PORTLAND, Ore. (CN) – An ACLU attorney told a Ninth Circuit panel Thursday the U.S. government’s refusal to grant asylum to a Sri Lankan member of the Tamil ethnic minority or allow him to appeal the decision is unconstitutional.
Vijayakumar 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 documents.
Thuraissigiam went into hiding and 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 46-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 if he was forced to return to Sri Lanka. Thuraissigiam, who is currently jailed at the Otay Mesa Detention Center in San Diego, says the agent conducted a “cursory administrative asylum hearing” and refused to hear important contextual information before refusing his claim.
Thuraissigiam sued the Department of Homeland Security in federal court in Los Angeles, claiming the asylum agent conducted a “wholly inadequate” review of his claim and refused to consider evidence that Tamils in Sri Lanka are subject to torture.
But U.S. District Judge Anthony J. Battaglia did not consider that assertion, instead dismissing the case on the basis that under the Immigration and Nationality Act, “Congress expressly deprived courts of jurisdiction to hear a direct appeal from an expedited removal order.”
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.
Arguing before Senior U.S. Circuit Judge A. Wallace Tashima and U.S. Circuit Judges M. Margaret McKeown and Richard Paez on Thursday, American Civil Liberties Union attorney Lee Gelernt said the Suspension Clause of the Constitution protects access to habeas and does not allow judges to limit petitioners’ ability to challenge their detention.
“The Supreme Court has never in the history of this country allowed someone who has entered the country to be removed without review of his legal claims,” Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, told the panel. “Nor has this court in the history of the country ever allowed that.”
If allowed to stand, Gelernt said, Battaglia’s ruling would open the door to letting the government take more actions without legal consequences.
“This is such a momentous question, for the first time in history, for the Supreme Court or this court to say someone who entered the country has no suspension clause rights and no review of legal and constitutional claims – I do not believe that the government is right that they should attribute to those other panels that kind of sweeping ruling,” Gelernt said.
Judge McKeown wondered aloud whether reading the law that way might encourage immigrants to enter the country surreptitiously – through means other than an official port of entry.
Joshua Press, a U.S. Attorney with the Office of Immigration Litigation, told the panel McKeown’s question highlighted the purpose of the Immigration and Nationality Act – which he claimed was intended to avoid rewarding immigrants who enter the country illegally.
“The whole point was to eliminate the distinction between someone who got one foot past while someone else waited patiently and wanted to go through the lawful procedure, because it was unfair and it created perverse incentives,” Press said.
Gelernt said granting habeas rights based on some measurement of physical presence in the country is an unfair and unenforceable proposal.
“The government’s position is, well he was only here for a little while and entered unlawfully,” Gelernt said. “But this court has repeatedly held that it doesn’t matter how many feet over. The court has drawn a bright line. This would be an enormous holding if you were to say it’s the amount of distance you are in the country. And what test would you apply? One day, three days, three yards, 25 yards?”
Press, meanwhile, maintained Thuraissigiam is not entitled to habeas, regardless of his physical presence in the country.
“The idea that once someone puts one foot over the line, even at a port of entry, that a different analysis suddenly applies, I think, is really the essence of their case and it’s certainly the main point of contention here. He has no ties to this country. His ties to this country are the fact that he made it 25 yards in. If that is the amount of tie and stake that an alien needs to have to get habeas for habeas’ sake, then we would submit that due process was complied with when he got reviewed by an asylum officer.”
Gelernt urged the panel to find that habeas for habeas’ sake is the standard.
“I am not aware of any precedent that says the Suspension Clause does not apply to someone on U.S. soil,” Gelernt said. “We’ve won some cases in the Supreme Court on immigration and we’ve lost some. But the one thing the Supreme Court has never allowed to be sacrificed is habeas.”
The panel did not indicate when it will rule.