Pod Insights 5-4 Department of Homeland Security v. Thuraissigiam About this episode *** An earlier version of this episode incorrectly referred to the asylum officers who conduct credible fear interviews as border patrol agents. ***
If the government is acting all authoritarian-y, detaining you in violation of your rights, there’s a basic assumption in the Constitution that you can use “The Great Writ” of habeas corpus to challenge that unlawful behavior. But Samuel Alito would like to remind you what happens when you ASS U ME. Something something immigrants, something something you’re wrong. So yeah, Constitution HUMILIATED.
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5-4 is presented by Prologue Projects. This episode was produced by Dustin DeSoto. Leon Neyfakh provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations. Transcriptions of each episode are available at fivefourpod.com http://fivefourpod.com
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Transcript Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.
0:00 Speaker 00 We'll hear argument next in case 19161, the Department of Homeland Security versus Thoracingham.
0:11 Speaker 01 Hey, everyone. This is Leon from Prologue Projects. On this episode of Five to Four, the hosts are talking about Department of Homeland Security v. Thoracicium, a 2020 case about what happens when the government decides you don't deserve meaningful due process. The case centers on an asylum seeker who fled violent persecution in Sri Lanka and tried to challenge his fast-tracked deportation through habeas corpus. The Supreme Court said that habeas doesn't really apply here, effectively blessing a system where immigration officers have the power to make life or death decisions with almost no judicial oversight. This is Five to Four, a podcast about how much the Supreme Court sucks.
0:52 Peter Shamshiri? Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have exposed our nation, like Jeffrey Epstein's emails have exposed Donald Trump.
1:00 Speaker 03 Ooh.
1:01 Peter Shamshiri? I'm Peter, and I'm here with Rhiannon.
1:03 Speaker 03 Hello.
1:04 Peter Shamshiri? Our duly elected president. He's just gotten himself in a little bit of hot water.
1:10 Speaker 03 Reams of emails.
1:12 Peter Shamshiri? Some new emails implicating him, and also a hilarious array, frankly, of pseudo-celebrities and elites. Larry Summers, Deepak Chopra, all just emailing Jeffrey Epstein after everyone knew he was a pedophile.
1:29 Speaker 03 Right. Talking about their girlfriends, talking about what parties Donald Trump was at, sharing photos is just disgusting.
1:38 Peter Shamshiri? The Larry Summers one is the funniest to me because at one point, he says like, "Hey, you know, you can't even hit on women anymore without getting into trouble." And it's like, that's like a very standard sort of reactionary thing. "I can't even talk to women anymore."
1:55 Speaker 03 Yeah.
1:55 Peter Shamshiri? But to say that to a pedophile.
1:58 Speaker 03 Well, and in the same breath, isn't he saying, I don't know, I skimmed these fucking emails, isn't he saying like, "And women's IQ, it's just so low."
2:06 Peter Shamshiri? He also, he also made like a joke in the email about women being stupid.
2:10 Speaker 03 These are the guys, these are the guys protecting each other right now. These are the guys doing all the bad stuff, in private, in public.
2:18 Peter Shamshiri? I think it's bad. I think it's bad that the president's a pedophile. Yeah, I'll just say that. I'm brave enough to say it. Michael. Out this week with some kind of flu or something.
2:30 Speaker 03 Yeah.
2:31 Peter Shamshiri? He's been socializing a lot for a couple of weeks. But unfortunately, he's very old and he got sick and now.
2:38 Speaker 03 He's frail and God had to remind him, sit down.
2:41 Peter Shamshiri? He's just out of commission, although I'm not 100% sure I believe him because earlier he sent a picture of himself in the urgent care waiting room to us, which I thought was him trying to prove that he's sick. And it's like, well, I thought you were until you sent this, you know, and now it's like, hmm, what's going on?
3:00 Speaker 03 Now this is, you know, two guys emailing each other about what parties they weren't at, you know?
3:04 Peter Shamshiri? Right. It's exactly like that. This week's case, DHS v. Therasa Giam. This is a case about immigration law and specifically about your ability to use habeas corpus to challenge your removal. Vijaya Kumar Therasa Giam was a Tamil man seeking asylum in the United States because he feared persecution in his home country. An immigration officer found that he was not in danger of persecution and ordered that he be deported. So Therasa Giam filed a writ of habeas corpus challenging his deportation. But the Supreme Court in
3:48 Peter Shamshiri? the year 2020, in a seven to two decision, said habeas corpus doesn't really apply here.
3:56 Speaker 03 Yeah.
3:57 Peter Shamshiri? This is another in our ongoing series of pre-Trump 2.0 cases that laid the groundwork for Trump 2.0, right? This one by making it much harder to challenge expedited removals.
4:10 Speaker 03 Yeah. And it's just, um, you know, it's, it's on point. The last few episodes, the last several episodes, what, like a half of the episodes of 2025 have been somehow about immigration because this is such a massive, it's such a huge way that the Trump administration is, right? Like enacting its agenda, enacting the repression, doing authoritarianism is like through this body of law, through this arm of enforcement, which is immigration.
