The Supreme Court last week voted to check the decision of the Ninth Circle in Thuraissigiam v. US Dep. Of Homeland Sec. I wrote about the case in a March post entitled "Review of the Ninth Circuit Quick Decrease Regulations Violates the Constitution: Expect More Appeals, Less Negative, Credible Fears and More Entries". Regardless of what it is, the Supreme Court's final ruling will have significant implications for the government's attempts to accelerate deportation.
The alien in it caseThe Sri Lankan national illegally arrived in the US on 17 February 2017 and was arrested by a US customs and border guard 25 meters north of the border. He was transferred to an accelerated deportation trial and sent to a credible apprehension interview with an asylum official after he alleged a fear of persecution. His credible fear claim was denied and he requested a review of this decision by the Immigration Court. The immigration judge then confirmed the negative credible fear decision of the asylum official.
Thuraissigiam then filed an application with the District Court for Habeas Corpus, which was dismissed for lack of substantive jurisdiction under the Law on Judicial Review of Expedited Removal Orders. Section 242 (e) of the Immigration and Nationality Act (INA) , The district court also rejected his constitutional claims after the suspension clause, which is discussed below.
The foreigner's petition for review before the district court alleged that the credible review of the fear he received from the Department of Homeland Security (DHS) gave him "a significant right to asylum" and protection under Article 3 of the Convention against torture (CAT). He also alleged that the asylum officer and the immigration judge violated his procedural rights under the fifth amendment to the Constitution.
In particular, the alien alleged that the asylum official had "not received all relevant and useful information as to whether (he) had a credible fear of persecution or torture". He also claimed that "communication problems" existed between him. the asylum officer and the translator, as well as similar questions during the credible hearing before the Immigration Court. Finally, Thuraissigiam claimed that he did not know whether the information he provided to the asylum official and the immigration judge was "shared with the Sri Lankan government."
The statute Regulation of judicial review in accelerated deportation proceedings strictly limits the scope of the questions that the court may consider under Article III and the relief it can afford. In particular, a review in the context of a habeas corpus method is possible. However, that review is confined to determining whether the petitioner for the habeas corpus procedure is a foreigner, whether the petitioner has been removed under the INA's expedited removal rules, and whether the petitioner could prove this to be a preponderance of evidence (he or she) is a foreigner lawfully admitted to permanent residence ", a refugee or an asylum.
The Circuit Court came to the conclusion that this law violated the US Constitution's suspension clause. This clause, Article I, Section 9, second sentence of the Constitution It states: "The privilege of habeas corpus writing will not be suspended unless in cases of rebellion or invasion public security may require it." The Circuit Court Procedural safeguards in the provisions for judicial review of expedited removal cases were considered "poor" and it was noted that this was compounded by the fact that "the review provision" prevented a judicial review of compliance by the DHS in a particular case or the correct legal standards applied. "
It should be noted that Congress has made great efforts to limit the availability of a judicial review of accelerated deportation decisions, in line with the "accelerated" nature of these procedures. Put simply, Congress expected foreigners who entered the US illegally (with very limited exceptions) to return quickly, not their cases for years in court.
It is not surprising that the Supreme Court has for a number of reasons agreed to investigate this case (including the clear limitation of the reviewing body of courts under Article III from expedited removal procedures set out in the relevant provisions). statute), but perhaps most significant is the fact that Thuraissigiam has created a "circuit split", that is, a disagreement with a decision in another circuit to which I referred in my March 2019 article.
In particular, the Ninth Circuit rejected the analysis of the Third Circuit in declaring that the suspension clause was violated by the review procedures approved by Congress in accelerated cancellation cases Castro v. US Depot of Homeland Sec., which I described in detail in a post from April 2017.
The Third Circle there found that 28 different petitioners could not appeal to the Constitution, as each of them was arrested shortly after entering the country. They were therefore considered as foreigners, the first admission to the United States sought and limited their constitutional rights. in the April 2017The Supreme Court rejected an application for written confirmation submitted by the petitioners in this case.
Thuraissigiam has not yet been put up for discussion. However, the ruling of the Court will have a significant impact on the rights of aliens in accelerated removal procedures.
This is particularly the case if the order issued by Judge Ketanji Brown Jackson of the US District for the District of Columbia on September 27, 2019, is suspended or revoked. This injunction blocked the DHS's attempt to expand the expedited extinction Section 235 (b) of the INA Foreigners detained without authorization or probation after entering the United States and who have not resided in the United States for two years, in accordance with the terms set forth by Congress under Section 235 (b) (1) (A) (iii) (II ) of the INA.
The Supreme Court should find that the judicial review restrictions in Section 242 (e) INA In order to fulfill the constitutional rights of a foreigner, such as Thuraissigiam, who was arrested shortly after entering the United States, the question arises as to whether he also fulfills the constitutional rights of a foreigner who has been in the United States for almost two years. It is doubtful that the court will answer this question directly even if it reverses the ninth circuit (and Judge Jackson's injunction is no longer in force), but it is likely to provide clues to his final conclusions on the subject.
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