By: Malou Mararang and Vivek Goyal

On June 25, 2020, the United States Supreme Court ruled in Department of Homeland Security v. Vijayakumar Thuraissigiam that a law limiting the ability of federal courts to review asylum seekers’ deportation orders was constitutional. In the future, asylees may be deported without getting the opportunity to have their deportation decisions reviewed again by the judiciary.

Applying for Asylum: Background on the Case

Sri Lankan citizen Vijayakumar Thuraissigiam entered the United States in 2017. He crossed the southern border without inspection or an entry document, and was stopped by a Border Patrol Agent within 25 yards of the border near San Ysidro, CA. The Department of Homeland Security detained Mr. Thuraissigiam for expedited removal.

Under US law, when foreign nationals seek asylum at the US border, they are either placed in:

• Immigration court removal proceedings, where they appear before an administrative judge and build their case for asylum
• Expedited removal proceedings, where they can be deported without appearing before a judge. However, if the individual states that they intend to apply for asylum, they have the right to a credible fear interview. If they can establish a “significant possibility” of asylum eligibility, and they pass a credible fear test, they will be referred to an immigration court.

Mr. Thuraissigiam explained in his credible fear interview that, as a member of the victimized Tamil ethnic group, he feared persecution in Sri Lanka. He described being beaten, blindfolded, and abducted in Sri Lanka before spending 11 days recovering in a hospital. An asylum officer interviewed him, and although there were communication issues, the officer felt Mr. Thuraissigiam’s story was credible. However, because Mr. Thuraissigiam could not identify the attackers or their motives, the officer rejected his request. An immigration judge agreed, and Mr. Thuraissigiam was set for deportation.

Appealing the Deportation Decision

In response, Mr. Thuraissigiam filed a writ of habeas corpus in the US District Court for the Southern District of California. Habeas corpus is a legal principle whereby people under arrest have the right to appear in court to determine whether their detention is lawful.

In addition to violating his statutory and regulatory rights, Mr. Thuraissigiam’s attorneys argued that his detention violated the US Constitution’s:

• Suspension clause, which states that habeas corpus should not be suspended unless rebellion or public safety requires it
• Due process clause, which asserts that no one should be deprived of their “life, liberty or property” without legal treatment in the judicial system

His attorneys also asserted that he was not given a meaningful “right to apply for asylum”[1] or “opportunity to establish his claims.”[2] They contended that Mr. Thuraissigiam’s right to due process was violated because he did not receive judicial review of an allegedly flawed credible fear interview. Further, they argued that his experience was consistent with documented abuse against Tamils in Sri Lanka.

[1] In violation of discretionary relief under 8 U.S.C. § 1252(b)(1) and related regulations

[2] In violation of his rights under the Due Process Clause

Ruling on the Case: Limiting Oversight for Deportation Decisions

The US District Court for the Southern District of California dismissed the case, stating that habeas corpus and the suspension clause did not apply.[1] Mr. Thuraissigiam appealed to the US Court of Appeals for the Ninth Circuit, which ruled in his favor, stating that he was entitled to due process protections. The Department of Homeland Security petitioned for the Supreme Court to review the case.

The US Supreme Court reversed the prior decision, ruling that habeas corpus did not cover additional administrative review of Mr. Thuraissigiam’s asylum case and his authorization to stay in the country. In the majority opinion, Justice Samuel A. Alito, Jr. also asserted that Congress could limit the role of federal courts in reviewing asylum cases because these cases could “overwhelm” the justice system. Justice Alito stated that Mr. Thuraissigiam invoked the writ of habeas corpus “to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in the country.”

As Mr. Thuraissigiam entered the country unlawfully and is treated as an “applicant for admission,” the court further asserted that he was given the right to determine whether he had a “significant possibility” of being eligible for asylum. It stated that his right to due process does not require judicial review of credible fear determination, or how it was made.

[1] 8 U.S.C. § 1252(e)

Conclusion

For help applying for asylum in the United States or understanding how this Supreme Court ruling impacts you, please contact an experienced Chugh, LLP attorney.