4:36 Peter Shamshiri? Yeah.
4:37 Speaker 03 In the last episode, like listeners heard about how like Laquart Cordia currently in ICE detention, like where are her lawyers fighting? They're fighting in federal habeas, right? Like these, all of the building blocks to get us to where we are today. So let's talk about.
4:53 Speaker 03 Vijaya Kumar Thirajasiyam and his case, he was apprehended less than 50 yards from the southern US border after entering without documentation or legal permission. And so DHS put him in what are called expedited removal proceedings. Basically, like this legal process for immigrants entering the United States to be, just like it says, to be on a fast track to removal, to deportation. This is a regime, a statutory scheme that was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. That's the law that's sort of governing these proceedings here and lays out what the process should be for, again, in the interest of the government, quickly removing immigrants from the United States.
5:39 Speaker 03 And so in expedited removal proceedings, Thirajasiyam makes an asylum claim. He says that he is in danger of persecution on the basis of his ethnicity. There are other protected grounds as well. But he says he's in danger of persecution on the basis of his ethnicity as a Tamil man if he is sent back to Sri Lanka. That's the first step. The first step is to go through what's called a credible fear interview, in which you have to assert that you're in danger of this kind of persecution, right? Under the Immigration Reform Act of 1996, the immigration officer determines if that credible fear is legitimate, determines if what the immigrant is saying about their
6:20 Speaker 03 risk of persecution, should they be deported, if that's really true. And note how discretionary this is and note how it's one fucking officer who's making this initial decision, basically thumbs up or thumbs down. Are you telling me the truth about whether you're going to be persecuted?
6:39 Peter Shamshiri? Right.
6:39 Speaker 03 Do I feel like believing you that you will be persecuted?
6:42 Peter Shamshiri? We'll talk about this a little bit later, but that's what expedited removal is. You're not even in immigration court.
6:49 Speaker 03 Right, exactly. They just put you in front of an asylum officer. This isn't an independent inquiry, an independent judge. An asylum officer is employed by DHS, the Department of Homeland Security. This is not somebody who has a graduate degree, wrote their thesis in refugee studies and migration, right? This is an employee of the machine and it's that officer making the decision.
7:12 Peter Shamshiri? I mean, think about that for a second.
7:14 Speaker 03 Yeah, and under this 1996 statute, what happens if you disagree with that asylum officer's decision is that the asylum officer's own supervisor reviews it.
7:25 Peter Shamshiri? Appealing to a higher immigration, like a higher border patrol agent?
7:31 Speaker 03 Right, it'd be like going to Trump.
7:32 Peter Shamshiri? That's the appeals process.
7:34 Speaker 03 Exactly. It'd be like going to Stephen Miller. Like, yeah, exactly. This is the appellate process. So the immigration officer denies Thrasugiam's credible fear assertion, his claim. It goes to that immigration officer's supervisor. The supervisor agrees with the denial. And then, under the Immigration Reform Act of 1996, the next step, if you want to appeal the decision from there, is you can appeal it to an immigration judge. We've talked about this, y'all, on the past few episodes. It's been mentioned, immigration judge. That is not, right? That is not like a real court system. That is separate from federal district courts and what we think about as judges. These are administrative judges. They are appointed by the president.
8:18 Speaker 03 This is within, basically, the ICE system. So he appeals to an immigration judge. That immigration judge, of course, affirms those immigration officer's findings. No actual credible fear that Thrasugiam is asserting here. And so, under the Immigration Reform Act of 1996, that would be like the end of the story. But Thrasugiam says, hold up. My due process rights guarantee me and other constitutional rights guarantee me that I deserve review, essentially like by a real judge, by a real court. Essentially, like, I deserve review about whether or not the process that I was just
8:59 Speaker 03 given was actually lawful, like actually insured my constitutional rights, right? And as we've talked about in the past few episodes, this, how do you make this kind of claim? How do you bring this kind of case into federal district court? You file a petition for writ of habeas corpus. So this is how we get to the Supreme Court. The RASAGM is filing a writ of habeas corpus. And the question is, can immigrants in the RASAGM's position, who are in expedited removal proceedings, who have been ordered removed in expedited removal proceedings, can they challenge that finding? Can they challenge the process that they were given in immigration court and in these administrative hearings? Can they even challenge that in federal district court through habeas?
9:45 Peter Shamshiri? So the RASAGM is trying to file this habeas corpus claim. We've covered this many times, but habeas corpus is a right to challenge your detention if you think it's unlawful, right? Essentially, you are demanding that the government justify whatever it is doing to you or else let you go. But there's this 1996 law, right? The Illegal Immigration Reform and Immigrant Responsibility Act. And that law says you can't use habeas in situations where someone arrives in the US seeking asylum and is denied, except for like these very narrow purposes. But the RASAGM says, hold on. There's a part of the Constitution that says habeas corpus rights can only be suspended basically in times of war.
