Thread by @NicoletteGlazer

Another #SCOTUS decision day, today! 14 or so undecided cases with vast implications: from abortion rights, to CFPB structure constitutionality, to immigrant rights, to Trump taxes, & More ...

10 minutes countdown, all!

1 minute ...

Shit! we got THURAISSIGIAM -- reversed and remanded by Alito. Right there we know is BAD, UGLY, and more.

Alito: §1252(e)(2) does not violate the Suspension Clause in the context of a sec 235b expedited removal proceedings where an asylum seekers is denied judicial review.

No Due process issues

Habeas dead-- pretty much-- in broader immigration context.

Will explain more.

Only Kagan and Sotomayor dissent; RBG & Breyer concur in judgment in separate opinion.

For those looking for a quick read of #Thuraissigiam and what its significance would be:
"Respondent attempted to enter the country illegally &
was apprehended just 25 yards from the border. He therefore has no entitlement to procedural rights other than
those afforded by [INA]"

I'm gonna vent a lot today about #Thuraissigiam (coz it's a TRULY crushing decision that would victimize immigrants & asylum seekers for who knows how long), so if you'd feel offended about me bitching about how 'bad facts make bad law' & how trying to turn a bad case into ...

... all inclusive vehicle to remedy all that is wrong with IIRIRA, well shall we say now is the time to stop reading this thread.

Sorry, but I'm not in charitable mood.

A lot of writing on case already and boy! some of its wild. This was an odd case to select & elevate to its magnitude, but what do I know.

As a background, Mr. T actually EWI in feb 2017 & got a fairly detailed & considered cred fear interview by an old guard asylum officer.

He was referred for cred fear interview and the 1st one was continued at his request in order to talk to an attorney. When it resumed he said he had talked to an attorney but insisted on proceeding on his own.

With the help of an interpreter he testified that he is an ethnic Tamil from Sri Lanka and that in 2014 a group of men he did not know abducted him in a van and brutally beat him, causing him to end up in the hospital. He disclaimed any knowledge about their motives.

The officer, AT THE DIFFERENCE OF WHAT HAS BEEN GOING ON SINCE 2018, asked questions to probe nexus but Mr. T disclaimed either connection to his ethnicity or any political activities or opinions.

The officer found him credible but found no nexus.

He had a IJ review and apparently testified but the IJ affirmed.

One year later a habeas was filed which provided a very much different factual claim and requested that the expedited removal order be vacated and an injunction issue directing DHS to provide Mr. T "a new opportunity to apply for asylum and other applicable forms of relief"

District court dismissed for lack of jurisdiction and no constitutional violations.

On appeal before the 9th Circuit the case became a cause célèbre. At the time the 3rd circuit had rejected the Suspencion Clause case in Castro.

The 9th Cir rejected the INA jurisdictional arguments (i.e. that §1252(e)(2) provides jurisdiction over claims of legal
error in the sec 235b context) but found that Mr. T may invoke the Suspension Clause and §1252(e) is so excised that it effectively suspended the Great writ.

The summary above is overly simplified ... so read the 9th Cir decision!

Because of the circuit split SCOTUS happily accepted review and then things got out of control. Everyone and their mother jumped in as a amici. Sure, their provided excellent scholarly background context & re-framing but completely divorced from the facts and the actual record.

Not to mention utter misunderstanding of the nuances and complexity of actual immigration law and practice that was at issue. Dunno maybe they all thought that it was minutia undeserving of the scholarly and legal caliber of the talent involved.

And then we get to today. And Alito blew immigration practice as we knew it all to shits.

Now because they waited pretty much to the end it reads like Alito made sure to borrow as much as he could from the new "dismantle asylum" regulations that DHS just published in describing sec 235b proceeds. As if he was writing part IA as a preemptive defense of any challenge.

Ergo, the gratuitous "An alien like respondent who is caught trying to enter at some other [than at POE] is treated the same way" as POE applicants for admission.

Now in Part IA Majority made two sure to emphasis two aspects in a clear effort to bolster Govt's efforts in pending immigration litigation at all level & to assure that the horrid regulations & changes Barr & Stephen Miller pushed through WOULD remain undisturbed by subs admin

the first one is of course in a footnote. [have I told ya how much I hate fn that shatter established interpr/lower court precedents!] No? Let me say

FN5:"To obtain withholding or CAT relief on [same] basis [as Az], need to show “a greater likelihood of persec or torture @ home than is necessary for asylum.”[Moncrieffe][]We therefore read his petition as it is plainly intended: to seek another opportunity to apply for asylum."

An innocuous effort to restate on obvious reading in Moncrieffe, will no doubt be expanded in practice into:
'coz facts in support of withholding/CAT are the same and coz we deny Az, no need to even go to withholding/CAT", something BIA loves and circuits have resisted.

It provides a super ammunition for the truncated adjudications that the new asylum rules are founded on. Infuriating and deadly!!!!

2nd, is to emphasize mandatory detention: "Whether an applicant who raises an asylum claim receives full or only expedited review, Appl is not entitled to immediate release.[] Applic who are found to have a CF may also be detained pending further consideration of asylum applic"

Again in a FN, Maj beat on: "The Department may grant temporary parole 'for urgent humanitarian reasons or significant public benefit.'”

So even when an asylum seeker establishes CF and is placed in full "review" only parole for the specified two reasons is permitted. Notice that Alito did not say "in full sec 240" proceedings. No! he had to lend a hand to the 235b asylum only process that the new regulations uses

The magnitude of the case, of course is the substantive analysis and observation made (some in passim) on the ability of non-citizens to seek constitutional protections with respect to immigration adjudications. And there it hurts the most!

