☹️BIDEN ADMINISTRATION DELIVERS FAMILIAR MESSAGE TO ASYLUM SEEKERS STUCK IN MEXICO: “Wait, While We Study & Think, Hope You’re Still Alive By The Time We Figure It Out!” — Lots Of Talk, Not Much Action Marks Latest Executive Orders Looking To Revisit The Chaos & Dysfunction Left By Four Years Of Miller’s White Nationalist Agenda!

 

Remain in Mexico
A girl peers out from an encampment at the U.S.-Mexico border where she and several hundred people waited to present themselves to U.S. immigration to seek asylum. / Photo by David Maung
Molly O’Toole
Molly O’Toole
Immigration Reporter
LA Times
Source: LA Times website

https://www.latimes.com/politics/story/2021-02-02/biden-immigration-executive-orders-trump

Molly O’Toole reports for the LA Times:

. . . .

Tuesday’s directives mandate a review, but do not end, the Remain in Mexico policy, which Biden had said he would rescind on his first day in office. Officially termed the Migrant Protection Protocols, or MPP, it has forced roughly 70,000 asylum seekers back to Mexico to wait in some of the world’s most dangerous cities for immigration court hearings in the U.S. that have been largely suspended since the Trump administration effectively closed the border last March, citing COVID-19.

Human Rights First has recorded at least 1,134 public reports of murder, torture, rape and kidnapping against asylum seekers returned to Mexico under MPP. Thousands have given up.

On Jan. 20, the Homeland Security Department announced that no new asylum seekers would be subjected to MPP, telling some 30,000 migrants left in limbo at the border by Trump that they should “remain where they are, pending further official information from government officials.”

Tuesday’s directives, as described by the officials, provide little additional clarity as to how the Biden administration will process those already subjected to MPP, along with thousands of others waiting.

Ensuring that MPP and other cases are processed “humanely” while safeguarding public health amid a pandemic is “fairly complicated,” one senior official said.

“I can’t tell you exactly how long it will take to have an alternative to that policy,” the other senior official said. Those under MPP will “certainly be taken into account because of the length of time they’ve waited and the conditions they are waiting in.”

On Monday, the administration effectively dropped appeals by the Trump administration in lawsuits against MPP and the diversion of billions in federal funds for border barrier construction. The acting Homeland Security head asked the Supreme Court to remove both cases, scheduled for oral arguments later this month, from its docket.

The Biden administration has not yet said what it will do with the effective closure of the border by the Trump administration under Title 42, which Tuesday’s directives do not address. The officials Monday cited ongoing litigation over the policy for the lack of action.

Under Title 42, Trump officials rapidly expelled hundreds of thousands of migrants, including asylum seekers and unaccompanied children, without due process. Whistleblowers at the Centers for Disease Control and Prevention said the Trump White House pushed the order for political, not public health, reasons.

On Tuesday, Biden also will take steps to restore Obama-era pathways allowing vulnerable groups in Central American to apply for admission to the U.S. from within the region, officials said.

. . . .

*********************

Read the rest of Molly’s detailed analysis of President Biden’s latest executive actions on immigration at the link.

Wonder how many more will be murdered, raped, tortured, kidnapped, robbed, extorted, get sick, or give up while their fate is being studied? Out of sight, (somewhat) out of mind. Just ask the Supremes’ majority! As long as the bodies aren’t on OUR doorsteps and we don’t have to listen to the moans, groans, and screams of the abused.

Five things that could be done immediately, without study:

  • Vacate all the anti-asylum precedents from the AG and the BIA since 2016;
  • Assign some Immigration Judges whose “TRAC Record” shows that they understand asylum law and aren’t afraid to grant protection to hear any scheduled MPP cases;
  • Replace the BIA (or at least create an “MPP Appeals Panel”) with judges who have demonstrated excellence and expertise in asylum law; 
  • Do not go forward with any MPP case involving an unrepresented applicant;
  • Bar the issuance of “in absentia orders” in MPP cases.

⚖️🗽Due Process Forever!

 

PWS

02-02-21

🏴‍☠️☠️🤮⚰️👎CRIMES AGAINST HUMANITY, “PERPS” ON THE LOOSE! — DOJ Internal Report Shows How “Gonzo Apocalypto” Sessions, Rosenstein, Hamilton Conspired To Separate Migrant Kids In Violation Of 5th Amendment — When Will These Criminals Be Charged & Prosecuted Under 18 USC 242? — NY Times Reports!

Sessions in a cage
Jeff Sessions’ Cage by J.D. Crowe, Alabama Media Group/AL.com
Republished under license

https://www.nytimes.com/2020/10/06/us/politics/family-separation-border-immigration-jeff-sessions-rod-rosenstein.html?campaign_id=9&emc=edit_nn_20201007&instance_id=22889&nl=the-morning&regi_id=119096355&section_index=2&section_name=the_latest_news&segment_id=40077&te=1&user_id=70724c8ee3c2ebb50a6ef32ab050a46b

‘We Need to Take Away Children,’ No Matter How Young, Justice Dept. Officials Said

Top department officials were “a driving force” behind President Trump’s child separation policy, a draft investigation report said.

pastedGraphic.pngpastedGraphic_1.pngpastedGraphic_2.png

By Michael D. Shear, Katie Benner and Michael S. Schmidt

  • Oct. 6, 2020
    • 505

WASHINGTON — The five U.S. attorneys along the border with Mexico, including three appointed by President Trump, recoiled in May 2018 against an order to prosecute all undocumented immigrants even if it meant separating children from their parents. They told top Justice Department officials they were “deeply concerned” about the children’s welfare.

But the attorney general at the time, Jeff Sessions, made it clear what Mr. Trump wanted on a conference call later that afternoon, according to a two-year inquiry by the Justice Department’s inspector general into Mr. Trump’s “zero tolerance” family separation policy.

“We need to take away children,” Mr. Sessions told the prosecutors, according to participants’ notes. One added in shorthand: “If care about kids, don’t bring them in. Won’t give amnesty to people with kids.”

Rod J. Rosenstein, then the deputy attorney general, went even further in a second call about a week later, telling the five prosecutors that it did not matter how young the children were. He said that government lawyers should not have refused to prosecute two cases simply because the children were barely more than infants.

“Those two cases should not have been declined,” John Bash, the departing U.S. attorney in western Texas, wrote to his staff immediately after the call. Mr. Bash had declined the cases, but Mr. Rosenstein “instructed that, per the A.G.’s policy, we should NOT be categorically declining immigration prosecutions of adults in family units because of the age of a child.”

The Justice Department’s top officials were “a driving force” behind the policy that spurred the separation of thousands of families, many of them fleeing violence in Central America and seeking asylum in the United States, before Mr. Trump abandoned it amid global outrage, according to a draft report of the results of the investigation by Michael E. Horowitz, the department’s inspector general.

The separation of migrant children from their parents, sometimes for months, was at the heart of the Trump administration’s assault on immigration. But the fierce backlash when the administration struggled to reunite the children turned it into one of the biggest policy debacles of the president’s term.

Though Mr. Sessions sought to distance himself from the policy, allowing Mr. Trump and Homeland Security Department officials to largely be blamed, he and other top law enforcement officials understood that “zero tolerance” meant that migrant families would be separated and wanted that to happen because they believed it would deter future illegal immigration, Mr. Horowitz wrote.

The draft report, citing more than 45 interviews with key officials, emails and other documents, provides the most complete look at the discussions inside the Justice Department as the family separation policy was developed, pushed and ultimately carried out with little concern for children.

This article is based on a review of the 86-page draft report and interviews with three government officials who read it in recent months and described its conclusions and many of the details in it. The officials, who spoke on the condition of anonymity because they had not been authorized to discuss it publicly, cautioned that the final report could change.

Before publishing the findings of its investigations, the inspector general’s office typically provides draft copies to Justice Department leaders and others mentioned in the reports to ensure that they are accurate.

Mr. Horowitz had been preparing to release his report since late summer, according to a person familiar with the investigation, though the process allowing for responses from current and former department officials whose conduct is under scrutiny is likely to delay its release until after the presidential election.

Mr. Sessions refused to be interviewed, the report noted. Mr. Rosenstein, who is now a lawyer in private practice, defended himself in his interview with investigators in response to questioning about his role, according to two of the officials. Mr. Rosenstein’s former office submitted a 64-page response to the report.

“If any United States attorney ever charged a defendant they did not personally believe warranted prosecution, they violated their oath of office,” Mr. Rosenstein said in a statement. “I never ordered anyone to prosecute a case.”

. . . .

*******************

Read the complete article at the link.

U.S. District Judge Dana Sabraw concluded that intentional separation of families was unconstitutional — a clear violation of Fifth Amendment due process. https://www.nytimes.com/2018/06/26/us/politics/family-separations-congress-states.html

The Government did not seriously question the correctness of this finding! 

Intentionally violating Constitutional rights (not to mention lying and attempting to cover it up) is clearly a violation of 18 USC 242.

Here’s the text of that section from the DOJ’s own website:

TITLE 18, U.S.C., SECTION 242

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, … shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

https://www.justice.gov/crt/deprivation-rights-under-color-law

Sure looks like an”open and shut” case for prosecution.

The irony: Families and their kids have been traumatized for life, perhaps even killed or disabled by the actions of these criminal conspirators; however, the “perps” remain at large.

Hamilton is on the public dole continuing to wreak-havoc on the Constitution, the rule of law, the Immigration Courts, and human decency at the corrupt Barr DOJ; Rosenstein works for a “fat cat” law firm hauling down a six figure salary while he avoids justice and accountability for his misdeeds; “Gonzo” had the absolute audacity to try to reinsert himself onto the public dole by running for the Senate from Alabama (thankfully, unsuccessfully, even though he previously held the seat for years and misused it as a public forum to spread his racist ideas, xenophobic venom, lies, false narratives, and unrelenting cruelty).

Where’s the “justice” in a system that punishes victims while letting “perps” prosper and go free?

Due Process Forever!

PWS

10-07-20

“POPPYCOCK!” — Conservative U.S. District Judge Richard Leon “Zeroes In” On Racist, Disingenuous, BS Presented In Court By Trump Regime To Justify “Crimes Against Humanity” Committed Against Asylum Seekers By USG! — Contrasts With Disingenuous Enabling Of Racist Immigration Agenda By Supremes’ Majority! — As Reported By “Legal Clairvoyant” 🔮 Jacqueline Thomsen @ NLJ!

“POPPYCOCK!” — U.S. District Judge Richard Leon’s Characterization Of Trump Regime’s Defense Of Asylum Seeker Abuse By DHS & Barr’s Unethical & Frivolous Arguments!

Jacqueline Thomsen
Jacqueline Thomsen
Courts Reporter
National Law Journal & Legal Clairvoyant

 

https://link.law.com/click/21370303.6876//5162eb9334b9b0a8048a6907C27093cdb

Due Process “Legal Eagle” Jacqueline Thompsen reports for the National Law Journal’:

. . . .

The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications

In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”

The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.

The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.

Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”

Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”

“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”

Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.

***********

Why isn’t it an ethical and professional problem for “Billy the Bigot’s” DOJ to make nonsense arguments to a Federal Judge in support of unlawful actions? Private members of the bar arguing “poppycock” in a civil case could well find themselves referred for disciplinary action. Why are Cabinet Officials and their attorneys exempt from normal professional and ethical considerations?

You can read Judge Leon’s clearly written and cogently reasoned 22-page decision in A.B.-B. v. Morgan here: https://www.courtlistener.com/recap/gov.uscourts.dcd.216698/gov.uscourts.dcd.216698.32.0.pdf.

If only more judges at all levels could write with such clarity and in plain English!

The rejection at the “credible fear” stage of the bona fide asylum claims described by Judge Leon is beyond appalling! These are essentially totally and intentionally unqualified and biased U.S. Government employees committing “crimes against humanity” and getting away with it! These aren’t “legal errors.” It’s systemic malfeasance, otherwise known as “malicious incompetence” with a heavy dose of racism and misogyny thrown in for a good measure!

If substantiated during the immigration hearing process that should have taken place, all these applicants should have been “slam dunk” grants of asylum, withholding of removal, and/or relief under the Convention Against Torture in a properly functioning justice system. Instead, but for the efforts of pro bono counsel, they would have been illegally returned to harm, torture, and/or death with no legitimate process at all!

No wonder “Billy the Bigot’s” Immigration Courts are out of control and the borders are a deadly mess when individuals who with proper screening and access to competent counsel should have been quickly legally admitted to the U.S. under protection laws are instead being “rejected” by biased and unqualified Border Patrol Agents impersonating Asylum Officers!

Here’s my favorite quote (among many) from Judge Leon’s decision: 

Of course, the Government has a strong interest in the “prompt execution of removal orders.” Nken,556 U.S. at 436. However, the Government and public can have little interest in executing removal orders that are based on statutory violations, League of Women Voters of U.S. v. I,{ewby,838 F.3d l,12 (D.C. Cir. 2016) (“There is generally no public interest in the perpetuation of unlawful agency action.”), especially where those statutory violations may compromise the accuracy of such removal orders. R.I.L.-R. v Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015); Grace, 344 F. Supp. 3d at 14144 Indeed, the public has an interest “in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken,556 U.S. at 436. As such, the balance of interests here weighs in favor of preliminary injunctive relief.

The last point, “the public has an interest ‘in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm,’” Nken,556 U.S. at 436, has basically been ignored by the Supremes’ majority recently in sending refugees to their death or into harm’s way without any semblance of due process, based on various lies, distortions, and racist schemes by the Trump regime intentionally mischaracterizing “national security” and “national emergency.” As Judge Leon would say: “Poppycock!”

Perversely, the Trump regime and the Supremes’ have made execution of illegal removal orders, resulting from racist White Nationalist schemes, a “national priority.” Truly, this is a system broken from the top down in need of immediate repair and injections of intellectually honesty, moral courage, and ethics — something that seems “out of vogue” in all three branches of our failing democracy these days

I recently had a conversation with Jacqueline in which she basically predicted this decision based on her study of the arguments and trends among U.S. District Judges, regardless of philosophy or appointing party, in DC. Nice going Jacqueline! Congrats on your clairvoyance!

Those with NLJ access (anyone can get “three free” per month by registering) can read the complete article at the link.

Judge Leon’s linear, straightforward, and “no BS” treatment of the regime’s absurdist, unethical, and scofflaw legal “defense” of essentially “crimes against humanity” contrasts sharply with the disingenuous and essentially “brain dead” treatment of similar BS by the “JR Five” on the Supremes. There, the patently unconstitutional and illegal (not to mention immoral) agenda of neo-Nazi racist Stephen Miller and the unethical maneuvers of SG Noel Francisco are often wrongfully rewarded. By contrast, the the Supremes’ majority routinely trashes the legal and constitutional rights of vulnerable people of color, particularly asylum seekers, migrants, and voters beneath an avalanche of bogus “Dred Scottification” jurisprudence.

Additionally, Judge Leon is “onto something” that has been swept under the carpet by the Supremes and the Circuit Courts when he questions “whether CBP agents could ever lawfully be given authority to conduct asylum interviews and adjudicate asylum claims, see Compl. ‘]Tfl 108-09, it would certainly seem unlikely under these circumstances. After all, law enforcement officers typically “function as adversaries” whose role is “to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial.” New Jersey v T.L.O.,469 U.S. 325,349 (1985) (Powell, J., concurring).” 

Similarly, many of us have argued that Immigration “Judges” who work for uber-enforcer and Trump shill “Billy the Bigot” and have been “repurposed” and “weaponized” into DHS enforcement support staff can not possibly be the “fair and impartial” quasi-judicial adjudicators required by the Due Process Clause of the Fifth Amendment!

Better Justices and better Federal Judges for a better America, particularly for people of color and other minorities. It’s actually quite simple and straightforward. It starts with throwing Trump and the GOP out of every political office this Fall. 

Then, we need some real Justices and Federal Judges who will stand against systemic racism and enforce equal justice in America! Not, rocket science! Just knowledge of the Constitution, awareness of human rights and immigrants’ rights, a focus on racial justice, courage to speak truth to power, and a demonstrated commitment to human dignity and human decency. One could easily wonder why those haven’t been the minimal requirements for Federal judicial service in the past.

Past is past, particularly for life-tenured judges. But, America can’t afford any more disastrous judicial appointments, at any level, who lack the guts and human decency to stand up to scofflaw, neo-fascist racists like Trump, Miller, and their cronies. 

The top to bottom overall failure of the American judiciary to put an end to unconstitutional and unfair racism and “Dred Scottification” of “the other” in our society is aiding and abetting the dark, lawless forces aligned with the regime destabilizing our country and ripping it apart! No more!

Due Process Forever!

PWS

08-31-20

OUTLAW REGIME/COMPLICIT JUDGES/NATION WITHOUT SOUL: Nicaraguan Gov. Pulled Refugee’s Toenails Out: Trump, Miller, & Wolf, Aided By Roberts, Sent Her Back To For More Torture & Perhaps Death Without Any Process!

Star Chamber Justice
The U.S.Asylum System
As Redesigned By Trump, Miller, Wolfman, & Roberts

Kevin Sieff
Kevin Sieff
Latin America Correspondent
Washington Post

https://www.washingtonpost.com/world/the_americas/nicaragua-asylum-us-border/2020/08/27/9aaba414-e561-11ea-970a-64c73a1c2392_story.html

Kevin Sieff reports for WashPost:

She was one of the most recognizable activists in Nicaragua, protesting a government that has jailed and killed its opponents. Her photo ran in national newspapers; one called her the “face of the rebellion.” Her video of police firing at student protesters went viral. Her confrontations with the government were cited by the U.S. State Department.

Valeska Alemán, 22, paid a price for that notoriety. She was detained twice. Interrogators pried off her toenails. When she decided to leave the country, the United States seemed a natural destination: The Trump administration has been vocal in its opposition to Nicaragua’s crackdown — and its support of the country’s young protesters.

‘They took my humanity’: Pro-government paramilitaries terrorize Nicaraguan protesters

But by the time Alemán arrived at the U.S. border in July, the administration had launched a pandemic-era policy that sends Nicaraguans directly back to their country without letting them apply for asylum. Seventeen days after crossing into Texas, she was put on a plane back to Managua with more than 100 other Nicaraguans, almost all of them opponents of President Daniel Ortega.

Her backpack was full of documents to show U.S. immigration officials that the government appeared ready to kill her. The officials wouldn’t look at them. When she landed back in Nicaragua, it felt as if she was carrying a ticking bomb, proof that she was trying to flee and accuse the government of abuse.

