In Asylum Case, Justices Close Courthouse Doors

      Tens of thousands of Sri Lanka’s minority population Tamils have died in three decades of ethnic and religious conflict in the south Asian island nation formerly known as Ceylon. Despite a ten-year truce in fighting, the Hindu Tamil minority still today faces the threat of what human rights groups regard as genocide at the hands of the Sri Lankan military as directed by the Buddhist Sinhalese majority government.

       Vijayakumar Thuraissigiam, an ethnic Tamil, fears that he could be another victim if returned to his country after a thus-far unsuccessful attempt to obtain asylum in the United States. Thuraissigiam fled Sri Lanka in 2016 after having been abducted and beaten by unidentified assailants. He then found his way to Mexico, crossed into southern California on January 17, 2017, and has been detained in an immigration facility ever since his arrest by a Border Patrol agent just twenty-five yards north of the border.

      Thuraissigiam applied for asylum but, unable to identify his assailants or their motivation, he failed to satisfy two executive branch officials that he had “a credible fear of persecution” if he were returned to his native country. In a courthouse-closing decision last week [June 25], the Supreme Court prevented Thuraissigiam from making his case to an independent federal judge despite two recent precedents allowing noncitizens to use federal habeas corpus to try to gain their freedom.

      The Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam [June 25] upheld provisions in a 1996 immigration law that limit most asylum applicants in their ability to use habeas corpus to obtain judicial review of their asylum claims. Thuraissigiam, represented by attorneys from the American Civil Liberties Union, argued that those restrictions amounted to an unconstitutional suspension of habeas corpus and a due process violation.

      Writing for the Court’s conservative majority, Justice Samuel Alito adopted a dewy-eyed view of the procedural protections for asylum applicants after citing the current backlog of more than 1 million pending cases. Over the past five years, fewer than one-fourth of the applicants have been screened out at the initial interview, according to statistics found by the Government Accountability Office (GAO). Many applicants later drop their claims, and the vast majority of those that survive an initial screening are found to be “meritless,” according to Alito.

      Alito notes that the asylum applicant has two more levels of review after the asylum officer’s initial interview before a supervisor and an immigration judge. Significantly, the immigration judge is actually an executive branch official despite the title. Alito is no fan of government bureaucrats in other contexts, but he expresses confidence that this three-level system of review is sufficient for the purpose without allowing the asylum applicant their day in an actual court of law.

      In a brief filed with the Supreme Court supporting Thuraissigiam’s plea, several asylum law professors instead view Thuraissigiam’s case as “a paradigmatic example” of the need for review by an Article III court. “Bona fide asylum seekers are routinely removed despite having strong claims to protection,” Washington, D.C., attorney Roy Englert wrote in the brief filed on behalf of the professors: Harvard’s Deborah Anker and Sabrineh Andalar, the University of Texas’s Denise Gelman, and the University of California-Hastings’ Karen Musalo.

      Quite simply, according to the professors, asylum officers “fail to provide asylum seekers with sufficient opportunity to show credible fear.” The would-be refugee, unfamiliar with U.S. law and unrepresented by attorney, has multiple disadvantages, according to the professors, in trying to make their case to overworked asylum officers at the border.

      Among several factors, the professors cite reticence, trauma, and language barriers. The would-be refugee may be less than forthcoming because of an internalized habit of secrecy and distrust of authorities from their experiences in their home country. They may also be “reluctant to share the details of their traumatic circumstances,” according to the professors. Language barriers add to the applicant’s difficulty in making their case even if a translator is provided, as required by regulation. The translator may also render the applicant’s story imprecisely based on poor understanding of colloquialisms and idioms in the applicant’s home country.

      These difficulties require the asylum officer, according to the professors, to go beyond the rote recitation of questions in an interview form and to probe deeply into the applicant’s account. “[T]he asylum officer must probe and ask follow-up questions that are informed not only by the asylum seeker’s statements but also by information relating to the country from which the asylum seeker has fled,” Englert writes in summarizing the professors’ views.

      In a densely historical opinion, Alito dismisses as irrelevant Supreme Court decisions from the 19^th century on that allowed noncitizens to get their cases into courts of law, including the quite recent decision in Boumediene v. Bush (2008) permitting Guantanamo detainees to use habeas corpus to challenge their imprisonment.

      Sotomayor is persuasive in depicting the new decision as inconsistent with precedent and the historic purpose of habeas corpus as a safeguard of individual liberty. “The majority,” she writes in a critical summary, “declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law.” So much for the huddled masses yearning to breathe free.

