9th Circuit Says Asylum Seekers Have Right to Appeal Deportation

(CN) – A Ninth Circuit panel ruled Thursday that a Sri Lankan member of the Tamil ethnic minority can appeal the federal government’s decision to deny him asylum in the United States.

Finding that U.S. District Judge Anthony Battaglia in Los Angeles has jurisdiction to review Vijayakumar Thuraissigiam’s challenge of the government’s allegedly shoddy asylum decision, the three-judge panel ordered Battaglia to review it in a unanimous opinion issued Thursday.

“[I]t is obvious that the constitutional minimum – whether Thuraissigiam was detained pursuant to the ‘erroneous interpretation or application of relevant law’ – is not satisfied by the scheme set out by § 1252(e)(2),” Senior U.S. Circuit Judge A. Wallace Tashima, referring to Title 8 of the U.S. Code on aliens and nationality, wrote for the panel Thursday.

“Thuraissigiam, who was arrested within the United States, may invoke the Suspension Clause” of the U.S. Constitution to appeal the decision, Tashima concluded.

In a statement Thursday, Lee Gelernt, Thuraissigiam’s attorney with the American Civil Liberties Union, said “[t]he historical and practical importance of this ruling cannot be overstated.”

“This decision reaffirms the Constitution’s foundational principle that individuals deprived of their liberty must have access to a federal court,” Gelernt said.

Thuraissigiam was jailed, beaten and tortured for his political activity during the civil war between the Sri Lankan government and the Liberation Tigers of Tamil Eelam, according to court papers.

He fled the country in 2016, after Sri Lankan intelligence officers tortured him a second time. On Feb. 17, 2017, he made it through Latin America and walked across the U.S.-Mexico border, where a border patrol agent arrested him just 25 yards into the United States.

The 47-year-old was ordered to leave the U.S. after an asylum agent rejected his claim that his political past would condemn him to persecution, torture and death in Sri Lanka.

In response, Thuraissigiam, who is jailed at the Otay Mesa Detention Center in San Diego, filed a habeas petition against the Department of Homeland Security arguing that his deportation order violated his statutory, regulatory and constitutional rights, including the agency’s choice to ignore evidence that Tamils in Sri Lanka are subject to torture.

But Battaglia dismissed the petition for lack of subject matter jurisdiction, concluding that § 1252(e) did not authorize jurisdiction over Thuraissigiam’s claims. He also rejected Thuraissigiam’s Suspension Clause arguments.

Thuraissigiam appealed, arguing Battaglia’s ruling amounted to an illegal refusal to let him challenge the deportation order with a writ of habeas corpus – an opportunity guaranteed under the Constitution.

Tashima and U.S. Circuit Judges M. Margaret McKeown and Richard Paez accepted these arguments Thursday, holding that Battaglia has jurisdiction because 8 U.S.C. § 1252(e)(2) violates the Suspension Clause as applied to Thuraissigiam.

“The district court has jurisdiction and, on remand, should exercise that jurisdiction to consider Thuraissigiam’s legal challenges to the procedures leading to his expedited removal order,” Tashima, a Nixon appointee, wrote in the 48-page ruling.

Under 8 U.S.C., noncitizens who apply for asylum based on a fear of persecution are referred for an interview with an asylum officer. If the asylum officer finds no credible fear of persecution, the asylum seeker is deported.

On Thursday, the appellate panel affirmed Battaglia’s conclusion that § 1252(e)(2) doesn’t authorize jurisdiction over Thuraissigiam’s petition. But it rejected the government’s argument that Thuraissigiam lacks due process rights and that he thus cannot invoke the Suspension Clause, reasoning that “[h]abeas review provides important oversight of whether DHS complied with the required credible fear procedures.”

“Under the existing administrative scheme, there are no rigorous adversarial proceedings prior to a negative credible fear determination,” Tashima said.

Nor is there a requirement that a reviewing immigration judge [IJ] “provide reasons for her decision.”

“Indeed, in this case, the IJ simply checked a box on a form stating that the immigration officer’s decision was ‘Affirmed,'” Tashima said.

“These meager procedural protections are compounded by the fact that § 1252(e)(2) prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards,” Tashima said, raising “serious Suspension Clause questions.”

Quoting from the Supreme Court’s 2008 ruling in Boumediene v. Bush, Tashima concluded, “Plenary power concerns cannot in all circumstances overwhelm the ‘fundamental procedural protections of habeas corpus . . . , a right of first importance.'”

The Justice Department declined to comment Thursday.

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