Originally published by CNN

In a win for the Department of Homeland Security, the Supreme Court said Thursday that a Sri Lankan farmer who lost his bid for asylum in the United States after immigration officials ordered his removal could not challenge that decision in federal court.

The ruling will keep courthouse doors closed to asylum seekers in expedited removal processes who say they cannot return home because they have a credible fear of torture or even death.
The ruling is a win for the Trump administration, which has attempted to dramatically limit who’s eligible for asylum in the US, though it likely won’t have an immediate impact since the vast majority of asylum seekers are currently barred from entering the country following new coronavirus border restrictions.
Seven justices sided with the government in the case, but only five — all conservatives — signed onto the majority opinion penned by Justice Samuel Alito.
Alito said that the petitioner in the case, Vijayakumar Thuraissigiam, “does not want ‘simple release’ but, ultimately, the opportunity to remain lawfully in the United States.”
Additional court challenges could also gum up the immigration system, Alito said.
“If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims,” he wrote, “expedited removal would augment the burdens on that system.”
The ruling could stand to affect many asylum seekers in the future by stripping away the opportunity to go to federal court to contest a negative finding by immigration officials.
Currently, undocumented immigrants who are caught within 100 miles of a land border and within 14 days of arrival are subject to an expedited removal process and can be ordered removed without further hearing or review. If the individual seeks asylum, however, he or she is provided additional screening before an asylum officer, a supervisory officer and an immigration judge to determine whether the person has a credible fear of persecution or torture if returned to his or her home country.
“This is a devastating blow to the due process rights of asylum seekers who arrive at our border seeking protection,” said Aaron Reichlin-Melnick, policy counsel at the American Immigration Council.
The Trump administration wants to include undocumented immigrants anywhere in the US who cannot prove they’ve lived in the US continuously for two years or more. A federal judge has blocked the move but proceedings are ongoing.
“This throws a lot of questions into what rights individuals who have developed strong ties to the community have and whether this decision would undermine those rights,” Reichlin-Melnick said.
Thuraissigiam, a member of an ethnic minority group in Sri Lanka, entered the US illegally and was arrested 25 yards north of the Mexican border. He applied for asylum, telling the officer that he had been working at his farm in his home country when a group of men apprehended him and severely beat him. He said he didn’t know who they were and why they had chosen him. He was denied the chance to seek asylum.
The asylum officer determined he had not established a credible fear of persecution, a decision affirmed by the supervising officer and the immigration judge. Under the law, after the denial, Thuraissigiam was ineligible to challenge the finding in federal court.
Thuraissigiam’s lawyers at the ACLU went to federal district court arguing that the expedited removal outlined in the law violated his due process rights stripping him of a “meaningful opportunity” to establish his claims.
“Every person within US territory is entitled to due process,” ACLU lawyer Lee Gelernt told the justices.
The 9th US Circuit Court of Appeals agreed, holding that the law violated a part of the Constitution called the Suspension Clause, that would allow Thuraissigiam, even as a non-citizen, to have the opportunity to challenge his detention.
Gelernt said Thursday’s Supreme Court’s ruling “fails to live up to the Constitution’s bedrock principle that individuals deprived of their liberty have their day in court, and this includes asylum seekers. This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger.”
The Suspension Clause prohibits the government from depriving someone of their liberty without the opportunity for a court to review the legality of the government’s action.
In court, lawyers for the Trump administration pointed to past precedent distinguishing between an individual who has lawfully entered the country and become part of the population, and someone who had entered only clandestinely and been in the country less than two years. They said the law outlining expedited removal had been passed so that the system would not be abused.
Thursday, Alito wrote that Thuraissigiam “has only those rights regarding admission that Congress has provided.”
He said that Congress provided Thuraissigiam the right to a determination whether he had a significant possibility for establishing a claim for asylum and that he was “given that right.”