Supreme Court Teaches Trump a Lesson

      Midway through the third year of his presidency, Donald Trump extravagantly declared that the Constitution’s Article II gives him “the right to do whatever I want as president.” The Supreme Court reminded him once again last week [June 18] that the court can set limits on his power even as the justices are weighing whether to enforce subpoenas by investigative bodies looking into Trump’s personal finances.

      The Court ruled, narrowly but decisively, that Trump’s Cabinet secretaries cannot eliminate the Obama administration’s soft-on-immigration policy known as DACA just because the president wants it done and just because the president stirs up anti-immigrant feelings to appeal to his political base. The policy gives an estimated 700,000 so-called Dreamers — immigrants brought to the United States as children — protection against deportation as well as authorization for legal employment in the United States, the only country most have ever known.

      Writing for a five-vote majority in Department of Homeland Security v. Regents of University of California, Chief Justice John G. Roberts in effect told the administration that it can rescind the prior policy only by following procedures established by law. For the second year in a row, Roberts gave Trump a remedial lesson in constitutional law just as the Supreme Court was nearing the end of a politically charged term.

      One year ago, Roberts was also the author and the pivotal vote in another closely divided decision, Department of Commerce v. New York, that blocked Trump’s lapdog secretary of Commerce, Wilbur Ross, from adding a citizenship question at the president’s order. In that case, as in the DACA case, Roberts acknowledged the president’s authority to make the policy decision at issue but insisted, as a rule-of-law technician, that the executive branch has to follow the law, not the president’s partisan views or whims.

      A year ago, Roberts cast the decisive vote in the census case after finding the Commerce Department’s rationales for adding a citizenship question to be “pretextual.” In the DACA case, Roberts also faulted the Homeland Security secretaries’ efforts to justify the policy decision — in particular, Kirstjen Nielsen’s memorandum purporting to add new rationales to her predecessor’s earlier decision to rescind the policy. “This is not the case for cutting corners to allow DHS to rely upon reasons absent from its original decision,” Roberts wrote.

      Predictably, Trump and many of the conservative Court watchers chimed in quickly to criticize the Court generally and two of the justices personally: Roberts and Trump’s own appointee, Neil Gorsuch, who authored the 6-3 decision earlier in the week [June 15] to extend the federal job discrimination law to gay and transgender employees.

      Trump’s tweet after the DACA decision attacked both of the defeats in effect as betrayals of the conservatives and Republicans who worked so hard to remake the Court in Trump’s own image with Gorsuch and his second appointee, Brett Kavanaugh. “These horrible and politically charged decisions coming out of the Supreme Court are shotgun blasts into the face of people who are proud to call themselves Republicans or conservatives,” Trump tweeted.

      The conservative TV talk show host Mark Levin was particularly incensed after Gorsuch wrote and Roberts joined the decision in the LGBT rights case, Bostock v. Clayton County. Levin called the ruling an example of  “complete disregard for the law” and “legislative activism in violation of separation of powers.” He went on: “Roberts no longer pretends to be a judge; now Gorsuch has left his robe behind as well (and it’s not the first time).

      Roberts joined Gorsuch’s opinion without writing separately, but both of the justices had signaled during oral arguments that they were likely to find that Title VII’s prohibition against discrimination “because of sex” necessarily applies, because of plain text meaning, to discrimination on the basis of sexual orientation or gender identity. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote in the money quote in the decision. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

      Trump appeared to be unfazed by Monday’s decision once he reacted after maintaining Twitter silence for several hours. “They’ve ruled, and we live with the decision,” he told reporters. By contrast, Trump vowed promptly after the DACA decision that the administration would take the Court’s cue to try again to eliminate the policy.

      For a nation beset by a deadly pandemic and a deep recession, the Court’s decisions provided a measure of consolation that the rule of law still holds in this constitutional republic, however ill-informed the president may be. “The central message” of the rulings, Harvard law professor Richard Lazarus told NPR’s Nina Totenberg, “is the law applies to everybody, and that includes the President of the United States."

      Lazarus may have spoken too soon, however. The Court is still weighing two important cases testing whether Trump can block subpoenas about his finances issued by two House committees and by the New York City district attorney’s office. Those two cases — Trump v. Mazars USA and Trump v Vance — were argued on May 12 and are due to be decided by the end of the month.

In Flynn Case, Independent Judge Draws a Line

      In the movie Judgment at Nuremberg, the once respected German jurist Ernst Janning, played by Burt Lancaster, tries to explain away his part in Adolf Hitler’s corruption of the German judiciary. With the trial over, Janning tells the American judge who presided over his conviction, “I never knew it would come to that.”