“I thought, ‘Okay, so they’re going to throw me straight back in jail,’ ” Alemán said. “ ‘I’m going to be tortured all over again.’ ”

Another expelled asylum seeker, Moises Alberto Ortega Valdivia, 38, swallowed five pages of his asylum paperwork, panicked that Nicaraguan police would find it.

Since taking control in 2017, the Trump administration has narrowed the pool of people who qualify for asylum and sent tens of thousands of applicants back to Mexico to await their hearings from squalid tent camps and shelters.

In squalid Mexico tent city, asylum seekers are growing so desperate they’re sending their children over the border alone

During the coronavirus pandemic, the administration has gone further, effectively shutting the asylum system down. Most Central American applicants are simply escorted back to Mexico. But Nicaraguans — including political protesters to whom the United States has given rhetorical support — are flown back to the country they tried to escape.

The administration is using a public health order known as 42 U.S.C. that cites “the danger to the public health” of migrants to justify the asylum system’s closure. Mexico has agreed to accept Salvadorans, Guatemalans and Hondurans. Other nations, such as Cuba and Venezuela, have refused to accept chartered U.S. deportation flights of their own citizens.

The U.S. is putting asylum seekers on planes to Guatemala — often without telling them where they’re going

In the case of Nicaragua, the United States is sending asylum seekers back to a country the State Department describes as violently repressive.

“Throughout Nicaragua, armed and violent uniformed police or civilians in plain clothes acting as police (‘para-police’) continue to target anyone considered to be in opposition to the rule of President Ortega,” the department says in a travel warning. “The government and its affiliated armed groups have been reported to arbitrarily detain pro-democracy protestors, with credible claims of torture and disappearances.”

U.S. Customs and Border Protection did not respond to multiple requests for comment. In a statement, the State Department said it “condemns all forms of political oppression, especially that orchestrated by the corrupt Ortega regime.” But it would not comment on the expulsion of Nicaraguan asylum seekers.

Alemán traveled with a family of Nicaraguan asylum seekers to the Texas border. All were university graduates and students of international affairs. Before they left, they reviewed the asylum laws on a U.S. government website.

. . . .

*****************

Read the rest of Kevin’s article at the link.

Section 208 of the Immigration & Nationality Act says:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

Very clear. What happened to refugee Valeska Alemán and other asylum seekers at the hands of the Trump regime was totally illegal (not to mention immoral); essentially a “crime against humanity” for which Trump, Miller, Wolfman, and the other “perps” should be held accountable.

But, this is Trump’s America where a majority of the Roberts’ Court favors White Supremacy, racism, and crimes against humanity over the Constitutional, statutory, and human rights of people of color. It’s called “Dred Scottification.”  It’s a national and international disgrace that will stain our nation forever!

Think racial justice and equal justice in America will be achieved without a better Executive, throwing the GOP out of legislative power, and better Federal Judges? Guess again!

Due Process Forever!

PWS

08-28-30

🏴‍☠️☠️⚰️👎🏻🤮END OF REFUGEE PROGRAMS SIGNALS DEMISE OF AMERICA!  — “Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here!”

🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️🏴‍☠️☠️⚰️⚰️⚰️⚰️⚰️👎🏻👎🏻👎🏻👎🏻👎🏻

https://www.washingtonpost.com/outlook/refugees-united-states-abandon/2020/08/07/6085e81c-d751-11ea-aff6-220dd3a14741_story.html

U.S. Asylum Officer Jason Marks writes in the WashPost Outlook Section:

. . . .

Collectively, we were told to implement restrictive new policies, expressly designed to deter people from seeking refuge. The Migrant Protection Protocols, for example, resulted in more than 60,000 asylum seekers being sent to Mexico in 2019, after fleeing the extreme brutality of MS-13 and the 18th Street gang in Honduras, Guatemala and El Salvador. Left to live in squalor without any protection, they are preyed upon by cartels and gangs as they wait, sometimes months, for an elusive court date before an immigration judge.

[I became an asylum officer to help people. Now I put them back in harm’s way.]

The pandemic put refugees and asylum seekers in even more desperate straits, as the United States paused refugee resettlement. Many already interviewed and accepted for resettlement in the U.S. now live stateless at the margins of cities, towns and villages where they have no rights or legal status, or in overcrowded refugee camps. Around the world, in places including Jordan, Kenya and Bangladesh, refugee camps are bursting at the seams. People there are unable to practice social distancing, and soap and water are limited.

Meanwhile, at our borders, Customs and Border Protection has turned away thousands of vulnerable people since March, without due process. Some applicants showing symptoms of the coronavirus were deported with no regard for safety measures (such as testing), causing outbreaks in the countries from which they had fled. Others languish in crowded detention facilities, even though many of them pose no security threat and Immigration and Customs Enforcement has the discretion to release them. By law, children must be let out after 20 days of incarceration. But rather than release them with their parents, our government has presented these families with an agonizing choice: Either have their children released, indefinitely separated from their parents — or remain locked up together in these facilities, many of which have already witnessed coronavirus outbreaks.

Amid all this, in June, the administration proposed 161 pages of sweeping regulations that would gut asylum and refugee law. Certain provisions, for example, drastically narrow the definitions of persecution and torture; others raise certain burdens of proof to nearly unreachable standards and redefine what constitutes the protected grounds of political opinion and membership in a particular social group. Still others could disqualify applicants if they made a mistake on their tax filings, or took two or more layover flights on their way here. In July, the administration proposed yet another new policy, allowing the United States to deny asylum to applicants if they come from any country with an outbreak of a highly contagious disease. (Public health experts have said this would serve no legitimate public health purpose.) It’s difficult to see how anyone could qualify for protection under this tangle of new rules, once they’re implemented.

Years of tightening restrictions have made it harder to obtain a wide range of legal immigration benefits, causing applications to plummet and, with them, the user fees that fund U.S. Citizenship and Immigration Services operations. Now, the pandemic has placed our agency on the brink of bankruptcy, and 70 percent of our workforce faces an indefinite furlough unless Congress intervenes. Without emergency funding, only a skeleton crew will remain to administer America’s immigration services system — resulting in even greater backlogs in the processing of applications for benefits including asylum, green cards, work permits and citizenship.

Our nation has an ethical and legal responsibility to protect those who seek refuge here. Instead, we have expended vast resources on preventing people from entering the country and deporting people who are already here. If the current administration’s policies continue unchecked, there will no longer be a pathway for refugees to have a new beginning in the United States. Even if a different presidential administration tried to change course, I fear that it would take many years to reverse the damage and rebuild our capacity to protect refugees. Many people will lose their lives before then.

In the closing words of his farewell address, President Ronald Reagan described our country as a “shining city upon a hill”: “If there had to be city walls,” he said in 1989, “the walls had doors, and the doors were open to anyone with the will and the heart to get here.” That is still something most Americans believe in.

[Read more from Outlook:]

[Coronavirus can’t be an excuse to continue President Trump’s assault on asylum seekers]

[Americans are the dangerous, disease-carrying foreigners now]

[During the covid-19 pandemic, immigrant farmworkers are heroes]

[Follow our updates on Facebook and Twitter.]

Jason Marks, an asylum training officer with the United States Citizenship and Immigration Services (USCIS), writes here as a shop steward for Local 1924, American Federation of Government Employees, which represents employees of the USCIS Asylum and Refugee Officer Corps.

***********************

Read the rest of Jason’s article at the above link.

It’s not rocket science! Misusing, misinterpreting, and misapplying refugee and asylum laws to “reject not protect” is clearly illegal, unconstitutional, and immoral to boot! It’s also, not surprisingly, toxic public policy because it squanders and misdirects resources on efforts to that actually hurt our economy, society, and reputation. In other words, fraud, waste, and abuse on a grand and deadly scale! 

So, a career Asylum Officer has more legal knowledge, guts, and human decency than the life-tenured, yet removed from both reality and humanity, Supremes’ majority! What’s wrong with this picture!

75 years after the end of World War II, America has installed a racist, neo-Nazi White Supremacist Government.  Go figure!

To make this happen, Trump and his cronies needed both a feckless Congress and Supremes committed to empowering authoritarian racism in the name of Executive authority. He got both!

We have an opportunity, perhaps our last as a nation, to return to a nobler vision of America. But it will require ousting not only the morally corrupt and maliciously incompetent Trump regime but also the equally immoral GOP Senators who have enabled and enthusiastically hastened our national demise. That will give us a start on the longer-term project of better Justices and Federal Judges for a better America.

There is no excuse whatsoever for the cowardly, disingenuous, and immoral failure of the Roberts Court to stand against Trump. Instead, they have embraced the “Dred Scottification” — that is, dehumanization — of refugees, asylum seekers, immigrants, and persons of color. Why is this judicially-enabled retrogression to the “Hay-day of Jim Crow” acceptable in 21st Century America?

This November, vote like your life and the future of our nation and the world depend on it! Because they do!

PWS

08-09-20

DRED SCOTTIFICATION OF “THE OTHER” — Supremes’ Anti-Constitutional “De-Personification” Of Asylum Applicants of Color With Lives At Stake Shows Why America Is In A Constitutional & Racial Mess Right Now — Analysis of Thuraissigiam By Professor Elliott Young!

https://historynewsnetwork.org/article/176454

Elliott Young is a professor of History at Lewis & Clark College and the author of a forthcoming book Forever Prisoners: How the United States Made the Largest Immigrant Detention System in the World (Oxford University Press).

. . . .

For more than one hundred years, the entry fiction has enabled the US government to deny immigrants due process protections that the 14th Amendment clearly indicates apply “to any person within its jurisdiction.” Although Justice Alito seems to restrict the ruling to people who entered the country within the previous 24 hours and within 25 yards of the border, the logic of the decision poses a more ominous threat to all immigrants who were not lawfully admitted.

 

As Justice Sotomayor writes in her dissent, “Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.”

 

It is this threat to more than 10 million immigrants living in the United States without authorization that makes the Thuraissigiam decision such a blow to the basic principles of freedom and justice. It would be odd for a country that imagines itself to be a beacon of hope for people around the world to deny basic constitutional protections to asylum seekers when they finally cross our threshold.

***********************

Read the full article at the link.

It’s not rocket science. The Constitution is clear. The “fog” here has to do with the disingenuous “reasoning” and legal gobbledygook cooked up by the majority Justices to deny Constitutional rights to people of color. Better judges for a better America! From voting rights to immigration, the current Supremes’ majority has too often undermined the right of all persons in America to equal justice under law. That’s exactly what institutionalized racism looks like.

Without major changes in all three branches of our failing Federal Government, equal justice for all in America will remain as much of an illusion as it has been since the inception of our nation. We have the power to do more than talk about equal justice — to start taking the necessary political action that will make it a reality. But, do we have the will and the moral courage to make it happen?

This November vote like your life and the life of our nation depend on it! Because they do!

PWS

07-21-20

MATTER OF A-B- NEWS:  Split DC Cir. Issues “Split Decision” in Grace v. Barr (formerly Grace v. Sessions, Grace v. Whitaker)

 

2-1 D.C. Circuit decision in Grace v. Barr, on the AG’s credible-fear rules.

 

Holding:  We reverse the district court’s grant of summary judgment with respect to the circularity rule and the statements regarding domestic- and gang-violence claims, vacate the injunction insofar as it pertains to those issues, and remand to the district court for further proceedings consistent with this opinion. In all other respects, we affirm.

 

Marty Lederman

Georgetown University Law Center

***********************

Perhaps the key holdings in this 45-page majority decision are that:

  1. The “condoned- or-completely-helpless standard” cannot replace the “unable or unwilling to control” standard in determining whether persecution by non-state-actors” (e.g., gangs) qualifies; and
  2. The direction to apply “law of the Circuit where the credible fear interview took place” instead of “the interpretation most favorable to the applicant . . . when determining whether the applicant meets the credible fear standard” is arbitrary and capricious.

The full decision with dissent is at the above link.

Of course, with most asylum and immigration laws for arriving individuals basically (and quite illegally) “suspended” during the COVID-19 “crisis,” and the regime’s plans (also patently illegal) to repeal asylum law by regulation in process, the practical effects of this decision remain unclear.

PWS

07-17-20

🤮☠️🏴‍☠️ ⚰️As American Governance Crumbles, Desperate Neo-Nazi Regime Rolls Out Plans For More “Crimes Against Humanity” Targeting Helpless Refugees Legally Seeking Asylum — These Cowardly, Immoral, & Patently Unconstitutional Deeds Are Being Done in OUR Name While The Complicit Supremes Watch What They Have Enabled & Encouraged By Abandoning Humanity, Our Constitution, Intellectual Integrity, & American Values! 

 

https://www.nbcnews.com/politics/immigration/trump-admin-plans-block-asylum-seekers-u-s-citing-public-n1233253

From NBC News:

July 8, 2020, 6:35 PM EDT

By Julia Ainsley and Adiel Kaplan

The Trump administration has proposed a new rule that would allow it to deny asylum to immigrants who are deemed a public health risk.

The soon-to-be published rule would let the Department of Homeland Security and Department of Justice to block immigrants from seeking asylum in the U.S. based on “potential international threats from the spread of pandemics,” according to a notice announcing it Wednesday.

The rule would apply to immigrants seeking asylum and those seeking “withholding of removal” — a protected immigration status for those who have shown they may well face danger if returned to their home countries.

. . . .

**********************************

Read the rest of the article at the link.

This outrageous, totally pretextual, racist proposal violates the Constitution, asylum laws, international agreements, morality, and human values. The factual basis is absurd since there has been no showing that asylum applicants are a source of COVID spread. To the contrary, unnecessarily detained asylum applicants have been victims of Trump’s failed policies. Moreover, if DHS actually were worried about COVID, they could easily test and quarantine to identify and deal constructively and humanely with the few applicants who might have been infected someplace other than DHS facilities.

This is White Nationalist racism at its worst.

We need better judges, and particularly better Justices on the Supremes, for a better America! Judges who will prevent, rather than encourage, racist-driven “crimes against humanity.” Standing up against such crimes, particularly when they are disgracefully directed by a racist Executive at our most vulnerable humans, should be a “no-brainer” for a unanimous Supremes with Justices qualified for the high offices they hold. For the “JR Five” a “no brainer” has too often been a “non-starter.” So, the regime’s gross abuses of migrants and people of color and the damage, societal disorder, wasted time, squandered resources, and the human misery they cause roll on.

“Dred Scottification” is wrong! Period! And Supreme Court Justices who enable it are wrong for America!

This November, vote like your life depends on it. Because it does!

PWS

07-09-20

🏴‍☠️☠️⚰️KAKISTOCRACY WATCH: AILA Blasts Appointment Of Prosecutors Without Judicial Qualifications To Top Judicial Positions in Billy the Bigot’s Weaponized Anti-Due-Process “Court” System — Dysfunction, Bias, Illegitimate Decisions Run Rampant As Congress, Article IIIs Fail to Enforce U.S. Constitution!

Trump Administration Makes Immigration Courts an Enforcement Tool by Appointing Prosecutors to Lead

CONTACTS:
George Tzamaras
202-507-7649
gtzamaras@aila.org
Belle Woods
202-507-7675
bwoods@aila.org

 

WASHINGTON, DC — The American Immigration Lawyers Association (AILA) condemns the Trump administration’s recent ramp-up of efforts to turn the immigration court system into an enforcement tool rather than an independent arbiter for justice. The immigration courts are formally known as the Executive Office for Immigration Review (EOIR) and are overseen by the Department of Justice (DOJ).

AILA President Jennifer Minear, noted, “AILA has long advocated for an independent immigration court, one that ensures judges serve as neutral arbiters of justice. This administration has instead subjected the courts to political influence and exploited the inherent structural flaws of the DOJ-controlled immigration courts, which also prosecutes immigration cases at the federal level. The nail in the coffin of judicial neutrality is the fact that the administration has put the courts in the control of a new Chief Immigration Judge who has no judicial experience but served as ICE’s chief immigration prosecutor. No less concerning is DOJ’s recent choice for Chief Appellate Immigration Judge – an individual who also prosecuted immigration cases and advised the Trump White House on immigration policy. This administration continues to weaponize the immigration courts for the sole purpose of accelerating deportations rather than dispensing neutral justice. Congress must investigate these politically motivated appointments and pass legislation to create an independent, Article I immigration court.”

Among the recent actions taken by this administration to bias the immigration courts:

More AILA resources on the immigration courts can be found at: https://www.aila.org/immigrationcourts.

Cite as AILA Doc. No. 20070696.

 

**************************

As a friend and former colleague said recently “I would have thought that the one thing everyone could get behind, regardless of political philosophy, would be a neutral court system.” Sadly, not so in today’s crumbling America.

There are three groups blocking the way:

  • The Trump Administration, where due process only applies to Trump and his corrupt cronies;
  • GOP legislators whose acquittal of Trump against the overwhelming weight of the evidence shows exactly what due process means to them;
  • Five GOP-appointed Justices on the Supremes who don’t believe that due process applies to all persons in the US, notwithstanding the “plain language” of Article 5 of our Constitution — particularly if those persons have the misfortune to be asylum seekers of color.

The end result is “Dred Scottification” — that is, dehumanization or “de-personification” of “the other.” The GOP has made it a centerpiece of their failed attempt to govern, from voter suppression, to looting the Treasury for the benefit of the rich and powerful, to immunity for law enforcement officers who kill minorities, to greenlighting cruel, inhuman,and counterproductive treatment of lawful asylum seekers and immigrants. Not surprisingly, this essentially “Whites Only” view of social justice is ripping our nation apart on many levels.

I find it highly ironic that at the same time we are rightfully removing statutes of Chief Justice Roger Taney, a racist who authored the infamous Dred Scott Decision, Chief Justice Roberts and four of his colleagues continue to “Dred Scottify” asylum seekers and other immigrants, primarily those of color, by denying them the due process, fundamental fairness, fair and impartial judges, and, perhaps most of all, racist-free policies that our Constitution demands! 

Compare the “due process” afforded Trump by the GOP Senate and the pardon of a convicted civil and human rights abuser like “Racist Sheriff Joe” with the ugly and dishonest parody of due process afforded Sister Norma’s lawful asylum seekers whose “crime” was seeking fair treatment, justice, and an acknowledgement of their humanity from a nation that has turned it’s back on those values. 

https://immigrationcourtside.com/2020/07/06/%f0%9f%98%8e%f0%9f%97%bd%e2%9a%96%ef%b8%8fgood-news-9th-cir-deals-another-blow-to-stephen-millers-illegal-white-nationalist-war-on-asylum-now-will-the-supremes-majority-stan/

What Sister Norma’s article did not mention is that those who survive in Mexico long enough to get to “court” have their asylum claims denied at a rate of about 99% by an unfair system intentionally skewed and biased against them. Most experts believe that many, probably a majority, of those being denied actually merit protection under a fair and impartial application of our laws. 

