Department of Homeland Security v. Thuraissigiam (19-161)

argument 19-161

Department of Homeland Security v. Thuraissigiam

Supreme Court of the United States 1h 0m 5 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the legal basis of the expedited removal system established by Congress in 1996?

John G. Roberts 0:00

We'll hear argument next in case 19-161, the Department of Homeland Security versus the Rossingham. Mr. Needler.

Jeffrey B. Rosen 0:09

Mr. Chief Justice, and may it please the Court, Congress established the expedited removal system in 1996 for aliens who arrive at our borders or enter illegally and have no entry documents. Such aliens are clearly inadmissible and have no right to be in this country. Congress reasonably concluded that a full-blown removal hearing was not necessary to make that determination. Congress was also concerned, however... about the possibility for delay and abuse of the asylum system if every time such a clearly inadmissible alien sought asylum. What it did then was to provide for a three-tiered administrative screening system to first determine whether the alien had a credible fear of persecution. Respondent contends that the suspension clause requires a fact-laden judicial review of the negative fear, credible fear determination made in that screening process.

Jeffrey B. Rosen 1:11

Congress, however, while it preserved habeas corpus, tailored it to the special circumstances of expedited removal by limiting it to whether the alien is eligible for expedited removal and whether such an order was entered. Congress's judgment that that approach was necessary for the control of immigration and control of the borders is entitled to great weight, and it is consistent with the suspension clause. First, Congress has repeatedly said, that an alien seeking admission is entitled only to the procedures Congress has provided. And it is held for more than 100 years that Congress may vest the determination of whether an individual alien is excludable in an executive officer. Indeed, it's said that a determination by such an officer acting within his jurisdiction is due process for purposes of the Constitution.

Jeffrey B. Rosen 2:04

And when such an order is issued under this system, that expedited removal order establishes the government's right to detain him. A for sure that is true when you have a situation involving an inadmissible alien who seeks review of a negative screening determination for possible relief from removal, notwithstanding his inadmissibility.

Elena Kagan 2:30

Mr. Needler, it's one thing when an alien comes and has no protected ground to stay here. There's no legal right to stay. And so expedited proceedings are okay because they have no right to be here. But when someone's seeking asylum, they have a statutory right to stay if they meet the elements of the statute. So that's a vastly different question of whether the suspension clause With — predated the Due Process Clause by 100 years, the Suspension Clause at the time, it was viewed as permitting anyone who had a legal claim to stay to file a habeas petition. I don't know how that right all of a sudden gets transformed merely because there's a second constitutional right to due process. Meaning those are two different provisions of the Constitution.

Elena Kagan 3:42

One predated the other. And the finality error cases were very clear. If you have a claimed right to be in the United States, whether you're on the shore from a boat that's landed or you're from Puerto Rico and you think that your citizenship gives you a right to come in whole slew of cases from the finality era under the suspension clause who said you have a habeas right. So I don't know how that's the same thing. You assume the person has no clear right, but they do have a right to stay if they meet the criteria of the Asylum Act.

Jeffrey B. Rosen 4:30

Several responses to that. Those finality — Those finality error cases all uniformly hold that a court may not review the determination in an individual case whether the alien has satisfied the conditions for removal. And so, and the Court has held that Congress may vest that determination in an executive officer and that that is sufficient. And for habeas corpus purposes, that sufficient determination establishes the executive's power to detain the individual.

Stephen G. Breyer 5:03

Suppose that Congress passed a law which said, we'll make it an alien who has been here for some time, but perhaps illegally, walking down the street.