Sotomayor dissent warns of consequences

In a strong dissent, Justice Sonia Sotomayor said the impact of the majority opinion could have broader consequences for US immigration law and how noncitizens or undocumented immigrants are treated.
“Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U.S. citizens or residents,” Sotomayor wrote in her dissent, joined by fellow liberal Elena Kagan.
“This judicially fashioned line-drawing is not administrable, threatens to create arbitrary divisions between noncitizens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution.”
The ruling “handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers.”
She said it will leave “exercises of executive discretion unchecked” and that the Court “justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system.”
But, she said, “asylum laws have represented the best of our Nation,” and that while it is “universally acknowledged that the asylum regime is under strain” the political branches have tools to reform the system.
“The role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Congress are consistent with the limits of the Constitution.”
“The Court today ignores its obligation,” she said.
The opinion and dissent was handed down on Sotomayor’s 66th birthday.
Traditionally, the justices would celebrate birthdays with a toast at their regularly scheduled private session at the court. But with the coronavirus pandemic shutting down the courthouse, justices are meeting only by telephone.
This story has been updated with more from the opinion.


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Originally pubished by LA Times

As Nora drove to work one cold January morning, smoke began billowing from the engine.

In minutes, flames engulfed the car, putting the Baltimore resident into a panic, as described by her daughter. Nora pleaded with a tow truck driver not to call the police for fear of alerting U.S. Immigration and Customs Enforcement, but Maryland Transportation Authority Police did show up that day.

Now, she’s in the Worcester County Detention Center awaiting deportation to El Salvador – but hoping she can return to her Southwest Baltimore home with her three kids.

Nora, who has an asylum case pending, is one of many immigrants prompting advocates to push for statewide legislation that would limit the role Maryland authorities have in enforcing federal immigration laws, citing a danger to public safety and a violation of constitutional rights.

Del. David Moon, a Prince George’s County Democrat, brought up one of these bills for discussion Tuesday at a House Judiciary Committee hearing in Annapolis.

Today it was us, but tomorrow it can be another family, said Nora’s 20-year-old daughter Aidha.

Nora’s attorney, Raymond O. Griffith, requested that The Baltimore Sun not publish the last names of his client or her family members.

Nicholas Katz, a Baltimore immigration lawyer, said that without a formal partnership with ICE, or a criminal arrest warrant signed by a judge, Maryland law enforcement agencies don’t have the authority to question, arrest or hold someone they suspect has violated federal immigration laws.

However, immigration advocates say agencies are cooperating with ICE because of ambiguous and conflicting policies that vary by agency and their jurisdictions.

Nora is among a number of unauthorized immigrants in Maryland without criminal records who have been detained following encounters with police, whether it’s to report a crime or during a traffic stop. Immigration advocates say this raises questions about racial profiling and the legality of such arrests.

Nationwide non-criminal arrests more than doubled in two years – from about 9,086 in 2016 to 20,464 in 2018. In Maryland, the number grew by 146 percent in two years – from 155 non-criminal arrests in 2016 to 382 arrests in 2018.

Immediately following the 2016 presidential election, CASA, an advocacy organization for Latino and Immigrant people in Maryland, saw an uptick in cases where ICE was relying on local jurisdictions to carry out detentions, said Elizabeth Alex, the group’s senior director of organizing and leadership.

This trend drove CASA to advocate for legislation that would ensure local and state resources aren’t being used for federal immigration enforcement, said Alex.

Senate Bill 0817 and House Bill 0913, introduced this session, would prohibit state and local law enforcement agencies from arresting people on civil arrest warrants issued by ICE and from inquiring about a person’s immigration status.

The proposed measures also would prevent correctional officers from supplying ICE the address of a person released from jail and their time of release; however, they would not restrict ICE from accessing this information.

The bills have the support of the Maryland Legislative Latino Caucus and Black Caucus.

Del. David Fraser-Hidalgo, a Montgomery County Democrat, former police officer and co-sponsor of HB 0913, said passing a statewide law would help build some level of trust between local law enforcement and the communities they have sworn to serve and protect.

Fraser-Hidalgo, chair of the General Assembly Latino Caucus, argues there’s a threat to public safety because people are less likely to call the police to report crimes or cooperate in investigations for fear of deportation, leaving crimes in the community unsolved.

In Nora’s case, a judge issued her a deportation order in 2002 – as is common when someone misses their immigration court date, said Katz, senior manager of CASA’s legal program.

You can’t be detained without probable cause that you committed a crime, Katz said. Everyone in the United States has that right, regardless of your immigration status.

The deportation order led ICE to issue a civil arrest warrant, also known as an administrative warrant, for Nora. These ICE-issued documents direct other federal agents to arrest someone based on immigration violations, such as overstaying a visa or not leaving the country after a deportation order is issued.

On that January morning, Nora was detained by a Maryland Transportation Authority Police officer after her information was run through a federal database, according to Cpl. Edward Bartlinski, a department spokesperson.

