Immigration has been a key issue in the 2016 election and continues to be a main point of contention between the opposing political parties in 2020. The president has appointed two justices to the Supreme since taking office in 2016; the first being Justice Gorsuch followed by the very contested appointment of Justice Kavanaugh. With the confirmation of these two judges, the current Supreme Court leans in majority towards conservative viewpoints. This shift in majority has raised concerns over the possible overruling of the Roe v. Wade (1973) precedents regarding abortion. However, one of the most influential rulings of this year has been about immigration.
On June 25th, 2020, the Supreme Court ruled in a 7-2 decision, in Department of Homeland Security v. Thuraissigiam (2020), that asylum seekers are not required to have access to refute their deportation in federal courts. First, the facts of the case will be discussed to provide context for the decision. The person who brought this case through the court system was Vijayakumar Thuraissigiam. He is from Sri Lanka and belongs to the Tamil ethnic minority. Facing persecution and fearing for his life, Thuraissigiam travelled to the Southern United States border with the intention of filing for asylum. He was detained by Customs and Border Protection Officers and was determined to not have a significant or credible enough fear of persecution and therefore was labelled to be deported. A supervisor at CBP confirmed this decision, and an immigration judge affirmed the decision as the final step.
Concerned about the hastiness of this decision, Thuraissigiam filed a habeas petition in a federal court in which he argued that his quick removal violated his rights. A habeas petition, formally called a writ of habeas corpus petition, is used by detainees in the U.S. Court System to determine whether their detention is lawful. It is also used for detainees to address their concerns with their extradition process, the amount required for their bail, and whether the Court they are involved with has jurisdiction over the matter. Clearly in the case of Thuraissigiam, his case was concerning the extradition process. The district Court that received his habeas petition dismissed it on the claims that it was not their jurisdiction to cover his extradition process and that this removal process was not subject to habeas petitions. This decision was then brought to the U.S. Court of Appeals for the Ninth Circuit where they reversed the decision. The competing points of views present at different levels of the judicial system is ultimately why this case reached the Supreme Court.
In speaking for the majority opinion, Justice Alito stated the decision of the court: limits to habeas review initiated by an alien for expedited removal does not violate the Suspension or Due Process clauses of the Constitution. The Suspension clause states that the right to habeas corpus cannot be suspended unless in cases of rebellion or in the interest of public safety. The Supreme Court denied this protection because the court states that Thuraissigiam was not seeking release from unlawful detention, which is the purpose of habeas corpus, but instead seeking another opportunity to apply for asylum. Therefore, the Suspension clause did not cover this concern. The second clause, Due Process, was not awarded to Thuraissigiam because he is not a lawful citizen, and this clause is only applied to lawful citizens. The Supreme Court holds that merely being physically present in the United States does not automatically award a person with these rights.
Along with Justice Alito, the majority viewpoint was supported by Justices Robert, Thomas, Breyer, Ginsburg, Gorsuch, and Kavanaugh.
Justice Clarence wrote his own concurring opinion in which he expanded on the original meaning of the Suspension clause. Justice Breyer and Ginsburg co-authored a concurring opinion in which they argued that this case should not be taken as a broad precedent but instead was specific to the details of this situation only. Breyer and Ginsburg encouraged the Court to address other cases concerning the Suspension clause to build a broader image.
Justices Sotomayor and Kagan, the only dissenting votes, wrote their dissent together. They argue that this decision has made removal cases unreviewable by the Judicial Branch, and therefore, they have granted an unchecked power to the Executive Branch. Sotomayor and Kagan strongly believe that this decision has “handcuffed” the ability of the Judicial Branch to perform its constitutional duty of ensuring individual liberties are protected and removes an ability of the Judicial Branch to ensure separation of powers.
This case is unique in its cooperation of the majority vote. For example, Justices Breyer and Ginsburg typically vote in the complete ideological opposite than Justices Thomas and Gorsuch. In this case, we see a combined majority with different ideas of applications. Justice Alito and Clarence’s application of the ruling would be definite and wide reaching whereas Justices Breyer and Ginsburg clarify in their concurring opinion that they view this as a situational decision. Justices Sotomayor and Kagan are clear on their dissent and concerns for the future given this ruling. This case speaks to the larger polarization the American public has on topics such as immigration. This is so much context and detail required in every decision and it is apparent in the decision of the Supreme Court that this is not an easy issue to find compromise on.