Immigration Law

In ruling with 'sweeping implications,' 9th Circuit rules asylum-seeker is entitled to habeas review

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Immigrants seeking asylum may seek habeas review of the procedures leading to expedited removal orders, a federal appeals court has ruled.

The March 7 decision by the 9th U.S. Circuit Court of Appeals at San Francisco has “sweeping implications,” according to a press release by the American Civil Liberties Union. How Appealing links to coverage, including stories by the New York Times, the Washington Post, the San Francisco Chronicle and BuzzFeed News.

The ACLU represented Vijayakumar Thuraissigiam, a member of the Tamil ethnic minority in Sri Lanka who claimed he was persecuted in his home country for supporting a Tamil political candidate.

Thuraissigiam says he was beaten twice for his political support, once by Sri Lankan army officers and a second time by government intelligence officers. He also was lowered into a well, threatened with death and suffocated until he lost consciousness, he says.

Under the current procedure, asylum-seekers are screened by asylum officers who determine whether they have a credible fear of persecution in their home countries. If denied, asylum-seekers can request a review by an immigration judge, “but it is usually cursory, and favorable decisions are rare,” the New York Times reports.

Circuit Judge A. Wallace Tashima said in the 3-0 panel opinion that the fast-track system offered “meager procedural protections,” and the constitutional minimum “is not satisfied by such a scheme.”

Immigrants in such cases are entitled to seek habeas review in federal courts to challenge the legal procedures leading to expedited removal orders, Tashima said.

Tashima cited the 2008 Supreme Court decision Boumediene v. Bush, which allowed enemy combatants at Guantanamo Bay to challenge their detention. That decision is precedent that permits Thuraissigiam to invoke the suspension clause to obtain federal court review, Tashima said.

The suspension clause reads: “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.”

The law establishing expedited removal “violates the suspension clause as applied to Thuraissigiam, although we do not profess to decide in this opinion what right or rights Thuraissigiam may vindicate via use of the writ,” Tashima said.

The 9th Circuit’s grant of habeas rights conflicts with a decision by the 3rd Circuit at Philadelphia, increasing the probability of Supreme Court review.

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