10:29 Peter Shamshiri? That's the suspension clause of the Constitution. So can't just pass a law saying it doesn't apply to some deportations. It's protected in the Constitution.
10:38 Speaker 03 Yeah, and like very few times that the right of habeas has been suspended, right? Like the Civil War, like Abraham Lincoln suspends habeas. Very few times that this has happened officially.
10:49 Peter Shamshiri? So Sam Alito writes the majority. And he does some originalism here, right? He basically concludes that if you look at the history, there's no reason to think that habeas would apply in this circumstance. The problem with this type of analysis here is that, as Alito admits, there was no immigration law at the time of the founding. So there were no like regular deportation proceedings at all. So how can you do like an originalist analysis, right? You're already like on very odd shaky ground. Alito says, "Respondent's use of the writ would have been unrecognizable at
11:29 Peter Shamshiri? that time. habeas has traditionally been a means to secure release from unlawful detention, but respondent invokes the writ to achieve an entirely different end, namely to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country."
11:48 Speaker 03 Hmm, it's not.
11:51 Peter Shamshiri? I mean, yeah, that's odd and wrong for a few reasons. So basically, he's saying habeas is historically about being released from unlawful detention, and this is about avoiding deportation. Those are totally different, right? But first of all, are they? This dude was detained, held by the government, the government's trying to deport him to a place that he considers dangerous. He's asking for the government to either adequately justify this process, or else release him into the United States. It's not like a one-to-one comparison to a standard unlawful detention, but the similarities are pretty material. And I also think it's pretty fucking dumb to be like, "Well, this isn't what habeas
12:36 Peter Shamshiri? was for at the time of the founding." Because, yeah, immigration proceedings like this didn't exist at all at the time of the founding, right? If you're going by what was happening at the time of the founding, anyone could just fucking pop over on a ship-
12:52 Speaker 03 Right.
12:52 Peter Shamshiri? -and walk into the United States.
12:54 Speaker 03 And then when they were found, they could just be like shot or whatever. Like, there is no law, there's no process.
13:00 Peter Shamshiri? You just like walk into the fucking woods and build a house.
13:03 Speaker 03 [laughter]
13:04 Peter Shamshiri? I like, I don't understand how we're getting this analogy, right?
13:08 Speaker 03 Yeah, yeah.
13:09 Peter Shamshiri? It seems weird that you could create like a new type of proceeding, these like immigration deportation proceedings, and then the Constitution doesn't really apply to them just because they didn't exist at the time of the founding, right?
13:22 Speaker 03 Mm-hmm.
13:23 Peter Shamshiri? No one actually thinks that. But that's sort of the implication from Alito's reasoning here.
13:29 Speaker 03 There's a lot of the framing in the majority opinion that's so off. And I think Sotomayor, when we get to the dissent, like she points out a lot of this. But just to go back, like he says, this is really important in the majority. He says Therasagim isn't trying to secure release. He's just trying to obtain additional administrative review. Administrative review means something specific in the law, which is that it's not like typical court legal review. It's review in an administrative proceeding. So Therasagim is literally not seeking additional administrative review. He's not seeking review in the immigration administrative system. He's seeking federal district court review in habeas.
14:11 Speaker 03 It's just framing his whole claim as like kind of fake, as like superfluous, as just trying to get a second bite at the apple, essentially, at his immigration claims and get like permission to stay in the country, right? Another part of this opinion, you know, there's kind of these two parts, like can Therasagim bring this claim in habeas? Can a federal district court review the process that he was given over in immigration land? And Therasagim also makes a sort of separate but related constitutional argument that he has not been afforded due process. And the holding here, and what Alito talks about, is that due process essentially does not extend to non-citizens like Therasagim who are in expedited removal proceedings like this.
14:56 Speaker 03 Alito goes through this like silly argument about whether or not like Therasagim really entered the country by saying like, well, other immigrants who would be afforded due process, well, they've entered the country in different ways. And Alito saying, well, Therasagim, it's unlawful entry and he was only a few yards from the border, so that's really not entry that gives you due process, right? So this is obviously arbitrary and absurd.
15:23 Peter Shamshiri? One of the concurrences, the Breyer concurrence, which we'll talk about in a bit, also latches on to this, the idea that like...
15:31 Peter Shamshiri? He's only a little bit into the country. So like, as if like, your constitutional rights sort of like sink in over time.
15:38 Speaker 03 Oh, yeah, only attach based on a sort of geographic standard like this. This is very strange. Yeah.
15:44 Peter Shamshiri? And time, right? And, and because they talk about the amount of time that they've spent there, too. Yeah. So like the, the idea that like, the constitution slowly seeps into you as you are hanging out in the country. And it takes, it takes a bit.
15:57 Speaker 03 Right.
