Congress Needs to Fix Its Bigoted Immigration Law

The Supreme Court won’t protect asylum-seekers, so it’s up to Congress to fix its past mistakes.

Father hugging son while waiting in line along a chain link fence to get into the U.S.
Cesar, an asylum-seeker from Nicaragua waits with his wife, Carolina, and his 8-year-old son, Donovan, to enter the U.S. port of entry to change their asylum court dates on April 6 at the Paso del Norte International Bridge in Ciudad Juárez, Mexico. Paul Ratje/Agence France-Presse/AFP via Getty Images

When Vijaykumar Thuraissigiam stepped over the U.S.-Mexico border and turned himself over to a Border Patrol agent 25 yards away, it’s not likely he was thinking about Congress. Probably he was hoping to find safety in the United States, having fled Sri Lanka following a brutal “white van abduction,” a phenomenon where unidentified men in white vans kidnap and torture politically active Tamils.

When immigration officials botched the asylum screening process at the border and denied him the chance to apply for asylum, he tried to challenge their decision in federal court. But in a sweeping decision on Thursday, Thuraissigiam’s path to asylum came to an end when the Supreme Court ruled that Congress could, without violating the Constitution, strip Thuraissigiam and thousands of asylum-seekers like him of the right to go to court and challenge even major errors in the asylum process. With the courts stepping away, the burden is now on Congress to fix its mistakes and protect due process.

Despite the modern issues it raised, Thursday’s decision was rooted in the United States’ past. For generations after the United States was founded, individual states set rules about who was permitted to enter from abroad, not the federal government. But in the late 19th century, rising anti-Asian racism culminated in the first federal immigration laws, the Chinese Exclusion Act. And when the first challenge to those laws reached the Supreme Court, it resulted in a decision dripping with bigotry and the creation of a new “plenary power doctrine”—a doctrine that remains in place today.

Boiled down to its most basic, the plenary power doctrine provides that when it comes to the rights of people seeking entry into the United States, the Bill of Rights plays second fiddle to Congress.

For Thuraissigiam, that meant that when he arrived at the border in 2017, he was put through the “expedited removal” process, created by Congress in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, commonly known as IIRIRA.

Like many similar laws passed during the “tough on crime” mid-’90s, IIRIRA was aimed squarely at bringing down the boot and grinding it in. It created sweeping new grounds for deportation, restricted the pathways for undocumented immigrants to remain in the United States, and installed “hidden weapons” in the immigration laws that lay mostly dormant for a generation.

“Expedited removal” was one of those weapons. Under this process, first applied across the border in 2004, a single Border Patrol agent can rapidly issue orders of deportation to people arriving at the border, unless a person can demonstrate to immigration officials that they have a “credible fear” of persecution in their home country. If officials determine that a person’s fear is credible, they may apply for asylum, a way to remain in the United States permanently. If not, they’re deported.

But immigration officials often get things wrong, especially during rushed border processing. In 1998, Congress tasked the U.S. Commission on International Religious Freedom with reviewing the expedited removal process. In reports issued in 2005 and 2016, the USCIRF raised the alarm that asylum-seekers are often processed incorrectly, have claims denied by officers who misapply the law, or are otherwise denied a fair process. And that was before this administration began turning away asylum-seekers at ports of entry and instituting a dizzying new array of policies at the Southern border designed to generate denials and effectively eliminate the right to seek asylum in the United States.

Unfortunately, for those who believe officials made the wrong decision in their case, IIRIRA made challenging that decision impossible. In Section 242(e) of the Immigration and Nationality Act, Congress declared that “no court” may issue an order stopping an expedited removal, unless a person claims to be a United States citizen, permanent resident, or someone previously granted refugee status.

This “jurisdiction-stripping” isn’t unique to expedited removal. Separate provisions in IIRIRA require challenges to the deportation process to be brought in individual appeals, and severely limit deportation-related class-action lawsuits. This blocks advocates from the single-most powerful tool to fix constitutionally broken systems: the courts.

Such jurisdiction-stripping provisions have even blocked attempts to ensure that no child faces deportation without a lawyer. In 2016, the 9th U.S. Circuit Court of Appeals cited these provisions to block a class-action lawsuit seeking the right to counsel for children, telling the plaintiffs to bring the claim in an individual case. But when advocates found a child who had been ordered deported without a lawyer and argued for his right to counsel, the 9th Circuit dodged the question by overturning his deportation order on other grounds.

When immigration officials declared that Thuraissigiam did not have a credible fear of persecution, in a process he believed had violated his rights, he went to federal court. He argued that IIRIRA had unconstitutionally stripped him of his right to seek habeas corpus review of legal errors in the deportation order. He also argued that he had an inherent right under the due process clause to a fair proceeding, a right that could only be vindicated by a federal court order.

In last week’s Supreme Court’s decision, Justice Samuel Alito rejected Thuraissigiam’s right to a day in federal court, holding that the right to habeas corpus does not permit challenges to legal errors in the deportation process.

But Alito went even further. For the first time in generations, the court expanded the plenary power doctrine to people who had already crossed the border, holding that asylum-seekers like Thuraissigiam have “only those rights regarding admission that Congress has provided by statute.” As Justice Sonia Sotomayor explained in her dissent, expanding this doctrine gives a constitutional seal of approval to IIRIRA’s elimination of “any meaningful judicial oversight” at the border.

Scholars have long called for overturning the 130-year-old plenary power doctrine. But despite recent opportunities to address its origins in the virulent anti-Asian racism of the late 19th century, DHS v. Thuraissigiam shows that the court is content to treat the doctrine as neutral.

If asylum-seekers can only get the “process” they’ve been given by Congress, it’s long past time for Congress to take a hard look at the mistakes it made in the 1990s.

IIRIRA was signed by President Bill Clinton just months after the Antiterrorism and Effective Death Penalty Act of 1996 and only two years after the so-called superpredators bill. Like IIRIRA, both of those laws singled out groups overwhelmingly made up of minorities and stripped its targets of procedural rights to challenge unfair decisions or biased systems.

The harsh consequences of IIRIRA and similar laws from the mid-1990s have been felt across communities of color for generations. Thankfully, as thousands march for Black lives across the country, politicians are beginning to pay attention to the problems caused by the “tough on crime” ethos. Despite recent attempts to tackle criminal justice reform, Congress hasn’t shown interest or willingness to address the many structural ways in which immigration officials are insulated from accountability.

When Congress next dives into the fever swamp of immigration law, it needs to ensure that the “process” given to immigrants is one that reflects the American value of due process. Of course, crafting a better future is more complicated than eliminating a single bad bill. “Fixing” IIRIRA will require everything from eliminating jurisdiction-stripping and harsh detention policies to protecting asylum from a future Trump-like administration, while restoring and creating paths for longtime residents of the United States to obtain permanent legal status.

Thuraissigiam makes clear that congressional action is the only option. Because if the Supreme Court won’t stop relying on a doctrine founded in bigotry, then it’s up to Congress to take the first step toward an immigration system that protects the foundational principle of a fair day in court for all.