U.S. Supreme Court Upholds Expedited Removal For Unlawful Asylum Claims

u.s. supreme court
U.S. Supreme Court [Photo courtesy U.S. Supreme Court]

WASHINGTON, D.C. – On Thursday, the U.S. Supreme Court upheld the constitutionality of expedited removals for those who illegally enter the United States. In its 7-2 ruling on DHS v. Thuraissigiam the High Court reversed the Ninth Court and affirmed the ability of federal officials to quickly remove those with invalid asylum claims.

Congress, in a bipartisan vote in 1996, established a streamlined process to accelerate the removal of certain inadmissible undocumented immigrants, which includes additional layers of review for those who intend to apply for asylum. In order to effectuate an expedited process, Congress limited review in federal court of expedited removal cases.

In their opinion, the Supreme Court found:

“Most asylum claims, however, ultimately fail, and some are fraudulent. In 1996, when Congress enacted theIllegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for weeding out patently meritless claims and expeditiously re-moving the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings….

Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than those afforded by statute. In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied.”

In 2017, Vijayakumar Thuraissigiam, a native of Sri Lanka, entered the U.S. by crossing the Mexico border without inspection or admission by an immigration officer and without a visa or other required documentation. After he was placed in expedited removal, his asylum claim was reviewed by an asylum officer, a supervisory asylum officer, and an immigration judge, all of whom agreed that he lacked a credible fear of persecution on a protected ground. Thuraissigiam then petitioned a U.S. District Court for habeas corpus, despite the statutory bar on such a claim. The judge properly dismissed his case for lack of jurisdiction. However, the Ninth Circuit then held that the statutory limitations on habeas review of an expedited-removal order are unconstitutional under the Suspension Clause of the U.S. Constitution.


In Arizona’s brief, Attorney General Mark Brnovich argued expedited removal has proven essential to the continuation of a functioning border. Further federal court review in these cases would gut the whole premise of expedited removal, worsening the backlog of immigration cases. Additionally, expedited removal is a measured and necessary response to the influx of inadmissible immigrants at our borders. Finally, the crisis at the border imposes significant burdens on states, and eliminating expedited removal would result in states shouldering even greater costs.

Allowing asylum seekers—who have already failed three levels of review — to petition for habeas review in federal courts would cause a new wave of litigation in federal courts. Doing so not would not only delay the removal of inadmissible immigrants, it would further exacerbate federal caseloads and the staggering number of backlogged cases. This undermines the ability of individuals to have timely access to justice in federal courts.

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