’s or whoever’s officers are following the law would seem fairly seriously undermined, wouldn’t it?

Kneedler responded that that’s not this case. But then Justice Breyer raised a scenario of the unjust immigration official who behaves contrary to the Constitution.

And this is where Kneedler bumped into a problem.

KNEEDLER: This is a very different and limited and focused context where an alien who has entered illegally has no right to be in the country and nonetheless is asking for basically mercy under the statutes that Congress has enacted.

BREYER: Maybe that’s it. I don’t know. You’d have to at least, if he has a right to mercy under the statute, look…

Mercy. Sometimes in the law it’s called clemency, and it’s discretionary. Both Chief Justice Roberts and Justice Brett Kavanaugh cited case law that suggest constitutional rights are not in jeopardy here. Kavanaugh quoted an opinion that garnered an eight-justice majority.

KAVANAUGH: “The court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” 

So that’s a statement of law for eight justices. Why is that statement wrong, or, if it’s not wrong, why doesn’t it control here?

Because one’s about due process and the other judicial review. Two different things. 

However the court decides, automatic asylum is not on the table here. Thuraissigiam will have to get a judge to look at the process that deemed him ineligible.

This one’s too hard to predict, so I won’t. 

And that’s this week’s Legal Docket!

(AP Photo/Mark Sherman) The Supreme Court is shown, Monday, April 6, 2020 in Washington. 

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