The US Court of Appeals for the Ninth Circuit held on Thursday that the constitutional guarantee of habeas corpus precludes US immigration authorities from deporting asylum seekers who had failed an initial screening. This ruling sets up a circuit split (with the Third Circuit, which came to the opposite conclusion in 2016), which makes review by the US Supreme Court likely.
Under the current immigration procedure, every migrant who arrives at the border seeking asylum receives an interview with an asylum officer. To gain entry into the country, the migrant must prove to the officer that she has a credible fear of persecution in her homeland. Upon entry, the migrant can proceed with her asylum case in the immigration courts. If the migrant is unable to prove a credible fear of persecution, she can seek review by an immigration judge, but those reviews are cursory and largely unsuccessful.
The present case involves a migrant from Sri Lanka. Vijayakumar Thuraissigiam is a member of Sri Lanka’s Tamil ethnic minority. He was arrested near San Ysidro, California, and interviewed with an asylum officer. Thuraissigiam told the officer that he was fearful of returning to his homeland, and the officer found no credible fear. A supervisor and immigration judge affirmed that determination by checking a box on a form, and Thuraissigiam was set to be deported. He filed a habeas corpus petition in a federal court in Los Angeles, where he argued that the asylum officer failed to obtain critical information about his persecution in Sri Lanka and that poor translation deprived him of “a meaningful right to apply for asylum.” The district court rejected his argument, but a panel of the US Court of Appeals for the Ninth Circuit reversed.
According to the Ninth Circuit, the US Constitution guarantees asylum seekers a more complete review than what current immigration practices provide. The court reasoned that “the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been the strongest.” The court stayed Thuraissigiam’s deportation proceedings pending the outcome of the case.
Thuraissigiam v. U.S. Dep’t of Homeland Security (9th Cir. 2019)
Castro v. U.S. Dep’t of Homeland Security (3d Cir. 2016)
Ninth Circuit Appeals Court Grants More Protections for Asylum Seekers, The New York Times, March 7, 2019