Final sections of Justice Sotomayor's dissent in DEPARTMENT OF HOMELAND SECURITY ET AL. v. THURAISSIGIAM.
https://www.supremecourt.gov/opinions/19pdf/19-161_g314.pdf
I curated this important part of a SCOTUS decision for easier comprehension by those of us who are not legal scholars. The pdf document is 98 pages long and this begins a Page 71ff. I abridged the legal addendum and footnote parts as best I understood and welcome corrections and comments.
III
Although the Court concludes that habeas relief is not available because of the particular kind of release that it thinks respondent requests, it also suggests that respondent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings.
By determining that respondent, a recent unlawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no procedural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitutional question in a manner contrary to the text of the Constitution and to our precedents.
The Court stretches to reach the issue whether a noncitizen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. ... In so doing, the Court opines on a matter neither necessary to its holding nor seriously in dispute below.
The Court is no more correct on the merits. To be sure, our cases have long held that foreigners who had never come into the United States—those “on the threshold of initial entry”—are not entitled to any due process with respect to their admission. ...That follows from this Courts’ holdings that the political branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States.
Noncitizens in this country, however, undeniably have due process rights. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), the Court explained that “[t]he Fourteenth Amendment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the territorial jurisdiction, without regard to any differences of race, of color, or of nationality.” Id., at 369; Zadvydas v. Davis, 533 U. S. 678, 693 (2001) (reiterating that “once an alien enters the country,” he is entitled to due process in his removal proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”).
In its early cases, the Court speculated whether a noncitizen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.”
But the Court has since determined that presence in the country is the touchstone for at least some level of due process protections… As a noncitizen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause.
In order to reach a contrary conclusion, the Court assumes that those who do not enter the country legally have the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial entry,” skirting binding precedent by assuming that individuals like respondent have “‘assimilated to [the] status’” of an arriving noncitizen for purposes of the constitutional analysis…
But that relies on a legal fiction. Respondent, of course, was actually within the territorial limits of the United States. More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law.
But the Fifth Amendment, which of course long predated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. ...The Court has repeatedly affirmed as much long after Congress began regulating entry to the country… The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the immigration context does not dictate the scope of the Constitution. In addition to creating an atextual gap in the Constitution’s coverage, the Court’s rule lacks any limiting principle. This is not because our case law does not supply one. After all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. Perhaps recognizing the tension between its opinion today and those cases, the Court cabins its holding to individuals who are “in respondent’s position.” …
Presumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. 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.
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. Both the Constitution and this Court’s cases plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.
IV
The Court reaches its decision only by downplaying the nature of respondent’s claims, ignoring a plethora of common-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant precedents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly.
In some ways, this country’s asylum laws have represented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecution, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them.
Yet this country has time and again reaffirmed its commitment to providing sanctuary to those escaping oppression and persecution. Congress and the Executive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In fact, a centerpiece of respondent’s claim is that officials were not following these statutorily enacted procedures. The volume of asylum claims submitted, pending, and granted has varied over the years, due to factors like changing international migration patterns, the level of resources devoted to processing and adjudicating asylum applications, and amendments to governing immigration laws.
For the past few years, both new asylum applications and pending applications have steadily increased… It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated, 13 delays in adjudications are undesirable for a number of reasons.
At bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for protection and undermines the integrity of the regime as a whole.
But the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.
Congress and the Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and routinely do so.
Indeed, as the Court notes, the expedited removal process at issue here was created by law as one such measure to ease pressures on the immigration system.
In the face of these policy choices, 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, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional policy concerns by easing the burdens under which the immigration system currently labors. But it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ.
Because I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dissent.
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