A Federal Appeals Court Confirms That the Constitution Guarantees Immigrants Access to Courts

In a major decision on Thursday, a federal appeals court held that immigrants are entitled to seek judicial review of their “expedited removal” orders in federal court. This decision is a significant step towards ensuring that vulnerable asylum seekers and others will get a fair shot to prove their claims that our immigration laws and the U.S. Constitution guarantee.

Vijayakumar Thuraissigiam fled his home in Sri Lanka to escape torture, beatings, and likely death. Vijayakumar is Tamil, a member of an ethnic minority that the Sri Lankan government has subjected to a well-documented campaign of human rights violations. After government officers abducted and beat him, subjected him to simulated drowning, and threatened to kill him, Vijayakumar fled the country and sought asylum in the United States.

But his claim was denied after a cursory and inadequate interview. Like many asylum seekers who reach the United States, Vijayakumar was placed into the “expedited removal” system. That system, created in 1996, is an alternative to the normal deportation system and applies at the border to certain immigrants — particularly those who arrive without a visa or other immigration papers.

Under expedited removal, an asylum seeker has an initial short interview with an asylum officer to determine if he has a “credible fear” of return to his home country. This is supposed to be a low threshold screening interview, designed to ensure that anyone with a potentially meritorious claim is not immediately removed but instead gets a full asylum hearing as part of the regular deportation system.

If the asylum officer believes that the person does not have a credible fear, the next step is an often extremely cursory “review” in front of an immigration “judge” — who is actually an executive branch officer employed by the Department of Justice. If the immigration judge agrees, that, according to the government, is the end of the line: The asylum seeker never gets to take his case to any court and is removed “without further hearing or review.”

On behalf of Vijayakumar, the ACLU filed a case in federal court challenging this exclusion of vulnerable asylum seekers from their day in court. The Ninth Circuit Court of Appeals agreed, striking down the limits on judicial review as unconstitutional.

The Habeas Corpus Suspension Clause of the Constitution prevents the government from suspending access to the writ of habeas corpus except in certain extraordinary circumstances involving rebellion or invasion of the country. Habeas has a long and important history, tracing back to England, as a primary check against the government’s ability to detain people without legal justification.

As the Supreme Court has explained, the framers of the Constitution “viewed freedom from unlawful restraint as a fundamental precept of liberty, and they understood the writ of habeas corpus as a vital instrument to secure that freedom.” The Suspension Clause guarantees that this “vital instrument” remains available, even when it is inconvenient to the government.

Looking back on a century of its case law in 2001, the Supreme Court held that because of the Suspension Clause, “some ‘judicial intervention in deportation cases’ is unquestionably ‘required by the Constitution.’”

Applying these precedents, the Ninth Circuit held that asylum seekers like Vijayakumar have the right to federal court habeas review of their expedited removal orders. Acknowledging Congress’s interest and authority over immigration matters, the court nonetheless struck down limitations on judicial review over expedited removal, explaining that the immigration power could not “overwhelm the ‘fundamental procedural protections of habeas corpus . . . , a right of first importance.’”

This decision means that Vijayakumar should finally get what he has so far been denied — a fair shot to establish his case for asylum and secure safety here in the United States. Vijayakumar’s case also has the potential to help other asylum seekers like him, who are denied protection and deported every day without ever having the chance to have a judge look at their cases.

Compounding the problem, the Trump administration has announced plans to expand expedited removal — which is currently limited to individuals apprehended at the border or within 100 miles and 14 days — even further, a move that former immigration officials agree would threaten constitutional rights. That would be one more addition to the long list of many other illegal actions the administration has taken against asylum seekers.

At this moment, the Ninth Circuit’s decision is a particularly critical step towards guaranteeing they get a fair opportunity to seek safety in this country.

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Ms. Gloria Anasyrma

Let's not forget that the United States is not the only country where Mr. Thuraissigiam can seek asylum.

Jennifer

Stop ignoring the single parents separated by the 1996 act. We have 8 million children hurting. I don't make enough to sponsor. We are facing separation and I have no one to help sponsor him. My Trump supporting family I will never speak with again. They told me he can sponsor himself which is not possible. My family has not spoken to me in over a year and I am still trying to figure out how to make more money. I work 3 jobs and cannot make enough to hit 43k no matter what I do.

Anonymous

The 9th Circuit Court of Appeals ruled that? Oh they don't count.

Anonymous

A federal appeals court ruled that was illegal for the U.S. Justice Department to detain American citizens - without our consent - exploiting the federal "Material Witness Statute and similar laws. The ACLU needs to abolish the MWS in it's entirety. Executive branch agencies refuse to follow the law.

Anonymous

Help me understand. Non-US Citizens are going to cost me (a taxpayer) more money?

Ms. Gloria Anasyrma

Minorities are ruining this country.

Anonymous

Here's an alarming fact about the consequences of bad U.S. Supreme Court rulings that violate the letter & spirit of the Bill of Rights: Less than 5 high-court rulings, that happened in the late 1960's and early 1970's, destroying the 4th Amendment, resulted in over a million Americans going to prison. Everyone should really think about, instead of amending the constitution, rulings like "Terry v. Ohio" in 1968 sent over a million people to prison. These prisoners were mostly from poor neighborhoods were "selective enforcement" was practiced. The very same crimes were happening in the wealthier suburbs. Over a million people destroyed!

Anonymous

Anything coming out of the 9th circuit is a joke. The ACLU is gaming the system by only going to judges in that circuit, judges that are activists and could care less about the law. The ACLU is no longer considered a non-partisan organization and should not be allowed its non-tax status with the government. Sixty Minutes got it right this time.

Anonymous

Interesting that there is NOT ONE ARTICLE ABOUT THIS ON YOUR SITE:
The Eleventh Circuit Court of Appeals affirmed that Deferred Action for Childhood Arrivals (DACA) recipients are not entitled to enroll in certain Georgia colleges and universities that bar those without “lawful presence.” The Court ruled that the DACA program does not confer lawful presence on recipients, and that Georgia’s admissions bar does not violate a DACA recipient’s right to equal protection.

NOW WHY IS THAT? I WOULD GUESS BECAUSE IT DOESN'T ALIGN WITH YOUR PARTISAN POLITICS.

Anonymous

They should only be allowed in the United States, if they have proper identification. They should be willing to assimilate to thee Constitution in the states, they shouldn't be just coming here to get special treatment.

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