15:57 Peter Shamshiri? And the deeper you are in the country, the better, I guess. That's the implication.
16:01 Speaker 03 Yeah, the closer you are to the heartland of America.
16:04 Peter Shamshiri? Yeah. The closer you get to Missouri, the more constitutionally protected you are.
16:08 Speaker 03 St. Louis is the promised land of the constitution. Yeah. It's really bizarre and it's, it's obviously sort of on its face, quite absurd. And right, like it don't even need to say if no due process, if you don't even have a due process right here, there's no judicial oversight whatsoever over this statutory scheme, over the expedited removal proceedings. If you don't even have at minimum due process, which is to say, a court, please review, review the process that I was given to make sure that that was lawful, then there's no judicial oversight whatsoever. Alito and the majority, again, seven, two, completely fine with that.
16:45 Peter Shamshiri? Yeah. And just to hammer it home, this is such a good example of how fucking stupid originalism is. Because here we have this guy being deported in a process that was created in 1996.
17:02 Peter Shamshiri? And he's like, hey, this seems like it violates my habeas corpus rights. And Alito is like, well,
17:11 Speaker 03 Yeah.
17:12 Peter Shamshiri? You know, I don't think the founders would recognize your situation as one where habeas would apply. And it's like, well, yeah.
17:23 Peter Shamshiri? That's because you made the situation up. Like, the situation's new. The situation wouldn't have existed at the time of the founding.
17:30 Speaker 03 Right, not legally, like you said.
17:32 Peter Shamshiri? The situation wouldn't have existed 100 years after the founding. The situation started existing in 1996.
17:38 Speaker 03 Right, with this law.
17:39 Peter Shamshiri? 200 years after the founding. So like, what does originalism have to say about this? It just feels so fucking stupid. You're trying to do this thing where you're like, well, the Constitution doesn't apply quite as much to immigration law. And the only comparison you have is the founding when there literally was no immigration law. Surely that would mean that immigrants have more of a right to enter, right? Am I?
18:05 Speaker 03 It's even more ridiculous, though, Peter, because habeas, Sotomayor gets into it in the dissent, like habeas jurisdiction has been recognized in immigration law all over the place.
18:16 Peter Shamshiri? Yeah.
18:16 Speaker 03 Right? Over, like, the past century, in many, many cases. So maybe it wasn't exactly
18:22 Peter Shamshiri? Right.
18:22 Speaker 03 Thrasugiam's position in expedited removal proceedings. But in many other areas of immigration law, immigrants have challenged their detention or challenged the process that they were given in federal habeas by using a writ of habeas corpus. Thomas has a concurrence here, which really gets kooky crazy with the originalism.
18:44 Peter Shamshiri? I stopped reading when he mentioned the Magna Carta. I was like, I'm gonna leave this to read.
18:48 Speaker 03 The Magna Carta's in there, the 13 colonies. It is wild, where the 1600s, the 1700s, the 1800s, it's so much, it's puro Thomas. And he obviously completely agrees with the majority. He's writing separately to say that he thinks actually the writ of habeas corpus is even more narrow, actually, and that the suspension clause, right? This idea that Congress can pass a law to suspend the writ of habeas corpus, that that's really narrow as well. So he says, first of all, okay, habeas corpus, that's a tool. It guarantees your freedom from discretionary detention without bail or trial. If law enforcement, if the executive
19:33 Speaker 03 Is trying to put you in jail, literally, without bail or trial. Thomas says that's what habeas is for. And the only time your ability to make that claim, to protect yourself from that kind of discretionary detention, the only time that ability is paused or suspended is when Congress passes a law granting the executive branch, literally the power to detain people without bail or trial. So Thomas says it's only this narrow situation. He's saying Thrasagim's argument that, hey, this is a violation of the suspension clause because Congress did not allow the executive to suspend the right of habeas corpus. I should be able to file this. Well, Thomas says, no. This is the Immigration Reform Act of 1996.
20:19 Speaker 03 This isn't suspending anything about bail, trial.
20:23 Peter Shamshiri? Right.
20:23 Speaker 03 And so Thomas gives this long, long history lesson, which
20:28 Peter Shamshiri? It's very weird. It seems like what he's arguing is like the only thing that the suspension clause protects against is like a law that says habeas corpus is suspended. Like, that's, like, that's it. I don't quite understand it. He's like, as long as you don't mention it and you just use a series of loopholes, you're good.
20:48 Speaker 03 And also, as long as you're not being detained without bail or trial. Like, he's thinking about, like, criminal cases, right? Like, you are thrown in jail, maybe accused of being a criminal, without process at all. You don't have the opportunity to, you know, quote unquote, defend yourself against those allegations. That's what habeas is for, nothing else. Meanwhile, it's such a selective history lesson, of course. He's choosing, like, a judge's speech at a state convention in 17 whatever the fuck to cite to.
