Ninth Circuit Strikes Limit on Asylum Appeals, Rules that it Violates Suspension Clause

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit ruled in Thuraissigiam v. USDHS that the statutory limitation on federal habeas corpus jurisdiction for asylum applicants in deportation proceedings violates the Suspension Clause. The ruling sends the case back to the district court to consider Thuraissigiam's legal challenges to the procedures leading to his expedited removal order.

The ruling is a huge victory for asylum seekers in deportation proceedings. It means that Thuraissigiam and other aliens in expedited removal but who seek asylum have access to federal court to challenge a denial of asylum on the merits, and not just on narrow technicalities--at least in the Ninth Circuit.

The case arose when Vijayakumar Thuraissigiam, a native and citizen of Sri Lanka, entered the U.S. through Mexico. He was detained by a Customs and Border Patrol Officer just north of the border and placed into expedited removal proceedings. After Thuraissigiam requested asylum (based on a fear of persecution in Sri Lanka), CBP referred Thuraissigiam for an interview with an asylum officer. The officer denied asylum; the officer's supervisor affirmed; and an immigration judge affirmed.

Thuraissigiam then filed a habeas petition in federal court, arguing that his credible-fear screening deprived him "of a meaningful right to apply for asylum" and other relief in violation of federal law, and that the asylum officer and IJ violated his due process rights by "not providing him with a meaningful opportunity to establish his claims, failing to comply with the applicable statutory and regulatory requirements, and in not providing him with a reasoned explanation for their decision."

The district court dismissed the case for lack of subject matter jurisdiction. The court pointed to 8 U.S.C. Sec. 1252(e), the habeas jurisdictional hook for individuals in expedited deportation proceedings, and noted that the provision only authorized a federal court to determine (1) whether a petitioner is an alien, (2) whether the petitioner was ordered removed, and (3) whether the petitioner could prove that he or she is an alien lawfully admitted for permanent residence, as a refugee, or has been granted asylum. The court ruled that Thuraissigiam's case didn't fall into any of the three categories, and so dismissed it.

The Ninth Circuit agreed that Thuraissigiam's case didn't fall into any of the three categories, and that the district court therefore lacked statutory habeas jurisdiction over his claim. But the court went on to hold that Section 1252(e) violated the Suspension Clause.

The court, looking to Boumediene and St. Cyr, ruled first that Thuraissigiam, as an alien who was arrested in the United States, could invoke the Suspension Clause. The court ruled next that the Suspension Clause requires review of Thuraissigiam's claims, and that Section 1252(e), in disallowing review of his claims, violates the Clause. In particular, the court noted that Section 1252(e) prevented any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standard.

The court declined to invoke the constitutional avoidance canon, because, it said, Section 1252(e) cannot bear a reading that avoids the constitutional problems that it creates.

The court remanded the case to the district court to consider Thuraissigiam's legal claims.