SCOTUS Votes 7-2 Against Due Process for Asylum Seekers


A lot of the coverage of this decision was akin to: ‘SCOTUS Hands Trump Administration a Big Win on Immigration’, but they miss a lot; the following makes me think that the author may have been in the room.  He also adds plenty of of historical context.  No coverage contained what I’ve bolded first in London’s column.  As I have permission to do so, I’ll paste in the whole gob-smacking lot of it.  Good on Sonia Sotomayor and Elena Kagan (the ‘2’), but you may remember that Obama appointee Kagan had helped gut long-standing Miranda Rights/Warning in 2010

‘US Supreme Court rules recent asylum seekers have no right to habeas corpus or due process’, Eric London, 26 June 2020

“On Thursday, the US Supreme Court issued an opinion declaring that recent asylum seekers have no constitutional right to due process or habeas corpus, denying them any “day in court” to challenge the legality of their deportation before they are summarily removed.

The 7-2 decision is based on a majority opinion issued by the court’s five Republican justices and supported by a concurring opinion by Democratic nominees Ruth Bader Ginsburg and Stephen Breyer.

The majority opinion written by Samuel Alito echoes the court’s infamous Dred Scott v. Sandford (1857) ruling in more ways than one.

As in Dred Scott, the court in Department of Homeland Security v. Thuraissigiam made the most sweeping, extreme and anti-democratic ruling possible, reaching far beyond what even the government argued was necessary in the case. Not only did the court deny Sri Lankan immigrant Vijayakumar Thuraissigiam’s petition for habeas corpus, it also ruled that all recent asylum seekers have no rights to challenge their deportation at all.

And just as the court ruled in Dred Scott that the Constitution did not apply to slaves because they were not “people,” the court here has created a sub-class of people who are also beneath the protection of the law because they lack “established connections in this country,” as the majority opinion states.

In fact, after yesterday’s decision, new asylum seekers have fewer rights than fugitive slaves did in the decade before the Civil War. Runaway slaves at least had the right to appear before a judge to argue why they should not be removed from the North and to argue exceptional reasons for being allowed to stay, such as having served in the Continental Army during the American Revolution.

This case involved a Sri Lankan Tamil immigrant who was detained immediately after crossing the US-Mexico border. Thuraissigiam asked for asylum, telling Customs and Border Protection (CBP) agents that he left his home country after he was kidnapped by government thugs in an unmarked van and savagely beaten for belonging to the country’s long-persecuted Tamil minority. Officials also tortured Thuraissigiam by simulating drowning (waterboarding).

An asylum officer and supervisor decided Thuraissigiam could not show a “credible fear” of removal and prepared to send him back to Sri Lanka and likely persecution or death. Under the “expedited removal” process established by Congress in the bipartisan Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), immigrants who can show credible fear of removal are placed into immigration proceedings and given the chance to seek relief, while those who cannot show credible fear are deported on the spot.

Thuraissigiam’s attorneys filed for a writ of habeas corpus in federal district court. Habeas corpus—Latin for “you have the body”—is a centuries-old democratic right whereby detainees may demand their jailers bring them before a judge to determine the legality of their detention.

In their petition, the attorneys described the Kafkaesque series of due process violations leading to the negative credible fear determination. Due to translation problems, officials did not properly understand what Thuraissigiam was telling them about his past persecution. Officials rushing to deport Thuraissigiam gave no reasonable explanation for why he could not establish a credible fear.

The district court stated it had no jurisdiction to hear Thuraissigiam’s habeas corpus petition, citing a provision of IIRAIRA that stripped immigrants captured at the border of the right to habeas corpus. The statute was passed in the House of Representatives with the “yes” votes of Nancy Pelosi, Bernie Sanders, James Clyburn and almost the entire Democratic caucus. It passed the Senate by voice vote and was signed into law by Democrat Bill Clinton.

After the district court ruled against Thuraissigiam, the Ninth Circuit Court of Appeals reversed and ruled that IIRAIRA’s expedited removal and habeas-stripping provisions were unconstitutional. The Supreme Court’s decision strikes down the Ninth Circuit’s ruling. Writing for the majority, Justice Samuel Alito cynically mocked the terrified refugee: “the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka.”

The decision is a constitutional catastrophe.

It grants the executive branch the power to detain thousands of individuals without any judicial oversight, violating the separation of powers and granting CBP and Immigration and Customs Enforcement (ICE) license to violate the law.

