Supreme Court Decision Undermines the Rights of Asylum Seekers (ep. 107)

June 26, 2020
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The Supreme Court decided in a 7-2 decision to deny certain asylum seekers their right to have their day in court. This decision follows the Trump administration’s relentless attacks against asylum seekers, including closing the border and other ports of entry during the COVID-19 pandemic. In March, Lee Gelernt, the ACLU’s Deputy Director of the Immigrants’ Rights Project argued the case of Department of Homeland Security v. Thuraissingam, defending the rights of Vijayakumar Thuraissigiam, an asylum seeker from Sri Lanka who fled ethnic persecution. Lee joins us today to break down the decision and its broader impacts on the immigration system.

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KENDALL CIESEMIER
From the ACLU, this is At Liberty, a podcast about the civil rights and civil liberties questions of our time. I’m Kendall Ciesemier, the producer of this podcast and your host for this episode.

Today we continue our special series breaking down important Supreme Court decisions. The Supreme Court decided in a 7-2 decision to deny certain asylum seekers their right to have their day in court. This decision follows the Trump administration’s relentless attacks against asylum seekers, including closing the border and other ports of entry during the COVID-19 pandemic. In March, Lee Gelernt, the ACLU’s Deputy Director of the Immigrants’ Rights Project argued the case of Department of Homeland Security v Thuraissigiam, defending the rights of Vijayakumar Thuraissigiam, an asylum seeker from Sri Lanka who fled ethnic persecution. Loyal At Liberty listeners will remember Lee joining us just months ago to preview this case. Today, he joins us again today to break down the decision.

Thanks so much for joining us Lee.

LEE GELERNT
[00:01:09] Thanks for having me.

KENDALL
[00:01:10] So there's a lot to break down in this case, including how it relates to the broader context of the administration's attack on asylum. But first, you argued this case in front of the Supreme Court, and this is unfortunately not the outcome that we were looking for. So I'm wondering, how are you taking all of this in?

LEE
[00:01:27] Yeah, well, it's only been a few hours and, still digesting it, but, feeling very bad for our client and for other asylum seekers who may be affected by this. It's always tough to lose a Supreme Court case, but it's particularly tough when people's lives are at stake. And so right now, we're trying to figure out exactly what the opinion means, how broad it is and what other steps we can take to keep our client in the country. But there's no question that this is highly disappointing.

KENDALL
[00:02:06] Absolutely. So I want to understand from the highest level what was the question before the court in this case?

LEE
[00:02:14] Right. So the question had a lot of technicalities, but it really boiled down to something very simple that I think most people in this country can understand. And that's when the government says they're going to take away a right of yours, do you have an opportunity to go to a judge and say I think what the agency did or what other, some other part of the government did was wrong and allow a federal judge who is neutral to look at the case? It doesn't mean you'll always win, but it's been a bedrock principle in this country to have your day in court. And you'd think with people's lives at stake, that that's what would have to prevail. And in fact, what we told the Supreme Court is there's never been a time in the history of this country when immigrants, even those at the border, were not able to have their day in court so someone neutral, a judge, could look at their case. And unfortunately, the court ruled today that at least for people who had just entered at the border and seeking asylum, they are not entitled to their day in court. And that's unfortunate.

KENDALL
[00:03:36] And that's what we term as habeas corpus, right?

LEE
[00:03:40] Exactly. So the technical term is habeas corpus. And the framers of our Constitution took it from England because in England sometimes you would not get to see a judge. And they decided in England many centuries ago you have to be able to see a judge if your liberty is at stake. And the framers of our Constitution wrote it into the Constitution saying habeas corpus, meaning your right to a day in court, must be available if your liberty is at stake. And the Supreme Court today did not say that non-citizens are not entitled to habeas corpus if they want to get out of detention. But they did say they can't use it to challenge their asylum hearings. Now, we disagree strongly with that. But that's what the court ruled.

KENDALL
[00:04:29] And Mr. Thuraissigiam’s case particularly is about expedited removal.Can you explain a little bit more about what that means?

LEE
[00:04:38] Yeah. So we believe that the Constitution requires your day in court, habeas corpus, even if you had a very full hearing before the agency, even if you had counsel and you got to call witnesses, you would still be entitled to your day in court. But not having your day in court in the context in which our client had his asylum claim adjudicated in what's called these expedited removal hearings at the border is particularly devastating. The hearings that asylum seekers get at the border are done routinely without lawyers. They can last forty-five minutes, an hour. And that's with the translation. The client does not know what he is supposed to say. He's nervous, traumatized, and that's all they're getting. And then a very brief review by another administrative judge who works for the executive branch, works for the government.