But, as pointed out by AILA, that’s not why Billy the Bigot has appointed prosecutors as top “judges” and notorious asylum deniers as “appellate judges.” He intends to perpetuate a highly unfair “deportation railroad” designed by infamous White Nationalist racist Stephen Miller. In other words, our justice system is being weaponized in support of an overtly racist agenda formulated by a racist regime that has made racism the centerpiece of its pitch for remaining in office. Incredible! Yet true!

The Supremes have life tenure. But, the other two branches of our failing Government don’t. And, a better Executive and a better Legislature that believe in our Constitution and equal justice for all is a necessary start on a better Federal Judiciary — one where commitment to due process, fundamental fairness, and equal justice for all is a threshold requirement for future judicial appointments. Time to throw the “non-believers” and their enablers out of office.

This November, vote like your life and our country’s existence depend on it! Because they do!

PWS

07-07-20

LAW YOU CAN UNDERSTAND: Forget The 55 Pages of Butt-Covering BS & Turgid Legal Gobbledegook 🤮 From 7 Supremes Who Don’t Believe in Constitutional Due Process or Racial Equality in America 🏴‍☠️☠️  — Nicole Narea @ Vox Explains in A Few Cogent Paragraphs How 7 Tone-Deaf & Complicit Justices Have Put All Americans of Color Directly in The Crosshairs of Trump’s DHS Enforcement👎🏻!

 

Nicole Narea
Nicole Narea
Immigration Reporter
Vox.com

https://apple.news/A-z_VER0yTe–4NlleNgc9g

Nicole writes:

The Supreme Court just issued a ruling with sweeping, immediate implications for the immigration enforcement system, potentially allowing the Trump administration to move forward in deporting tens of thousands of immigrants living in the US with little oversight.

The case, Department of Homeland Security v. Thuraissigiam, concerns immigration officials’ authority to quickly deport migrants who don’t express fear of returning to their home countries, which would make them eligible for asylum. The process, first enacted in 1996 and known as “expedited removal,” takes weeks, rather than the typical years it can take to resolve a full deportation case, and does not involve a hearing before an immigration judge or offer immigrants the right to a lawyer.

In a 7-2 decision, the justices found Thursday that newly arrived immigrants don’t have the right to challenge their expedited removal in federal court, which advocates claim is a necessary check on immigration officials to ensure that migrants with credible asylum claims aren’t erroneously turned away and have access to a full and fair hearing.

Until recently, only a small number of immigrants who had recently arrived in the US could be subjected to expedited removal. But President Donald Trump has sought to vastly expand US Immigration and Customs Enforcement’s power to use expedited removal as a means of deporting any immigrant who has lived in the US for up to two years, potentially affecting an estimated 20,000 people.

Thursday’s decision therefore allows Trump to significantly scale up his immigration enforcement apparatus while going largely unchecked.

“Trump has made it very clear that ICE has the authority to use this process throughout the entire country,” Kari Hong, a professor at Boston College Law School, said. “They could start stopping anyone at anytime on any suspicion that they have committed an immigration violation and deport them. I don’t think it’s unreasonable [to predict] that ICE agents will target dark-skinned individuals.”

. . . .

******************

Read the rest of Nicole’s clear and understandable analysis at the link.

Writing ability, intellectual honesty, commitment to Due Process, belief in equal justice for all, opposition to institutional racism, and fidelity to human values, as well as “real life” understanding of what it means to have your life and human dignity ground to mush in Trump’s illegal “deportation machine” obviously are in short supply among today’s Supremes. Disgraceful!

So, according to these seven cloistered dudes, somebody on trial for her or his life, the highest possible stakes in any proceeding in America, civil or criminal, can have her or his fate determined by Trump employees who serve as policeman, prosecutor, judge, jury, and executioner. No access to a “fair and impartial decision-maker” as required by the Constitution. No checks for errors, abuses, or mistakes that could result in a vulnerable individual being sent to face persecution, torture, and/or death in a land they fled because their life was in danger. This notwithstanding that Federal Courts find egregious errors in application of basic legal concepts from Trump’s immigration adjudicators almost every day! This is “due process” because Congress said it was! What complete deadly nonsense and sophistry! Really, how do the purveyors and enablers of such atrocious, disingenuous, and illegal attacks on humanity sleep at night.

Let’s be clear. There is no legitimate purpose in a supposedly independent, life-tenured judiciary without the courage to hold both the Executive and the Congress accountable for equal justice under law as required by our Constitution. If they are going to act like Border Patrol Agents in robes, send them down to the border and let them be part of the killing fields. Got innocent blood on your hands, might as well have it on your robes too! 

The formula is very simple: Better Executive + Better Legislators + Better Judges = Equal Justice For All. The exceptionally poor performance of the Supremes in insuring racial justice in America, indeed their intentional undermining of it in voting rights, civil rights, immigration, and other areas, is a major contributor to the continuing institutional racism that is on the verge of ripping our nation apart. The Supreme’s latest abrogation of the Constitution stokes racial injustice in America and endangers our nation’s security and future.

How many Hispanic American citizens will be illegally “expeditiously removed” to Mexico by DHS Enforcement before the nation wakes up! We need better judges! Judges who will stop intentionally ignoring the clear constitutional requirements for Due Process, Equal Justice, and ending institutionalized racism in America. Judges who will not feign ignorance of the grotesque human suffering they wrongfully enable. Judges who will stand up for the rule of  law against an overtly racist Executive. Judges who will stop enabling, participating in, and encouraging further “crimes against humanity!” 

Also, every Federal Judge should have 1) demonstrated legal and practical knowledge of human rights law and what really happens to individuals in our immigration “justice” system; and 2) a course in writing cogent English and applying simple logic from Nicole. 

This November, vote like your life and the future of our nation depend on it. Because they do!

Due Process Forever! Supremes that don’t believe in equal justice under law, never!

PWS

06-26-20

🏴‍☠️☠️AMERICAN JUSTICE FAILS: SUPREMES SHAFT ASYLUM SEEKERS — Only Justices Sotomayor & Kagan Stand Up For Rule of Law, Human Rights, Rationality: “Today’s decision handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive discretion unchecked in the very circumstance where the writ’s protections ‘have been strongest.’ INS v. St. Cyr, 533 U. S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.”—DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM

☠️👎

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM, 06-25-48

https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf

COUIRT SYLLABUS:

Syllabus

DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 19–161. Argued March 2, 2020—Decided June 25, 2020

The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) provides for the expedited removal of certain “applicants” seeking admission into the United States, whether at a designated port of entry or elsewhere. 8 U. S. C. §1225(a)(1). An applicant may avoid expedited removal by demonstrating to an asylum officer a “credible fear of persecution,” defined as “a significant possibility . . . that the alien could establish eligibility for asylum.” §1225(b)(1)(B)(v). An ap- plicant who makes this showing is entitled to “full consideration” of an asylum claim in a standard removal hearing. 8 CFR §208.30(f). An asylum officer’s rejection of a credible-fear claim is reviewed by a su- pervisor and may then be appealed to an immigration judge. §§208.30(e)(8), 1003.42(c), (d)(1). But IIRIRA limits the review that a federal court may conduct on a petition for a writ of habeas corpus. 8 U. S. C. §1252(e)(2). In particular, courts may not review “the deter- mination” that an applicant lacks a credible fear of persecution. §1252(a)(2)(A)(iii).

Respondent Vijayakumar Thuraissigiam is a Sri Lankan national who was stopped just 25 yards after crossing the southern border with- out inspection or an entry document. He was detained for expedited removal. An asylum officer rejected his credible-fear claim, a super- vising officer agreed, and an Immigration Judge affirmed. Respondent then filed a federal habeas petition, asserting for the first time a fear of persecution based on his Tamil ethnicity and political views and re- questing a new opportunity to apply for asylum. The District Court dismissed the petition, but the Ninth Circuit reversed, holding that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause.

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

Syllabus

Held:

1. As applied here, §1252(e)(2) does not violate the Suspension

Clause. Pp. 11–33.

(a) The Suspension Clause provides that “[t]he 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.” Art. I, §9, cl. 2. This Court has held that, at a minimum, the Clause “protects the writ as it existed in 1789,” when the Constitution was adopted. INS v. St. Cyr, 533 U. S. 289, 301. Habeas has traditionally provided a means to seek release from unlawful detention. Respondent does not seek release from custody, but an additional opportunity to obtain asy- lum. His claims therefore fall outside the scope of the writ as it existed when the Constitution was adopted. Pp. 11–15.

(b) Respondent contends that three bodies of case law support his argument that the Suspension Clause guarantees a broader habeas right, but none do. Pp. 15–33.

(1) Respondent first points to British and American cases de- cided before or around the Constitution’s adoption. All those cases show is that habeas was used to seek release from detention in a vari- ety of circumstances. Respondent argues that some cases show aliens using habeas to remain in a country. But the relief ordered in those cases was simply release; an alien petitioner’s ability to remain in the country was due to immigration law, or lack thereof. The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things. Pp. 15–23.

(2) Although respondent claims to rely on the writ as it existed in 1789, his argument focuses on this Court’s decisions during the “fi- nality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration decisions “final.” In Nishi- mura Ekiu v. United States, 142 U. S. 651, the Court interpreted the Act to preclude judicial review only of questions of fact. Federal courts otherwise retained authority under the Habeas Corpus Act of 1867 to determine whether an alien was detained in violation of federal law. Thus, when aliens sought habeas relief during the finality era, the Court exercised habeas jurisdiction that was conferred by the habeas statute, not because it was required by the Suspension Clause—which the Court did not mention. Pp. 23–32.

(3) The Court’s more recent decisions in Boumediene v. Bush, 553 U. S. 723, and St. Cyr, 533 U. S. 289, also do not support respond- ent’s argument. Boumediene was not about immigration at all, and St. Cyr reaffirmed that the common-law habeas writ provided a vehicle to challenge detention and could be invoked by aliens already in the coun- try who were held in custody pending deportation. It did not approve respondent’s very different attempted use of the writ. Pp. 32–33.

Cite as: 591 U. S. ____ (2020) 3 Syllabus

2. As applied here, §1252(e)(2) does not violate the Due Process Clause. More than a century of precedent establishes that, for aliens seeking initial entry, “the decisions of executive or administrative of- ficers, acting within powers expressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U. S., at 660. Respondent ar- gues that this rule does not apply to him because he succeeded in mak- ing it 25 yards into U. S. territory. But the rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. An alien who is detained shortly after unlawful entry cannot be said to have “effected an entry.” Zadvydas v. Davis, 533 U. S. 678, 693. An alien in respondent’s position, therefore, has only those rights re- garding admission that Congress has provided by statute. In respond- ent’s case, Congress provided the right to a “determin[ation]” whether he had “a significant possibility” of “establish[ing] eligibility for asy- lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v). Pp. 34–36.

917 F. 3d 1097, reversed and remanded.

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., andTHOMAS,GORSUCH,andKAVANAUGH,JJ.,joined. THOMAS,J.,fileda concurring opinion. BREYER, J., filed an opinion concurring in the judg- ment, in which GINSBURG, J., joined. SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.

********************

A very sad, tragic moment for American Justice, as seven Justices turn their collective backs on Constitutional Due Process, international asylum protections, common sense, and human decency. 

It also shows their appalling intellectual dishonesty and/or lack of knowledge about how asylum seekers lives and human rights are being trashed by this Administration’s White Nationalist agenda. One could only hope that these seven Justices are someday “reincarnated” and condemned to being refugees seeking justice, mercy, and humanity from America in the “age of Trump.” Little wonder that Stephen Miller and his White Nationalist gang believe they will get away with eliminating asylum law under the guise of bogus “regulations” that eliminate eligibility for everyone who might need protection.

In the end, despite the denial of this tone-deaf judicial group, human rights are everyone’s rights and demeaning and disregarding them will come back to haunt and disfigure our nation and our world for generations to come.

The only part of this decision worth reading is the Sotomayor/Kagan dissent, which I set forth in full as a “marker” for future historians chronicling the “death of the Constitution and humanity in America” and the Supreme Court’s key enabling and encouraging role in “Dred Scottifying” and “dehumanizing” the other, largely along racial, ethnic, and religious lines. Sotomayor’s critique of her colleagues is correct.

The good news: The best way to solve Executive abuses is with a new and better Executive. Moreover, a future Administration and a better Congress could restore asylum and refugee laws and “re-codify due process rights as statutes” so that they would be enforced by courts, even the Supremes. The problem started with Congress. A wiser, better, and more humanitarian Congess could end it.

But, in the meantime, back in the grim real world of refugees and asylum seekers, many will die, be tortured, or otherwise harmed because of the Supremes’ willful blindness to the abuses and indignities being inflicted upon the most vulnerable with the aid and active assistance of our own Government. There is a name of that type of conduct.

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 19–161 _________________

DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. VIJAYAKUMAR THURAISSIGIAM

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

[June 25, 2020]

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins, dissenting.

The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas cor- pus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those re- spondent raises here, which fall within the heartland of ha- beas jurisdiction going directly to the origins of the Great Writ.

The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries 99 (Am. ed. 1832). By self-im- posing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitu- tional duty and rejects precedent extending to the founda- tions of our common law.

Making matters worse, the Court holds that the Consti- tution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to de- termine whether they may seek shelter in this country or

2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled con- stitutional law and paves the way toward transforming al- ready summary expedited removal proceedings into arbi- trary administrative adjudications.

Today’s decision handcuffs the Judiciary’s ability to per- form its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive dis- cretion unchecked in the very circumstance where the writ’s protections “have been strongest.” INS v. St. Cyr, 533 U. S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties.

The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dis- sent.

I

The as-applied challenge here largely turns on how the Court construes respondent’s requests for relief. Its de- scriptions, as well as those of one of the concurrences, skew the essence of these claims. A proper reframing thus is in order.

A

Respondent first advances a straightforward legal ques- tion that courts have heard in habeas corpus proceedings in “case after case.” Id., at 306. His habeas petition claimed that an asylum officer and Immigration Judge “appl[ied] an

Cite as: 591 U. S. ____ (2020) 3

SOTOMAYOR, J., dissenting

incorrect legal standard” by ordering him removed despite a showing of a significant possibility of credible fear to es- tablish “eligibility for asylum, withholding of removal, and [Convention Against Torture] claims.” App. 31–32; see also 8 U. S. C. §1225(b)(1)(B)(v) (setting standard for credible fear as “a significant possibility, taking into account the . . . statements made by the alien . . . and such other facts as are known to the officer, that the alien could establish eli- gibility for asylum”). The Government itself has character- ized that claim as a challenge to the “ ‘application of a legal standard to factual determinations . . . underlying the Ex- ecutive’snegativecredible-fearfindings.’” 917F.3d1097, 1117, n. 20 (CA9 2019) (case below). At bottom, respondent alleged that he was unlawfully denied admission under gov- erning asylum statutes and regulations.

The Court disagrees, flattening respondent’s claim into a mere plea “ultimately to obtain authorization to stay in this country.” Ante, at 2; see also ante, at 12 (describing the re- quest as a “right to enter or remain in a country”); ante, at 13, n. 14 (framing relief sought as “gaining a right to remain in this country”); ante, at 16 (equating relief with “authori- zation . . . to remain in a country other than his own”). Yet while the Court repeatedly says that respondent seeks nothing more than admission as a matter of grace, its own descriptions of respondent’s habeas petition belie its asser- tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe- tition is that [respondent] faces persecution in Sri Lanka ‘because of’ his Tamil ethnicity and political opinions”); ibid. (suggesting that the same persecution inquiry governs respondent’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim); ante, at 36, n. 28 (observing that respondent’s habeas peti- tion contains factual allegations that resemble documented persecution on the basis of ethnicity or political opinion). Though the Court refuses to admit as much, its descriptions of respondent’s arguments illustrate, at bottom, claims that

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immigration officials legally erred in their review of his asy- lum application.

In papering over the true nature of respondent’s claims, the Court transforms his assertions of legal error in the ex- ercise of executive discretion into a naked demand for exec- utive action. But the distinction between those forms of re- lief makes all the difference. The law has long permitted habeas petitioners to challenge the legality of the exercise of executive power, even if the executive action ultimately sought is discretionary. See St. Cyr, 533 U. S., at 307 (citing cases). That principle has even more force today, where an entire scheme of statutes and regulations cabins the Exec- utive’s discretion in evaluating asylum applications. For that reason, the Court’s observation that the ultimate “grant of asylum is discretionary” is beside the point. Ante, at 5, n. 4.

For its part, one concurring opinion seems to acknowledge that claims that assert something other than pure factual error may constitutionally require some judi- cial review. Ante, at 3–5 (BREYER, J., concurring in judg- ment). It simply determines that respondent’s credible-fear claims amount to nothing more than a “disagreement with immigration officials’ findings about the two brute facts un- derlying their credible-fear determination,” namely, the identity of his attackers and their motivations. Ante, at 5. It also faults respondent for failing to develop his claims of legal error with citations “indicating that immigration offi- cials misidentified or misunderstood the proper legal stand- ard” or that they “disregarded” or were not properly trained in identifying relevant country conditions. Ante, at 5–6.

But the essence of respondent’s petition is that the facts as presented (that he, a Tamil minority in Sri Lanka, was abducted by unidentified men in a van and severely beaten), when considered in light of known country condi- tions (as required by statute), amount at least to a “signifi- cant possibility” that he could show a well-founded fear of

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persecution. So viewed, respondent’s challenge does not quibble with historic facts, but rather claims that those “settled facts satisfy a legal standard,” which this Court has held amounts to a “legal inquiry.” Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 4). The concur- ring opinion suggests that any conclusions drawn from the discrete settled facts here could not be “so egregiously wrong” as to amount to legal error. Ante, at 6. But the ul- timate inquiry is simply whether the facts presented satisfy a statutory standard. While this concurring opinion may believe that the facts presented here do not show that re- spondent is entitled to relief, its view of the merits does not alter the legal nature of respondent’s challenge.

