Originally published by The New York Times
WASHINGTON — In an argument that alternated between constitutional principles and practical considerations, the Supreme Court considered on Monday whether immigrants seeking asylum may sue in federal court after the authorities deny their requests in summary proceedings. The case, which concerns the fundamental question of who is entitled to seek habeas corpus, will affect thousands of asylum seekers.
“This court has never before allowed the elimination of judicial review over the legality of deportations,” said Lee Gelernt, a lawyer with the American Civil Liberties Union, which represents a Sri Lankan man who was denied asylum.
Several of the court’s more conservative members said there was a poor fit between habeas corpus, which they said was meant to secure release from illegal detentions, and requests to bar the United States from sending immigrants back to their home countries.
“Your client really doesn’t want to be released,” Justice Samuel A. Alito Jr. told Mr. Gelernt. “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.”
Justice Elena Kagan said asylum applicants should be entitled to at least modest judicial review. “If he shows certain things,” she said of the immigrant, Vijayakumar Thuraissigiam, “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.”
Mr. Thuraissigiam, a member of Sri Lanka’s Tamil ethnic minority, was apprehended about 25 yards north of the Mexican border near San Ysidro, Calif.
He sought asylum, saying he would face a credible fear of persecution if he were returned to Sri Lanka. His request was considered under “expedited removal” procedures called for by a 1996 law that streamlined asylum applications from people caught near the border and barred courts from reviewing most aspects of the determinations made under the procedures.
Mr. Thuraissigiam, a farmer, told an asylum officer that he had been savagely beaten in Sri Lanka by men who had blindfolded and abducted him. He said he had spent 11 days in a hospital recovering from his injuries.
Though their communication was imperfect, an asylum officer believed Mr. Thuraissigiam. But the officer rejected his request because Mr. Thuraissigiam could not identify the assailants or definitively establish their motives.
Justice Alito said there was no reason for the official to determine that Mr. Thuraissigiam faced a credible fear of persecution. “All he said was that people drove up and they beat me,” Justice Alito said. “And that’s it.”
Mr. Gelernt said his client’s account was consistent with documented instances of abuses directed against Tamils in Sri Lanka. “There is an exact M.O. on how Tamil people are persecuted in Sri Lanka,” Mr. Gelernt said. “Men arrive in a white van. They abduct the person. They blindfold the person. They beat and torture him.”
Mr. Thuraissigiam filed a petition for writ of habeas corpus in federal court. A trial judge rejected it, saying it was barred by the 1996 law. But a three-judge panel of the United States Court of Appeals for the Ninth Circuit ruled the law unconstitutional, saying that it violated the Constitution’s Suspension Clause. The clause says that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”
At Monday’s argument in the case, Department of Homeland Security v. Thuraissigiam, No. 19-161, the two sides disagreed about the effect of a ruling allowing judicial review.
Mr. Gelernt said habeas petitions from asylum seekers would be rare. In the year since the Ninth Circuit has allowed them, he said, only about 30 of more 9,000 immigrants denied asylum have filed such petitions.
Edwin S. Kneedler, a lawyer for the federal government, said he was aware of about 100 petitions. “The potential for a flood would be, of course, far greater if this court holds that there is a right to file,” he said.
Justice Ruth Bader Ginsburg asked whether it was significant that Mr. Thuraissigiam was apprehended inside the United States. Mr. Gelernt said that people denied asylum at ports of entry should also be allowed to go to court.
That position seemed to surprise Justice Brett M. Kavanaugh.
“You are saying a noncitizen who arrives at a port of entry, has never been in the United States, not lawfully admitted to the United States, nonetheless has a right under the U.S. Constitution to judicial review of the executive’s decision to say they’re not admissible?” he asked.
Mr. Gelernt said yes, at least where the legality of the rejection of the asylum application is at issue.