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Faculty react to SCOTUS ruling on DHS v. Thuraissigiam

June 25, 2020

On Thursday, the court released its opinion in Department of Homeland Security v. Thuraissigiam. The justices held that, in this case, restrictions on the ability of asylum seekers to obtain review under a federal habeas statute did not violate the suspension or due process clauses.

Sarah Paoletti, Practice Professor of Law; Director, Transnational Legal Clinic

Today’s Supreme Court decision in DHS v. Thuraissigiam highlights the need for Congress to revisit expedited removal and to take action to ensure that the United States is upholding its obligations under the Refugee Convention and the Convention Against Torture. Expedited removal, whereby individuals without documents granting them legal admission into the United States are subjected to a cursory interview process with extremely limited opportunity for review and most often no opportunity for legal counsel, denies asylum seekers and persons fleeing torture a meaningful opportunity to seek protection. As documented in the amicus brief of International and Immigration Organizations submitted to the Court, the expedited removal process provides almost no backstop when border officials fail to follow even the most minimal of procedures in place to ensure that persons are not returned to a country where they face persecution or torture. Habeas corpus review was one limited avenue to the courts to ensure agency accountability. As Justice Sotomayor wrote in her dissent, the Court’s decision “increases the risk of erroneous immigration decisions that contravene government statutes and treaties.” The gravity of that risk cannot be understated.

Fernando Chang-Muy, Adjunct Professor of Law

Mr. Vijayakumar Thuraissigiam, fled Sri Lanka to escape an abduction, beatings, and torture through simulated drownings. Had he stayed, he may have been killed. (Tamils are an ethnic minority with a history of documented persecution by the government). He fled the country and sought asylum in the United States. Because of the way he entered, he was placed in an “expedited process” which has been describes as cursory and inadequate. Not surprisingly, he lost his application for protection and ordered to be deported. Lawyers for the ACLU took his case arguing that the quick and simplified interview process violated the requirements of the statute, regulations, and the US Constitution’s principles of due process. On June 25, the majority of the Court held, with only two dissents, that the immigration process did not violate the US Constitution. The Supreme court indicated that “Congress provided the right to a “determination” whether he had “a significant possibility” of “establish[ing] eligibility for asylum,” and he was given that right. This decision was a sad counterbalance to the same Court’s decision on Monday June 22, granting a temporary relief to young Dreamers. The Court did say however, that “an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute.”The immigration law passed by Congress, the Administration’s implementation, and now the Court’s interpretation of the statute and regulation, have resulted in a legal wall barring people in need of protection from getting help in the United States. Other policies put together have resulted in more “walls”: detention, separation of families, waiting in Mexico, bans on Muslims, reduction of refugee admissions, a public charge “wealth test,” ban on pregnant women, bans on temporary workers, and of course, building sections of an actual physical wall.