B

Second, respondent contended that the inadequate proce- dures afforded to him in his removal proceedings violated constitutional due process. Among other things, he as- serted that the removal proceedings by design did not pro- vide him a meaningful opportunity to establish his claims, that the translator and asylum officer misunderstood him, and that he was not given a “reasoned explanation” for the decision. App. 27, 32; see also id., at 32 (arguing that “[u]nder constitutionally adequate procedures, [respond- ent] would have prevailed on his claims”). Again, however, the Court falls short of capturing the procedural relief ac- tually requested. The Court vaguely suggests that respond- ent merely wanted more cracks at obtaining review of his asylum claims, not that he wanted to challenge the existing expedited removal framework or the process actually ren- dered in his case as constitutionally inadequate. See ante, at 2 (characterizing respondent as asking for “additional administrative review of his asylum claim”); see also ante, at 5, n. 5 (describing petition as seeking “another oppor- tunity to apply for asylum”). That misconstrues respond-

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ent’s procedural challenges to the expedited removal pro- ceedings, which matters crucially; a constitutional chal- lenge to executive detention is just the sort of claim the com- mon law has long recognized as cognizable in habeas. See generally Part II, infra.

One concurring opinion, meanwhile, properly character- izes respondent’s claims on this score as “procedural” chal- lenges. Ante, at 7 (opinion of BREYER, J.). Yet it concludes that those claims are not reviewable because they do not allege sufficiently serious defects. See ante, at 7–8 (describ- ing cognizable claims as those involving “ ‘no [factual] find- ing[s],’” contentions that officials “skipped a layer of intra- agency review altogether,” the “outright denial (or construc- tive denial) of a process,” or an official’s “fail[ure] entirely to take obligatory procedural steps”). But these are simply distinctions of degree, not of kind. Respondent claimed that officials violated governing asylum regulations and de- prived him of due process by conducting an inadequate in- terview and providing incomplete translation services. It is difficult to see the difference between those claims and the ones that the concurring opinion upholds as cognizable. Cf. ante, at 7–8 (finding cognizable claims that an official “short-circuit[ed] altogether legally prescribed adjudication procedures by ‘dictating’ an immigration decision” and that an official deprived a noncitizen of “ ‘an opportunity to prove his right to enter the country, as the statute meant that he should have’”).

Indeed, the concurring opinion notes that the core ques- tion is whether a defect “fundamentally undermined the ef- ficacy of process prescribed by law.” Ante, at 7. Respond- ent’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process pre- scribed by law” and the Constitution. Ibid. The concurring opinion might think that respondent is not entitled to addi- tional protections as a matter of law or that the facts do not show he was denied any required process. But conclusions

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about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place.

C

Finally, the Court asserts that respondent did not specif- ically seek “release” from custody in what the Court styles as the “traditional” sense of the term as understood in ha- beas jurisprudence. Ante, at 10, 13; cf. ante, at 14 (suggest- ing that respondent “does not claim an entitlement to re- lease”). Instead, the Court seems to argue that respondent seeks only a peculiar form of release: admission into the United States or additional asylum procedures that would allow for admission into the United States. Such a request, the Court implies, is more akin to mandamus and injunc- tive relief. Ante, at 13.

But it is the Court’s directionality requirement that bucks tradition. Respondent asks merely to be freed from wrongful executive custody. He asserts that he has a cred- ible fear of persecution, and asylum statutes authorize him to remain in the country if he does. That request is indis- tinguishable from, and no less “traditional” than, those long made by noncitizens challenging restraints that prevented them from otherwise entering or remaining in a country not their own. See Part II–B–1, infra.

The Court has also never described “release” as the sole remedy of the Great Writ. Nevertheless, respondent’s peti- tion is not limited in the way the Court claims. As it acknowledges, ante, at 10, respondent directly asked the District Court to “[i]ssue a writ of habeas corpus” without further limitation on the kind of relief that might entail, App. 33. Respondent also sought “an [o]rder directing [the Government] to show cause why the writ should not be granted” and an order “directing [the Government] to va- cate the expedited removal order entered against [him].” Ibid. As the petition’s plain language indicates, respondent

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raised a garden-variety plea for habeas relief in whatever form available and appropriate, including, but not limited to, release.

***

Fairly characterized, respondent’s claims allege legal er- ror (for violations of governing asylum law and for viola- tions of procedural due process) and an open-ended request for habeas relief. It is “uncontroversial” that the writ en- compasses such claims. See Boumediene v. Bush, 553 U. S. 723, 779 (2008) (concluding that release is but one form of relief available); see also St. Cyr., 533 U. S., at 302, 304– 308 (citing cases predating the founding to show that the writ could challenge “the erroneous application or interpre- tation” of relevant law); see also Part II–D, infra.

II

Only by recasting respondent’s claims and precedents does the Court reach its decision on the merits. By its ac- count, none of our governing cases, recent or centuries old, recognize that the Suspension Clause guards a habeas right to the type of release that respondent allegedly seeks.1

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1 The Court wisely declines to explore whether the Suspension Clause

independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation, a point of disagreement be- tween the majority and dissent in INS v. St. Cyr, 533 U. S. 289 (2001). Ante, at 11, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the Suspension Clause “does not guarantee any content to (or even the exist- ence of ) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” 533 U. S., at 337. But no majority of this Court, at any time, has adopted that theory. Notably, moreover, even Justice Scalia appears to have abandoned his position just three years later in Hamdi v. Rumsfeld, 542 U. S. 507, 555– 556 (2004) (dissenting opinion) (“The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses”); see also id., at 558 (“The writ of habeas corpus

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Ante, at 13, n. 14 (finding no evidence that the writ was un- derstood in 1789 to grant relief that would amount to “gain- ing a right to remain in this country”); ante, at 13 (charac- terizing a “‘meaningful opportunity’” for review of asylum claims as falling outside of traditional notions of release from custody). An overview of cases starting from the colo- nial period to the present reveals that the Court is incor- rect, even accepting its improper framing of respondent’s claims.

A

The critical inquiry, the Court contends, is whether re- spondent’s specific requests for relief (namely, admission into the United States or additional asylum procedures al- lowing for admission into the United States) fall within the scope of the kind of release afforded by the writ as it existed in 1789. Ante, at 11, 12; see also ante, at 10 (criticizing the court below for holding §1252(e)(2) unconstitutional “with- out citing any pre-1789 case about the scope of the writ”). This scope, it explains, is what the Suspension Clause pro- tects “at a minimum.” Ante, at 11. But as the Court implic- itly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never de- manded the kind of precise factual match with pre-1789 case law that today’s Court demands.

To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigra- tion and asylum: “At the time, England had nothing like modern immigration restrictions.” Ante, at 18–19 (“As late as 1816, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’”). It notes, too, that our

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was preserved in the Constitution—the only common-law writ to be ex- plicitly mentioned”). Even one concurring opinion seems to recognize that the Suspension Clause “protect[s] a substantive right.” Ante, at 3– 4 (opinion of THOMAS, J.).

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cases have repeatedly observed the relative novelty of im- migration laws in the early days of this country. Ante, at 20 (citing Harisiades v. Shaughnessy, 342 U. S. 580, 588, n. 15 (1952) (“An open door to the immigrant was the early federal policy”); St. Cyr, 533 U. S., at 305 (remarking that the first immigration regulation was enacted in 1875)); see also Demore v. Kim, 538 U. S. 510, 539 (2003) (O’Connor, J., concurring in part and concurring in judgment) (“Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availa- bility of habeas review to challenge temporary detention pending exclusion or deportation”).

The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respond- ent unearth cases predating comprehensive federal immi- gration regulation showing that noncitizens obtained re- lease from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their en- try in the first instance; the United States lacked a compre- hensive asylum regime until the latter half of the 20th cen- tury. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncit- izen in respondent’s position is entitled to the writ. See ante, at 18, n. 18 (dismissing respondent’s cited cases on the ground that “[w]hether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases . . . cannot be settled by a single case or even a few obscure and possibly aberrant cases”); see also Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding).

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But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. In St. Cyr, for example, the Court considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation order. 533 U. S., at 293. In doing so, the Court did not search high and low for founding-era parallels to waivers of deportation for criminal noncitizens. It simply asked, at a far more general level, whether habeas jurisdiction was historically “invoked on behalf of nonciti- zens . . . in the immigration context” to “challenge Execu- tive . . . detention in civil cases.” Id., at 302, 305. That in- cluded determining whether “[h]abeas courts . . . answered questions of law that arose in the context of discretionary relief ” (including questions regarding the allegedly “erro- neous application or interpretation of statutes”). Id., at 302, and n. 18, 307.

Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, 553 U. S., at 771, despite frankly admit- ting that a “[d]iligent search by all parties reveal[ed] no cer- tain conclusions” about the relevant scope of the common- law writ in 1789, id., at 746. Indeed, the Court reasoned that none of the cited cases illustrated whether a “common- law court would or would not have granted . . . a petition for a writ of habeas corpus” like that brought by the noncitizen- detainee petitioners, and candidly acknowledged that “the common-law courts simply may not have confronted cases with close parallels.” Id., at 746, 752. But crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Id., at 752. Instead, it sought to find comparable common-law habeas cases by “analogy.” Id., at 748–752.

There is no squaring the Court’s methodology today with

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St. Cyr or Boumediene. As those cases show, requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with this Court’s longstanding approach in immigration cases.

B 1

Applying the correct (and commonsense) approach to de- fining the Great Writ’s historic scope reveals that respond- ent’s claims have long been recognized in habeas.

Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), as an example on point. There, Lord Mansfield issued a writ ordering release of a slave bound for Jamaica, holding that there was no basis in English law for “sending . . . him over” to another country. Id., at 17– 19, 98 Eng. Rep., at 509–510. Thus, the writ issued even though it “did not free [the] slave so much as it protected him from deportation.” P. Halliday, Habeas Corpus: From England to Empire 175 (2010). Somerset establishes the longstanding availability of the writ to challenge the legal- ity of removal and to secure release into a country in which a petitioner sought shelter. Scholarly discussions of Mur- ray’s Case suggest much of the same. There, the King’s Bench granted habeas to allow a nonnative to remain in England and to prevent his removal to Scotland for trial. Halliday, Habeas Corpus, at 236.

The Court dismisses these examples outright. It acknowledges that the petitioner in Somerset may have been allowed to remain in England because of his release on habeas, yet declares that this was “due not to the wri[t] ordering [his] release” but rather to the existing state of the law. Ante, at 20. But the writ clearly did more than permit the petitioner to disembark from a vessel; it prevented him from being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98 Eng. Rep., at 509. What England’s immigration laws might have prescribed after the writ’s issuance did not bear on the

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availability of the writ as a means to remain in the country in the first instance.

The Court also casts aside the facts of Murray’s Case, even though they, too, reveal that habeas was used to per- mit a nonnative detainee to remain in a country. Ante, at 18, n. 18. The Court minimizes the decision as “obscure and possibly aberrant.” Ibid. But given the relative paucity of habeas cases from this era, it is telling that the case serves as another example of the writ being used to allow a noncit- izen to remain in England.2

The reasoning of Somerset and Murray’s Case carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory. See generally Oldham & Wishnie, The Histori- cal Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Im- migration L. J. 485 (2002). For example, in 1755, British authorities sought to deport French Acadian settlers from Nova Scotia, then under the control of Great Britain, to the American Colonies. Id., at 497. The Governor and Assem- bly of South Carolina resisted the migrants’ arrival and de- tained them in ships off the coast of Charleston. They rec- ognized, however, that the exclusion could not persist because the migrants would be entitled to avail themselves of habeas corpus. Id., at 498. Ultimately, the Governor re- leased most of the Acadian migrants for resettlement throughout the Colony. Ibid.

Founding era courts accepted this view of the writ’s scope. Rather than credit these decisions, the Court marches

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2 The Court notes “the ‘delicate’ relationship between England and

Scotland at the time” of Murray’s Case. Ante, at 18, n. 18. Interestingly, the Court does not mention the delicate nature of the relationship be- tween the United States and Iraq in Munaf v. Geren, 553 U. S. 674 (2008), the centerpiece of the Court’s argument, even though that case arose during a military conflict. Ante, at 14–15. Nor does it acknowledge the impact that the relationship had on the Munaf Court’s decision to refrain from issuing the writ. See Part II–B–3, infra.

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through an assorted selection of cases and throws up its hands, contending that the case law merely reflects a wide range of circumstances for which individuals were deprived of their liberty. See ante, at 16–17. Thus, the Court con- cludes, the common law simply did not speak to whether individuals could seek “release” that would allow them to enter a country (as opposed to being expelled from it).

At the same time, notwithstanding its professed keen in- terest in precedent, the Court seems to discount decisions supporting respondent’s view that habeas permitted re- lease from custody into the country. At least two other clas- ses of cases demonstrate that the writ was available from around the founding onward to noncitizens who were de- tained, and wanted to remain, including those who were prevented from entering the United States at all.

First, common-law courts historically granted the writ to discharge deserting foreign sailors found and imprisoned in the United States. In Commonwealth v. Holloway, 1 Serg. & Rawle 392 (1815), the Pennsylvania Supreme Court granted a writ of habeas corpus to a Danish sailor who had deserted his vessel in violation of both an employment con- tract and Danish law. The court explained that the deser- tion did not violate any domestic law or treaty, and thus imprisonment was inappropriate. Id., at 396 (opinion of Tilghman, C. J.). By ordering an unconditional discharge and declining to return the noncitizen sailor to the custody of any foreign power, the court used the writ to order a re- lease that authorized a noncitizen to remain in the United States, a country “other than his own.” Ante, at 16. The same was true in similar cases that even the Court cites. See ante, at 19 (citing Case of the Deserters from the British Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132 (Md. 1810) (reporting on a decision discharging deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86 (Pa. 1809) (same)).

Curiously, the Court does not contest that the writs in

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these cases were used to secure the liberty of foreign sailors, and consequently their right to enter the country.3 Rather, it remarks that judges at the time “chafed at having to or- der even release,” ante, at 19, which some saw as incon- sistent with principles of comity, Holloway, 1 Serg. & Rawle, at 394. But reluctance is not inability. That those judges followed the law’s dictates despite their distaste for the result should give today’s Court pause.

The Court seizes on one case where a court ordered a de- serting sailor to be returned to his foreign vessel-master. See ante, at 14, 19 (citing Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813)). But it reads too much into this one decision. In D’Olivera, the court held that de- serting sailors were unlawfully confined and granted a writ of habeas corpus, but directed that they be discharged to their vessel-master out of “a desire not to encourage deser- tion among foreign seamen.” Id., at 854. As illustrated by other deserter cases supra, the kind of results-oriented de- cisionmaking in D’Olivera does not seem to be the norm. The Court’s proclamation about how the scope of common- law habeas cannot hinge on a “single case” should have equal force here. Ante, at 18, n. 18.

Next, courts routinely granted the writ to release wrong- fully detained noncitizens into Territories other than the detainees’ “own.” Many involved the release of fugitive or former slaves outside their home State. In these cases, courts decided legal questions as to the status of these peti- tioners. In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct. 1784), for example, a Connecticut court determined that a former slave from New York held in local jail on his alleged master’s instructions had, in fact, been freed through his service in the Continental Army. The court ordered him

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3 Indeed, the Court highlights a striking similarity to the present asy-

lum challenge by observing that the foreign-deserter cases show the “use of habeas to secure release from custody when not in compliance with . . . statute[s] and relevant treaties.” Ante, at 21.

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discharged “upon the ground that he was a freeman, abso- lutely manumitted from his master by enlisting and serving in the army.” Id., at 93. See also In re Belt, 7 N. Y. Leg. Obs. 80 (1848) (granting habeas to discharge an imprisoned fugitive slave whose owner did not timely apply for his re- turn to Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (dis- charging person from custody on the grounds that he was not a fugitive slave subject to return to Missouri when he had been allowed to travel to the Iowa Territory by his for- mer master); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa. 1816) (holding on habeas corpus that a child born in a free State to a slave was free); In re Richardson’s Case, 20 F. Cas. 703 (No. 11,778) (CC DC 1837) (ordering prisoner to be discharged in the District of Columbia because war- rant was insufficient to establish that he was a runaway slave from Maryland); Commonwealth v. Griffith, 19 Mass. 11 (1823) (contemplating that the status of a freeman seized in Massachusetts as an alleged fugitive from Virginia could be determined on habeas corpus).

The weight of historical evidence demonstrates that com- mon-law courts at and near the founding granted habeas to noncitizen detainees to enter Territories not considered their own, and thus ordered the kind of release that the Court claims falls outside the purview of the common-law writ.

The Court argues that none of this evidence is persuasive because the writ could not be used to compel authorization to enter the United States. Ante, at 20. But that analogy is inapt. Perhaps if respondent here sought to use the writ to grant naturalization, the comparison would be closer. But respondent sought only the proper interpretation and application of asylum law (which statutorily permits him to remain if he shows a credible fear of persecution), or in the alternative, release pursuant to the writ (despite being cog- nizant that he could be denied asylum or rearrested upon release if he were found within the country without legal

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authorization). But that consequence does not deprive re- spondent of the ability to invoke the writ in the first in- stance. See, e.g., Lewis v. Fullerton, 22 Va. 15 (1821) (af- firming that a judgment on habeas corpus in favor of a slave was not conclusive of her rights but merely permitted re- lease from custody on the record before the court and did not prohibit recapture by a master); Ralph, 1 Morris, at 1 (noting that an adjudication that petitioner was not a fugi- tive only exempted him from fugitive-slave laws but did not prohibit master from entering Territory to reclaim him on his own accord).

For these reasons, the Court is wrong to dispute that com- mon-law habeas practice encompassed the kind of release respondent seeks here.

2

The Court also appears to contend that respondent sought merely additional procedures in his habeas adjudi- cation and that this kind of relief does not fall within the traditional scope of the writ. That reflects a misunder- standing of the writ. Habeas courts regularly afforded the state additional opportunities to show that a detention was lawful before ordering what the Court now considers a re- lease outright.

The common-law writ of habeas corpus ad subjiciendum evolved into what we know and hail as the “Great Writ.” See 3 W. Blackstone, Commentaries on the Laws of Eng- land 131 (1768). That writ, at bottom, allowed a court to elicit the cause for an individual’s imprisonment and to en- sure that he be released, granted bail, or promptly tried. See Oaks, Habeas Corpus in the States—1776–1865, 32 U. Chi. L. Rev. 243, 244 (1965). From its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee. Under the English Habeas Corpus Act of 1679, jailers were ordered to make a “return” to a writ within a designated

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time period and certify the true causes of imprisonment. Id., at 252–253. Justices of the King’s Bench obtained re- turns that provided full legal accounts justifying detention. Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 599–600 (2008) (Halliday & White). They also examined and were guided by depositions upon which a de- tention was founded to determine whether to admit a peti- tioner to bail. Oaks, 32 U. Chi. L. Rev., at 258. Indeed, the King’s Bench routinely considered facts not asserted in the return to assist scrutiny of detentions. Halliday & White 610; see also id., at 611 (documenting instances where the court would consider affidavits of testimony beyond what was included in the return).

