January 22, 2020

ABA asks Supreme Court to stop expedited removal of noncitizens without judicial review

CHICAGO, Jan. 22, 2020 — The American Bar Association filed an amicus brief today with the U.S. Supreme Court, urging the justices to declare that asylum-seekers are entitled to federal court review of expedited removal orders.

The case tests the “expedited removal” procedure first approved by Congress in 1996. The procedure provides for quick removal of people when U.S. officials do not find they make a credible case that they would be persecuted if returned to their home countries and provides for very limited judicial review on claims of mistaken identity.

In the case of a Sri Lanka man, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit ruled about a year ago that the Constitution ensures he can make his case to a federal judge, and the Trump administration is challenging that ruling. The ABA brief urged the justices to uphold the appeals court decision, contending that the lack of judicial review via habeas petitions for the “expedited removal” procedure violates the suspension clause of the Constitution that reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The ABA brief challenged 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. This practice, the brief said, undermines established precedent and practice.

“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. “This court has never excluded an individual on U.S. soil from the protections of the suspension clause absent a formal suspension of the habeas writ — and for good reason. To do so would flout judicial review, the Constitution and the rule of law. 

The amicus brief in the U.S. Department of Homeland Security v. Vijayakumar Thuraissigiam can be found here. The Supreme Court has set oral arguments for the case for March 2. The ABA was represented on the amicus brief by the law firm of Akin Gump Strauss Hauer & Feld LLP.

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