It asserts that “due process” can now be satisfied without any judicial review. This enshrines in Supreme Court precedent the dictatorial doctrine declared by Barack Obama’s attorney general, Eric Holder, who justified drone assassinations of US citizens by saying the review of death lists by officials at the White House made court review unnecessary, because “the Constitution guarantees due process, not judicial process.”

The decision opens the door to the summary deportation without trial of millions of undocumented immigrants fleeing violence and poverty caused by American imperialism.

Last week, the Court of Appeals for the DC Circuit approved the Trump administration’s decision to expand IIRAIRA’s expedited removal process to cover not only asylum seekers arrested at the border within two weeks of crossing (the present restrictions, the category into which Thuraissigiam fell), but to immigrants in any part of the country who entered in the last two years. The decision was issued by two Democrats: Patricia Millett, an Obama appointee, and Harry Edwards, a Jimmy Carter appointee.

As a practical matter, yesterday’s decision will lead to the deaths of countless refugees and asylum seekers who will be unconstitutionally deported without the right to challenge their expedited removal.

But certain political conclusions must also be drawn. The majority opinion is an ominous sign that the ruling class is preparing to meet the growing mood of social opposition in the working class with increased attacks on democratic rights.

The ruling class—speaking not through a slim 5-4 partisan breakdown but a clear 7-2 majority—views this spring’s mass demonstrations over police violence and the strike wave over coronavirus-related working conditions as a threat to its class rule. Donald Trump’s attempted military coup d’état earlier this month may have suffered an initial setback, but yesterday’s decision shows that the underlying tendencies toward dictatorship in the ruling class are growing stronger among both Trump’s Republican supporters and his Democratic rivals.

The decision is an urgent warning that the working class must unite against all efforts to divide it based on race, nationality, ethnicity or immigration status, in a common struggle for social equality and to defend democratic rights.”

Along the way I did learn that Lee Gelernt of the ACLU had represented Mr. Vijayakumar Thuraissigiam and quoted him as saying: “the 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.” As a result, he said, “some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger.”

(cross-posted from Café Babylon)

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The Liberal Moonbat's picture

"Consent of the governed."

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In the Land of the Blind, the one-eyed man is declared insane when he speaks of colors.

wendy davis's picture

@The Liberal Moonbat

and while the scotus injustice made me reel with the evil of the decision, so did this:

The district court stated it had no jurisdiction to hear Thuraissigiam’s habeas corpus petition, citing a provision of IIRAIRA that stripped immigrants captured at the border of the right to habeas corpus. The statute was passed in the House of Representatives with the “yes” votes of Nancy Pelosi, Bernie Sanders, James Clyburn and almost the entire Democratic caucus. It passed the Senate by voice vote and was signed into law by Democrat Bill Clinton.

wasn't clinton also the author of 'three strikes you're out: mandatory minimums'?

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wendy davis's picture

here is some refreshing coverage: ‘The Supreme Court Doesn’t See Asylum-Seekers as People; One week after saving DACA, the high court proved that its sympathies for immigrants seeking better lives are limited’, by Dahlia Lithwick and Mark Joseph Stern, June 25, slate.com

One week later, on Thursday morning, the high court proved that its sympathies for immigrants seeking better lives are limited. In a 7–2 ruling, the justices approved the Trump administration’s draconian interpretation of a federal law that limits courts’ ability to review deportation orders. This time around, the court did not note immigrants’ contributions to the nation or acknowledge their humanity in any way. Having last week treated one class of immigrants like actual people, the court on Thursday pivoted back to callous cruelty. All of the chief justice’s kind words about DACA recipients seemingly do not apply to immigrants who—according to the executive branch—do not deserve asylum.
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At the Trump administration’s request, the Supreme Court reversed the 9th Circuit, with Justice Samuel Alito writing a maximalist majority opinion for the five conservatives and Justices Stephen Breyer and Ruth Bader Ginsburg proffering a narrower concurrence. Justice Sonia Sotomayor penned a lengthy, vivid dissent joined by Justice Elena Kagan that accused the majority of flouting more than a century of precedent and “purg[ing] an entire class of legal challenges to executive detention.” (In his own opinion, Alito dismissed Sotomayor’s criticisms as mere “rhetoric.”)