Moreover, early practice showed that common-law ha- beas courts routinely held proceedings to determine whether detainees should be discharged immediately or whether the state could subject them to further proceed- ings, including trial in compliance with proper procedures. See Ex parte Bollman, 4 Cranch 75, 125 (1807) (taking tes- timony in conjunction with an “inquiry” to determine whether “the accused shall be discharged or held to trial”). In Ex parte Kaine, 14 F. Cas. 78 (No. 7,597) (CC SDNY 1853), for example, a federal court analyzed whether a pe- titioner, who had been found guilty of an offense by a com- missioner, was subject to extradition. The court passed on questions of law concerning whether the commissioner had the power to adjudicate petitioner’s criminality. Id., at 80. Ultimately, the court found that petitioner was “entitled to be discharged from imprisonment” due to defects in the pro- ceedings before the commissioner, but entertained further evidence on whether he could nevertheless be extradited. Id., at 82. Only after finding no additional evidence that would permit extradition did the court order release. Ibid.

Similarly, in Coleman v. Tennessee, 97 U. S. 509 (1879), the petitioner had been convicted of a capital offense by a

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state court, even though he had committed the offense while a soldier in the United States Army. Id., at 510–511. This Court granted habeas on the grounds that the state- court judgment was void but, because the petitioner had also been found guilty of murder by a military court, never- theless turned the prisoner over to the custody of the mili- tary for appropriate punishment. Id., at 518–520. Not sur- prisingly, then, the Court has found that habeas courts may discharge detainees in a manner that would allow defects in a proceeding below to be corrected. In re Bonner, 151 U. S. 242, 261 (1894).

These examples confirm that outright habeas release was not always immediately awarded. But they also show that common-law courts understood that relief short of release, such as ordering officials to comply with the law and to cor- rect underlying errors, nevertheless fell within the scope of a request for habeas corpus.4

3

Despite exalting the value of pre-1789 precedent, the Court’s key rationale for why respondent does not seek “re- lease” in the so-called traditional sense rests on an inappo- site, contemporary case: Munaf v. Geren, 553 U. S. 674 (2008).5 Ante, at 14. Munaf, the Court claims, shows that

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4 The Court considers irrelevant cases demonstrating that the execu-

tive was permitted to cure defects in detention because “the legality of [respondent’s] detention is not in question” here. Ante, at 17; see also ante, at 32–33 (acknowledging that it is “often ‘appropriate’ to allow the executive to cure defects in a detention” in habeas cases (quoting Boumediene, 553 U. S., at 779)). But as explained in Part I–A, supra, that is exactly what respondent questions by arguing that his detention violated governing asylum law.

5 Oddly, the Court embraces Munaf—a recent decision involving de- tainees held outside the territorial limits of the United States who were subject to prosecution by a foreign sovereign—to support its conclusion about the availability of habeas review. Yet at the same time, it dis- misses respondent’s reliance on Boumediene v. Bush, 553 U. S. 723 (2008), outright on the grounds that the case is “not about immigration

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habeas is not available to seek an order to be brought into this country. Ante, at 14. But that case is in a category of its own and has no bearing on respondent’s claims here. Munaf addressed a one-of-a-kind scenario involving the transfer of individuals between different sovereigns. There, two United States citizens in Iraq filed habeas petitions seeking to block their transfer to Iraqi authorities after be- ing accused of committing crimes and detained by Ameri- can-led coalition forces pending investigation and prosecu- tion in Iraqi courts. 553 U. S., at 679–680, 692. The central question, this Court repeatedly stated, was “whether United States district courts may exercise their habeas ju- risdiction to enjoin our Armed Forces from transferring in- dividuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.” Id., at 689; see also id., at 704.

In concluding that habeas did not extend to the relief sought by the citizens detained in Iraq, the Munaf Court relied on cases involving habeas petitions filed to avoid ex- tradition. Id., at 695–696 (citing Wilson v. Girard, 354 U. S. 524 (1957) (per curiam), and Neely v. Henkel, 180 U. S. 109 (1901)). These decisions, the Court concluded, established that American courts lack habeas jurisdiction to enjoin an extradition or similar transfer to a foreign sovereign exer- cising a right to prosecution. 553 U. S., at 696–697. These circumstances, which today’s Court overlooks, mean that Munaf is more like the extradition cases that the Court deems not “pertinent.” Ante, at 20.6

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at all.” Ante, at 32.

6 Nor is the Court correct in dismissing common-law extradition prec- edents as inapposite because they show “nothing more than the use of habeas to secure release from custody.” Ante, at 21. Indeed, these extra- dition cases demonstrate that the common-law writ encompassed exactly the kind of permission to remain in a country that the Court claims falls outside its scope. Ante, at 12, 14. In re Stupp, 23 F. Cas. 296 (No. 13,563) (CC SDNY 1875), which the Court cites in passing, emphatically af- firmed that habeas corpus was available to challenge detention pending

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In any event, respondent is not similarly situated to the petitioners in Munaf, who sought habeas to thwart removal from the United States in the face of a competing sover- eign’s interests. Mindful that the case implicated “sensitive foreign policy issues in the context of ongoing military op- erations,” the Munaf Court observed that granting habeas relief would “interfere with Iraq’s sovereign right to punish offenses against its laws committed within its borders.” 553 U. S., at 692 (internal quotation marks omitted); see also id., at 689, 694, 700. For that reason, it proceeded “‘with the circumspection appropriate when this Court is adjudi- cating issues inevitably entangled in the conduct of . . . in- ternational relations.’ ” Id., at 689, 692. Here, of course, no foreign sovereign is exercising a similar claim to custody over respondent during an ongoing conflict that would trig- ger the comity concerns that animated Munaf.

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extradition: “[T]he great purposes of the writ of habeas corpus can be maintained, as they must be. The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction . . . and had before him legal and competent evidence of facts whereon to pass judg- ment as to the fact of criminality, and did not arbitrarily commit the ac- cused for surrender.” Id., at 303. Although the Stupp court did not ulti- mately issue the writ, other courts have. See, e.g., Ex parte Kaine, 14 F. Cas. 78, 82 (No. 7,597) (CC SDNY 1853) (granting the writ to a pris- oner whose detention was “in consequence of illegality in the proceedings under the [extradition] treaty”); Pettit v. Walshe, 194 U. S. 205, 219–220 (1904) (affirming a grant of habeas where a prisoner’s detention violated the terms of an extradition treaty with Great Britain); In re Washburn, 4 Johns. Ch. 106, 114 (N. Y. 1819) (granting a habeas petition of a noncit- izen after a request for extradition); People v. Goodhue, 2 Johns. Ch. 198, 200 (N. Y. 1816) (releasing prisoner subject to possible interstate extra- dition). These extradition-related habeas cases show that the writ was undoubtedly used to grant release in the very direction—that is, away from a foreign country and into the United States—that the Court today derides. Indeed, the same scholar the Court cites makes the point that extradition specifically allowed courts to hear challenges to the Execu- tive’s ability to “detain aliens for removal to another country at the re- quest of [the] government.” Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998).

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C

Next, the Court casually dismisses nearly 70 years of precedent from the finality era, the most relevant historic period for examining judicial review of immigration deci- sions. It concludes that, in case after case, this Court exer- cised habeas review over legal questions arising in immi- gration cases akin to those at issue here, not because the Constitution required it but only because a statute permit- ted it. Ante, at 23–24. That conclusion is both wrong in its own right and repeats arguments this Court rejected a half century ago when reviewing this same body of cases.

At the turn of the 20th century, immigration to the United States was relatively unrestricted. Public senti- ment, however, grew hostile toward many recent entrants, particularly migrant laborers from China. In response, Congress enacted the so-called Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, which prohibited the entry of Chi- nese laborers to the United States. The Scott Act, ch. 1064, 25 Stat. 504, enacted in 1888, forbade reentry of Chinese laborers who had left after previously residing in this coun- try. Although immigration officials routinely denied entry to arriving migrants on the basis of these laws, many of these decisions were overturned by federal courts on habeas review. See, e.g., United States v. Jung Ah Lung, 124 U. S. 621 (1888).

This did not escape Congress’ attention. See Select Com- mittee on Immigration & Naturalization, H. R. Rep. No. 4048, 51st Cong., 2d Sess., 273–275 (1891) (documenting rate of reversal of immigration exclusion orders by Federal District Court in San Francisco). Congress responded by enacting the Immigration Act of 1891, which stripped fed- eral courts of their power to review immigration denials: “All decisions made by the inspection officers or their assis- tants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the

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superintendent of immigration, whose action shall be sub- ject to review by the Secretary of the Treasury.” Act of Mar. 3, 1891, §8, 26 Stat. 1085. By its terms, that restriction on federal judicial power was not limited to review of some un- defined subset of issues, such as questions of law or fact; it made executive immigration decisions final in all respects.

The Court, however, quickly construed the statute in Nishimura Ekiu v. United States, 142 U. S. 651 (1892) (Ekiu), to preclude only review of executive factfinding. Having so construed the statute, the Court in Ekiu, and in case after case following Ekiu, recognized the availability of habeas to review a range of legal and constitutional ques- tions arising in immigration decisions. The crucial question here is whether the finality-era Courts adopted that con- struction of jurisdiction-stripping statutes because it was simply the correct interpretation of the statute’s terms and nothing more or because that construction was constitu- tionally compelled to ensure the availability of habeas re- view. The better view is that Ekiu’s construction of the 1891 statute was constitutionally compelled.

In Ekiu, the Court recognized that a Japanese national was entitled to seek a writ of habeas corpus to review an exclusion decision issued almost immediately upon her ar- rival to the United States. As the Court notes, ante, at 26, the relevant issue in that case was whether the 1891 Act, “if construed as vesting . . . exclusive authority” in the Ex- ecutive to determine a noncitizen’s right to enter the United States, violated petitioner’s constitutional “right to the writ of habeas corpus, which carried with it the right to a deter- mination by the court as to the legality of her detention,” 142 U. S., at 656 (statement of the case). That is, the Ekiu Court confronted whether construing the 1891 Act as pre- cluding all judicial review of immigration decisions like the exclusion order at issue would violate the constitutional guarantee to habeas.

The Court answered that question by construing the 1891

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Act as precluding judicial review only of questions of fact. “An alien immigrant,” the Court first held, who is “pre- vented from landing [in the United States] by any [execu- tive] officer . . . and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” Id., at 660. The Court then explained that it had authority to hear the case (de- spite Congress’ clear elimination of judicial review) because it interpreted the 1891 Act as meaning only that an immi- gration official’s determination of “facts” was final and un- reviewable. Ibid. (explaining that Congress could entrust the final determination of facts to executive officers).

After so articulating the 1891 Act’s limits on judicial re- view, the Court analyzed two challenges to the integrity of the proceedings, neither of which raised questions of histor- ical fact. See id., at 662–663 (considering whether immi- gration officer’s appointment was unconstitutional such that his actions were invalid); id., at 663 (determining whether proceedings were unlawful because the officer failed to take sworn testimony or make a record of the deci- sion).7 Although the Court ultimately concluded that those legal and constitutional challenges lacked merit, id., at 662–664, what matters is that the Court evaluated the ar- guments and recognized them as possible grounds for ha- beas relief.

What, then, can Ekiu tell us? Today’s Court finds signif- icant that the brief opinion makes no explicit mention of the Suspension Clause. Ante, at 28. This omission, it con- cludes, can only mean that the Ekiu Court did not think that (or had no occasion to consider whether) the Suspen- sion Clause “imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus

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7 These claims are uncannily reminiscent of the kinds of claims re-

spondent advances here. See Parts II–A and II–B, supra.

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in immigration matters.” Ante, at 27. According to this the- ory, Ekiu concluded that the plain terms of the1891 Act pro- hibited judicial review of executive factfinding alone, and nothing more can be said.

But this myopic interpretation ignores many salient facts. To start, the 1891 Act was enacted for the purpose of limiting all judicial review of immigration decisions, not just a subset of factual issues that may arise in those deci- sions. Further, the plain terms of the statute did not cabin the limitation on judicial review to historical facts found by an immigration officer. Ekiu, moreover, evaluated the Act’s constitutionality in view of the petitioner’s argument that the limitation on judicial review violated the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (state- ment of the case). These considerations all point in one di- rection: Even if the Ekiu Court did not explicitly hold that the Suspension Clause prohibits Congress from broadly limiting all judicial review in immigration proceedings, it certainly decided the case in a manner that avoided raising this constitutional question. Indeed, faced with a jurisdic- tion-stripping statute, the only review left for the Ekiu Court was that required by the Constitution and, by exten- sion, protected by the guarantee of habeas corpus.

The Court also maintains that Ekiu concluded that “ ‘the act of 1891 is constitutional’” in full, not “only in part.” Ante, at 27 (quoting Ekiu, 142 U. S., at 664). Yet as the Court acknowledges, it was only “after interpreting the 1891 Act” as precluding judicial review of questions of fact alone that the Ekiu Court deemed it constitutional. Ante, at 26; see also Ekiu, 142 U. S., at 664 (concluding that “[t]he result” of its construction is that the 1891 Act “is constitu- tional”). That cannot mean that Ekiu found the 1891 Act constitutional even to the extent that it prevented all judi- cial review of immigration decisions, even those brought on habeas. What it can only mean, instead, is that Ekiu’s con-

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struction of the 1891 Act was an answer to the constitu- tional question posed by the case: whether and to what ex- tent denying judicial review under the 1891 Act would vio- late the constitutional “right to the writ of habeas corpus.” 142 U. S., at 656 (statement of the case).8

Bolstering this interpretation is that the Court has re- peatedly reached the same result when interpreting subse- quent statutes purporting to strip federal courts of all juris- diction over immigration decisions. In Gegiow v. Uhl, 239 U. S. 3 (1915), for example, the Court observed that Ekiu decided that “[t]he conclusiveness of the decisions of immi- gration officers under [the 1891 Act]” referred only to “con- clusiveness upon matters of fact.” 239 U. S., at 9. It relied heavily on Ekiu to support its determination that the Im- migration Act of 1907, 34 Stat. 898, which also rendered decisions of immigration officers to be “final,” §25, id., at 907, similarly only barred judicial review of questions of fact, 239 U. S., at 9. Indeed, time and again, against a back- drop of statutes purporting to bar all judicial review of ex- ecutive immigration decisions, this Court has entertained habeas petitions raising a host of issues other than historic facts found by immigration authorities.9

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8 The Court also claims that because Ekiu stated that the 1891 Act was

constitutional, respondent must be wrong that Ekiu found the 1891 Act “unconstitutional in most of its applications (i.e., to all questions other than questions of fact).” Ante, at 27. But the point here is not that Ekiu actually found the 1891 Act unconstitutional in part; it is that Ekiu in- terpreted the 1891 Act to avoid rendering it unconstitutional in part.

9 See, e.g., The Japanese Immigrant Case, 189 U. S. 86 (1903) (habeas petition filed by noncitizen alleged to have entered unlawfully and ap- prehended four days after being let on shore); Gonzales v. Williams, 192 U. S. 1 (1904) (habeas petition filed by resident of Puerto Rico detained at the port, who claimed that Puerto Rican nationals are United States citizens allowed to enter the mainland as a matter of course); United States ex rel. Turner v. Williams, 194 U. S. 279 (1904) (habeas petition by noncitizen found within the United States 10 days after entry alleging his arrest was unconstitutional); Chin Yow v. United States, 208 U. S. 8 (1908) (habeas petition filed by a Chinese individual with a claim of U. S.

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To be sure, this entrenched line of cases does not directly state that habeas review of immigration decisions is consti- tutionally compelled. But an alternate understanding of those cases rests on an assumption that is farfetched at best: that, year after year, and in case after case, this Court simply ignored the unambiguous texts of the serial Immi- gration Acts limiting judicial review altogether. The Court’s pattern of hearing habeas cases despite those stat- utes’ contrary mandate reflects that the Court understood habeas review in those cases as not statutorily permitted but constitutionally compelled.

In any event, we need not speculate now about whether the Ekiu Court, or the Courts that followed, had the consti- tutional right to habeas corpus in mind when they inter- preted jurisdiction-stripping statutes only to preclude re- view of historic facts. This Court has already identified which view is correct. In Heikkila v. Barber, 345 U. S. 229 (1953), the Court explained that Ekiu and its progeny had, in fact, construed the finality statutes to avoid serious con- stitutional questions about Congress’ ability to strip federal courts of their habeas power. As Heikkila reiterated, the key question in Ekiu (and in later cases analyzing finality statutes) was the extent to which the Constitution allowed Congress to make administrative decisions unreviewable. 345 U. S., at 234. And it concluded that the jurisdiction- stripping immigration statute in that case, a successor to

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citizenship who was detained on a steamship and prohibited from disem- barking); Yee Won v. White, 256 U. S. 399 (1921) (habeas petition filed on behalf of noncitizen wife and child denied admission to the United States upon arrival despite claiming legal right to join a family member residing in the country); Tod v. Waldman, 266 U. S. 113 (1924) (habeas petition by family fleeing religious persecution in Russia denied entry on the grounds that they were likely to become a public charge); United States ex rel. Polymeris v. Trudell, 284 U. S. 279 (1932) (habeas petition filed by residents of Greek ancestry who left the United States and sought reentry after a lengthy trip abroad).

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the 1891 Act, “preclud[ed] judicial intervention in deporta- tion cases except insofar as it was required by the Consti- tution.” Id., at 234–235.

Heikkila thus settles the matter; during the finality era, this Court either believed that the Constitution required ju- dicial review on habeas of constitutional and legal questions arising in immigration decisions or, at the very least, thought that there was a serious question about whether the Constitution so required. Although the Court tries to minimize that conclusion as not dispositive of the question presented, ante, at 29, such a conclusion undoubtedly weighs against finding §1252(e)(2) constitutional in spite of its broad prohibition on reviewing constitutional and legal questions.

The Court dismisses Heikkila and its explanation of the finality-era cases outright. It fixates on the fact that Heik- kila was not itself a habeas case and instead analyzed whether judicial review of immigration orders was availa- ble under the Administrative Procedure Act (APA). Ante, at 31–32. Heikkila’s discussion of the APA does not detract from its affirmation that when the language of a jurisdic- tion-stripping statute precludes all judicial review, the only review that is left is that required by the constitutional guarantee of habeas corpus. 345 U. S., at 235.10 Most im- portantly, Heikkila concluded that APA review was not equivalent to that judicial review. Second, the Court also

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10 Indeed, the Government itself embraced that position in a brief to

the Court during that time. Brief for Respondent in Martinez v. Neelly, O. T. 1952, No. 218, p. 19 (“The clear purpose of this [finality] provision was to preclude judicial review of the Attorney General’s decisions in al- ien deportation cases insofar as the Congress could do so under the Con- stitution”); id., at 33 (“[T]he courts have long recognized” the finality pro- visions “restric[t] review of deportation orders as far as the Constitution permits”); see also id., at 18 (explaining that the finality provisions “pre- cluded judicial review of deportation orders except for the collateral re- view in habeas corpus which the Constitution prescribes in cases of per- sonal detention”).

