A Right to Immigrate?

December 19, 2019

IRLI urges Supreme Court to reject radical lower-court ruling

WASHINGTON—The Immigration Reform Law Institute (IRLI) has filed a brief in the U.S. Supreme Court taking aim at a Ninth Circuit Court of Appeals decision that expanded the right to habeas corpus for illegal aliens in the United States.

Until that decision, habeas corpus was a procedural mechanism for prisoners or detainees to claim in court that their rights to due process of law were being violated, and they were entitled to go free. And when it comes to illegal aliens, it has always been the law that the due process rights they are entitled to under the Constitution are limited to the procedural rights Congress has given them by statute.

Vijayakumar Thuraissigiam crossed the southern border illegally and was immediately detained by border patrol. He was found not to have a credible fear of government persecution in his native land and slated for expedited removal. He went through every appeal process Congress has provided for, losing each time, and his expedited removal order became final. Then he sued in federal court, claiming that habeas corpus gave him more rights than the due process rights he had already received.

In an unusual opinion, the Ninth Circuit agreed, arguing that the right to habeas corpus had existed before it was made part of the Constitution and has always given more rights to detained aliens than the Due Process Clause of the Constitution does – though this fact had not been known until the Ninth Circuit discovered it in this case.

In its brief, IRLI shows that Thuraissigiam did not have extra habeas rights, because his detention was his own choice. He could have escaped detention at any time simply by leaving the country. What he really wanted was release into America, not his native country, but that “right” is definitely not part of the immemorial right to habeas corpus.

“The idea that foreign nationals who have entered our country illegally have a right to stay here outside of detention would cripple the independence of the United States,” said Dale L. Wilcox, executive director and general counsel of IRLI. “There is no right to immigrate in our Constitution. We hope the Supreme Court sees the Ninth Circuit’s ruling for what it is – an agenda-driven distortion of the law – and upholds the exclusive right of this nation to decide who may come here, and on what terms.”

The case is Department of Homeland Security v. Thuraissigiam, No. 19-161 (Supreme Court).

For additional information, contact: Brian Lonergan • 202-232-5590 • [email protected]