Alito writes the "writ of habeas corpus was [not] understood at the time of the adoption of the Constitution to [allows 4] claim the right to enter or remain [in US] or to obtain admin review potentially leading to that result."

But he did not leave it at "The writ simply provided a means of contesting the lawfulness of restraint and securing release."

Oh why would he?

Again in a fn he spiced it up with the following: "We also do not reconsider whether the common law allowed the issuance of a writ on behalf of an alien who lacked any allegiance to the country."

The dripping disdain towards asylum seekers and undocumented immigrants culminates with this: "While respondent does not claim an entitlement to release, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka."

But the more sinister notes are that the Majority casts a serious doubt on the availability of *any* non-core habeas claims or at least muddies the water of how far a non-core claim can stray from the "core" .... UGLY!

Another very UGLY point made in #Thuraissigiam dec is the reading of both the Majority and the Dissent of Ekiu case. Majority made a point to write about the fact that it was a 'public charge' exclusion case in which habeas was denied & upheld because of deference due to exec

Completely unnecessary yet made! while the public charge rules is on its way to SCOTUS. Just ....

then 4 the WTF: "Resp suggests that Ekiu cannot have
interpreted '91 Act’s finality provision to apply only to
factual Qs bc stat text categ bars all review. The important Q here, however, is what the Ct did in Ekiu, not whether its interpr was correct, & in any event, ...

... there was a reasonable basis for the Court’s interpretation." Hmm ok!

Then for this infuriating & unnecessary: "The determination in Ekhu’s case-that she was likely to become a public charge-seems to have been a pure Q of fact, and the other grounds for exclusion []involved questions that were either solely or at least primarily factual in nature"

Uh-huh! the challenges to the public charge rules that looked so promising ... well

Now for the ultimate affront to Due Process applicability to immigration cases part of the #Thuraissigiam decision! THis one hurts a lot, helluva lot!

It goes like this:
9th Circuit: a respondent “ha[] a constit right to expedited removal proceedings that conformed to the dictates of due process.”

SCOTUS: Wrong! your "holding is contrary to more than a century of precedent."

Outch!

as to “foreigners who have never been naturalized, nor acquired any domicil or residence w/hin the US, nor even been admitted into the country pursuant to law,” “the decisions of exec or admin officers, acting w/in powers expressly conferred by Congress, are due process of law.”

THIS is crushing and momentous on so many levels. I'm just gutted.

It is official! SCOTUS has re-endorsed Knauff/Mezei/Landon three-headed monster of distinguishing between admitted and EWI/inadmissible non-citizens when it comes to constitutional due process. But it takes it an extra length.

1.“[T]he power to admit or exclude aliens is a sovereign prerogative”
2. the Constitution gives “political department of the govment” plenary authority to decide which aliens to admit &
3. to set the procedures to be followed in determining whether an alien should be admitted."

Translation: 5 members of SCOTUS seems fully onboard with what Trump did with the various Proclamations. #Shitstorm

I have read J Breyer concurrent opinion multiple times and just don't understand its purpose. I get it, that he and RBG wanted to emphasize that on these facts there is just no place for Const analysis, sorta 'you-put-us-in-an-uncomfortable-position, so-let-me-splain ...' but

did we really needed this from 1/2 of the Liberal wing: "respondent’s status [meaning he entered without inspection and unlawfully] suggests that the constitutional floor set by the Suspension Clause here cannot be high"

But it is the elaboration on the "dressed up" factual challenges that really gets me.

Calling it the Resp "legal-standard claim" J Breyer says Resp "does not cite anything affirmatively indicating that immigration officials misidentified or misunderstood the proper legal standard under §1225(b)(1)(B)(v)."

"Rather, he argues that their credible-fear determination was so egregiously wrong that it simply must have rested on such a legal error. See Tr. of Oral Arg. 46–50. But that contention rests on a refusal to accept the facts as found by the immigration officials." OMG!

Now if you have ever done either a CF interview or asylum at any level ... well U know better than claiming officer/IJ should have known MO of persecutor and find nexus where appl never mention any facts remotely related to nexus. This is just a bad, really bad legal take.

But by dangling it out there as chum in the hopes of claiming it is a 'procedural' thus legal issue ... we have ended up w/: "So this claim, too, boils down to a
factual argument that immigr officials should have
known who respondents’ attackers were and why they attacked him."

This is gonna appear in a lot of IJ and BIA decisions denying asylum and making judicial review pretty foolproof.

Oh but there is more! Trust me it is all BAD

On the other 2 "procedural" claims of error pressed which were
1/ by not asking additional Q asylum officer failed to elicit “all relevant and useful information,” in violation of 8 CFR §208.30(d)
2/ translation problems denied effective participation

J Breyer responded: "Though both claims may reasonably be understood as procedural, they may constitutionally be treated as unreviewable—at least under the border-entry circumstances present in this case" and under the finality era cases.

He characterized these 2 procedural defects as 'small potatoes" compared to the finality cases procedural claims bc in those other case "we addressed asserted errors that fundamentally undermined the efficacy of process prescribed by law."

I know that other than immigration attorneys most will roll their eyes but casting quality of translation and manner of conducting a CF or an asylum hearing as not "legal claims" for purposes of review or not fundamental is just gut-wrenching.

Elevating the procedural error idea to "dispositive" or complete denial of statutory provided procedure basically buts the Acadi doctrine as we knew it.

"Respondent’s procedural claims consequently concern not
the outright denial (or constructive denial) of a process, but
the precise way in which the relevant procedures were administered" which J Breyer called "fine-grained questions of degree"

So yes! I'm resentful and angry at this decision. Thanks for nothing.