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states that Heikkila never interpreted Ekiu as having found the 1891 Act “partly unconstitutional.” Ante, at 32. But there was no need for the Ekiu Court to find the 1891 Act unconstitutional in part to construe it as prohibiting only review of historic facts. Instead, as Heikkila explained, Ekiu reached its decision by exercising constitutional avoid- ance.

By disregarding Heikkila, the Court ignores principles of stare decisis to stir up a settled debate. Cf. Ramos v. Loui- siana, 590 U. S. ___, ___, ___ (2020) (ALITO, J., dissenting) (slip op., at 1, 12). Perhaps its view is tinted by the fact that it doubts the Suspension Clause could limit Congress’ abil- ity to eliminate habeas jurisdiction at all. The Court scoffs at the notion that a limitation on judicial review would have been understood as an unconstitutional suspension of ha- beas, noting and distinguishing the limited number of occa- sions that this Court has found a suspension of the writ of habeas corpus. See ante, at 28–29; but see ante, at 7, n. 4 (THOMAS, J., concurring) (noting that historically, suspen- sions of habeas did not necessarily mention the availability of the writ). The references to those major historic mo- ments where this Court has identified a suspension only es- tablish the outer bounds of Congress’ suspension powers; it says nothing about whether, and to what extent, more lim- ited restrictions on judicial review might also be found un- constitutional.

Indeed, the Court acknowledges that some thought it an open question during the finality era whether the Suspen- sion Clause imposes limits on Congress’ ability to limit ju- dicial review. See ante, at 31, n. 25 (quoting Justice Brewer’s concurring opinion in United States ex rel. Turner v. Williams, 194 U. S. 279, 295 (1904), raising the question). That this question remained unsettled, see n. 1, supra, suf- fices to support the Court’s conclusion in Heikkila: The fi- nality-era Courts endeavored to construe jurisdiction-strip- ping statutes to avoid serious constitutional questions

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about the extent of congressional power to limit judicial re- view.

At bottom, the better view of the finality-era cases is that they understood the habeas right they sustained to be, or at least likely to be, constitutionally compelled. Certainly the cases do not establish the Court’s simplistic view to the con- trary: That the finality-era Court entertained habeas peti- tions only because no statute limited its ability to do so, and no Constitutional provision required otherwise. That read- ing of precedent disregards significant indications that this Court persistently construed immigration statutes strip- ping courts of judicial review to avoid depriving noncitizens of constitutional habeas guarantees. Ignoring how past courts wrestled with this issue may make it easier for the Court to announce that there is no unconstitutional suspen- sion today. But by sweeping aside most of our immigration history in service of its conclusion, the Court reopens a question that this Court put to rest decades ago, and now decides it differently. The cost of doing so is enormous. The Court, on its own volition, limits a constitutional protection so respected by our Founding Fathers that they forbade its suspension except in the direst of circumstances.

D

Not only does the Court cast to one side our finality-era jurisprudence, it skims over recent habeas precedent. Per- haps that is because these cases undermine today’s deci- sion. Indeed, both INS v. St. Cyr, 533 U. S. 289 (2001), and Boumediene v. Bush, 553 U. S. 723 (2008), instruct that eliminating judicial review of legal and constitutional ques- tions associated with executive detention, like the expe- dited-removal statute at issue here does, is unconstitu- tional.

The Court acknowledges St. Cyr’s holding but does not heed it. St. Cyr concluded that “‘[b]ecause of [the Suspen- sion] Clause some “judicial intervention in deportation

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cases” is unquestionably “required by the Constitution.”’” Ante, at 33 (quoting 533 U. S., at 300). This statement af- firms what the finality-era cases long suggested: that the Suspension Clause limits Congress’ power to restrict judi- cial review in immigration cases. Nor did St. Cyr arrive at this conclusion simply based on canons of statutory con- struction. The Court spoke of deeper historical principles, affirming repeatedly that “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the le- gality of Executive detention, and it is in that context that its protections have been strongest.” Id., at 301; see also id., at 305 (“The writ of habeas corpus has always been available to review the legality of Executive detention”). The Court looked to founding era cases to establish that the scope of this guarantee extended to both the “interpreta- tion” and “application” of governing law, including law that guided the exercise of executive discretion. Id., at 302.

Based on that history, the Court also concluded that “a serious Suspension Clause issue would be presented” by precluding habeas review in the removal context, id., at 305, even where there was “no dispute” that the Govern- ment had the legal authority to detain a noncitizen like St. Cyr, id., at 303. Thus based on the same principles that the Court purports to apply in this case, the St. Cyr Court reached the opposite conclusion: The Suspension Clause likely prevents Congress from eliminating judicial review of discretionary executive action in the deportation context, even when the writ is used to challenge more than the fact of detention itself.

Boumediene reprised many of the rules articulated in St. Cyr. It first confirmed that the Suspension Clause applied to detainees held at Guantanamo Bay, repeating the “un- controversial” proposition that “the privilege of habeas cor- pus entitles” an executive detainee to a “meaningful oppor- tunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.”

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553 U. S., at 779 (quoting St. Cyr, 533 U. S., at 302). Then the Court detailed the writ’s remedial scope. It affirmed that one of the “easily identified attributes of any constitu- tionally adequate habeas corpus proceeding” is that “the ha- beas court must have the power to order the conditional re- lease of an individual unlawfully detained.” 553 U. S., at 779. Notably, the Court explained that release “need not be the exclusive remedy,” reasoning that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circum- stances.” Ibid. (citing 3 W. Blackstone, Commentaries *131). The Court noted that any habeas remedy might be tempered based on the traditional test for procedural ade- quacy in the due process context and thus could accommo- date the “rigor of any earlier proceedings.” 553 U. S., at 781 (citing Mathews v. Eldridge, 424 U. S. 319, 335 (1976)).

The Court discounts these cases because it objects to the perceived direction of respondent’s requested release. Ante, at 32 (explaining that Boumediene did not suggest that the enemy combatant petitioners were entitled to enter the United States upon release). It similarly contends that re- spondent’s attempted use of the writ is “very different” from that at issue in St. Cyr. Ante, at 33.

Neither rejoinder is sound. St. Cyr and Boumediene con- firm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and le- gal challenges to executive action. They do not require re- lease as an exclusive remedy, let alone a particular direc- tion of release. Rather, both cases built on the legacy of the finality era where the Court, concerned about the constitu- tionality of limiting judicial review, unquestionably enter- tained habeas petitions from arriving migrants who raised the same types of questions respondent poses here. See, e.g., St. Cyr, 533 U. S., at 307 (citing United States ex rel. Accardi v. Shaughnessy, 347 U. S. 260 (1954) (habeas case

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attacking the denial of an application for suspension of de- portation); see also id., at 268 (“[W]e object to the Board’s alleged failure to exercise its own discretion, contrary to ex- isting valid regulations” (emphasis deleted))).

As discussed above, respondent requests review of immi- gration officials’ allegedly unlawful interpretation of gov- erning asylum law, and seeks to test the constitutional ad- equacy of expedited removal procedures. As a remedy, he requests procedures affording a conditional release, but cer- tainly did not so limit his prayer for relief. His constitu- tional and legal challenges fall within the heartland of what St. Cyr said the common-law writ encompassed, and Boumediene confirms he is entitled to additional procedures as a form of conditional habeas relief. These precedents themselves resolve this case.

***

The Court wrongly declares that §1252(e)(2) can preclude habeas review of respondent’s constitutional and legal chal- lenges to his asylum proceedings. So too the Court errs in concluding that Congress need not provide a substitute mechanism to supply that review. In so holding, the Court manages to flout precedents governing habeas jurispru- dence from three separate eras. Each one shows that re- spondent is entitled to judicial review of his constitutional and legal claims. Because §1252(e)(2) excludes his chal- lenges from habeas proceedings, and because the INA does not otherwise provide for meaningful judicial review of the Executive’s removal determination, respondent has no ef- fective means of vindicating his right to habeas relief. Quite simply, the Constitution requires more.

III

Although the Court concludes that habeas relief is not available because of the particular kind of release that it

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thinks respondent requests, it also suggests that respond- ent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings. By determining that respondent, a recent un- lawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no proce- dural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitu- tional question in a manner contrary to the text of the Con- stitution and to our precedents.

The Court stretches to reach the issue whether a noncit- izen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. See ante, at 34 (quoting 917 F. 3d, at 1111, n. 15). In so doing, the Court opines on a matter neither necessary to its holding nor se- riously in dispute below.11

The Court is no more correct on the merits. To be sure, our cases have long held that foreigners who had never come into the United States—those “on the threshold of in- itial entry”—are not entitled to any due process with re- spect to their admission. Shaughnessy v. United States ex rel. Mezei, 345 U. S. 206, 212 (1953) (citing Ekiu, 142 U. S., at 660); see also Landon v. Plasencia, 459 U. S. 21, 32 (1982). That follows from this Courts’ holdings that the po- litical branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States. Ante, at 35; see also Ekiu, 142 U. S., at 659.

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11 While the Court contends that the writ of habeas corpus does not

allow an individual to “obtain administrative review” or additional pro- cedures, it arrives at this conclusion only in the context of discussing what sorts of “relief ” properly qualified as release from custody at com- mon law. Ante, at 2, 14–16 (contrasting request for additional remedies with a “simple” release from custody). To the extent that this discussion necessarily prohibits federal courts from entertaining habeas petitions alleging due process violations in expedited removal proceedings, the Court’s separate discussion in Part IV is unnecessary.

Cite as: 591 U. S. ____ (2020) 35

SOTOMAYOR, J., dissenting

Noncitizens in this country, however, undeniably have due process rights. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court explained that “[t]he Fourteenth Amend- ment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the terri- torial jurisdiction, without regard to any differences of race, of color, or of nationality.” Id., at 369; Zadvydas v. Davis, 533 U. S. 678, 693 (2001) (reiterating that “once an alien enters the country,” he is entitled to due process in his re- moval proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).

In its early cases, the Court speculated whether a noncit- izen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.” The Japanese Immigrant Case, 189 U. S. 86, 100 (1903); see also ante, at 34 (quoting Ekiu, 142 U. S., at 660 (remarking that for those not “‘admitted into the country pursuant to law,’” the procedures afforded by the political branches are all that are due)). But the Court has since determined that presence in the country is the touch- stone for at least some level of due process protections. See Mezei, 345 U. S., at 212 (explaining that “aliens who have once passed through our gates, even illegally,” possess con- stitutional rights); Mathews v. Diaz, 426 U. S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdic- tion of the United States. The Fifth Amendment . . . pro- tects every one of these persons . . . . Even one whose pres- ence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection”). As a nonciti- zen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause.

In order to reach a contrary conclusion, the Court as- sumes that those who do not enter the country legally have

36 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial en- try,” skirting binding precedent by assuming that individu- als like respondent have “ ‘assimilated to [the] status’ ” of an arriving noncitizen for purposes of the constitutional anal- ysis. Mezei, 345 U. S., at 212, 214. But that relies on a legal fiction. Respondent, of course, was actually within the ter- ritorial limits of the United States.

More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law. But the Fifth Amendment, which of course long pre- dated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. Yick Wo, 118 U. S., at 369. The Court has repeatedly affirmed as much long after Congress began regulating entry to the country. Mathews, 426 U. S., at 77; Zadvydas, 533 U. S., at 693–694. The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the im- migration context does not dictate the scope of the Consti- tution.

In addition to creating an atextual gap in the Constitu- tion’s coverage, the Court’s rule lacks any limiting princi- ple. This is not because our case law does not supply one. After all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. See id., at 693–694; Mezei, 345 U. S., at 212.

Cite as: 591 U. S. ____ (2020) 37

SOTOMAYOR, J., dissenting

Perhaps recognizing the tension between its opinion to- day and those cases, the Court cabins its holding to individ- uals who are “in respondent’s position.” Ante, at 36. Pre- sumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all proce- dural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents.

This judicially fashioned line-drawing is not administra- ble, threatens to create arbitrary divisions between noncit- izens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution. Both the Constitution and this Court’s cases plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.12

IV

The Court reaches its decision only by downplaying the

——————

12 The Court notes that noncitizens like respondent seeking legal ad-

mission lack due process rights “‘regarding [their] application.’” Ante, at 34 (quoting Landon v. Plasencia, 459 U. S. 21, 32 (1982)). It does not, however, explain what kinds of challenges are related to one’s applica- tion and what kinds are not. Presumably a challenge to the length or conditions of confinement pending a hearing before an immigration judge falls outside that class of cases. Because respondent only sought prom- ised asylum procedures, however, today’s decision can extend no further than these claims for relief.

38 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

nature of respondent’s claims, ignoring a plethora of com- mon-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant prece- dents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly.

In some ways, this country’s asylum laws have repre- sented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecu- tion, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 875–876 (5th ed. 2009) (explaining that restric- tionist sentiments in the 1930s were fueled in part by the Great Depression). Yet this country has time and again re- affirmed its commitment to providing sanctuary to those es- caping oppression and persecution. Congress and the Ex- ecutive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In fact, a cen- terpiece of respondent’s claim is that officials were not fol- lowing these statutorily enacted procedures.

The volume of asylum claims submitted, pending, and granted has varied over the years, due to factors like chang- ing international migration patterns, the level of resources devoted to processing and adjudicating asylum applica- tions, and amendments to governing immigration laws. See

Cite as: 591 U. S. ____ (2020) 39

SOTOMAYOR, J., dissenting

Congressional Research Service, Immigration: U. S. Asy- lum Policy 25 (Feb. 19, 2019); see also Dept. of Homeland Security, Office of Immigration Statistics, 2018 Yearbook of Immigration Statistics 43 (2019) (Table 16) (“Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 to 2018” (quotation modified)). For the past few years, both new asylum applications and pending applications have steadily increased. Immigration: U. S. Asylum Policy, at 25.

It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated,13 delays in adjudi- cations are undesirable for a number of reasons. At bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for pro- tection and undermines the integrity of the regime as a whole. D. Meissner, F. Hipsman, & T. Aleinikoff, Migration Policy Institute, The U. S. Asylum System in Crisis: Chart- ing a Way Forward 4 (Sept. 2018).

But the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.14 Congress and the

——————

13 In 2018 Senate Judiciary Committee hearings, the Director of the

Executive Office of Immigration Review identified factors contributing to the backlog of cases, including lengthy hiring times for new immigration judges and the continued use of paper files. See Testimony of James McHenry, Strengthening and Reforming America’s Immigration Court System, Hearings before the Subcommittee on Border Security and Im- migration of the Senate Committee on the Judiciary, 115th Cong., 2d Sess., 2 (2018). The Court, meanwhile, insinuates that much of the bur- den on the asylum system can be attributed to frivolous or fraudulent asylum claims. See, e.g., ante, at 1, 7–8, nn. 9 and 10. But the magnitude of asylum fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 1034 (5th ed. 2009); Immigra- tion: U. S. Asylum Policy, at 28.

14 See, e.g., GAO, Immigration Courts: Actions Needed To Reduce Case Backlog and Address Long-Standing Management and Operational

40 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM

SOTOMAYOR, J., dissenting

Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and rou- tinely do so.15 Indeed, as the Court notes, the expedited re- moval process at issue here was created by law as one such measure to ease pressures on the immigration system. Ante, at 4.

In the face of these policy choices, the role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Con- gress are consistent with the limits of the Constitution. The Court today ignores its obligation, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional pol- icy concerns by easing the burdens under which the immi- gration system currently labors. But it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.

Because I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dis- sent.

——————

Challenges (GAO–17–438, June 2017); Uchimiya, A Blackstone’s Ratio for Asylum: Fighting Fraud While Preserving Procedural Due Process for Asylum Seekers, 26 Pa. St. Int’l L. Rev. 383 (2007); Martin, Reform- ing Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990).

15 P. Alvarez & G. Sands, Trump Administration Proposes Sweeping Changes to U. S. Asylum System in New Rule, CNN, June 10, 2020 (online source archived at www.supremecourt.gov).

Congratulations to Priscilla Alvarez and Geneva Sands of CNN, frequent contributors to “Courtside” for being cited by Justice Sotomayor in FN 15.

This November, vote like your life and everyone’s rights depend on it. Because they do!

PWS

06-25-48

SUZANNE MONYK @  LAW360:  Experts Say New Asylum Rule Unconstitutional Because It Guts Due Process🏴‍☠️, Effectively Repeals Asylum Statute, Will Result in Near 100% Denial Rate — While Denials & Illegal “Deportations to Death☠️” Will Soar, Asylum Seekers Not Likely to be Deterred From Coming, Meaning That Court Backlogs & Avoidable Litigation Will Continue to Mushroom!

Suzanne Monyak
Suzanne Monyak
Senior Reporter, Immigration
Law360

https://www.law360.com/articles/1282494/planned-asylum-overhaul-threatens-migrants-due-process

Analysis

Planned Asylum Overhaul Threatens Migrants’ Due Process

By Suzanne Monyak | June 12, 2020, 9:34 PM EDT

The Trump administration’s proposed overhaul of the U.S. asylum process, calling for more power for immigration judges and asylum officers, could hinder migrants’ access to counsel in an already fast-tracked immigration system.

The proposal, posted in a 161-page rule Wednesday night, aims to speed up procedures and raise the standards for migrants seeking protection in the U.S. at every step, while minimizing the amount of time a migrant has to consult with an attorney before facing key decisions in their case.

“It certainly sets a tone by the government that fairness, just basic day-in-court due process, is no longer valued,” said Shoba Sivaprasad Wadhia, director for the Center for Immigrants’ Rights Clinic at Penn State Law, University Park, Pennsylvania.

The proposed rule, which will publish in the Federal Register on Monday, suggests a slew of changes to the U.S. asylum system that immigrant advocates say would constitute the most sweeping changes to the system yet and cut off access for the majority of applicants.

Stephen Yale-Loehr, an immigration law professor at Cornell University Law School, said that it was as if administration officials took every precedential immigration appellate decision, executive order and policy that narrowed asylum eligibility under this administration and “wrapped them all in one huge Frankenstein rule that would effectively gut our asylum system.”

Among a litany of changes, the rule, if finalized, would revise the standards to qualify for asylum and other fear-based relief, including by narrowing what types of social groups individuals can claim membership in, as well as the very definitions of “persecution” and “torture.”

