On Friday, October 18, 2019, the U.S. Supreme Court agreed to hear an appeal to determine whether expedited removal orders are ever reviewable by federal courts. The case is Thuraissigiam v. U.S. Department of Homeland Security, No 18-55313 (March 17, 2019).
Decided by the Ninth Circuit Court of Appeals, the case involves a citizen of Sri Lanka who was apprehended in the United States 25 yards from the U.S.-Mexican border. Undocumented, Thuraissigiam was issued an expedited removal order. However, he claimed a fear of persecution if returned to his home country. Accordingly, an asylum officer conducted a credible fear interview, to see if he had a basis to file an asylum application. The asylum officer found no credible fear. This was affirmed by a supervisor, and then an Immigration Judge. Thuraissigiam filed for a habeas corpus review in the U.S. District Court, which was denied on jurisdictional grounds. The U.S. Court of Appeals heard the case, and found that the law creating expedited removal was unconstitutional, because it violated the Suspension Clause of the U.S. Constitution.
There is a lot there to unpack. Starting with expedited removal, Congress passed a statute providing that any alien who arrives at a port of entry without proper documentation, or with documentation based on fraud, could be order removed from the United States in an expedited fashion without resorting to the Immigration Courts. This expedited removal can apply to any alien who is apprehended within 100 miles of the border, who cannot prove that he or she has been in the United States for greater than two weeks. An officer from Customs and Border Protection (CBP) or U.S. Immigration and Customs Enforcement (ICE) may issue the expedited removal order, and summarily remove the alien from the United States, without permitting the alien a hearing before an Immigration Judge. The law provides that an order of expedited removal is not directly reviewable by any federal court. Moreover, habeas corpus review is limited by statute to three situations: (1) where the alien claims he or she is a citizen; (2) whether an expedited removal order was in fact issued covering the alien (that is, only whether the order was issued may be reviewed, and not the substance of the order itself); and (3) whether the alien is a permanent resident or possesses some other legal status that exempts him or her from expedited removal.
When the Government issues an expedited removal order, the alien may still avoid removal if he or she claims that he or she fears persecution if returned to his or her home country. Under these circumstances, the Government is legally obligated to conduct a credible fear interview. An asylum officer conducts an interview with the alien to determine whether he or she has a credible basis to file an asylum petition. If the asylum officer finds that the alien has a credible fear, the alien is then placed in regular removal proceedings, where he or she will have an opportunity to file an asylum application and have it adjudicated before an Immigration Judge. If the asylum officer finds no credible fear, then the decision is reviewed by a supervisor. If a supervisor affirms the decision, the alien may have the credible fear determination reviewed by an Immigration Judge. That review must take place as soon as possible, and efforts must be taken to try to adjudicate whether the alien has a credible fear within twenty-four hours of the asylum officer's decision. If the Immigration Judge finds a credible fear, the alien is placed in removal proceedings for full adjudication. If the Immigration Judge finds no credible fear, then the expedited removal order stands, and the alien is removed from the United States. There is no direct appeal from the Immigration Judge in this situation, and a habeas corpus review, as discussed earlier, is only available in limited circumstances.
Returning to the case at hand, Thuraissigiam filed for a habeas corpus review after the Immigration Judge found that there was no credible fear. A habeas corpus review is one where a person challenges the legality of a physical detention by the Government. It is a type of review that is available in addition to the direct review of a judgment. Habeas corpus proceedings most often come into play after a criminal conviction, and usually involve a claim that something was wrong with the procedure leading to the conviction. Although immigration detentions occur pursuant to civil law, and not criminal law, they can also be subject to a habeas corpus review.
The U.S. District Court originally held that it lacked jurisdiction to hear the habeas corpus challenge, because the statute specifically limited such review to three situations, none of which applied to Thuraissigiam. On appeal before the Ninth Circuit, the Court of Appeals agreed with the District Court that the statute did not permit Thuraissigiam a basis for a habeas corpus review. However, the court did not stop its analysis there. Rather, the court went on to determine whether the expedited removal statute provided sufficient judicial relief to pass constitutional muster.
Specifically, Article I, Section 9, Clause 2 of the U.S. Constitution provides, "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." This is called the Suspension Clause. To address whether the statute violated the Suspension in this case, the Ninth Circuit engaged in a two step analysis. In step one, the court analyzed whether Thuraissigiam was entitled to a habeas corpus review. In this regard, the court noted that he was apprehended on U.S. soil, thus the constitutional guarantee of a habeas corpus review applied.
In the next step, the court analyzed whether the statute provided sufficient relief to satisfy the requirements of a habeas corpus review. In this regard, the court noted that the statute did not provide for a review of whether proper procedures were followed in issuing the expedited removal order, or in making the credible fear determination. Because this type of review was foreclosed by the statute, the Ninth Circuit concluded that the statute violated the Constitution.
This is now the issue that will be argued before the U.S. Supreme Court.
Congress has gone to great lengths in its attempt to preclude those subject to expedited removal from challenging the removal order in federal court. The expedited removal process has been met with criticism that it deprives people of constitutional rights, such as Due Process. The Ninth Circuit decision had opened the door to permit a greater degree of judicial review of some expedited removal cases. The question now is whether the door will remain open, or whether the Supreme Court will shut that door, again foreclosing habeas corpus relief to those subject to expedited removal.
By: William J. Kovatch, Jr.
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