And so in that situation, we think it was particularly critical that there be a court review these. Because it's not as if there was this long hearing with counsel. I mean, we're talking about an hour hearing and then having no court review what happened. In our case we think there's absolutely no question our client made out an asylum claim as well as a convention against torture claim. He was abducted by men -- it routinely happens to people who are Tamil in Sri Lanka. It fit the exact pattern of government abductions to intimidate Tamil people. And in fact, the asylum officer believed everything he said and said, ‘you are a credible witness, but I legally don't think you're entitled to asylum.’ But I think everyone understands in this country, if it's a legal question, then it should go to a judge. But the Supreme Court said, no, it doesn't have to go to a judge. And based on this, our hearing without counsel, half of which is taken up by translation, this man can be sent back to potential death.

KENDALL
[00:06:44] Why is it so important that asylum seekers have the ability to go before a federal judge rather than just a asylum officer?

LEE
[00:06:57] I think for, for the basic reason is because federal judges are neutral. And that's the way the framers of our Constitution set up the system that the president and the agencies under the president would seek to remove people and maybe afford them an initial asylum hearing. But they're not people who are neutral. They are people who ultimately report to the president. And so the framers set up a system where habeas corpus, your day in court would be before a federal judge who's not beholden to Congress or the president. That would be neutral. That could withstand political pressures. And look at your case individually without having to report to the president or Congress. And so I think that's why it's ultimately critical, especially with something like immigration, where political passions get so into the mix. I think it's absolutely critical, but that's what the framers thought. That's what served our country so well.

So now there is essentially this area near the border where asylum seekers cannot invoke habeas corpus. And that is extremely troubling. And I think will produce a lot of incorrect asylum decisions and people being sent back wrongly to persecution and possibly even their death.

KENDALL
[00:08:17] So in the actual decision -- it was a 7-2 decision -- Justice Alito wrote the opinion of the court and then there were a couple of other opinions that were also written as well. The prevailing logic that held these opinions together was that Mr. Thuraissigiam was not necessarily petitioning for a writ of habeas corpus, but rather for his asylum claim to be reviewed again. That seems to be contrary to what we believe.

LEE
[00:08:51] Yeah, you're right, that was a central dispute in the case between us and the government. The government said, look, if Mr. Thuraissigiam just wants to get out of detention and go home, he can use habeas corpus. And so there was no dispute about that. But the government said and the court unfortunately agreed that if what you're doing is challenging the decision to deny you asylum, habeas corpus is not available because then you're not seeking release from detention.

What we tried to show is that throughout history you have been able to use habeas corpus to get a new hearing. And the reason we believed is fairly straightforward. The only reason Mr. Thuraissigiam could be in detention in the first place is because he was denied asylum. If he was granted a new hearing and ultimately won his asylum claim, then he would get out of detention. So there's a very clear cause and effect. And we, that's what we explained, is that we would be happy for him to just get out of detention and be free right now. But it was for actually for the government's benefit that they could continue to hold him while he had a new asylum hearing. And if he lost again, then he would be, stay in detention to be deported. But if he won and was granted asylum, he would be released.

So we felt like the distinction the government was drawing was artificial, had no basis in the common -- in the history of habeas corpus, what's called the common law, and actually had historians from all over the world who have been studying habeas corpus their whole lives submit a friend of the court brief, an amicus brief to the court explaining that. And unfortunately, the court sided with the government.

KENDALL
[00:10:35] So then it was interesting in Justice Breyer's opinion, he wrote about basically opening up the idea that habeas corpus could be available to asylum seekers, depending on their kind of specificity of their cases. How did you view that?

LEE
[00:10:53] I think with all complicated cases in the Supreme Court, the question always arises how broadly or narrowly to read them, and we're still digesting the opinion. But as we read the opinion, it would apply really to people like Mr. Thuraissigiam who were right at the border and it just entered and were raising the specific types of claims he was raising. I would not doubt that the government will try and push a broader reading of this opinion. And so I suspect that we have lots of fights ahead of us on the proper interpretation. So in some ways, this is just beginning, you know, this fight. But we'll see how the government interprets it and how the lower courts interpret it. But I have no doubt, given some of the ambiguities in the opinion that we will see those fights and that the ACLU will have to spend significant amount of time making sure that the opinion is not expanded beyond the specifics of this case.

KENDALL
[00:11:53] Got it. So we know the decisions set precedent, but more importantly, they impact people. How does this opinion interact and impact people who are on the border seeking asylum? How does it interact with everything else that Trump is doing at the border with children at the border? Give us the kind of broader context of the implications.

LEE
[00:12:14] Yeah, so what this opinion says is that at least in this specific situation our client was in, there's no judicial oversight. And that's one part of this system, the judicial oversight. But the other part is, of course, do you get an asylum hearing at all? And what kinds of claims can you bring in those asylum hearings? You know, that's irrespective of whether there's gonna be judicial oversight at the end of the process. Can you even bring these claims and what kind of hearing? And the Trump administration now for close to four years has been desperately trying to eliminate asylum at the southern border, principally for Central Americans and also for children. And we have at the ACLU have been challenging these policies from the very beginning and they're at all stages of the courts. But what's going to be really unfortunate is if these anti-asylum policies got upheld, then there'll be nothing even for the courts to review, even if they could review things. And so I think that's what we are also pushing back on. At a minimum, we want to make sure people get at least those asylum hearings before an agency, even if there's no judicial oversight.