In doing so, the proposal effectively bars all forms of gender-based claims, for example, as well as claims from individuals fleeing domestic violence.

These tighter definitions and higher standards would make it difficult even for asylum-seekers who are represented to win their cases, attorneys said.

“I worry about how a rule like this can cause a chilling effect on private law firms, or even BigLaw, from even engaging with this work on a pro bono level because it’s just so challenging and this rule only puts up those barriers even more,” said Wadhia.

But for migrants without lawyers, the barrier to entry is particularly profound. For instance, the rule permits immigration judges to pretermit asylum applications, or deny an application that the judge determines doesn’t pass muster before the migrant can ever appear before the court.

This could pose real challenges for migrants who may not be familiar with U.S. asylum law or even fluent in English, but who are not guaranteed attorneys in immigration court.

“If you’re unrepresented, give me a break,” said Lenni B. Benson, a professor at New York Law School who founded the Safe Passage Project. “I don’t think my law students understand ‘nexus’ even if they’ve studied it,” she added, referring to the requirement that an individual’s persecution have a “nexus” to, or be motivated by, their participation in a certain social group.

Dree Collopy of Benach Collopy LLP, who chairs the American Immigration Lawyers Association‘s asylum committee, told Law360 that she thought the pretermission authority was the most striking attack on due process in the proposal, noting that some immigration judges have asylum denial rates of 90% or higher.

“Giving all judges the authority to end an asylum application with no hearing at all is pretty jaw-dropping,” she said. “Those 90%-denial-rate judges are doing that with the respondent in front of them who’s already testifying about the persecution they’ve suffered or their fear.”

The proposal also allows asylum officers, who are employed by U.S. Citizenship and Immigration Services and are not required to have earned law degrees, to deem affirmative asylum applications frivolous, and to do so based on a broader definition of “frivolous.”

Currently, applicants must knowingly fabricate evidence in an asylum application for it be deemed frivolous. But the proposal would lower that standard, while expanding the definition of “frivolous” to include applications based on foreclosed law or that are considered to lack legal merit.

The penalty for a frivolous application is steep. If an immigration judge agrees that the application is frivolous under the expanded term, the applicant would be ineligible for all forms of immigration benefits in the U.S. for making a weak asylum claim, Collopy said.

“And under the new regulation, everything is a weak application,” she added.

Benson also said that allowing asylum officers to deny applications conflicts with a mandate that those asylum screenings not be adversarial.

When consulting for the U.S. Department of Homeland Security during the Obama administration, Benson had once supported giving asylum officers more authority to grant asylum requests on the spot when migrants present with strong cases from the get-go. But with this proposal, DHS “took that idea,” but then went “the negative way,” she said.

. . . .

“I can’t even think of a single client I have right now that could get around this,” Collopy said.

“It’s a fairly well-crafted rule,” said Yale-Loehr. “They clearly have been working on this for months.”

But it may not be strong enough to ultimately survive a court challenge, he said.

The proposal was met with an onslaught of opposition from immigrant advocates and lawmakers, drawing sharp rebukes from Amnesty International, the American Immigration Council and AILA, as well as from House Democrats.

Rep. Jerrold Nadler, D-N.Y., who chairs the House Judiciary Committee, and Rep. Zoe Lofgren, D-Calif., who leads the committee’s immigration panel, slammed the proposal in a Thursday statement as an attempt “to rewrite our immigration laws in direct contravention of duly enacted statutes and clear congressional intent.”

If the rule is finalized — the timing is tight during an election year — attorneys said it would likely face a constitutional challenge alleging that it doesn’t square with the due process clause by infringing on an individual’s right to access the U.S. asylum system.

And while the administration will consider public feedback before the policy takes effect, attorneys said it could still be vulnerable to a court challenge claiming it violates administrative law.

Benson said the proposed rule fails to explain why its interpretation of federal immigration law should trump federal court precedent.

“They can’t just do it, as much as they might like to, with the wave of a magic wand called notice-and-comment rulemaking,” she said.

Yale-Loehr predicted a court challenge to the policy, if finalized, could go the way of DHS’ public charge rule, which was struck down by multiple lower courts, and recently by a federal court of appeals, but was allowed by the U.S. Supreme Court to take effect while lawsuits continued.

If the policy is in place for any amount of time, it will likely lead to migrants with strong claims for protection being turned away, attorneys said. But Yale-Loehr didn’t believe it would lead to fewer asylum claims.

“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”

–Editing by Kelly Duncan.

***********************

Read Suzanne’s full analysis at the above link.

Although nominally designed to address the current Immigration Court backlog by encouraging or even mandating summary denial without due process of nearly 100% of asylum claims, as observed in the article, the exact opposite is likely to happen with respect to backlog reduction.

As Professor Steve Yale-Loehr points out, finalization of these regulations would undoubtedly provoke a flood of new litigation. True, the Supreme Court to date has failed to take seriously their precedents requiring due process for asylum seekers and other migrants. But, enough lower Federal Courts have been willing to initially step up to the plate that reversals and remands for fair hearings before Immigration Judges will occur on a regular basis in a number of jurisdictions. 

This will require time-consuming “redos from scratch” before Immigration Judges that will take precedence on already backlogged dockets. It will also lead to a patchwork system of asylum rules pending the Supreme Court deciding what’s legally snd constitutionally required.

While based on the Court Majority’s lack of concern for due process, statutory integrity, and fundamental fairness for asylum seekers, particularly those of color, shown by the last few major tests of Trump Administration “constitutional statutory, and equal justice eradication” by Executive Order and regulation, one can never be certain what the future will hold. 

With four Justices who have fairly consistently voted to uphold or act least not interfere with asylum seekers’ challenges to illegal policies and regulations, a slight change in either the composition of the Court or the philosophy of the majority Justices could produce different results. 

As the link between systemic lack of equal justice under the Constitution for African Americans and the attacks on justice for asylum seekers, immigrants, and other people of color becomes clearer, some of the Justices who have enabled the Administration’s xenophobic anti-immigrant, anti-asylum programs might want to rethink their positions. That’s particularly true in light of the lack of a sound factual basis for such programs. 

As good advocates continue to document the deadly results and inhumanity, as well as the administrative failures, of the Trump-Miller White nationalist program, even those justices who have to date been blind to what they were enabling might have to take notice and reflect further on both the legal moral obligations we owe to our fellow human beings.

In perhaps the most famous Supreme Court asylum opinion, INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987), Justice Stevens said: 

If one thing is clear from the legislative history of the new definition of “refugee,” and indeed the entire 1980 Act, it is that one of Congress’ primary purposes was to bring United States refugee law into conformance with the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No. 6577, to which the United. States acceded in 1968.

These proposed regulations are the exact opposite: without legislation, essentially repealing the Refugee Act of 1980 and ending  U.S. compliance with the international refugee and asylum protection instruments to which we are party. Frankly, today’s Court majority appears, without any reasonable explanation, to have drifted away from Cardoza’s humanity and generous flexibility in favor of endorsing and enabling various immigration restrictionist schemes intended to weaponize asylum laws and processes against asylum seekers. But, are they really going to allow the Administration to overrule (and essentially mock) Cardoza by regulation? Perhaps, but such fecklessness will have much larger consequences for the Court and our nation.

Are baby jails, kids in cages, rape, beating, torture, child abuse, clearly rigged biased adjudications, predetermined results, death sentences without due process, bodies floating in the Rio Grande, and in some cases assisting femicide, ethnic cleansing, and religious and political repression really the legacy that the majority of today’s Justices wish to leave behind? Is that how they want to be remembered by future generations? 

Scholars and well-respected legal advocates like Professor Shoba Sivaprasad Wadhia, Professor Stephen Yale-Loehr, Professor Lenni Benson, and Dree Collopy have great expertise in immigration and asylum laws and an interest in reducing backlogs and creating functional Immigration Courts consistent with due process and Constitutional rights. Like Professor Benson, they have contributed practical ideas for increasing due process while reducing court backlogs. Instead of turning their good ideas, like “fast track grants and more qualified representation of asylum seekers, on their heads, why not enlist their help in fixing the current broken system?

We need a government that will engage in dialogue with experts to solve problems rather than unilaterally promoting more illegal, unwise, and inhumane attacks on, and gimmicks to avoid, the legal, due process, and human rights of asylum seekers. 

As Professor Yale-Loehr presciently says at the end of Suzanne’s article:

“If you’re fleeing persecution, you’re not stopping to read a 160-page rule,” he said. “You’re fleeing for your life, and no rule is going to change that fact.”

Isn’t it time for our Supreme Court Justices, legislators, and  policy makers to to recognize the truth of that statement and require our asylum system and our Immigration Courts to operate in the real world of refugees?

Due Process Forever! Complicity Never!

PWS

06-16-20

KAKISTOCRACY KORNER: FRAUD, WASTE, & ABUSE UNDER THE EOIR BIG TOP 🤡🎪🤹‍♂️ — TRAC DECLARES EOIR’S BOGUS STATISTICS TO BE NATIONAL DISASTER! ☠️— “The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities.”🤮  — WHERE’S THE OVERSIGHT? WHERE’S THE ACCOUNTABILITY? 

https://trac.syr.edu/immigration/reports/611/

EOIR’s Data Release on Asylum So Deficient Public Should Not Rely on Accuracy of Court Records

TRAC has concluded that the data updated through April 2020 it has just received on asylum and other applications for relief to the Immigration Courts are too unreliable to be meaningful or to warrant publication. We are therefore discontinuing updating our popular Immigration Court Asylum Decisions app, and will take other steps to highlight this problem[1]. We also wish to alert the public that any statistics EOIR has recently published on this topic may be equally suspect, as will be any future reports the agency publishes until these major data deficiencies are explained and rectified[2].

The EOIR’s apparent reckless deletion of potentially irretrievable court records raises urgent concerns that without immediate intervention the agency’s sloppy data management practices could undermine its ability to manage itself, thwart external efforts at oversight, and leave the public in the dark about essential government activities. Left unaddressed, the number of deleted records will compound each month and could trigger an expensive data crisis at the agency. And here the missing records are the actual applications for asylum, and how the court is handling them. This is a subject on which there is widespread public interest and concern.

EOIR Data Irregularities Approaching Point of No Return

Despite TRAC’s appeals to the EOIR, Immigration Court records continue to disappear each month. TRAC initially reported 1,507 missing applications for relief in our October 2019 report, which grew to 3,799 missing applications the following month. We wrote EOIR Director James McHenry providing a copy of the 1,507 missing applications asking for answers on why these records were missing from their files. We wrote again when the number of missing applications more than doubled the following month. These letters were met with silence. Not only have these cases disappeared entirely, they have not been restored in any subsequent data releases and the number of missing relief applications continue to grow. (See the final section for a short explanation of TRAC’s methodology.)

Alarmingly, the number of relief applications that were present in the March 2020 data release but were missing in the April release jumped to 68,282. This is just the number of records that disappeared over a single month. It does not include the ever growing number of applications that had previously disappeared month-by-month. As was true in past months, roughly four out of five of the records in the March 2020 release that disappeared from April’s release concerned applications on which the court had rendered its decision, including many cases in which the immigration judge had granted asylum as well as other forms of relief.

To put that into perspective, the number of missing cases just last month is more than the 63,734 asylum applications received by the Immigration Courts during all of FY 2015. If these applications are missing because they have been deleted from the Court’s own master files, the magnitude of the task of restoring just this single month’s destruction—assuming this is even possible—is enormous. To go back and restore the cumulative number of relief applications that went missing during previous months will obviously be even greater.

In fact, so many asylum decisions were dropped from EOIR’s April release that the cumulative number of asylum decisions went down, not up, despite asylum decisions continuing to be made. The volume of disappearing records has reached a scale that little faith can be placed in the factual accuracy of reports published by the EOIR based on its data.

The EOIR’s escalating data problems should raise dire concerns for Congress, policymakers and the public who routinely put their faith in federal agencies to provide complete and accurate information about their work. Indeed, the management of the court system itself, including the quota system recently imposed on immigration judges, presupposes the accuracy of the court’s own records. It is deeply worrisome that the EOIR and the Department of Justice appear unconcerned with ensuring that their own records are accurate and uncommitted to providing the public with accurate and reliable data about the Court’s operations.

TRAC Urges EOIR to Take Immediate Action

To date, the EOIR has not responded to TRAC’s requests for an explanation of these disappearances, nor has the EOIR responded to TRAC’s FOIA requests for records that would shed light on this matter.

Therefore, TRAC has written a third letter to Director McHenry reporting our findings of 68,282 new disappearances and we are again seeking a commitment from him to take the steps needed to address the problem. More urgently, we are asking that the EOIR immediately preserve—rather than destroy—all back-up tapes or other media in the hopes that records apparently improperly deleted from the Court’s master files might be restored. We assured Director McHenry that we would be more than happy to work cooperatively with the agency to help them better ensure that going forward the public is provided with more accurate and reliable data about the Immigration Court’s operations.

How EOIR’s Data Mismanagement Impacts TRAC’s Immigration Court Tools

TRAC’s mission is to provide the public with accurate, reliable, unbiased, and timely data on the operations of the federal government, and to ensure that the public is informed about changes that impact our data.

The EOIR’s disappearing records fall under the data related to applications for relief. The record on the existence of the court case itself is present, but for a growing number of these cases there now is no record that the immigrant ever applied for relief, or the court’s decision on that application. One of the key moments in the life of the case—including applications for asylum—is missing entirely. As a direct consequence TRAC does not have the information needed to provide reliable or meaningful updates on the court’s handling of applications for asylum and must therefore discontinue updating its asylum decision app.

While each of the other files in EOIR’s monthly data releases also have the same problem of records disappearing, the magnitude of these disappearances has not reached the levels seen with applications for relief. While still worrisome, these levels have not yet climbed to where we believe we can no longer use the information we receive. Thus, we are continuing to update the rest of our other Immigration Court apps. We continue to closely monitor the situation, while we urge EOIR to explain why records keep disappearing. We further continue to ask the agency to take the steps needed to rectify the situation.

TRAC will continue to retain all previous and future EOIR data shipments for research purposes.

How did TRAC Identify the EOIR’s Data Irregularities?

The Executive Office for Immigration Review (EOIR) oversees the nationwide Immigration Court system, including more than 60 physical Immigration Court locations (as well as many more remote hearing locations including teleconference sites and ad hoc “tent” courts), hundreds of Immigration Judges, and millions of immigration cases that pass through the court system. The EOIR records information on each case and tracks various proceedings, filings, hearings and other aspects of each case in a large database. This database is central to the Court’s ability to manage its workload, prepare and publish reports for the public, and respond to queries from Congress about its operations. It is also used in implementing new practices, including the recent decision to impose new evaluation criteria for Immigration Judges.

As a result of TRAC’s ongoing FOIA requests, the EOIR releases a large batch of anonymized Immigration Court data each month that provides a snapshot of a great deal of the information recorded in this database on the handling of each case. In short, TRAC does not create data on the EOIR; rather, TRAC’s uses the EOIR’s own data. This data is the foundation for TRAC’s Immigration Court data tools which help ensure transparency and accountability for the American public.

TRAC used this data to precisely identify deleted records. While the information TRAC receives does not identify individuals, EOIR’s computer system assigns a unique computer sequence number to each case that identifies it. Because TRAC receives comprehensive data shipments from the EOIR each month that include these unique computer-assigned tracking numbers, TRAC can match each record received in the previous month with the same corresponding record in the following month’s release. Each release is also cumulative. That means it should include every record from the previous month plus every new record that has been added to the database over the course of the current month. As a rule, records should therefore never disappear[3].

When a record that was present is not included in the next month’s release, TRAC refers to these as missing or disappearing records. Because humans maintain most databases including EOIR’s, mistakes will occur. Therefore no database is ever perfect. So a few disappearing records might be expected. However, as is the situation here, concern is warranted whenever significant numbers of records disappear. Indeed, alarm bells should ring as the number of disappearing records grow. This situation means the data can no longer be trusted to reliably track the court’s proceedings.

Footnotes

[1] EOIR monthly releases consist of a series of tables covering different aspects of its workload. While each of these tables continue to have disappearing records each month, the magnitude of these missing records varies by table. For example, in the table that tracks each case before the court there were 228 cases present in March that disappeared from the April release, compared with 41,233 new cases that were added. While the problem of disappearing case records remains very troubling for the case table along with each of the other EOIR tables, TRAC believes that their magnitudes do not rise to the same level as the problem for applications for relief where the data now are so unreliable and misleading that they do not warrant the public placing any trust in them. At this time, we therefore are continuing to update our other Immigration Court apps while alerting the public to this continuing serious problem that affects the reliability of EOIR data releases more generally.

[2] For an example of a recent EOIR publication that may contain significant data errors, see the graph and table reporting total asylum applications through March 2020, which was generated using data from April 2020: https://www.justice.gov/eoir/page/file/1106366/download.

[3] Even when a data entry error is made, the database has special codes to indicate that a record should be disregarded because it was a data entry error so that rarely is it necessary to actually delete records.

TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.

. . . .

**************

Read the rest of TRAC’s report at the link.

EOIR isn’t willing and able to do its only function: provide fair, impartial, and timely adjudications to asylum seekers and other migrants while following best judicial practices. 

But they do have time to waste taxpayers’ money on nonsense like the chart at this link:  https://www.justice.gov/eoir/file/1217001/download. This was obviously designed to further the Trump regime’s false narrative regarding the merits of asylum claims. While the chart is largely incomprehensible, misleading nonsense, what stands out is this:

At the end of an abusive process during which the law has been illegally skewed against asylum seekers and “judges,” most of whom are not experts in asylum law and who have never even represented an asylum seeker, are encouraged to deny meritorious claims for protection, against the odds, over 25% (12 of 47)  of those who actually get through this biased dysfunctional mess still get asylum!

It’s reasonable to believe that under a fair system, with impartial decision makers who have expertise in asylum law, and without the interference of biased, overtly anti-asylum politicos like Sessions and Barr, asylum seekers would succeed the majority of the time, as they did before efforts by both the Obama and Trump Administrations to “ratchet down” asylum grants so that the EOIR system would serve DHS Enforcement as a “deterrent” to those seeking protection.

Obviously, the DOJ is afraid that under a fair, independent judicial system that actually employed judges who were experts in asylum law and who had real life experience representing asylum applicants, the majority of claims would be granted, thereby exposing the fraud, dishonesty, and misconduct involved in the present anti-asylum system.

It’s a national disgrace that is actually harming and sometimes killing those deserving of protection under our law.

Due Process Forever! Dishonest, Unethical, Incompetent, and Intentionally Biased “Courts” Never!