21:22 Peter Shamshiri? It's like not even worth arguing with his history because it's just like,
21:26 Speaker 03 There's, and there's a whole amount of history. There's a whole other historical story where habeas is used in areas other than
21:36 Speaker 03 Discretionary detention without bail or trial. Like, this is just ridiculous.
21:39 Peter Shamshiri? It's classic Thomas. Breyer also files a concurrence, joined by Ginsburg. So they're agreeing with the majority here.
21:47 Speaker 03 Yep, makes it 7-2.
21:49 Peter Shamshiri? He tries to hedge it a little bit. He says the suspension clause hasn't been violated in this particular case, but we shouldn't rule out the possibility that it might be violated in like different types of expedited removal cases. Right? So it may be if someone was held for longer, right? Then maybe they could use habeas. So he's saying, we shouldn't say that habeas doesn't apply here to like expedited removal generally, but it doesn't apply to this dude right now.
22:17 Speaker 03 To this guy.
22:17 Peter Shamshiri? So, and he sort of mirrors Alito's reasoning at times. He says, this guy basically arrived in the country, didn't make it that far in and was apprehended immediately. Right? That's different from someone who has lived here for years, which is true in the general sense, it's different. But I don't see why it would be relevant at this stage. Right?
22:39 Speaker 03 Right. Why relevant to like when your rights attach then?
22:42 Peter Shamshiri? Right. Like, remember what the RASGIM is asking for here is that his detention and removal be reviewed.
22:49 Speaker 03 Yeah.
22:50 Peter Shamshiri? That's what he's asking for, for federal courts to review his situation. To say that they can't even be reviewed because he hasn't been here long and didn't make it that far into the country? I don't get it. Again, it just doesn't make sense to me that to think that like your, your rights sort of sink in the deeper into the country you go. It's just, what the fuck are you talking about?
23:12 Speaker 03 And back to the statute, this Immigration Reform Act. They're all over the statute and what the statute says, the processes. And they're like, our court's hands are tied, like we can't do anything. Well, nowhere in the statute does it says, well, if you're 50 yards into the country, then the, the procedure is different, right? It's ridiculous. They're making up this part. They're making up this part to justify it.
23:32 Peter Shamshiri? There are some other arguments in this concurrence. They mostly center around the idea that this guy wasn't denied process. He just argues that the process was not adequate. In my mind, this is like lawyer brain shit. I'm not sure what the material difference is between being denied process altogether and being given inadequate process. Those are materially the same thing, right? The argument is that like there's a threshold of process. That's due process. If you don't reach it. You didn't get due process, like.
24:01 Speaker 03 Whether it was no process at all or inadequate process. Did you get the process that was due to you?
24:07 Peter Shamshiri? If the amount of process is 10.
24:11 Speaker 03 Yeah.
24:11 Peter Shamshiri? And that's the constitutional minimum. Whether you get five or one, it's still unconstitutional. So I don't really, I don't really get that argument either.
24:19 Speaker 03 Yeah, no, no, no, no, completely, completely arbitrary. They're really, they're really making stuff up here. So Sotomayor has a really long dissent. It's just as long as the majority. I think she gets at a lot of these things pretty effectively, stuff that we've already been bringing up. She says, for example, that the majority really gets the habeas precedent wrong. Federal courts, she says, have heard claims across a variety of situations, including immigration and immigration detention claims that still were found squarely within habeas jurisdiction. A federal district court reviewed it in habeas and decided and constructed what the relief in habeas would be.
24:59 Speaker 03 And she calls out the way that the majority and the concurrences are framing what it is that Therasagiam is asking for, what his claims are and what his arguments are. You know, she says, the majority says that the relief that Therasagiam is seeking is, quote, gaining a right to remain in this country and, quote, authorization to remain in a country other than his own. But Sotomayor is like, that's not what he's asking. He, nowhere does he ask, I want to be allowed to stay in the United States. He's making claims of legal error. So back to this statute, the Immigration Reform Act, the standard set by that law for establishing whether somebody has a credible fear, you know, upon deportation
25:42 Speaker 03 is whether there is a significant possibility that he has established, that he has shown a well-founded fear. That's the legal standard that's in the statute. It's not that the executive shouldn't have discretion. That's not what he's arguing. It's that that discretion was exercised unlawfully. He didn't have the process. There was legal errors. This legal standard that is set out in the law was not met. And so the question is whether the facts that he presented in his credible fear interview satisfy that statutory standard. And the right way to make that claim is in habeas. The right way to get a judge to review whether they did that lawfully, according to what the law says, is to make that claim in habeas, right?
26:24 Peter Shamshiri? And also, it's worth noting, like. Thirasagim's argument that he was in danger back in Sri Lanka was like, he was like kidnapped by armed men.
26:38 Speaker 03 He was beaten.
26:39 Peter Shamshiri? And the reason that he was denied asylum is because the officer was like, well, how do you know who those guys were? Like that. And he was like, well, obviously I don't like really, you know, they didn't say, here's our political affiliation. Here's why you're being targeted for persecution. And so the officer was like, well, it's a gray area.
