The case is a stringing reversal of the United States Court of Appeals for the Ninth Circuit which ruled that, as applied here, §1252(e)(2) violates the Suspension Clause and the Due Process Clause. That was the unanimous decision of Judges A. Wallace Tashima, M. Margaret McKeown, and Richard A. Paez.
Justice Samuel Alito wrote the majority opinion allowing expedited deportation once individuals fail their initial asylum screenings under the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). The law bars judicial review of the credible fear determination and the Court held that it does not violate the Constitution’s Suspension Clause.
The case involves a Sri Lankan national who crossed the southern U.S. border without documentation in January 2017. He was apprehended within 25 yards of the border and asked for asylum on the grounds that he was once been abducted and beaten by a group of men. He did not however know their identity or why they attacked him. He did not fear persecution over political fears.
The case is important because many Democrats have argued that asylum could be based on the flight from high crime or poor economic conditions. The Court however notes that most asylum seekers are not subject to expedited removal: “Over the last five years, nearly 77% of screenings have resulted in a finding of credible fear. And nearly half the remainder (11% of the total number of screenings) were closed for administrative reasons, including the alien’s withdrawal of the claim.”
The opinion however has language that could lay the foundation for later rulings in favor of the government in this area. The Court clearly ruled against arguments of due process rights beyond the screening process:
While aliens who have established connections in this country have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the conditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Ekiu v. United States, 142 U. S. 651, 660 (1892). Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute. In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied.
Only Justice Sotomayor and Kagan dissented.
Here is the opinion: Department of Homeland Security v. Thuraissigiam