Thread by @matt_cam

1/ 48 hours after Trump's ICE was given the green light to use "expedited removal" to deport non-citizens ANYWHERE IN THE US w/o seeing a judge first, #SCOTUS has today confirmed that this power is unreviewable. I'm reading the decision now, initial thoughts below

https://twitter.com/matt_cam/status/1275456477092667396

2/ Alito writes for the majority, and in case you had any doubt about where he's been getting his news he leads with the Fox/#TantonNetwork view of #asylum. (FYI, the fact that most asylum apps are not granted is not a valid argument against asylum, but that's for another day.)

3/ In 1996 Congress (working closely with the Clinton admin) passed the single worst immigration bill in modern American history, aka #IIRIRA. Among many other terrible things, this bill both created the expedited removal process & strictly limited review of ERs in the courts

4/ But the expedited removal process has one small safety hatch built in for asylum seekers: the "credible fear" screening interview. Passing this stage takes the case out of ER status and allows for full review of an asylum claim by an #immigrationcourt

5/ If an asylum officer & a supervisor find that there is no "credible fear" of return which would ultimately support an asylum claim, this decision can be reviewed by an #immigrationcourt.

In my experience, this "review" is so thin it can barely even be called a rubber stamp.

6/ The Trump admin recently piloted a program to have CBP officers--the same people who arrested asylum seekers at the border--conduct credible fear interviews rather than trained asylum officers.

I shouldn't need to tell you how bad this is, so I'll let @humanrights1st do it

7/ One other additional piece of important context before we continue: the Trump admin is also proposing extensive new regulations which would rewrite vast swathes of asylum law... including the standards & procedures for credible fear interviews.

npr.org/2020/06/11/875…

8/ The use of the "last five years" to justify what Alito is about to do later in the decision is a fun way to lie with statistics! IIRC credible fear passage rates were *much* higher pre-Trump and in the early days of Trump's administration

9/ One final piece of necessary context: the 1996 reforms require asylum seekers to be held in federal immigration custody during this process and strictly limit their ability to challenge their detention. That brings us right up to the circumstances of this appeal.

10/ Detained asylum seekers may only ask federal courts to review (1) whether they are "aliens," (2) whether they have actually been "removed" (deported) and (3) whether they have some other lawful status or grounds for entry. If that sounds like weak tea--well, that's the idea!

11/ Courts have generally agreed that when Congress said "expedited" it really, truly, actually meant "expedited." As Alito notes here, the *whole* point was so that federal courts would no longer have to hear all of these pesky asylum seekers and their pleas for mercy out

12/ The petitioner in this case is a Sri Lankan claiming persecution based on his Tamil ethnicity. This chain of events is both sadly familiar and EXACTLY how Congress intended for this statute to work in 1996: no lawyer for the applicant, lots of rubber stamps for the government

13/ His appeal from this decision to the federal courts alleged that the asylum officer did not apply the appropriate standard. Just the kind of thing an appeal should be able to do, and just the kind of thing Congress didn't want courts to be able to hear in these kinds of cases

14/ On review, the 9th Circuit held that people subject to expedited removal should have the chance to raise claims to federal courts that the ER standard itself was improperly applied.

In other words, due process of law. Once again, just the kind of thing Congress DIDN'T want

15/ Alito goes full originalist here, literally saying that the Founders could not have anticipated this kind of claim bc they were not familiar with a law which Congress passed 209 years after the Constitution was ratified.

No, really.

16/ The distinction this decision seems to be riding on is that the habeas petition was not filed to challenge conditions of detention--which the '96 law specifically prohibits--but the application of expedited removal which justified continued detention. Ugh.

