Are Expedited Removal Orders Reviewable by the Courts?

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.

Trump Administration Adopts Asylum Regulation Directly Contrary to the Plain Language of the Statute

The Trump Administration has shown once again its disdain for the legal process of immigration, issuing a regulation directly contrary to the plain language of the Immigration and Nationality Act (INA). 

The specific issue concerns asylum. Asylum is legal protection granted by a country to people who have a reasonable fear of persecution in their home country based on race, religion, nationality, political opinion or membership in a particular social group. A person granted asylum has the legal right to remain the United States, work and obtain a travel document. After one year, an asylee may apply for lawful permanent residence, which can lead to citizenship. 

The Department of Justice issued an interim final rule prohibiting anyone who enters the United States through the southern border with Mexico at anywhere other than an official port of entry from applying for asylum, effective after the President has made a Proclamation to that effect. Put simply, once the President issues his Proclamation, migrants who do not hold a visa must enter through an official port of entry in order to apply for asylum if they cross over from Mexico. Any alien who sneaks across the border will be barred from applying for asylum. 

But this contradicts the statute. The process of applying for asylum is governed by section 208 of the INA.  Section 208(a)(1) states, “Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum in accordance with this section or, where applicable, section 235(b).” (Emphasis added).

The law, as passed by Congress, therefore guarantees the right to apply for asylum to any alien present in the United States, regardless of how that alien entered or what that alien’s legal immigration status is. That is, an alien who entered the United States by crossing the border without a legally valid visa, and at a place other than an official port of entry, may by law apply for asylum even if that alien has no legal immigration status in the United States.

The US law wherein Congress passed this provision was the Refugee Act of 1978. Through this law, Congress implemented US international obligations stemming from the Universal Declaration of Human Rights and the Protocol Relating to the Status of Refugees. The Protocol, in particular, prohibits a country from imposing a penalty on a refugee because that refugee either entered the country illegally or is present in the country illegally. 

A regulation is a rule issued by the Executive Branch implementing a statute passed by Congress. Regulations may interpret ambiguous language in a statute, or adopt policies pursuant to a statute where Congress has authorized the Executive Branch to adopt such policies. A regulation cannot contradict the plain language of the statute. 

In this instance, then, where Congress expressly provided that an alien present in the United States May apply for asylum regardless of whether that alien is present illegally or crossed the border illegally, a regulation cannot restrict the ability of aliens to apply for asylum only if they come through an official port of entry. With the regulation being directly contrary to the plain language of section 208(a)(1) of the INA, the Administration has no legal authority to adopt it. In the end, this restriction on the availability of asylum cannot withstand legal scrutiny. 

By:  William J. Kovatch, Jr. 

President Trump Orders Better Background Checks; Temporarily Suspends Some Immigration Benefits

Through an executive order entitled, "Protecting the Nation From Foreign Terrorist Entry Into the United States," President Donald Trump instructed immigration authorities to devise ways to conduct more thorough investigations into the background of potential visitors, refugees and immigrants to the United States. The measures are aimed at an attempt to prevent aliens with terrorist ties from gaining admission to the United States. While the additional measures are being created, the President also temporarily suspended certain immigration benefits. 

President Trump instructs the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, to determine what information is needed to determine whether a person who has applied for an immigration benefit poses a threat to national security. The Secretary of Homeland Security is then to submit a report within thirty days on the information needed, and on which countries do not supply this information.  The Secretary of State is then to request that the countries listed start supplying the information identified by Homeland Security. Sixty days later, the Secretary of Homeland Security is to submit a list of countries recommended to be included in a list from which the President will prohibit entry into the United States. 

To alleviate the burden on the investigating agencies, entries of all aliens from countries that have been determined to be state sponsors of terrorism by the Department of State are being suspended during this ninety day period.  During the ninety day period, the Secretaries of State and Homeland Security may determine on a case-by-case basis if certain individuals should be permitted entry, notwithstanding the suspension. 

Immigration authorities are also instructed to establish a program to identify aliens seeking to entry the United States through fraud, and who have an intention to cause harm or are at risk to cause harm after their admission. This program is to include a database of identity documents to prevent such fraud. 

Finally, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, and  is to review procedures to approve refugee applications to determine what additional measures should be taken to prevent the admission of aliens who pose a threat to U.S. security.  For 120 days, the entire refugee program is suspended. After the instructed review is complete, the Secretary of State, the Secretary of Homeland Security and the Director of National Intelligence will then provide a list of countries for which the addition measures are adequate to protect U.S. security. Only refugees from these countries will be permitted to enter the United States. 

The suspension of immigration benefits is temporary in nature. The suspension is intended to permit U.S. authorities to review security measures, and recommend additional security measures. Contrary to popular media, the measures are not aimed specifically at Muslim countries. The measures are aimed at countries that have been determined to be state sponsors of terrorism. Far from discriminating on religious bases, the President actually condemns all of "those who engage in acts of bigotry or hatred (including 'honor' killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation."

By:  William J. Kovatch, Jr.

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