Alito breezily dismissed Thuraissigiam’s individual claims by stripping a broad swath of constitutional rights from unauthorized immigrants. First, he declared that habeas corpus does not protect an immigrant’s ability to fight illegal deportation orders. Sotomayor fiercely contested this claim, citing an “entrenched line of cases” demonstrating that habeas has long protected the right of individuals—including immigrants—to challenge illegal executive actions in court. Second, Alito held that unauthorized immigrants who are already physically present in the United States have not actually “entered the country.” Thus, they have no due process right to challenge the government’s asylum determination. Sotomayor noted that this holding departs from more than a century of precedent by imposing distinctions drawn by modern immigration laws on the ancient guarantee of due process.
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The court’s split shows that a majority of justices think immigrants like Thuraissigiam are not the productive young people of the DACA case, with financial and familial ties to all that makes America great, but rather faceless masses cynically manipulating America’s generous asylum policy and overwhelming its immigration system. They believe these people do not deserve an iota of sympathy, let alone due process. That is already how many border agents viewed these immigrants: not as humans with rights, but as fraudulent parasites. The Supreme Court has now transformed that vision into law—and, in the process, allowed the executive to send more persecuted people to their deaths without even a meaningful day in court.

and it's important to remember that many asylum seekers are trying to escape the blowback of both amerikan domestic and Imperial policies.

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enemies of the people. Now it's enemies of the state. Do these "leaders" even know what they're voting for? (I know the answer, L'état, c'est moi, the whole stinky lot of them. I am just tired of throwing up in my mouth a little, multiple times a day)

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wendy davis's picture

@Snode

my mouth, but i hear you loud and clear. what a #ShitholeNation the ruling class has created. i'd been intending to stay off the boards for a couple days before i read about this travesty of Injustice this morning.

thanks, snode.

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snoopydawg's picture

Why? The Supreme Court again of course.

How many decades have we been told that if republicans win the WH they will turn the SC right. Well when Obama had the chance to turn it way to the left he appointed Kagan and Sotomayor and then he let McConnell pick centrist Garland.

But let’s talk about Ginsberg. She voted for this turd. She recently voted to let gas companies put a line through Appalachia’s land and she has not been there for us as much as people think she has.

The Dark Side of the Cult of Ruth Bader Ginsburg

The Court is helping banks and corporations do a smash and grab on whatever assets are left in the country before they exit stage right. I’m betting Joe posted the video of Sirota talking about the latest heist in the EBs. Take a listen.

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"It seems to me that the problem is that group party interests, in this case, are placed above the interests of the entire society and the interests of people,"

wendy davis's picture

@snoopydawg

this i hadn't known at all:

"She recently voted to let gas companies put a line through Appalachia’s land and she has not been there for us as much as people think she has.

nor was i familiar with many of the cases in Uyehara's (sp?) lengthy righteous analysis, both pro and con...but as she states so clearly: there is a ginsburg cult. how long has she said he has cancer and needs to retire? it seems forever to me.

also at the nation is:

today 4:23 pm, The Supreme Court Just Took a Hammer to the Asylum Process
By Elie Mystal (telling title)

but i can't get in, as i'm once again being accused of being in 'private mode' (i'm not)

i'll try another browser later. i actually had been on the SCOTUS website, but had found it hard to search for what i'd been looking for.

thanks, Snoop.

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wendy davis's picture

The Supreme Court Just Took a Hammer to the Asylum Process; With its latest decision, the court gave the Trump administration the green light to fast-track deportations—and condemned many asylum seekers to likely horror’, Elie Mystal, this afternoon

But according to the Supreme Court, only Trump and the executive branch gets to decide who gets rights and who does not. Writing for the majority, Justice Samuel Alito found that expedited deportation without appeal was not a violation of due process or habeas corpus.
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But, as I mentioned, the vote in this case was 7-2. Two of the liberal justices, Stephen Breyer and Ruth Bader Ginsburg, came to the same conclusion Alito did. Breyer wrote separately, joined by Ginsburg, to explain their reasoning. Or to try. The problem is, they didn’t really succeed; they just spent a lot of time explaining how Alito’s decision should be limited to the case at hand and not extended to any class of immigrant the Trump administration wants to round up. But as to Thuraissigiam, Breyer and Ginsburg found that he has no fundamental right to challenge the ruling against him.

Their concurrence was maddening. Breyer and Ginsburg seem to understand that Alito’s logic will be applied to all asylum seekers—and could be applied to any undocumented person living in the country, including people with families who have built their lives here, and even legal permanent residents. They get the problem, but they still accepted Alito’s result.

