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asylum July 23, 2020
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Supreme Court rules asylum seekers do not deserve judicial review

Recently, the U.S. Supreme Court ruled controversially on asylum. This ruling impacts asylum seekers in a very drastic way.

Before we get into how, let’s talk about asylum seekers and who they are.

Asylum Seekers

People who are seeking asylum are people who have left their country and are, well, seeking protection. From what, you may ask? Typically, the reasons involve persecution or immense human rights violations.

Often, it means there is a threat of danger so bad, so overwhelming that the asylum seeker cannot return home for fear of their life. This plays an important role, remember this.

I know what you might be thinking. That sounds like a refugee, I think you made a mistake.

The difference, however, between an asylum seeker and a refugee is that an asylum seeker is in the waiting period. In other words, an asylum seeker is someone in the waiting period to become a refugee.

A refugee has a right to international protection, whereas asylum seekers are waiting to see if they have been granted this status. Asylum seekers do not have the official status yet.

How seeking asylum can be complicated

Let’s discuss the case: Department of Homeland Security V. v. Vijayakumar Thuraissigiam. Authorities arrest Thuraissigiam, a native citizen of Sri Lanka while he is crossing the Southern border of the US. Why was he trying to enter? He is a Tamil. Tamils are an ethnic minority group in Sri Lanka that have been subjected to human rights abuses.

Thuraissigiam explains to the border patrol officers that he was kidnapped, beaten nearly to death, and received death threats, so he came to the United States to seek asylum. His story matches what has happened to other Tamil people, too.

Yet, because he could not identify who kidnapped him nor definitively answer why (thanks to the blindfold they put on him after taking him), the asylum officer concluded that he did not have a credible fear.

From there, authorities moved him in order to deport him quickly. This was done without giving Thuraissigiam having a chance to appear before a judge in a process called expedited removal.

Several complicated judiciary processes ensued, that we’ll explain in a moment.

He filed a writ of habeas corpus. This means he asked appear in court to determine if his removal and detention were lawful. The US government did not grant him this, on the basis that the Constitution does not promise the courts’ review of the legislative branch’s decisions, (in a power called judicial review) for asylum seekers.

This went to the Ninth Circuit Court, who argued that asylum seekers were entitled to this right.  However, the official Supreme Court ruling was different.

The current Supreme Court ruling

So, let’s get back to the ruling. The Supreme Court in a 7-2 vote, rules to allow the deportation of asylum seekers without judicial review. Without judicial review, meaning that they have no right to a hearing before a judge.

This ruling also decides that the laws do not entitle asylum seekers to habeas corpus. Habeas corpus prevents the government from unlawfully imprisoning someone. Or at the very least, a writ of habeas corpus allows someone to bring a claim to court, in order to see if their detention by authorities is valid.

There are many things about this ruling but inherently, it assumes that the asylum seekers are taking advantage of the system and that the system itself has no bias in its’ process making. For people who may be in grave danger, this is a huge concern.

Without a way to fight back, they are subject to expedited removal, straight back to a place of danger.

In the majority opinion, Justice Alito states that the current asylum process is abused and that the majority of cases have proven to be without merit.

Except, here’s the catch. He totally fails to mention all the changes which the Trump administration enacted regarding asylum.

Correlation does not equal causation; and the increase of cases in the asylum system does not indicate that there are more people without justifiable concern.

Need some examples? Okay, that’s fair.

How Trump has made seeking asylum nearly impossible

February 2017,  the Trump administration alters the credible fear interviews, raising the threshold for showing credible fear during asylum interviews. These are interviews that asylum-seekers must go through prior to being able to present their case in court. Interestingly, as soon as this policy was in effect, the rate of denials jumped.

Sergio Gavidia Canas

One example case that was denied was that of Sergio Gavidia Canas. The case went to court with Canas pleading that they reverse the decision on his asylum interview. Despite having an attorney, the judge did not allow the attorney to present his case. So, Canas did.

Canas explained that he was scared for his life after three gang members beat him in front of his young daughter. He stated that they threatened him as well. In response, judge Morris Onyewuchi stated that “gang threats do not fall under the law for asylum.” And just like that, judge Onyewuchi maintained his denial.

More detrimental changes

July 2017, ICE ended the Family Case Management program. The program allowed for certain asylum seekers to stay in the community during their time. Instead, a new policy came out that helped keep people seeking asylum in detention centers, often indefinitely.

March 2018, Jeff Sessions removed asylum seeker’s rights of due process in court, removing their ability to testify on their own behalf in court.

April 2018, case quotas are enacted and judges are pressed to make decisions about cases. They now have to hit a number. The current administration enacted a Zero Tolerance policy for illegal crossing (however, it is no longer in place, despite family separations still occurring).

A deal with Guatemala that ignores clear danger

July 2019, the current administration struck a deal with Guatemala’s government. The deal allows the Trump administration to move asylum seekers to Guatemala, in order to seek asylum from over there.

The consequences of this deal affect Central Americans because it applies to individuals who crossed through Guatemala.

Ignoring the danger that occurs in Guatemala, this will affect Guatemala directly as well. There’s also a new program that allows border patrol officers to give credible fear interviews themselves.

Exhausted yet? I didn’t even get to finish all the changes that the government implemented in 2019, let alone this year. Suffice it to say, there is a lot of changes that would influence the asylum system right now. And this new case ruling, it only adds to it. The only two justices who ruled against this were Sonya Sotomayor and Elena Kagan.

We cannot change our Supreme Court, however at the rate in which this current administration is going, it shows that the asylum system and asylum seekers are not safe in the United States. And it is only going to get worse.

Make sure to vote this coming November.