High Court Agrees To Take Up Asylum Review Case

By Emma Cueto | October 18, 2019, 4:08 PM EDT

The U.S. Supreme Court agreed Friday to hear an appeal by the U.S. Department of Homeland Security in a case concerning whether district courts have the power to review whether asylum-seekers have established a credible fear of persecution.

Previously in the case, the Ninth Circuit ruled in favor of Sri Lanka citizen Vijayakumar Thuraissigiam, saying that part of the Immigration and Nationality Act violated Thuraissigiam's rights under the suspension clause of the U.S. Constitution and that a California federal court did have the power to review the credible fear determination made by the immigration judge in his case.

The high court agreed to hear the case without comment.

The ACLU, which represents Thuraissigiam, reiterated its opposition to the government's position in a statement Friday.

"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," Lee Gelernt, deputy director of the ACLU's Immigrants' Rights Project, said in a statement.

Counsel for DHS did not respond Friday to a request for comment.

Thuraissigiam filed suit in January 2018, less than a year after he was arrested 25 yards north of the U.S.-Mexico border in February 2017 and placed in expedited removal proceedings, according to the Ninth Circuit decision.

Thuraissigiam, who is a member of the Tamil ethnicity in Sri Lanka, argued that as an ethnic minority, he feared he would face persecution if returned to the country, the decision said. An asylum officer, however, found that this fear was not credible and an immigration judge affirmed the finding, according to the decision.

In his petition to the court, Thuraissigiam argued that Homeland Security's process violated his constitutional rights and asked for a review of the decision. However, the district court nixed the case, saying that it did not have jurisdiction because federal court review was limited by the Immigration and Nationality Act.

The Ninth Circuit disagreed. A three-judge panel said in a precedential decision in March that the section of the act in question, Section 1252(e)(2), violated the suspension clause of the Constitution.

The Ninth Circuit looked back at cases dating to the 1700s, determining that under review procedures set by the U.S. Supreme Court in a 2008 case known as Boumediene and by legal precedent set in several immigration cases dating back to the 1950s, Thuraissigiam should be covered by the suspension clause because he was arrested in the United States, according to the opinion.

The court went on to hold that a procedure that would not allow the California court to review the immigration judge's determination in Thuraissigiam's case would be unconstitutional, according to Thursday's opinion.

"We … reject the government's contention that because, in its view, Thuraissigiam lacks due process rights, there are no rights for the suspension clause to protect," the opinion read. "Boumediene foreclosed that argument by holding that, whether or not due process was satisfied, the suspension clause might require more."

The appellate court opted to declare the INA section to be unconstitutional rather than try to reinterpret the statute in a manner that could bring the law in line with the Constitution, according to the opinion. While legal precedent encourages courts to take the latter approach — a concept known as the canon of constitutional avoidance — the Ninth Circuit determined that there is no way to spin the language in the statute in a way that would make it constitutional.

The Ninth Circuit ordered that the case be remanded to California district court, but on Friday, the high court stepped in and agreed to hear DHS' appeal.

Homeland Security is represented by Solicitor General Noel Francisco.

Thuraissigiam is represented by Lee Gelernt of the American Civil Liberties Union.

The case is Department of Homeland Security et al. v. Vijayakumar Thuraissigiam, case number 19-161, in the U.S. Supreme Court.

--Additional reporting by Kevin Penton. Editing by Michael Watanabe.

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