Today, the Supreme Court ruled that asylum seekers who are turned down by U.S. immigration officials immediately upon entry do not have a right to have their case heard in federal court. The Court reversed a ruling to the contrary by the left-wing Ninth Circuit.
The Ninth Circuit’s ruling was an outlier among U.S. courts of appeals, and in my view, the case was a no-brainer. The notion that undocumented foreigners picked as they enter the country can gain access to our federal courts simply by saying they are fearful of being in their home country strikes me as absurd. We do not owe the world’s population that level of process.
Even two of the Court’s liberals — Justices Breyer and Ginsburg — agreed with today’s result, though they did not join in Justice Alito’s opinion. I guess that was too much to ask of them. Justice Sotomayor dissented, and Justice Kagan joined her.
The opening paragraphs of Justice Alito’s opinion set the stage nicely:
Every year, hundreds of thousands of aliens are apprehended at or near the border attempting to enter this country illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries.
Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obligations. Most asylum claims, however, ultimately fail, and some are fraudulent.
In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). . .it crafted a system for weeding out patently meritless claims and expeditiously removing the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings.
Congress’ judgment was sound. As Alito notes later in his opinion, claims by foreigners crossing our borders of fear of harm have increased 1,883 percent over the past decade, exacerbating a backlog of more than 1 million pending cases in U.S. immigration courts. As the U.S. asylum system became more dysfunctional and the court backlog worsened, smuggling organizations in Central America began transporting large numbers of migrants and coaching them to claim fear of harm to avoid detention and deportation.
Does the Constitution render Congress powerless to deal with this onslaught? Of course not. Alito explains:
Among other things, IIRIRA placed restrictions on the ability of asylum seekers to obtain review under the federal habeas statute, but the United States Court of Appeals for the Ninth Circuit held that these restrictions are unconstitutional. According to the Ninth Circuit, they unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process.
Respondent’s. . .Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Boumediene v. Bush, 553 U. S. 723, 746 (2008). Indeed, respondent’s use of the writ would have been unrecognizable at that time.
Habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.
Respondent’s due process argument fares no better. 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.
The statute affords the right to an initial screening, a review by a supervisor, and a review by an immigration judge. Thus, asylum seekers picked up at the border get full blown asylum hearings unless three different immigration officials find the applicant has not asserted a credible fear (apparently 77 percent of them make it through this screening). Surely, that’s as much process, if not more, than they are entitled to by the Constitution.
I don’t think this was a difficult case, but it’s still nice to see the Supreme Court get it right.