The justices will rule on a battle over fast-track deportations

By S.M. | NEW YORK

SEVERAL PARTS of President Donald Trump’s hardline immigration policy have received a friendly reception at the Supreme Court. The justices blessed Mr Trump’s ban on travel from several predominantly Muslim countries in 2018, permitted the use of reallocated funds to begin building the southern border wall in July and, last month, allowed harsh asylum restrictions to take effect while litigation continues. Now the justices have agreed to take up another legal question on the issue: whether migrants who qualify for “expedited removal” from America have a constitutional right to plead their cases in court before being thrown out of the country. The case, Department of Homeland Security v Thuraissigiam, will be argued in early 2020 and decided by the end of June.

Expedited removal—a policy that enables federal authorities to refuse entry or rapidly deport certain undocumented aliens—is not new. Thuraissigiam does not represent a direct challenge to the statute from 1996 providing for it. Since 2004, when the George W. Bush administration stepped up enforcement, the government has applied the law to unauthorised migrants caught within 100 miles of any land or sea border who had been in America no longer than 14 days. But in July, the Trump administration announced a significant expansion of the programme. Migrants stopped anywhere in America would thenceforth be subject to expedited removal unless they could prove they had been in the country for at least two years. In September, a federal judge in Washington, DC temporarily blocked this expansion as a violation of the Administrative Procedure Act.

While litigation continues over the administration’s effort to, in its words, “restore enforcement of the immigration laws passed by Congress”, Thuraissigiam asks whether migrants subjected to quick removal proceedings are protected by the constitution’s “suspension clause”—the phrase in Article 1, section 9 prohibiting Congress from suspending “the privilege of the writ of habeas corpus”, or the right to have one’s case heard in court.

The individual at the centre of the case is Vijayakumar Thuraissigiam, a Sri Lankan who was apprehended almost immediately after illegally crossing the Mexican border into America on February 27, 2017. Caught after crossing less than 100 feet of American soil, Mr Thuraissigiam was a prime candidate for expedited removal under the regime in effect since 2004. But he told authorities he had left Sri Lanka out of fear of persecution, and his case was referred to an asylum officer. After an interview, the officer found “no credible fear of persecution on a protected ground” and determined there was “not a significant possibility” he “could establish eligibility for withholding of removal” or protection under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), a United Nations convention in place since 1987.

In the government’s brief to the justices, Mr Thuraissigiam’s tale of persecution is pitched as a weakly justified ruse to stay in the country. He may have been beaten by a group of men and “hospitalised for 11 days”, but he did not report the crime to police and described no fear of being harmed for his political views. The officials were justified in refusing his asylum request, the government says. But the Department of Homeland Security’s brief omits many details of Mr Thuraissigiam’s complaint. In a habeas petition in a federal district court 11 months after he was detained on the border, Mr Thuraissigiam said he had been “harassed for supporting a Tamil political candidate”, was “‘detained and beaten’ by Sri Lankan army officers” and “was lowered into a well” by government intelligence officers. The experience involved simulated drowning, and he was “threatened with death, and then suffocated, causing him to lose consciousness”.

The government says Congress passed the expedited-removal law to “streamline[] rules and procedures” for “deny[ing] admission to inadmissible aliens,” while ensuring that there is “no danger that an alien with a genuine asylum claim will be returned to persecution”. Giving undocumented people a chance make to make habeas-corpus claims undermines Congress’s aim to remove aliens “expeditiously” and to "prevent abuse of the asylum system”, the brief reads. Mr Thuraissigiam, represented by the American Civil Liberties Union, replies that without recourse to federal courts, he and other potential asylum applicants cannot receive fair treatment. Far from affording them a full hearing, the existing procedures are “extraordinarily truncated” and leave many applicants “unable even to understand what is happening”.

Stephen Vladeck, a law professor at the University of Texas, notes that Thuraissigiam represents “only the second time in the court's history that it has considered the specific scope of the suspension clause”. When in 2008 the justices examined the reach of the guarantee in Boumediene v Bush, they extended habeas corpus protections to non-citizen detainees at Guantanamo Bay. Eleven years later, “the constitutional rights of undocumented immigrants” hang in the balance, Mr Vladeck says, and how the court resolves Thuraissigiam could have “enormous” implications for their status in America. The case takes on particular salience, he notes, given the “evolving policy backdrop” of the Trump administration’s “dramatic expansion in the criteria for expedited removal”.