March 8, 2019

Opening the Door to Judicial Review of Removal Orders



This week, writing for a three-judge panel in the Ninth Circuit Court of Appeals, Judge A. Wallace Tashima reversed a district court’s dismissal of Vijayakumar Thuraissigiam’s habeas petition challenging the processes leading to his expedited removal order. As a result of this decision, Thuraissigiam can appeal the government’s decision to deny him asylum in the United States, potentially opening the door for asylum seekers to appeal deportation in federal court within the jurisdiction of the Ninth Circuit.

Generally, when a noncitizen arrives at a port of entry or within 100 miles of the border, U.S. Customs and Border Protection (CBP) will place that individual in “expedited removal” proceedings — aptly named because it means removal without further hearing or review — if they deem him inadmissible. However, if the individual indicates an intent to file for asylum or a fear of persecution if he is returned to his home country, then he is referred to an asylum officer who conducts an interview to determine whether the fear is credible.

If that officer finds no credible fear, then the individual is removed from the United States. A supervising asylum officer can review the determination, as well as an immigration judge upon request. However, there is no judicial review (8 U.S.C. § 1252(e)(2)) of any individual removal determination outside of a habeas petition, which triggers judicial review of the legality of detention. Even then, there can be no review of whether the alien is actually inadmissible or entitled to any relief from removal. All individuals placed in expedited removal proceedings are subject to mandatory detention until they are removed.

Judicial review is a double-edged sword: Increasing its availability it may make the current removal system more inefficient, but it is also an increasingly necessary safeguard against outcomes like that of Thuraissigiam. A native of Sri Lanka, Thuraissigiam is a member of the Tamil ethnic minority who was jailed, beaten, and tortured for his political activity during the civil war between the Sri Lankan government and the insurgent Liberation Tigers of Tamil Eelam. Thuraissigiam was nonetheless ordered removed after an asylum officer rejected his claim that his political past would put result in harm if he were to return to Sri Lanka.

In spite of evidence available to the agency that Tamils in Sri Lanka are subjected to torture, the decision was affirmed by the asylum supervisor and an immigration judge — albeit through a “checkbox” affirmation. Thuraissigiam filed a habeas petition in federal court arguing the expedited removal proceeding violated his rights and asked for a meaningful opportunity to apply for asylum and relief from removal, which was rejected by the district court for lack of subject matter jurisdiction.

Upon appeal, the Ninth Circuit panel affirmed the District Court’s determination that § 1252(e)(2) does not authorize jurisdiction over Thuraissigiam’s petition, but considered whether Thuraissigiam’s habeas petition could invoke protections by way of the Suspension Clause, which prevents Congress from passing a statute that effectively suspends habeas corpus absent rebellion or invasion. Congressional suspension of habeas corpus is only allowed insofar as it provides for adequate and effective review of an individual’s detention.

In other words, the panel sought to answer whether § 1252(e)(2) effectively suspends habeas corpus — thereby denying an individual a meaningful opportunity to demonstrate that he is being held pursuant to an “erroneous application or interpretation of the law” — in violation of the Suspension Clause. If applicable to Thuraissigiam, the Suspension Clause could allow for judicial oversight over whether DHS complied with minimum constitutional standards in determining whether he was inadmissible or entitled to relief from removal.

Despite the fact that due process rights afforded to noncitizens are slim, the panel found that the Suspension Clause could be invoked to protect the few rights noncitizens do have by way of habeas review. The court deemed the asylum officer supervisory review and an immigration judge’s checkbox affirmation “meager procedural protections.” In Thuraissigiam’s case, that meant the constitutional minimum — determining whether the detainment and removal was pursuant to the erroneous interpretation or application of relevant law — was not satisfied by the process set out in § 1252(e)(2).

With jurisdictional claims out of the way, the Ninth Circuit panel remanded the case back down to the district court to consider the merits of Thuraissigiam’s legal challenges to the procedures leading to his expedited removal order. Depending on the outcome from the District Court, it is conceivable that asylum seekers within the Ninth Circuit may have an opportunity to present the merits of their asylum claims and contest removal before a federal judge.

The Trump administration is expected to appeal the decision to the Supreme Court.