      Playing the part of the wise American judge Dan Haywood, Spencer Tracy has no sympathy. “Herr Janning,” Tracy responds, “it came to that the first time you sentenced a man to death you knew to be innocent.”

      In Donald Trump’s America, the so-called Department of Justice is seeking to corrupt the federal judiciary not by sending an innocent person to the death chamber but by asking a federal court to let Trump’s former national security adviser Michael Flynn go free after pleading guilty in December 2017 to the crime of lying to federal law enforcement investigators.

      By fortunate coincidence, the Justice Department’s unprecedented plea to dismiss charges against a guilty-pleading defendant was filed before a federal judge, Emmet Sullivan, who — according to a photo caption in The New York Times —  “is known for holding prosecutors to account.” The Times’ profile opened by recalling Sullivan’s actions in 2008 in appointing a special prosecutor to investigate government misconduct in prosecuting the powerful Alaska senator, Ted Stevens, on corruption charges.

      In Flynn’s case, the Trump Justice Department is taking a different tack by admitting supposed wrongdoing after Trump and Attorney General William Barr both publicly questioned the prosecution. Trump and Barr both contend that the Obama administration FBI undertook the investigation on flimsy grounds and in effect tricked the retired three-star general into lying to the feds on matters immaterial to any legitimate criminal case.

      Barr commissioned a review of the case by a former U.S. prosecutor with the clear expectation that the ex-prosecutor, John Dunham, was to lay out grounds for letting Flynn walk. Dunham, a Republican, did what was expected and his report became the basis for the government’s motion to dismiss all charges against Flynn.

      After receiving the government’s unopposed motion to dismiss the prosecution, Sullivan, now in his twenty-sixth year on the U.S. District Court for the District of Columbia, determined that he needed independent advice on how to rule. Sullivan appointed a retired federal judge from New York, John Gleeson, as “amicus” to marshal any legal arguments against granting the motion.

      Gleeson, known like Sullivan for his independence, concluded in a 73-page brief filed on Wednesday [June 10] that the government’s move to dismiss charges against Flynn was “politically motivated” and amounted to “gross prosecutorial abuse.” Gleeson shredded the government’s conclusions about purported misconduct in the prosecution and found them instead to be “obviously pretextual.”

       “The reasons offered by the government are so irregular, and so obviously pretextual, that they are deficient,” Gleeson wrote. The rationales, the former judge continued, “reveal an unconvincing effort to disguise a decision to dismiss that is based solely on the fact that Flynn is a political ally of President Trump.”

      The administration filed its motion in the Flynn case on May 7 under Federal Rule of Criminal Procedure 48, which allows the government to dismiss a prosecution “with the leave of the court.” In this case, however, the government is arguing that a court has no discretion: no authority whatsoever to grant the motion with the government and the defendant in accord.

      Attorneys for Flynn and the administration argued that position in a 90-minute session last week [June 12] before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit. The lawyers were asking the appeals court to issue an order — in legal parlance, a “writ of mandamus” — to direct Sullivan to grant the government’s motion without any further review or in-court proceedings.

      With two Republican appointees and one Democratic appointee on the randomly selected panel, judicial handicappers might have been forgiven for expecting the Trump administration to get its way in the case. But instead, Judge Karen Henderson, a veteran jurist appointed to the D.C. Circuit by President George W. Bush, appeared to agree with her Obama-appointed colleague, Robert Wilkins, that Sullivan should be allowed to rule in the Flynn case without interference at this stage.

      Henderson described Sullivan as “an old hand” and “an excellent judge.” Maybe Sullivan appointed “an intemperate amicus,” Henderson suggested, “but that doesn’t mean he’s going to deny the motion.” Instead, she and Wilkins both appeared ready to allow Sullivan to hold the hearing on the motion that he has scheduled a month from now, on July 15. As the junior judge of the panel, Trump appointee Naomi Rao appeared at one point to favor a sort of middle-ground position that would order Sullivan how to proceed without actually ordering him to grant the motion.

      Rao at one point invited the administration’s lawyer, principal deputy solicitor general Jeffrey Wall, to elaborate on the separation-of-powers argument that Sullivan had no authority other than to grant the motion. “It’s not up to courts to probe whether the government has pure or impure motives,” Wall answered.

      Wall noted that Gleeson, in his brief, had made serious charges of misconduct against both Trump and Barr. Given the political environment, he warned that any hearing on the motion “threatens to be a public spectacle” that could tarnish both the judiciary and the executive. In truth, however, Trump and Barr have already tarnished the executive’s standing beyond repair and Sullivan deserves commendation for standing up for the independent judiciary.