[he quotes sotomayor, then:]

Sotomayor is trying to wake people up to the racism of the Trump administration’s anti-immigrant legal policies, something even her fellow liberals fail to grasp and that the Supreme Court has been only too ready to rubber-stamp.
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DHS v. Thuraissigiam will not be remembered as poorly as the Dred Scott decision, because it will not spark a civil war. But the legal effect is nonetheless monstrous. I almost wish Alito had the courage to write plainly what he was really thinking: A border crosser has no rights which the white man is bound to respect. At least more people would notice what just happened.

whooosh.

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wendy davis's picture

march 9, 2020

Former Vice President Joe Biden’s handling of Anita Hill’s sexual harassment allegation against then-Supreme Court nominee Clarence Thomas is once again in the headlines, ahead of the next round of voting in the Democratic presidential primary.

Michigan congresswoman and Bernie Sanders supporter Rashida Tlaib, D-Mich., recently evoked Biden's role as the Democratic chairman of the Senate Judiciary Committee in 1991 when Hill accused Thomas of sexual harassment.
"Q: Who silenced Anita Hill when she was trying to speak out about Clarence Thomas?," she tweeted last week, "A: Joe Biden"

Chicago mayor Lori Lightfoot endorsed Biden for president on Friday, and Politico called attention to her previous criticism of Biden over the Hill-Thomas matter.
“I don’t think Anita Hill needs his apology," she said in a 2019 interview on the political news site, "but give an account of your behavior with a lot of hindsight. I don’t know that he’s successfully done that yet.”

The Fox Nation documentary “The Confirmation Chronicles Vol. 2: High-Tech Lynching” re-examined Justice's Thomas confirmation and Biden's role in it.
Former Republican Sen. Orrin Hatch, R-Utah, told Fox Nation that Biden confessed to him during the proceedings that he did not believe Hill, which directly contradicts what Biden has publically (sic) said on the topic.
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During an interview on ABC’s "The View" in April, shortly after Biden launched his current presidential campaign, Biden said “I believed her from the beginning. I was against Clarence Thomas. I did everything in my power to defeat Clarence Thomas …”
Several days later, during an interview on ABC’s “Good Morning America,” Biden said again, “I believed her from the very beginning.”

Biden's version of events have also been contradicted by Armstrong Williams, a radio host and former colleague of Thomas.

"Biden made it clear that he'd spoken to Metzenbaum, Simon, and Kennedy and said clearly, 'We don't believe these charges and nor does the evidence support it,'" said Williams on Fox Nation's "Deep Dive," in reference to the late senators, Howard Metzenbaum, D-Ohio, Paul Simon D-Ill., and Teddy Kennedy D-Mass., who were also members of the committee that heard testimony from Thomas and Hill.

Williams continued, "In the end, Biden assured [Thomas], repeatedly on the phone and in person, 'Clarence, you will be confirmed'. And he was."
Biden has apologized for the way Hill was treated during the hearings, but he has defended his own conduct.

In April, Biden had a private conversation with Hill during which he expressed his regret for the treatment that she received, but she reportedly wasn't satisfied with his comments.

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(and am somewhat intrigued by how Ginsburg and Kagan and Sotomayor argued their positions), the cited article strikes me as weak. But is off the rails here:

...asylum seekers who will be unconstitutionally deported...

. Once a SC rules that a statute is constitutional, all actions in accordance with the statute are constitutional.

The US Constitution is mostly silent wrt to immigration. It's a statutory matter that Congress has revised many times over the centuries. It's long been a sticky matter. Sounds to me as if this decision concluded that the relevant portions of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA) are Constitutional. If Congress changed those portions, they too would likely be Constitutional. Not liking or not agreeing with the law doesn't make it unconstitutional.

Kagan and Sotomayor may be more mindful of the MS St. Louis than the other justices. (Only the US and Canada refused to admit any of the asylum seekers on the ship.)

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wendy davis's picture

@Marie

you out. dunno 'which cited article' but the (IIRAIRA) was a law signed by bill cinton, not necessarily constitutional, as i take it: no one challenged it in a US court (likely due to the fact that it was bipartisanly wildly popular).

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@wendy davis But doesn't matter.

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wendy davis's picture

@Marie

SCOTUS website and found 'the opinion' on the case, if that's wat you mean. it's a 79 (or so)-page pdf.

now they don't have the transcript of the court proceedings, although they have some from 2019...

here's the ACLU's page on the case.

you do seem to be pretty well-versed on the law, marie. i'm sure not; i'm just feeling my way thru these cases....

