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Law Barring Asylum Reviews Is Unconstitutional: 9th Circ.

By Kevin Penton | March 7, 2019, 8:13 PM EST

Part of the Immigration and Nationality Act violates the U.S. Constitution by limiting federal district courts from reviewing whether asylum seekers apprehended near the border established a fear of persecution, the Ninth Circuit found Thursday. 

The part of the Immigration and Nationality Act at issue, Section 1252(e)(2), violated Vijayakumar Thuraissigiam’s rights under the suspension clause of the U.S. Constitution, a three-judge appellate panel ruled in a precedential opinion. The Southern District of California had the power to determine whether an immigration judge erred in determining that the Sri Lankan native had failed to establish that he feared persecution should he be deported to the Asian country, the panel found, reversing the lower court's ruling.

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 on such an 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.

“We do not think the statute can bear a reading that avoids the constitutional problems it creates,” the opinion said.

Thuraissigiam, a member of the Tamil ethnic minority group in Sri Lanka, entered the United States without authorization in February 2017, according to the opinion. He was apprehended by immigration authorities approximately 25 yards from the border, well within the range of 100 miles where certain immigration regulations allow for quicker deportation procedures should individuals fail to establish either that they have been in the U.S. for at least two weeks or that they credibly fear persecution should they be repatriated, according to the opinion.

The Ninth Circuit remanded the case to the California court so the lower court can review the allegations made by Thuraissigiam, according to the opinion.

“The historical and practical importance of this ruling cannot be overstated,” Lee P. Gelernt, an attorney representing Thuraissigiam, said in a statement on Thursday. “This decision reaffirms the Constitution’s foundational principle that individuals deprived of their liberty must have access to a federal court.”

Counsel for the federal government could not be reached for comment on Thursday.

Circuit Judges A. Wallace Tashima, M. Margaret McKeown and Richard A. Paez sat on the panel for the Ninth Circuit.

Thuraissigiam is represented by Lee P. Gelernt, Jennifer Chang Newell, David Hausman and Cody Wofsy of the American Civil Liberties Union's Immigrants’ Rights Project and David Loy of the ACLU Foundation of San Diego & Imperial Counties.

The federal government is represented by Joshua S. Press and Joseph A. Darrow of the U.S. Department of Justice's Civil Division.

The case is Thuraissigiam v. U.S. Department of Homeland Security et al., case number 18-55313, in the U.S. Court of Appeals for the Ninth Circuit.

--Editing by Janice Carter Brown.