When “No Judicial Review” Becomes a Tool for Hate and Oppression

By Iman Boukadoum

On June 25, 2020, the U.S. Supreme Court decided Department of Homeland Security v. Thuraissigiam — a case that got little national attention but deserves a closer look. It sits at the heart of a fundamental debate over the power of the courts relating to immigrants’ due process rights and deals a blow to well-established jurisprudence guaranteeing judicial review to noncitizens.[1]

The U.S. Constitution has long recognized that all persons on U.S. territory, “even aliens shall not be . . . deprived of life, liberty, or property without due process of law.”[2] My immigrant parents, like many, naively believed the United States awarded fair judicial review to all persons regardless of color, creed, or religion when they first arrived in this country. But in 1985 when an immigration judge ruled that I could stay, but that my parents had some 48 hours to leave the United States, that illusion of justice dissipated.

This judge was a Department of Justice employee, not an Article III federal judge, making the judge’s decision difficult to appeal. They gave my parents an impossible choice: either leave me, a U.S. citizen, and their sole child in U.S. foster care, or take me to a country I never knew where few opportunities existed. The judge was unpersuaded that my parents simply needed a few months to secure a work sponsor to maintain legal status, even though my father graduated at the top of his class from Johns Hopkins Medical School.

We left behind a life, friends, and a warm home. All we could take were a couple of suitcases — nothing else. Since then, my parents were able to return and realize the so-called “American Dream,” but only because other immigrants supported my parents, enabling them to get sponsored and come back to the land of my birth.

Yet it seems that xenophobia, bigotry, and draconian immigration policies have only worsened since the 1980s. After 9/11, my father was choked while mowing our front lawn by a white supremacist neighbor. And more recently, I was told to “go back to the country I came from” while leaving a dinner near Union Square in New York City with my Indian American friend.

Weaponizing the Law Against Human Lives

Intolerance in the United States often finds fertile ground where the rule of law is cast aside. In DHS v. Thuraissigiam, a Sri Lankan refugee, Vijayakumar Thuraissigiam, attempted to claim asylum from persecution in his home country.

At the heart of Mr. Thuraissigiam’s case is a question about the notorious 1996 immigration law that gives the executive branch almost unfettered and exclusive power to decide whether to bar judicial review in asylum cases. Writing for the majority, Justice Alito seems to cast aside checks and balances and the separation of powers doctrines. Instead, he trivializes the plight of refugees and calls asylum seekers’ claims “fraudulent.” He argues that immigrants entering the United States are a “burden” on our legal system as a justification for not providing due process or judicial review to asylees. Justice Alito appears to misplace blame for our enormous immigration backlog on refugees rather than on Congress or the president for their failure to budget effectively. He also fails to acknowledge multiple studies confirming that immigrants contribute billions of dollars to our economy, helping to pay the immigration judges and public servants they cannot access for due process.

In contrast, Justice Sonia Sotomayor’s dissent rightly argues that the Court’s decision “handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers.” By endorsing “no judicial review,” the Court leaves Mr. Thuraissigiam’s fate to the unchecked assessment of one branch of government. She notes that Department of Homeland Security deportation officers are bureaucrats whose job is far from being “neutral arbiters of the law.” They lack the expertise and the impartiality that Article III judges should possess. Furthermore, “once an alien enters the country, the legal circumstance changes” because “all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” [3] These changed circumstances include having some access to some type of judicial review. 

Unfortunately, the flawed reasoning in the majority opinion is also part of a much larger and longer story about how legal access threats are weaponized consistently with racist ideologies against certain “undesirable” immigrants in the United States. Barring judicial review by statute is a critical — if not well understood — blow to our rights and to the rule of law.

The right of a person to seek judicial review is a critical cornerstone of the United States’ system of constitutional democracy. “Judicial review” refers to the power of the courts to review both acts of Congress and executive branch agencies’ actions or inactions. Judicial review enables a person to go to federal courts created by Article III of the U.S. Constitution to review government decisions that affect them. Judicial review gives people the power to fight back, whether it’s ensuring that they have a safe, fair place to work, fighting harassment and discrimination on the job and in our neighborhoods, protecting our communities from pollution and toxic chemicals emanating from pipelines, refineries, waste incinerators, and smog filled highways, or any  number of other crucial, basic human rights.

It’s no secret that those who would slam the door shut on immigrants, dump chemicals on our doorsteps for profit, or make it impossible to bargain for better wages and working conditions would love to see the end of judicial review. Without the ability of our independent federal judiciary to act as a check and balance against abuse by the executive branch, we are left with rule of power, not rule of law, and the words of a statute or even the Constitution can lose all meaning.

Many immigrants to the United States are drawn by the aspiration of “liberty and justice for all.” But the truth and history of our immigration law is more about the rule of power than the rule of law. Dating back to the Immigration Act of 1891, Congress has often weighed in with racist laws limiting who can enter our nation. The 1891 law sought to prohibit almost all immigrants from China. Laws from the early part of the 20th century set severe quotas on immigrants from less desirable (read, less “white” and “Christian”) nations and peoples. During World War II we turned away Jews seeking sanctuary from Hitler’s Holocaust. We interned U.S. citizens of Japanese descent, and the Trump administration’s Muslim bans beginning in 2017 compounded this sad legacy of exclusion.

Not all attacks against immigrant communities, however, make headlines as the Muslim bans did. Many wield the insidious, shadowy tool of “no judicial review” language to escape notice while having the same devastating effects. Indeed, the so called “Illegal Immigration Reform and Immigration Responsibility Act” or IIRAIRA of 1996, the same law used to bar Mr. Thuraissigiam from the country, contains 21 mentions of the phrase “no judicial review.” Each time, “no judicial review” is the mechanism being used to shut immigrants out of the country. Each time, “no judicial review” hands bigotry and xenophobia a powerful new tool to keep those seeking asylum and a better life in the shadows of oppression.

The Truth of Law, Our Ideals, and Our Reality

“No judicial review” illustrates a reality that so many communities in this country, and those seeking to come to it, know by heart: principles and promises alone are just words on paper until they are given the full force of law.

The principle that we are, as the people of the United States, entitled to inalienable rights is a principle under constant assault from politically powerful special interests. The principle that this country is a light and a hope to all who seek to see its promise meant little to Mr. Thuraissigiam when the reality of the law denied him his chance. My family felt that pain, too.

We are not powerless. By learning about these seemingly obscure statutes and how they work on the ground, we can identify threats and raise our voices in response. We can ensure not only that legislation excludes these dangerous provisions, but that we build in protections that make the broad principles on which our country was founded real for everyone. 

We can fight back, and we will.

Iman Boukadoum, Esq. is the senior manager of the fighting hate and bias campaign at The Leadership Conference on Civil and Human Rights and co-leads the Immigration Task Force. She prepared this piece in collaboration with Earthjustice’s Access to Justice team.

[1] See Wong Wing v. United States, 163 U.S. 228, 238 (1896) (“[I]t must be concluded that all persons within the territory of the United States are entitled to the protection guaranteed by [the Fifth and Sixth A]mendments, and that even aliens shall not be . . . deprived of life, liberty, or property without due process of law.”). See also, Zadvydas v. Davis, 533 U.S. 678, 693 (2001).

[2] Wong Wing, 163 U.S. at 238 (emphasis added).

[3] Zadvydas v. Davis, 533 U.S. 678, 693 (2001); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976).