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@wendy davis a SCOTUS decision, I don't react quickly to a decision. Federal courts up through the Supreme Court are there to adjudicate a variety of disputes and it's often difficult to sort out the questions, but they aren't empowered to make laws. A fact that even SCOTUS on occasion overlooks. Sotomayor is legally rock solid in the tradition of John Paul Stevens who was preceded by many similarly gifted legal minds. Kagan has been growing since joining the court and hope that she continues to do so. Ginsburg and Breyer aren't legal slouches (nor is Roberts) but they tend to stick more closely to the letter and not the spirit of the law. (Thomas and Alito are too predictable to bother considering.)

The reason(s) why SCOTUS accepts a case are also complicated. Just checked and the answer in this case is easy; in the title of the case: Department of Homeland Security v. Thuraissigiam. A DHS appeal from the Ninth Circuit court decision and only four SC justices are required to issue a writ of certiorari (or cert).

One can learn a lot about SCOTUS decisions by checking out Nina Tottenberg's summary reports which in this case I should have done yesterday. (NPR mostly sucks but Nina on SCOTUS is still a good source.) How many Americans even know that Immigration Courts exist? And that they mostly function autonomously? Has there ever been any public outrage over the appointment of an Immigration Court judge?

Key bits from Tottenberg (IMO)

... Justice Samuel Alito writing the opinion for the conservative court majority. He said that neither the right of habeas corpus nor the right to due process of law requires a hearing before a judge for those turned down in their initial asylum screenings. This framework, he said, was properly authorized by Congress in a 1996 law aimed at speeding deportations at the border.

...Stephen Breyer and Ruth Bader Ginsburg --agreed that Thuraissigiam's removal order was proper but said that the opinion's reasoning and language swept too broadly.
...
"I agree that enforcing those limits in this particular case does not violate the Suspension Clause's constitutional command. ... But ...could lead to "difficult questions" in the future, such as whether an immigrant who has been in the country for several years may also be deprived of her day in court.

So, Breyer and Ginsburg agreed that the deportation order was lawful and the immigrant didn't qualify for asylum. Why they threw in that caveat knowing full well that the majority intended the decision to foreclose such "difficult questions" that were already languishing in the courts is odd.

In their dissent Sotomayor and Kagan got to a critical difference:

"Today's opinion handcuffs the judiciary's ability to perform its constitutional duty to safeguard individual liberty," Sotomayor wrote. "Our constitutional protections should not hinge on the vicissitudes of the political climate. ..."

IOW, the law is too subjective on the issue of asylum. Intentionally so because it's in the interests of both political parties to favor some group of immigrants at various times.

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wendy davis's picture

@Marie

but of course alito would call it 'proper', and the two women kinda sorta did, that doesn't mean that the crap Congressional IIRAIRA law was 'constitutional', as it was never challenged in court. imo, of course. ; )

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@wendy davis @wendy davis the amnesty portion of the IIRAIRA is constitutional. Don't know if any other portion has been challenged in court and been ruled on by the SC. Wouldn't be surprising that this was the first case wrt IIRAIRA as the law has only been around for just over twenty years.

The SC DACA decision is interesting when compared to this latest immigration decision. Major difference is that DACA is an executive policy and not a statute, and the decision was based on procedural rather than legal or constitutional grounds. How the Trump administration went about cancelling DACA was determined to be illegal. So, DACA itself continues as before but can still be rescinded by an administration.

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@wendy davis Roberts chose to write the majority opinion in the DACA case but passed the task to Alito in the amnesty immigration case. Roberts is more comfortable with process or procedure decisions than one that may indicate political party bias on his part. His deference to what he considers the unitary executive weakens the spirit of the constitution, but at least he's consistent and doesn't favor a president by his/her political party.

Sotomayor challenged that unitary executive thingy in both cases but worded subtly. My blatant wording -- Vesting a president with the power to be judge, jury, and executioner is an unconstitutional act for SC justices and Congress. She continues to impress me with the depth and breadth of her thinking.

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snoopydawg's picture

https://caitlinjohnstone.com/2020/06/26/free-speech-in-the-us-empire-is-...

Inverted totalitarian oligarchy has a nice ring.

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"It seems to me that the problem is that group party interests, in this case, are placed above the interests of the entire society and the interests of people,"

wendy davis's picture

@snoopydawg

to twig to what the subject was, but it might go on this thread pretty well. ; )

night, all; i'm zonked.

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