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ABA urges Supreme Court to hear case about due process in 'expedited' deportation

The American Bar Association is urging the U.S. Supreme Court to hear a case challenging the government’s right to remove immigrants from the United States without a hearing.

Castro v. Department of Homeland Security pits 28 Central American mothers and their 33 children against the federal government’s “expedited removal” process, in which immigrants can be deported without a hearing. A district court and the Philadelphia-based 3rd U.S. Circuit Court of Appeals ruled that the families may not seek writs of habeas corpus to prevent deportation, reasoning that they had no constitutional rights because they were best considered “[aliens] seeking initial admission to the country,” not people within the United States. This puts them outside the purview of the Constitution’s Suspension Clause, which says “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’s amicus brief calls that conclusion “startling,” saying Congress may not override fundamental constitutional rights though immigration statutes.

The 3rd Circuit’s “holding means that petitioners, whose asylum claims were rejected by an executive branch official alone, are subject to removal from the United States without any judicial review of their claims,” the brief says. “Shielding the removal process for noncitizens within the United States from meaningful judicial review contravenes fundamental principles of our constitutional system and this court’s precedent.”

The families, like many Central American families fleeing to the United States in recent years, were arrested in Texas in 2015. They were eventually housed in the government’s Berks, Pennsylvania, family detention center. DHS ordered their expedited removal, a process that applies to freshly arrived immigrants who are taken into custody within 100 miles of the border and do not have a valid entry or travel document (or lied to obtain valid documents). Unlike with the typical removal (deportation) process, expedited removal permits the government to deport immigrants without a hearing before an immigration judge, speeding the process up considerably. (Particularly since the immigration courts are backlogged, as ABAJournal.com noted this week.)

However, the government may not put immigrants into expedited removal if they claim asylum, and that’s what the plaintiffs in Castro did. Authorities found no credible fear of persecution after interviews with each mother, then finalized their removal orders. The families petitioned for writs of habeas corpus; an eastern Pennsylvania district court found it had no jurisdiction and dismissed the claims.

The 3rd Circuit agreed (PDF) (speaking through a panel that included Judge Thomas Hardiman, considered a potential Supreme Court nominee). It found that the federal Immigration and Nationality Act denies federal courts jurisdiction over habeas claims by immigrants in expedited removal. The Suspension Clause does not invalidate the INA’s expedited removal provision, the court wrote, because the families were “[aliens] seeking initial admission to the country” and therefore had no constitutional rights.

The ABA’s brief (PDF) took issue with this conclusion. Treating aliens who are already within the United States—the families had been transported from Texas to Pennsylvania when they made their habeas claims—as equivalent to people standing on the “threshold of initial entry” undercuts the rule of law, it says.

“Such an approach legitimizes the “manipulation” of the Suspension Clause, thereby undercutting the purpose of habeas review as ‘an indispensable mechanism for monitoring the separation of powers,’” the brief says, quoting 2008’s Boumediene v. Bush. “And it ‘would permit a striking anomaly in our tripartite system of government, leading to a regime in which Congress and the president, not this court, say ‘what the law is.””

The Supreme Court has not yet decided whether to take up the case. However, its decision may be important if President Trump expands the use of expedited removals, as some observers believe he will, the Los Angeles Times reported.