The Supreme Court on Monday appeared divided over the question of whether undocumented immigrants who are caught at the border and marked for expedited deportation have due process rights to challenge their removal from the country in court.
The justices heard oral arguments Monday in a case over a Sri Lankan native who has challenged his own deportation proceedings as violating his constitutional rights.
There appeared to be a divide among the justices along ideological lines during the hearing, with those on the liberal side of the spectrum aggressively challenging the government’s lawyer and the conservative justices expressing skepticism towards the claims of the migrant’s attorney.
Justice Sonia Sotomayor, who belongs to the liberal side, said that it’s hard for her to see how the courts have no authority to review the government’s “expedited removal” decisions, as the Department of Justice is arguing.
“What’s left if you have those laws but you don’t have judicial review to determine if those laws are being followed?” Sotomayor said.
The case before the justices involves Vijayakumar Thuraissigiam, who was arrested in 2017 almost immediately after crossing over the border into the U.S. from Mexico. He was marked for expedited removal despite telling immigration officials that he had been abducted and beaten by a gang of men in Sri Lanka because he belongs to the oppressed Tamil ethnic group.
But an immigration officer decided that he had demonstrated a showing of “credible fear” of persecution at the prospect of being returned to his country that is required to gain asylum.
A federal judge ruled that the courts have no role in reviewing such immigration proceedings, but last year the 9th Circuit Court of Appeals reversed that decision. The Department of Justice appealed to the Supreme Court, saying that the circuit decision risks “undermining the government’s ability to control the border.”
Edwin Kneedler, an attorney representing the Trump administration, argued before the court that Congress created an expedited removal procedure in order to streamline the process for undocumented immigrants who have just entered the country.
“If judicial review is added on top of this it would really bog down the system,” Kneedler said.
But Lee Gelernt, a lawyer with the ACLU representing Thuraissigiam, argued that the proceedings threaten to trample on migrants’ rights to raise legal claims and challenge their deportations.
“People are being removed so quickly at the border that they can’t find a lawyer,” Gelernt said.
The administration’s efforts to crack down on immigration have prompted a surge in high-profile court cases. On Friday, an appeals court temporarily blocked a new policy of forcing asylum-seekers to remain in Mexico while they apply for protection.
The Supreme Court will soon decide the fate of the Obama administration’s Deferred Action for Childhood Arrivals program, which President Trump moved to repeal in 2017. The court heard oral arguments late last year over whether the president acted legally in killing the program.