Police dispatch told the officer that ICE confirmed there was an active warrant for her arrest but didn’t mention the warrant was administrative and not criminal, leading the officer to detain Nora, contrary to MDTA Police’s training guidelines, Bartlinski said.

ICE spokeswoman Justine M. Whelan said Nora was arrested as part of routine enforcement operations.

After inquiries from The Baltimore Sun about Nora’s arrest, the MDTA Police said they are reviewing existing policy and training procedures so the direction is clear no one is to be detained without confirmation of a criminal warrant.

Nora was on edge the day her borrowed car broke down because of an encounter with Baltimore police in December when she reported her car was stolen.

The Baltimore officer contacted ICE, not knowing her warrant was a civil warrant and not a criminal one. ICE told the officer it wasn’t coming out because Nora was the victim of a crime, said Matt Jablow, a city police spokesman.

But Aidha said ICE agents showed up that day but were unable to arrest her mother because she ran into her home.

ICE declined to comment on the specifics of this incident, Nora’s eventual arrest and the legislation.

After hearing of Nora’s experience, CASA began meeting with Mayor Catherine Pugh to clarify existing policies in the city and with acting Police Commissioner Michael Harrison to ensure there is sufficient training for officers to follow correct procedures.

Baltimore police have no policies regarding cooperation with ICE; however, Jablow said, that might change soon.

In the coming weeks, Mayor Pugh’s office will announce a new executive order that would ensure city employees do not discriminate against individuals based on immigration status, said Catalina Rodriguez Lima, the director of the Mayor’s Office of Immigrant Affairs.

Mayor Pugh believes it’s important to remind employees about the nature of our city being a welcoming city regardless of immigration status, so they can come forward and report crimes, Lima said.

Aidha said she believes this initial encounter with city police put her mom on ICE’s radar.

Amada Armenta, an expert on immigration enforcement and criminal justice systems, said database-sharing among law enforcement agencies may expose people to federal immigration authorities.

Because of the ways that immigration enforcement and criminal justice processes are entangled, it’s impossible to police people without possibly contributing to their deportation, Armenta said.

Armenta said non-cooperation policies certainly help but don’t guarantee arrests will not happen.

California, Connecticut, Illinois, Rhode Island, Vermont, and Washington have enacted laws limiting police cooperation with ICE. Meanwhile, Iowa, North Carolina, Tennessee and Virginia have passed legislation requiring law enforcement to assist immigration authorities, according to the Pew Research Center.

Republican Del. Kathy Szeliga, who represents parts of Baltimore and Harford counties, argues that laws restricting police cooperation with ICE place dangerous criminals back on the streets.

This is homicides, murder, human trafficking, sex trafficking of a minor, forced labor trafficking, Szeliga said. These are people that are from Uzbekistan, Guatemala, El Salvador. These are people from all over. If law enforcement is gonna keep us safe, let them keep us safe.

While ICE did arrest some for such crimes, agency data show the majority of its criminal arrests in 2017 and 2018 were for DUIs, followed by dangerous drugs.

Szeliga cited the case of a 19-year-old who allegedly stole a police AR-15 rifle and brought it to school in his car. Montgomery County Police did not honor ICE’s detainer request, as is their policy, and the teen was released after posting his bond.

Federal immigration officials use detainer requests to ask state and local law enforcement agencies to hold a person for up to 48 hours until immigration agents can detain the person.

Absent an explicit agreement with ICE, such as the programs established with the sheriff’s offices in Harford and Frederick Counties, law enforcement agencies are not required to hold someone for ICE unless there is a warrant signed by a judge.

These partnerships provide an invaluable tool to enhance public safety, according to an ICE spokesperson.

Harford County sheriff’s spokeswoman Cristie Hopkins said the bills would endanger the county’s program. Sheriff Jeffrey R. Gahler has testified against both bills.

Moon said his bill would not affect such existing programs. He said the bill was meant to prevent local and state law enforcement from acting on someone’s immigration status without having a warrant signed by a judge.

Since her mother’s detention, Aidha has taken on the responsibility of caring for her 14-year-old brother and 8-year-old sister in addition to her son, placing a strain on her financially, Aidha wrote in a GoFundMe she created for the family.

Nora’s son Emanuel is confused about why his mom was arrested instead of the person who stole his mom’s car, he said.

What happened with my mom, he said, the cops should have helped her.

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