27:03 Speaker 03 I don't believe you.
27:04 Peter Shamshiri? It's just like, you're fucking kidding me.
27:05 Speaker 03 Right. It's ridiculous.
27:07 Peter Shamshiri? And that's, I feel like fundamentally, Thirasagim is like, hey, could someone besides this fucking hick take a look at my claim?
27:15 Speaker 03 Right.
27:16 Peter Shamshiri? You know, wouldn't that be cool?
27:16 Speaker 03 Could this person point to Sri Lanka on a map? I just, right? Like.
27:21 Peter Shamshiri? Yeah. Could I get someone with an eighth grade education up in here to just take a glance at my claim?
27:26 Speaker 03 I'm bugging. Yeah. And so this goes to the due process argument, right? Thirasagim is saying he didn't get due process in these removal proceedings. Yes, they're removal proceedings, they're expedited removal proceedings, but they are governed by a law and I am due a certain process, which I was not given, right? He says he wasn't given meaningful opportunity to establish his claims. Who knows how long this conversation was, his quote unquote credible fear interview? He says he wasn't given meaningful opportunity to really establish those arguments or give information about his credible fear. The translator and the asylum officer in his credible fear interview, Thirasagim said, didn't understand him. They didn't understand and properly translate what he was saying.
28:11 Speaker 03 He was not given an explanation for the decision, right? Like no, just like, no sort of, again, legally, right? Like, what did we decide and explain it to me? So in short, that process that he's legally owed was not adequate. But again, Sotomayor is saying like, the majority frames this, like, by making this claim, Thirasagim's asking for like multiple cracks at getting his asylum decision reviewed. But that is just not what he's asking for. He's asking that the process that he was given be constitutional. Just give me the process that I'm due. That's all. The decision at the end just needs to be after adequate process.
29:03 Peter Shamshiri? It's probably worth talking for a second about expedited removal, which is, I think, something that most listeners have probably heard.
29:11 Speaker 03 Yeah.
29:11 Peter Shamshiri? Even if they don't really know exactly what it is, and maybe it's somewhat self-explanatory, right? But expedited removal is created with this law in 1996, the immigration reform law. And the basic idea is that for certain non-citizens, namely those who are undocumented or who ostensibly make a misrepresentation during the immigration process, they would expedite removal. And what that means in practice is no hearing before an immigration judge.
29:40 Speaker 03 Right.
29:40 Peter Shamshiri? Already very questionable stuff in terms of due process, right? You're just, like, just some fucking hick. It's like, it's like, I don't, I don't know. You don't know, like, you said you were-
29:53 Speaker 03 Completely arbitrary, completely discretionary.
29:55 Peter Shamshiri? Right. No real right to appeal, right? Which makes it more important that there be a habeas backstop there. And, yeah, so some guy is just like, eh, yeah, you were kidnapped, but you don't really know who the kidnappers were, so, uh, no credible fear of persecution, you have to go back. The reason this has been in the news lately is because Trump has tried to make this even worse than it already is. Previously, it applied to people who were apprehended within 14 days of their arrival and within 100 miles of a border. So-
30:28 Speaker 03 Right.
30:29 Peter Shamshiri? If they apprehended you three weeks after your arrival, even if you were undocumented, they'd have to go through the immigration judge, right? They couldn't just send you through expedited removal. Trump issued an executive order erasing the distance requirement entirely and changing the timeline requirement to within two years of arrival. And not just arrival, but like residency, like you had to establish residency. This was challenged by the ACLU. I believe it's currently blocked. But that's what's happening now is that the Trump administration has sort of latched on to this expedited removal process and they want to put as many people through it as they possibly can.
31:14 Peter Shamshiri? So someone who has been living in this country for a year and a half, otherwise a model citizen or whatever, a model non-citizen, shall we say, doesn't matter. You can get snatched up, no immigration hearing, no hearing.
31:31 Speaker 03 Right. And obviously, this is what we're seeing, right? Like some stats that the Trump administration themselves are putting out, like gloating about, you know? CNN reported at the end of August of this year that ICE alone had deported nearly 200,000 people in the first seven months of 2025. In September of this year, the Trump administration DHS put out a statement that in expedited removal proceedings, the Trump administration had deported 400,000 people. So you can see how like the legal infrastructure of expedited removal, right? Like the ability of the government to do this so quickly and without those procedural backstops allows this machine to just like expand exponentially quickly.
32:14 Peter Shamshiri? Right.
32:15 Speaker 03 You know, and back on the court's kind of abdication of its duty, abdication of its review powers really in habeas, Sotomayor touches on this a little bit in the dissent. She says, "The court is abdicating its constitutional duty." Remember, we said habeas is in the Constitution, right? And, you know, I think what conservatives certainly and the Supreme Court over time and now gets so wrong about federal habeas is like treating it like just another sort of procedure that may or may not apply. And in deciding if it applies, you know, you're weighing all these like efficiency concerns, right? But we have to take a step back and think about like, okay, why would habeas
33:00 Speaker 03 be in the Constitution? Like, what is this? What does habeas actually mean, right?
