Immigration Law

Asylum-seekers have a right to federal court review of expedited removal orders, ABA amicus brief says

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The ABA filed an amicus brief to the U.S. Supreme Court on Wednesday in support of a Sri Lankan who faced political persecution and is challenging a policy that says asylum-seekers are not entitled to federal court review of expedited removal orders.

In the brief, the ABA argued that the court should affirm the San Francisco-based 9th U.S. Circuit of Appeals ruling in favor of Vijayakumar Thuraissigiam. In March 2019, the appeals court found that under the Suspension Clause of the Constitution, Thuraissigiam is permitted to ask a federal court to review his expedited removal order.

The ABA argued that denying noncitizens that privilege “contravenes fundamental principles of our constitutional system and this court’s precedent.” The high court had never before “excluded an individual on U.S. soil from the protections of the Suspension Clause absent a formal suspension of the habeas writ,” the 30-page brief states. “To do so would flout judicial review, the Constitution, and the rule of law.”

Under the procedure approved by Congress in 1996, undocumented immigrants who have been in the country for less than two weeks and are apprehended within 100 miles of a border are subject to expedited removal unless they can show they would be persecuted if they return to their home countries.

Thuraissigiam fled from Sri Lanka after government intelligence officers interrogated and tortured him because of his work for a Tamil political candidate in 2004 and 2013, according to court records.

A border patrol agent apprehended Thuraissigiam just miles from the San Ysidro border crossing in San Diego. Thuraissigiam says he faces the threat of torture and death if he returns to his home country.

The three-judge panel of the San Francisco-based 9th Circuit found that limiting judicial review of Thuraissigiam’s legal claims, including a writ of habeas corpus, was unconstitutional.

In August, the Trump administration asked the court to reverse the 9th Circuit decision.

The court granted cert this past October. That was after the government argued that the 9th Circuit ruling would allow thousands of immigrants to seek habeas review even when there is no credible fear of persecution or torture.

“The effect is to invalidate Section 1252(e)(2) in its core applications and to significantly delay removal of aliens like respondent, preventing expedited removal of such aliens from being expedited at all and undermining the government’s ability to control the border,” U.S. Solicitor General Noel Francisco wrote in the cert petition.

The ABA noted that the Trump administration had now expanded expedited removal to include undocumented immigrants anywhere in the country who have been here for up to two years. They could face deportation without any federal court reviewing their cases first, the ABA said.

“For example, federal immigration authorities could apprehend a group of noncitizens from the streets of Seattle, Topeka, or Detroit potentially thousands of miles away from where they crossed the border years earlier—and still deport them via expedited removal,” the brief states.

Oral arguments in the case are scheduled for March 2.

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