Supreme Court to Hear Illegal Alien’s Claim to Right to Dispute Removal

October 21, 2019 Updated: October 21, 2019

WASHINGTON—The Supreme Court has agreed to hear the Trump administration’s appeal of a federal appeals court’s ruling that a Sri Lankan refugee claimant enjoys a constitutional right to challenge the procedures leading to his expedited removal order.

On Oct. 18, the high court announced the decision to hear the case cited as Department of Homeland Security v. Thuraissigiam. The justices didn’t provide reasons for their decision, as is their custom.

If the claimant, Vijayakumar Thuraissigiam, succeeds before the Supreme Court, the gates could swing open to more asylum-seekers at a time when the Trump administration has been trying to curb the flow of such claimants into the United States. At the same time, some federal judges have been resisting the administration’s push to expedite deportations.

In its petition to the court, the Department of Homeland Security argued that the Supreme Court has repeatedly distinguished between aliens who enter the U.S. lawfully and those such as Thuraissigiam, who “entered the country clandestinely, and who has been here for too brief a period to have become, in any real sense, a part of our population.”

Allowing Thuraissigiam to seek refugee status from inside the United States “would create a perverse incentive for aliens to cross the border surreptitiously, rather than presenting themselves for inspection at a port of entry,” the document states.

Thuraissigiam, a member of the Tamil ethnic group, which has historically suffered persecution in Sri Lanka, was arrested in 2017 a few yards north of the U.S.–Mexico border after entering the country unlawfully.

He brought a habeas corpus application seeking release from detention after government officials informed him that he hadn’t in their view demonstrated he had a credible fear of persecution in his home country.

While trying to show he had such a credible fear of persecution, Thuraissigiam claimed he had suffered harassment for supporting a Tamil political candidate and that in 2007, he had been “detained and beaten” by Sri Lankan army officers for taking that political stand. He said despite the beating, he continued to support the candidate and in 2014, government officials kidnapped and tortured him, according to court documents.

U.S. District Court Judge Anthony J. Battaglia of the Southern District of California dismissed Thuraissigiam’s appeal, stating that he lacked subject matter jurisdiction under federal law.

At the urging of the American Civil Liberties Union (ACLU), a three-judge panel of the 9th Circuit Court of Appeals unanimously reversed the district court ruling on March 7, finding the claimant possessed the right to challenge his detention in federal court.

Citing a pair of Supreme Court rulings, Boumediene v. Bush (2008) and INS v. St. Cyr (2001), Judge A. Wallace Tashima, writing for the panel, stated that the Constitution’s Suspension Clause required that the claimant be afforded a “meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.”

“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 wrote.

Solicitor General Noel Francisco had argued in a brief filed with the Supreme Court that the 9th Circuit erred, according to a Courthouse News Service report.

The claimant “failed to satisfy even the threshold screening standard,” Francisco wrote, adding that a Congressional Research Service report states that the Supreme Court “has repeatedly held” the U.S. government may exclude immigrants “without affording them the due process protections that traditionally apply to persons physically present in the United States.”

Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, was displeased at the Supreme Court’s action.

“It is a foundational principle of our Constitution that individuals deprived of their liberty have access to a federal court—this includes asylum-seekers whose lives are in danger,” he said in a statement.

Gelernt had previously argued before the 9th Circuit panel that “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.”

RECOMMENDED