33:04 Peter Shamshiri? And the context in which it's in the Constitution is sort of interesting because the only reference to it is the suspension clause. The suspension clause doesn't say you have a right to habeas corpus. The suspension clause says, "Here are the situations where the president can suspend habeas corpus and it's only invasion or rebellion, war."
33:24 Speaker 03 So.
33:26 Peter Shamshiri? The Constitution treats habeas corpus as this pre-existing thing that we should all know about and respect.
33:32 Speaker 03 As an assumption, it's applying all the time, right? Like, without even really, like, saying it, it's there. And then, like, what is it, what does it actually mean substantively, right? What habeas does is gives a person a last resort, a last resort to grant a federal court the ability to review what the government is doing to that person. You have no other claims left, you've gone through the legal process, be that administrative or otherwise, you've done all the appeals that might or might not be available to you, it is the last resort to say, what the government is doing to me is illegal? It violates my constitutional rights, right? That's what federal habeas is. And conservatives, you see it here, you see it all over the board, Thomas does this
34:15 Speaker 03 on habeas in death penalty cases all the time. Conservatives treat it as procedural and not the substantive thing that it actually is. For Therasagium, for so many other people, for hundreds of thousands, literally just this year, in expedited removal proceedings, there is no mechanism by which you can get a federal court to review what the government is doing to you. That's what this case holds, even though habeas is literally assumed to exist in the Constitution.
34:52 Peter Shamshiri? Right. And, you know, we've been covering these cases that are a little bit older, that predate the second Trump administration, and have effectively greased the wheels for Trump. And the consistent theme is that it's so important to be thinking about what a bad faith political actor could do with this power if you give it to them. The court so consistently imagines a good faith political actor. And I'm especially talking about, like, Breyer and Ginsburg here.
35:25 Speaker 03 Yeah.
35:25 Peter Shamshiri? Who join the majority's conclusion that Therasagium does not get habeas here. They're sort of like, well, you know, he only made it in the country a little bit, blah, blah, blah, all these stupid fucking reasons. They don't understand the stakes, right? They don't seem to understand what is at stake. It's not just this one guy, it's not just this one situation. It is a framework where...
35:53 Peter Shamshiri? The government can deport people without meaningful process en masse, right?
35:58 Speaker 03 Mm hmm.
35:59 Peter Shamshiri? And I, I, yeah, I just think that's what's missing from a lot of the analysis in these cases is like, not that Alito cares, for example, but like, what would a bad faith authoritarian government do with his power if you gave it to them? You can't just assume that whoever takes power won't want to abuse it.
36:21 Speaker 03 Yeah, yeah. It's like, it's so unfortunate that you can see, you can easily explain this sort of assumption that it's all being done in good faith by liberals like maybe Breyer and Ginsburg, because, you know, before Trump 2.0, this expedited removal stuff was slowly, slowly, you know, being accelerated, expanding. Under who? Presidents that those guys liked?
36:44 Peter Shamshiri? Yeah.
36:44 Speaker 03 Obama, Biden, whatever, you know, like, and so it's like, oh, you know, if that's my guy doing it, you know, I'm assuming it's all being done in good faith. And, you know, it goes to something you've said before, Peter, which is like a sort of broader illegitimacy of the argument against what Trump is doing by Democrats, because you've never stood up against it before.
37:05 Peter Shamshiri? Yeah.
37:06 Speaker 03 Right? Here you have liberals joining a majority opinion that like allows for this to happen.
37:12 Peter Shamshiri? I also think there's something like almost broader going on here where the Constitution guarantees people all of these rights. But in practice, it's actually really hard to guarantee people's rights. You need to
37:26 Speaker 03 Yeah.
37:27 Peter Shamshiri? afford everyone due process. Who does it? Who, who are the judges? Who are the juries? All this stuff takes resources. And I'm not sure that our courts have ever reckoned with the basic fact, I think, that affording due process is extremely resource intensive. Instead,
37:48 Peter Shamshiri? They've decided to solve that problem by not affording it, by saying, well, we can't do this, right? We can't give everyone who asks for it habeas proceedings, right? That's, that's, you're gonna need judges, you know, it's, the same thing with like civil litigation, for example, you know, just trying to toss as many cases out of court as possible and making it harder and harder to file a complaint for plaintiffs. The system can't really sustain the requirements of justice. And so courts have said, well, what if we just don't really provide justice, right? What if we put in a bunch of arbitrary thresholds that make it much harder to reach?