17/ Very cool to see an associate justice of the United States Supreme Court make the same extremely insensitive "joke" about asylum seekers that I see bigots making on this cursed website nearly every day, just what I needed this morning

18/ can you even imagine the nerve of trying to stay in the United States rather than being murdered in Sri Lanka because of your ethnic identity, because Samuel Alito certainly can't

19/ Further proof, if you really needed it, that originalism is just the dumbest fucking legal philosophy on the planet

20/ I mean really, this is one grisly hit-and-run of a legal argument

ALITO: what the drafters of the Constitution knew & intended AT THE TIME should control our analysis

ALSO ALITO: we can safely ignore law the drafters had extensively studied before writing the Constitution

21/ very cool analysis except that THERE WAS NO CONCEPT OF ADMINISTRATIVE OR JUDICIAL REVIEW AT THE TIME THAT THE CONSTITUTION WAS RATIFIED

Originalism is, and I just can't stress this enough, absolute trash

22/ It goes on like this. Alito knocks each example of comparable uses of the Great Writ one by one with the impeccable logic of "Thomas Jefferson was not familiar with the text of the 1996 Illegal Immigration Reform and Immigration Responsibility Act"

23/ Alito then rockets forward from 1789 all the way to... 1891

Progress!

24/ The discussion of the "finality rule" in the Immigration Act of 1891 is actually pretty interesting & something I will absolutely be going back to read later. Alito's ultimate conclusion on it certainly seems specious, but I'm not going to pretend I've researched this before

25/ Boumediene is one of the great civil rights victories of the Bush era, but the fact that one of the petitioner's best precedent cases supporting his release from federal immigration custody is from a Gitmo detainee seems... telling

26/ Now we're on to what I would think should be the best of the available arguments: that #IIRIRA itself does not provide sufficient due process for review of flawed credible fear proceedings. This is something many of us have been saying for a long time.

27/ In this case, the argument turns on the extremely-outdated-but-central-to-American-immigration-law concept of the "admission doctrine," which is at this point just such a mess that I'll leave this page here and move on

28/ (I really could write another twenty pages about how continuing to center the admission doctrine in our immigration system has caused so many of the hopeless legal tangles we keep getting into, but I do actually have to do lawyer stuff today)

29/ This footnote is tucked after the conclusion of this decision, and it is absolutely *fucking* maddening.

From the sneer at a "counseled petition" (God forbid he get a lawyer!) to the acknowledgment that the claim itself was actually valid... well, I think we've been trolled

30/ Alito is ACKNOWLEDGING that the underlying proceedings were (as the petitioner has been arguing the whole tiem) fundamentally flawed and that this is actually a good asylum claim which a judge should review.

If only the Supreme Court could do something about that!

31/ To be clear, I didn't expect anything other than this result. #IIRIRA's strict limit on judicial review is absolutely what Congress intended--not to say it's fair or correct, but it's definitely how they wanted these things to go

32/ Thomas's concurrence amounts to a history lecture on why expedited removal isn't actually an un-Constitutional "suspension" of habeas corpus, I'm only skimming it bc I really have other things to do today

33/ I'm pleased to inform you that the tradition of delivering Loud Speeches about the right to habeas review is proudly carried on in Massachusetts to this day

34/ In a classic #SCOTUS move, Breyer & RBG concur only because they believe the law was appropriately applied to THIS applicant & they do not believe that they have the responsibility to review it bc that would be... hard.

Who knew immigration law was so damn complicated?

35/ Get a load of these activist judges!

36/ As they so often do, Sotomayor and Kagan provide a solid dose of "seriously?" in a strong dissent

37/ This dissent is very good and you should read it but I have to go for the extremely relevant reason that I'm trying to get an asylum seeker out of ICE custody

38/ But in short: if Trump gets 4 years the Supreme Court has just handed him nearly unchecked power to grab non-citizens from any American street, ignore their pleas for asylum, and deport them w/o judicial review. This is something his admin is already explicitly trying to do

39/ On behalf of myself and my colleagues and the many people desperately afraid for their lives we're trying to help rn, please just do whatever you possibly can to get these people out of government. Thanks!

(Quick reminder here that this thread was essentially livetweeting my first read of the decision and while I believe everything I said here was factually and legally correct that there are many other and better sources for deeper takes!)