The American Bar Association filed an amicus brief on Jan. 22 with the U.S. Supreme Court, urging the justices to declare that asylum-seekers are entitled to federal court review of immediate removal orders issued by lower level immigration officers.
The case, one of several in federal court challenging the Trump administration’s immigration policies, tests the “expedited removal” procedure in immigration law first approved by Congress in 1996. With limited exceptions, this procedure allows immigration officers to quickly deport, without federal judicial review, certain noncitizens who are undocumented or have committed fraud or misrepresentation. The orders are reviewed by immigration courts only in limited circumstances.
In March 2019, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled the U.S. Constitution ensured that a Sri Lankan man, an ethnic minority who claims he fled his homeland to escape torture, beatings and likely death, could present his case to a federal judge. The Trump administration is challenging that ruling.
The ABA brief urges the justices to uphold the appeals court decision, contending that the lack of judicial review of these removal orders violates what is known as the suspension clause of the U.S. Constitution. This clause provides that habeas corpus — or the right for judicial review — should not be suspended for arrestees except in extraordinary circumstances, such as rebellion or invasion.
The ABA brief challenges the government’s application of “expedited removal,” saying under the policy an immigrant residing anywhere in the country for nearly two years could be arrested, placed into expedited removal proceedings and deported without any judicial hearing.
“Shielding the removal process for noncitizens within the United States from judicial review contravenes fundamental principles of our constitutional system and this court’s precedent,” the ABA brief said, before adding: “To do so would flout judicial review, the Constitution and the rule of law.”
The Supreme Court has set oral arguments for the case for March 2.
- U.S. Court of Appeals for the 9th Circuit decision, U.S. Department of Homeland Security v. Vijayakumar Thuraissigiam
- Scotusblog.com on the case
- “Asylum-seekers have a right to federal court review of expedited removal orders, ABA amicus brief says,” ABA Journal, Jan. 23
- “Expedited Removal of Aliens: Legal Framework,” Congressional Research Service, Oct. 8, 2019
- Background on ABA amicus briefs