PWS

06-04-20

“GOOD ENOUGH FOR GOVERNMENT WORK?” — Any Ol’ Notice Will Do! — BIA Continues To “Fill In The Blanks” In Aid Of “Partners” @ DHS Enforcement — MATTER OF HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

EYORE
“Eyore In Distress”
Once A Symbol of Fairness, Due Process, & Best Practices, Now Gone “Belly Up”

Matter of  HERRERA-VASQUEZ, 27 I&N DEC. 825 (BIA 2020)

https://www.justice.gov/eoir/page/file/1274901/download

BIA HEADNOTE:

The absence of a checked alien classification box on a Notice to Appear (Form I-862) does not, by itself, render the notice to appear fatally deficient or otherwise preclude an Immigration Judge from exercising jurisdiction over removal proceedings, and it is therefore not a basis to terminate the proceedings of an alien who has been returned to Mexico under the Migrant Protection Protocols. Matter of J.J. Rodriguez, 27 I&N Dec. 762 (BIA 2020), followed.

PANEL: BEFORE: Board Panel: MANN, Board Member; MORRIS,* Temporary Board Member; Concurring Opinion: KELLY, Board Member.

* Immigration Judge Daniel Morris, Hartford CT Immigration Court, Temporary Board Member/Appellate Immigration Judge

OPINION BY: Judge Ana Mann

*******************************

The lesson of this case: The DHS intentionally puts superfluous information on its form NTA so it doesn’t make any difference whether they fill it in or not. The BIA is there to “fill in the blanks” and help their DHS buddies rack up maximo removals, preferably without in person hearings because it’s faster and helps fulfill “quotas,” under the Let ‘Em Die in Mexico Program (a/k/a “jokingly” as the “Migrant ‘Protection’ Protocols” (“MPP”) — which, of course, serve to intentionally endanger and discourage, not protect, asylum seekers). 

This follows Matter of J.J. Rodriguez where the BIA found that the DHS wasn’t required to put a usable mailing address for the respondent on the NTA. I can only imagine what would have happened in the Arlington Immigration Court if a respondent had given me “Fairfax County, Virginia, USA” as his one and only address! The former is actually probably a “better” address than “Known Domicile, Tijuana, Baja California, Mexico” which was used in this case. What a farce! But, of course, it’s not very funny when it’s your life, or that of a loved one or client that is going down the tubes☠️.

There actually is an old legal axiom of construing problems against the drafter of a document, particularly when the drafter is in a more powerful position than the recipient. It even has a fancy legal name: Contra proferentem. But, today’s EOIR follows a much simpler maxim: The respondent always loses, particularly in precedent decisions.

I suppose at some point the BIA will be called upon to enter an in absentia removal order in a case where the NTA is blank except for the respondent’s name. I have no doubt, however, that they will be “up to the job.”

To his credit, Judge Edward Kelly entered a brief “concurring opinion” specifically noting that the statutory or constitutional authority for the so-called MPP was not at issue. In plain terms, that means, thanks in large measure to a complicit Supremes’ majority, even if that program, certainly a illegal and unconstitutional hoax, were later found to be unconstitutional, it would be far too late for those already removed, extorted, kidnapped, maimed, tortured, sickened 🤮, or dead ⚰️ thereunder. But, of course, the BIA, like Trump himself, will take no responsibility for any of the deadly fallout of their actions.

Great way to run a government! But, it’s the “New America” under Trump. Most of those in a position to stop the abuse merely shrug their shoulders, look the other way, and plug their ears so as not to have their serenity and complicity, as well as their paychecks, bothered by the screams and fruitless pleas of the abused. Except, of course, for true sadists ☠️ like Stephen Miller and his White Nationalist cronies 🏴‍☠️ who actually “get off” on the death, ⚰️ torture, abuse, and suffering of “others” they believe to be of “inferior stock” and therefore deserving of dehumanization and death⚰️.

Meanwhile, back at the ranch, the BIA is advertising for an additional Vice Chair/Deputy Chief  Appellate Judge to help insure that the deportation assembly line in Falls Church moves smoothly and that due process and fundamental fairness never get in the way of enforcement. https://www.justice.gov/legal-careers/job/deputy-chief-appellate-immigration-judge-vice-chair

Apparently, the “Tower Rumor Mill” @ EOIR HQ says that Acting Chief Immigration Judge Christopher Santoro will soon be replaced by a permanent Chief Immigration Judge hand selected from among DOJ political hacks by none other than one of the American taxpayers’ most highly paid, unelected White Nationalists, White House Advisor Stephen Miller. The name of Gene Hamilton, like Miller an uber restrictionist former sidekick of “Gonzo Apocalypto” Sessions, still kicking around the DOJ, has been bandied about. However, other parts of the “rumor mill” have expressed skepticism about whether Hamilton really wants the job. He might be able to score more “kills” from his current job, whatever it is.

Stay tuned! In the absence of a functioning Congress or a courageous Federal Judiciary, the “killing fields”⚰️⚰️⚰️⚰️⚰️👎 are just getting rolling @ EOIR. Under the Trump regime, EOIR is now on a breakneck pace to write one of the most dismal, disgusting🤮, and disturbing 😰chapters in modern American legal history involving a catastrophic failure of integrity, courage, and humanity spanning all three rapidly disintegrating branches of our flailing democracy.

Due Process Forever! Complicity Never!

PWS

05-13-20

DUE PROCESS WINS IN THE WEST: Split 9th Cir. Slams DOJ’s Vile/Unethical “No Due Process Due” Argument — Orders Bond Hearings For Asylum Applicants Who Passed Credible Fear — Padilla v. ICE — Round Table Amicus Brief Helps Save Due Process!

Padilla v. ICE

Padilla v. ICE, 9th Cir., 03-27-20, published

SUMMARY BY COURT STAFF:

SUMMARY* Immigration

Affirming in part, and vacating and remanding in part, the district court’s preliminary injunction ordering the United States to provide bond hearings to a class of noncitizens who were detained and found to have a credible fear of persecution, the panel affirmed the injunction insofar as it concluded that plaintiffs have a due process right to bond hearings, but remanded for further findings and reconsideration with respect to the particular process due to plaintiffs.

The district court certified a nationwide class of all detained asylum seekers who were subject to expedited removal proceedings, were found to have a credible fear of persecution, but were not provided a bond hearing with a record of hearing within seven days of requesting a hearing. Part A of the district court’s modified preliminary injunction provided: 1) bond hearings must take place within seven days of a class member’s request, or the member must be released; 2) the burden of proof is on the government to show why the

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

    

4 PADILLA V. ICE

member should not be released; and 3) the government must produce recordings or verbatim transcripts of the hearings, as well as written decisions. Part B concluded that the class is constitutionally entitled to bond hearings. A motions panel of this court previously denied the government’s request to stay Part B, but granted the stay as to Part A.

The panel concluded that the district court did not abuse its discretion in concluding that plaintiffs were likely to prevail on their due process claim, explaining that immigration detention violates the Due Process Clause unless a special justification outweighs the constitutionally protected interest in avoiding physical restraint. The panel also concluded that the district court did not abuse its discretion in finding that other processes—seeking parole from detention or filing habeas petitions—were insufficient to satisfy due process. The panel further rejected the government’s suggestion that noncitizens lack any rights under the Due Process Clause, observing the general rule that once a person is standing on U.S. soil—regardless of the legality of entry—he or she is entitled to due process.

The panel next concluded that the district court did not abuse its discretion in its irreparable harm analysis, noting substandard physical conditions and medical care in detention, lack of access to attorneys and evidence, separation from family, and re-traumatization. The panel also concluded that the district court did not abuse its discretion in finding that the balance of the equities and public interest favors plaintiffs, explaining that the district court weighed: 1) plaintiffs’ deprivation of a fundamental constitutional right and its attendant harms; 2) the fact that it is always in the public interest to prevent constitutional violations; and 3) the

 

PADILLA V. ICE 5

government’s interest in the efficient administration of immigration law.

As to Part A of the injunction, the panel concluded that the record was insufficient to support the requirement of hearings within seven days, and that the district court made insufficient findings as to the burdens that Part A may impose on immigration courts. The panel also noted that the number of individuals in expedited removal proceedings may have dramatically increased since the entry of the injunction. Thus, the panel remanded to the district court for further factual development of the preliminary injunction factors as to Part A.

The panel also rejected the government’s argument that the district court lacked authority to grant injunction relief under 8 U.S.C. § 1252(f)(1), which provides: “no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of [8 U.S.C. §§ 1221–1232], other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.” Examining the relevant precedent, statutory scheme, and legislative history, the panel concluded that here, where the class is composed of individual noncitizens, each of whom is in removal proceedings and facing an immediate violation of their rights, and where the district court has jurisdiction over each individual member of that class, classwide injunctive relief is consistent with congressional intent.

Finally, the panel concluded that the district court did not abuse its discretion in granting the injunction as to the nationwide class. However, the panel directed that, on

 

6 PADILLA V. ICE

remand, the district court must also revisit the nationwide scope.

Dissenting, Judge Bade wrote that 8 U.S.C. § 1252(f)(1) barred injunctive relief in this case, concluding that the majority’s opinion does not square with the plain text of § 1252(f)(1), is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split with the Sixth Circuit. Judge Bade further wrote that, even if the district court had jurisdiction to issue injunctive relief, the preliminary injunction is overbroad and exceeds what the constitution demands. Judge Bade would vacate the preliminary injunction and remand for further proceedings with instructions to dismiss the claims for classwide injunctive relief.

PANEL: Sidney R. Thomas, Chief Judge, and Michael Daly Hawkins and Bridget S. Bade, Circuit Judges.

OPNION BY: Chief Judge Sydney R. Thomas

DISSENTING OPINION: Judge Bridget S. Bade

KEY QUOTE FROM MAJORITY OPINION:

The government also suggests that non-citizens lack any rights under the Due Process Clause. As we have discussed, this position is precluded by Zadvydas and its progeny. The government relies on inapposite cases that address the peculiar constitutional status of noncitizens apprehended at a port-of-entry, but permitted to temporarily enter the United States under specific conditions. See, e.g., Shaughnessy v. United States ex rel. Mezei (“Mezei”), 345 U.S. 206, 208–09, 213–15 (1953) (noncitizen excluded while still aboard his ship, but then detained at Ellis Island pending final exclusion proceedings gained no additional procedural rights with respect to removal by virtue of his “temporary transfer from ship to shore” pursuant to a statute that “meticulously specified that such shelter ashore ‘shall not be considered a landing’”); Leng May Ma v. Barber, 357 U.S. 185 (1958) (noncitizen paroled into the United States while waiting for a determination of her admissibility was not “within the United States” “by virtue of her physical presence as a parolee”); Kaplan v. Tod, 267 U.S. 228 (1925) (noncitizen excluded at Ellis Island but detained instead of being deported immediately due to suspension of deportations during World War I “was to be regarded as stopped at the boundary line”).

Indeed, these cases, by carving out exceptions not applicable here, confirm the general rule that once a person is standing on U.S. soil—regardless of the legality of his or her entry—he or she is entitled to due process. See, e.g., Mezei, 345 U.S. at 212 (“[A]liens who have once passed

PADILLA V. ICE 25

through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Leng May Ma, 357 U.S. at 187 (explaining that “immigration laws have long made a distinction between those aliens who have come to our shores seeking admission . . . and those who are within the United States after an entry, irrespective of its legality,” and recognizing, “[i]n the latter instance . . . additional rights and privileges not extended to those in the former category who are merely ‘on the threshold of initial entry’” (quoting Mezei, 345 U.S. at 212)); Kwai Fun Wong v. United States, 373 F.3d 952, 973 (9th Cir. 2004) (explaining that “the entry fiction is best seen . . .as a fairly narrow doctrine that primarily determines the procedures that the executive branch must follow before turning an immigrant away” because “[o]therwise, the doctrine would allow any number of abuses to be deemed constitutionally permissible merely by labelling certain ‘persons’ as non-persons”). We thus conclude that the district court did not err in holding that plaintiffs are “persons” protected by the Due Process Clause.

*******************************

First, and foremost, let’s give a big vote of appreciation to the All-Star Team at Wilmer Cutler who represented our Round Table on this:

Alan Schoenfeld and Lori A. Martin, Wilmer Cutler Pickering Hale and Dorr LLP, New York, New York; Rebecca Arriaga Herche, Wilmer Cutler Pickering Hale and Dorr LLP, Washington, D.C.; Jamil Aslam, Wilmer Cutler Pickering Hale and Dorr LLP, Los Angeles, California; for Amici Curiae Retired Immigration Judges and Board of Immigration Appeals Members.

Alan Schoenfeld
Alan Schoenfeld
Partner
Wilmer Cutler, NY
Lori a. Martin
Lori A. Martin
Partner
Wilmer Cutler, NY
Knjightess
Knightess of the Round Table

This team is it’s own “Special Forces Brigade” of the New Due Process Army (“NDPA”)!

WOW! Persons are “persons” under the Constitution even when they have brown skins and are asylum seekers! How “rad” can you get! What a blow to “business as usual” for the regime and their “Dred Scottification” program of dehumanizing and making non-persons out of migrants and other vulnerable minorities!

Too bad that the Supremes and other Circuit Courts have too often advanced “Dred Scottification,” hiding behind transparently bogus and contrived “national emergencies” and the doctrine of judicial dereliction of duty otherwise known as “Chevron deference.” I guess that’s why the regime has the contempt for both the law and the Article III Courts to press such legally, morally, and Constitutionally “bankrupt” arguments as they did in this case. Never know when you’ll get a “thumbs up” from those who sometimes don’t view oaths of office and their obligations to their fellow humans with enough seriousness!

Significantly, the panel found that “plaintiffs were likely to succeed on their claim that they are constitutionally entitled to individualized bond hearings before a “neutral decisionmaker.” However, in doing so they “papered over” the obvious fact that the constitutional requirement of a “neutral decisionmaker” cannot be fulfilled as long as Billy Barr or other politicos control the Immigration Courts! 

Indeed, the panel decision was a strong rebuke of Barr’s atrocious, unethical, scofflaw decision in Matter of M-S-, 27 I&N Dec. 509 (A.G. 2019) purporting to unilaterally change the rules to eliminate bond for those who had passed “credible fear.” Fact is that no individual appearing in today’s Immigration Courts has access to the constitutionally-required “neutral decisionmaker” because Barr retains the ability to simply unilaterally change any result that doesn’t match his White Nationalist nativist agenda and can hire and fire the so-called “judges” at will.

Indeed, under Barr’s totally illegal and professionally insulting “production quotas,” I’m not sure that the “judges” on the “deportation assembly line” even get “production credit” for bond decisions because they aren’t “final orders of removal.” However, denial of bond is actually an important “whistle stop” on the “deportation express.” Those kept in the “New American Gulag” have difficulty finding attorneys and the systematic mistreatment they receive in detention helps to demoralize them and coerce them into giving up claims or waiving appeals.

When are the Article IIIs finally going to stop “beating around the bush” and hold this whole mess to be unconstitutional, as it most clearly is? 

In some ways, the panel’s decision reminds me of one of my own long-ago concurring/dissenting opinion in Matter of Joseph, 22 I&N Dec. 799, 810 (BIA 1999) (en banc) (“Joseph II”):

However, I do not share the majority’s view that the proper standard in a mandatory detention case involving a lawful permanent resident alien is that the Service is “substantially unlikely to prevail” on its charge. Matter of Joseph, 22 I&N Dec. 3398, at 10 (BIA 1999). Rather, the standard in a case such as the one before us should be whether the Service has demonstrated a likelihood of success on the merits of its charge that the respondent is removable because of an aggravated felony.

Mandatory detention of a lawful permanent resident alien is a drastic step that implicates constitutionally-protected liberty interests. Where the lawful permanent resident respondent has made a colorable showing in custody proceedings that he or she is not subject to mandatory detention, the Service should be required to show a likelihood of success on the merits of its charge to continue mandatory detention. To enable the Immigration Judge to make the necessary independent determination in such a case, the Service should provide evidence of the applicable state or federal law under which the respondent was convicted and whatever proof of conviction that is available at the time of the Immigration Judge’s inquiry.

The majority’s enunciated standard of “substantially unlikely to pre-vail” is inappropriately deferential to the Service, the prosecutor in this matter. Requiring the Service to demonstrate a likelihood of success on the merits of its charge would not unduly burden the Service and would give more appropriate weight to the liberty interests of the lawful permanent res- ident alien. Such a standard also would provide more “genuine life to the regulation that allows for an Immigration Judge’s reexamination of this issue,” as referenced by the majority. Matter of Joseph, supra, at 10.

The Service’s failure to establish a likelihood of success on the merits would not result in the release of a lawful permanent resident who poses a threat to society. Continued custody of such an alien would still be war- ranted under the discretionary criteria for detention.

In conclusion, mandatory detention should not be authorized where the Service has failed to demonstrate a likelihood of success on the merits of its charge. Consequently, while I am in complete agreement with the decision to release this lawful permanent resident alien, and I agree fully that the Service is substantially unlikely to prevail on the merits of this aggravated felony charge, I respectfully dissent from the majority’s enunciation of “substantially unlikely to prevail” as the standard to be applied in all future cases involving mandatory detention of lawful permanent resident aliens.

Concern for Due Process and fundamental fairness have intentionally been eradicated in the Immigration “Courts” by Sessions, Whitaker, and Barr. It’s past time for this constitutional mockery to be put out of its misery (and the unending misery it causes for the humans coming before it) once and for all!

As my late BIA colleague Judge Fred W. Vacca once said, albeit in a different context, “It’s time to put an end to this pathetic imitation of an adjudication.” Fred and I didn’t always agree. In fact, we disagreed much of the time. But, he did know when it was finally time to “stop the nonsense,” even when some of our colleagues just kept the system churning long past the point of reason and sanity.

And, folks, that was back in the days when the BIA actually functioned more or less like an “independent appellate court” until the Ashcroft purge of ’03 forever ended that noble vision. Like the rest of the system and those who enable it to keep churning lives as if they were mere water under the bridge, the BIA and the rest of the Immigration “Courts” have now become a national disgrace — a blot on our national conscience. Human beings seeking justice are neither “numbers” to be achieved for “satisfactory ratings,” nor “enforcement problems” to be exterminated without Due Process.

Dehumanization of the “other”and stripping them of legal and human rights is a key part of fascism. It’s what allowed German judges and most of German society to “look the other way” or actively aid in the holocaust. It has no place in our justice system — now or ever!

Due Process Forever! Judicial Complicity in Weaponized Captive “Courts,” That Aren’t Courts At All, Never!

PWS

03-28-20