DHS v. THURAISSIGIAM – The Most Important Immigration Case You've Never Heard Of

In 2020, the Supreme Court of the United States considered the critical immigration case, Department of Homeland Security v. Thuraissigiam. The case denied immigrants rights to receive judicial review prior to deportation. To find out more, we sat down with two experts in immigration law, Cristina Rodriguez of Yale Law School and Adam Cox of NYU Law School. For the full interview with Professors Rodriguez and Cox hosted by Joel Cohen, visit https://www.talksonlaw.com/talks/shadow-immigration-and-the-power-of-the-presidency ► http://www.talksonlaw.com for more legal explainers and interviews with the titans of law. ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ____________________ TRANSCRIPT Interview with Immigration Law Experts — Cristina Rodriguez and Adam Cox Adam Cox (Prof. Cox): It’s a decision that almost no one's heard of but that is consequential. It's a decision that was handed down by the Supreme Court — a case called Thuraissigiam — which involved the due process rights of non-citizens and the question whether they can even get into a court to question the government's decision to deport them from the country. Cristina Rodriguez (Prof. Rodriguez): The main provisions of the Constitution that would be relevant here is when it comes to immigration enforcement the Fifth Amendment's Due Process Clause, which applies to persons. It does not apply on the grounds of citizenship, so the fact that the government cannot deprive you of life, liberty, or property without due process of law applies to all people. And then within that, there's an equal protection component to it as well. And the courts have acknowledged that non-citizens are entitled to due process protections, and they apply the Due Process Clause to various dimensions of immigration enforcement, including detention and removal proceedings and held that the government has certain responsibilities to abide by due process norms. Of course, what constitutes due process varies a lot based on the circumstances. What is significant about the Thuraissigiam opinion that the court issued in June 2020 is that it seemed to authorize a form of removal in which there is no process whatsoever and interpreted that the writ of habeas corpus also is not applying to immigrants who are trying to challenge their removal. So two mechanisms that we have long thought protect immigrants from abuse by the government the court is calling into a significant question in this decision. And that has implications for asylum seekers at the border — the petitioner in that case was someone seeking asylum who crossed illegally. But it could also have much broader implications for people who lack legal status and have been in the country for less than two years, who under the immigration code can be removed without essentially any process at all. Joel Cohen (Host): Why is summary removal so critical? Why is that so dangerous perhaps? Prof. Rodriguez: Well it was a provision that was added into the code in 1996 to make it easier for the government — the executive branch — to remove people who cross the border illegally who were clearly not entitled to be in the United States. It was initially applied to people who arrived at ports of entry without documents, people who don't have anything to show that they might have a basis for entering. But the reason that summary removal procedures or proceedings are dangerous is because people come with claims that might entitle them to be in the United States. The claim of the particular petitioner here was that he would face persecution if sent home. And our legal system allows people to make claims for asylum, and there's a whole process by which those claims are established and eventually that could result in permanent residency. Prof. Cox: So, the bottom line of what the court is saying is that regardless of what happens in that interview or at the border with a customs and border patrol agent, the non-citizen has no ability or right to go ask a federal court to get involved in any way. It doesn't matter what happens: no federal court involvement. And to see how dramatic a change that is, we've talked a lot about the late 19th century and the policies of the time, which were themselves racist and the Supreme Court's treatment of those policies at the time, which were very permissive. But even in those earliest Chinese Exclusion cases — even in those cases — the Supreme Court never questioned its own authority to review claims brought by the non-citizens who were excluded at the border. All of those cases were decided on the merits by the court when folks filed habeas petitions, and now what the Supreme Court is saying is you can't even file a habeas petition, you can't even go to court.