And most recently, we had a victory in court yesterday in the District of Columbia, which was very important because I think we're at the pinnacle of what the Trump administration is trying to do. All of the policies it's enacted so far allow little slivers of opportunity to apply for asylum. But now the administration has put into place what they call the Title 42 Order or the COVID Order, which says under the public health laws, they can expel anybody they want, including children and including asylum seekers immediately without any hearing. And if that Title 42 order is ultimately upheld and the president is reelected, then I don't think we're going to see asylum for anybody, including children at the southern border for four more years. So it won't even matter what the specifics of your asylum claim are, whether it’s judicial oversight, they're just going to ship you right out of the country. So I don't know that it's gotten as much attention as, as it should given that everything else that's going on is grabbing headlines. But we had a federal judge yesterday, who was actually appointed by President Trump, say he does not think that CDC has the power to expel people and that if the government is ever going to deport people, they have to do it under our immigration laws and have to follow the asylum laws and the protections for children.

And the Trump administration took a remarkable position. The law about public health has been on the books since 1893. It has never been used or interpreted to allow for expulsions. The Trump administration claims they found this new power in the public health law and told the federal judge yesterday that not only could they remove children and asylum seekers based on this public health law without any process, but if they wanted to, they could even expel U.S. citizens. So I think the stakes could not be higher in this case. The case is going to continue for a little while before the district court judge in D.C. and then we expect that the government will appeal it. And this also could end up in the Supreme Court. But what people need to understand is this order would allow the government to bypass everything about asylum. So no matter how truncated asylum gets or how many cases we win to restore asylum, it won't matter if the government can bypass --

KENDALL
[00:15:54] It's an entirely different process.

LEE
[00:15:56] Exactly, exactly.

KENDALL
[00:15:58] Interesting. And so in your opinion, is this essentially a work-around that they've found under the auspices of health and safety?

LEE
[00:16:09] That's exactly right. We, we believe it's a pretext or a smokescreen that the administration has wanted end asylum on the southern border for Central Americans for the entire term. That they've wanted to end protections for children since the president took office and that they have actually explored public health ways to do it, But up to COVID, didn't feel like they could try it. And now they're using COVID. And we, of course recognized, like everyone, the danger of this pandemic. But what we've seen is that the government has many ways to allow asylum seekers and children into the country safely, but it's chosen not to use those. And that's why we think it's really just a pretext to accomplish what they haven't been able to do thus far, by attacking asylum directly, that they did this end-around the asylum laws to use public health as the justification. And, you know, we see that the administration is allowing tens of thousands of people in otherwise. We see the administration encouraging various recreational activities, like going to the beach. There's election rallies. Yet the only people they believe can't be brought in safely are children and asylum seekers.

KENDALL
[00:17:25] How convenient for them.

LEE
[00:17:28] Right.

KENDALL
[00:17:29] Yeah. Wow. So it seems as though that is a entire other chapter of a fight that we have to contend with now separate from the other slate of things that we are doing to try to protect asylum.

LEE
[00:17:43] Exactly. We have to protect asylum. The direct attack on asylum. But ultimately, if we don't win this fight about this COVID order at the border, none of that will matter. So we need to fight on both fronts. And it's taking an enormous amount of resources and energy. It's an uphill battle. But we're continuing to fight with our other NGO partners on all these. But I think, you know, and I've said this before on the podcast, I think the border often is out of sight, out of mind. But I think it's critical that people remember how we got to this point of needing asylum. The history of it after World War Two, the world and the United States, that never again will we turn our back on people fleeing. It doesn't mean we'll take every one, but we'll at least give them the opportunity to explain why they need asylum.

And I think people who come from, you know, other ethnicities are well, we don't need asylum. But they need to go back and look at how their ancestors needed asylum. We really need to try to think of the people who are fleeing as human beings. I mean the young man who is the test case in the COVID border challenge is a 16 year old boy who came here by himself fleeing grave, grave danger. There are so many people out there fleeing. We need to at least give them a hearing. But right now, there is not even a hearing. And today, the Supreme Court said there doesn't have to be judicial oversight, even if there's a flawed hearing.

KENDALL
[00:19:14] Wow, well you have a lot of work ahead of you, Lee. And we really appreciate all that you do here to protect immigrant rights, protect asylum and keep this top of mind for everyone.

LEE
[00:19:26] Thank you. And thank you for having me on.

KENDALL
[00:19:32] Thanks very much for listening. If you enjoyed the conversation, please be sure to subscribe to At Liberty wherever you get your podcasts and rate and review the show. Until next week. Stay strong, everyone.

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