38:29 Speaker 03 Where you see this so acutely in immigration and in mass incarceration, in the criminal system as well, where instead of courts or anybody in government saying, stop, the machine is actually too big, the machine is out of control, and evidence for the machine being out of control is that people aren't being afforded due process, people's constitutional rights aren't being protected. Instead of doing that, courts have, over the course of decades, and you see this just so accelerated and so like horrific in the immigration context right now, is courts have been like, instead of doing that, courts coming up with legal
39:10 Speaker 03 justification for why due process isn't due, for why you don't have to protect constitutional rights, you know?
39:17 Peter Shamshiri? Right. You see it in every context, right? I mentioned the civil context. There's also, there's also just the criminal context with the way that criminal proceedings work is, you know, effectively that almost everyone gets overcharged and has to plead out, right? And that is a direct function of the fact that the system cannot sustain everyone receiving a fair trial. It just can't. I don't think that that's an easy problem to solve, but I also don't think that the federal courts and the Supreme Court have shown a real interest in solving it, or even identifying it as a problem.
39:54 Speaker 03 Yeah, you know, to her credit in dissent, Sotomayor acknowledges at least this part about the good faith or bad faith actors, right? She says, "The court in this case appears to justify its decision by averting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the judiciary." Right? She's saying there will be people in charge who use this to their advantage at the detriment in at the harm of other people, at least constitutionally, right? Legally. And so we're just, the majority is just giving a green light to that, you know?
40:38 Speaker 03 Another way that I've been thinking about, you know, we've been talking about the Supreme Court cases that have, you know, the brick by brick thing, like allowed a Trump 2.0 to be acting as this regime is. Another thing I was thinking about while reading the majority here is how the sort of really horrific, disgusting, racist dialogue and discourse about immigration right now, there's not a lot of distance between Nick Fuentes saying things like, you know, if we don't have borders, we don't have a country. Or Alex Karp, the CEO or the founder of Palantir, saying like, "I'm going to vote for whoever is closing borders."
41:22 Speaker 03 And talking about like American cultural supremacy, like, you know, this, like, kind of this America first bullshit. I don't see a lot of distance between that, which is disgusting, and with Alito in the majority, saying that the Rassadegh is seeking authorization to remain in a country other than his own. Is implying like in this tricky way, Therasa GM is seeking a right to remain in this country. You have this being talked about in 2020 in the pages of Supreme Court opinions.
41:59 Peter Shamshiri? Yeah.
41:59 Speaker 03 Conservatives are talking like this and here's legal discourse on it.
42:03 Peter Shamshiri? Right. It's like, it's not your birthright. I mean, that is the sort of
42:06 Speaker 03 1,000%.
42:07 Peter Shamshiri? The rhetoric and logic, you know, and I think that's the difference between even more conservative liberals and like the real reactionaries is I think if you're not an idiot, you probably understand someone's citizenship as a complete accident of their birth and any bearing that has on your rights and dignity is unfortunate at least. And I think conservatives just don't quite see it like that. They're like, no, God placed me here. Like, and God placed you there.
42:41 Speaker 03 Yeah.
42:42 Peter Shamshiri? And if you are someone who's in Sri Lanka, your right to be here is, should be mitigated, not just because it's necessary, which I think is like what a lot of liberals believe. Like, this is sort of like this necessary evil that we have to limit immigration. Conservatives don't really believe that. They, they think it's not just that it's a necessary evil. It's, it's a necessary good.
43:04 Speaker 03 Yeah, no, it's a necessary good. Yeah, exactly. We have to do this.
43:07 Peter Shamshiri? Right? That every guy like this, we keep out, it preserves Buc-E's or Applebee's or whatever.
43:15 Speaker 03 Yeah.
43:16 Peter Shamshiri? We're keeping them safe, keeping our beautiful Chili's franchises safe.
43:25 Peter Shamshiri? All right. Next week, premium episode, folks. We're going to be talking about the Venezuelan boat strikes. Obviously Donald Trump and his gang of psychopaths have been drone striking random boats off the coast of Venezuela, claiming that they're trafficking drugs.
43:43 Speaker 03 A little extrajudicial execution.
43:46 Peter Shamshiri? Yeah.
43:47 Speaker 03 Activity.
43:48 Peter Shamshiri? Probably fishermen. Jesus Christ.
43:54 Peter Shamshiri? We'll talk about it next week. Follow us on social media at 54pod. Subscribe to our Patreon, patreon.com/54pod, all spelled out for access to premium episodes, ad-free episodes, special events, our Slack, all sorts of shit. We'll see you next week.
44:10 Speaker 03 Bye y'all.
44:14 Speaker 04 Five to Four is presented by Prolog Projects. This episode was produced by Dustin DeSoto. Leon Nefok provides editorial support. Our website was designed by Peter Murphy. Our artwork is by Teddy Blanks, That Chips NY, and our theme song is by Spatial Relations. If you're not a Patreon member, you're not hearing every episode. To get exclusive Patreon-only episodes, discounts on merch, access to our Slack community, and more, join at patreon.com/fivetofourpod.
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