SCOTUS to Review Appeals of Credible-Fear Denials

The Court's decision will affect the scope of expedited removal

By Andrew R. Arthur on October 24, 2019

The Supreme Court last week agreed to review the Ninth Circuit's decision in Thuraissigiam v. U.S. Dep't of Homeland Sec. I wrote about the case in a March post captioned "Ninth Circuit Rules Expedited Removal Review Violates the Constitution: Expect more appeals, fewer negative credible fear findings, and more entries". The Supreme Court's ultimate decision, regardless of how it rules, will have significant ramifications for the administration's attempts to expand expedited removal.

The alien in that case, a Sri Lankan national, entered the United States illegally on February 17, 2017, and was arrested by a U.S. Customs and Border Protection (CBP) officer 25 yards north of the border. He was placed in expedited removal proceedings, and referred for a credible fear interview with an asylum officer after he claimed a fear of persecution. His credible fear claim was denied, and he requested a review of that decision by the immigration court. The immigration judge subsequently affirmed the asylum officer's negative credible fear determination.

Thuraissigiam then filed a petition for habeas corpus with the district court, which was dismissed for lack of subject-matter jurisdiction in accordance with the statute governing judicial review of expedited removal orders, section 242(e) of the Immigration and Nationality Act (INA) . The district court also rejected his constitutional claims under the suspension clause, discussed below.

The alien's petition for review to the circuit court asserted that the credible fear screening he was provided by the Department of Homeland Security (DHS) deprived him "of a meaningful right to apply for asylum" and protection under article 3 of the Convention against Torture (CAT). He also asserted that the asylum officer and immigration judge violated his due process rights under the Fifth Amendment of the Constitution.

Specifically, the alien alleged that the asylum officer had "failed to 'elicit all relevant and useful information bearing on whether [he had] a credible fear of persecution or torture.'" He also alleged that there were "communication problems" between him, the asylum officer, and the translator, as well as similar issues during the credible fear review hearing before the immigration court. Finally, Thuraissigiam claimed that he did not know whether the information he had given to the asylum officer and immigration judge "would be shared with the Sri Lankan government."

The statute governing judicial review in expedited removal proceedings strictly limits the scope of the questions the Article III court can consider and the relief it can grant. In particular, it allows review in habeas corpus proceedings, but this review is limited to determining whether the petitioner for habeas corpus is an alien, whether the petitioner was removed under the expedited removal provisions of the INA, and whether the petitioner could "prove by a preponderance of the evidence that [he or she] is an alien lawfully admitted for permanent residence", a refugee, or an asylee.

The circuit court concluded that this statute violated the Suspension Clause of the U.S. Constitution. That clause, Article I, Section 9, Clause 2 of the Constitution states: "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." The circuit court described the procedural protections in the judicial review provisions governing expedited removal cases as "meager", and found that that this was "compounded by the fact that" the review provision "prevents any judicial review of whether DHS complied with the procedures in an individual case, or applied the correct legal standards."

It should be noted that Congress went to great pains to limit the availability of judicial review of expedited removal determinations, consistent with the "expedited" nature of those proceedings. Simply put, Congress expected that aliens who entered the United States illegally would be quickly returned (with extremely limited exceptions), not that their cases would linger in the courts for years.

It is not a surprise that the Supreme Court agreed to hear this case for a number of reasons (including the clear restriction on the review authority of Article III courts from expedited removal proceedings set forth in the relevant statute), but perhaps the most significant is the fact that Thuraissigiam created a "circuit-split", that is, a disagreement with a decision in a different circuit, a fact I alluded to in my March 2019 post.

Specifically, in finding that the suspension clause was violated by the review procedures Congress had allowed in expedited-removal cases, the Ninth Circuit explicitly rejected the analysis of the Third Circuit in Castro v. U.S. Dep't of Homeland Sec., which I described in significant detail in an April 2017 post.

The Third Circuit there held that 28 different petitioners could not invoke the Constitution because each was apprehended shortly after entry, and therefore deemed an alien seeking initial admission to the United States, limiting their constitutional rights. In April 2017, the Supreme Court rejected a petition for writ of certiorari filed by the petitioners in that case.

Thuraissigiam has not yet been set for argument. The Court's decision, however, will have significant ramifications with respect to the appeals rights of aliens in expedited removal proceedings.

This is especially true if the September 27, 2019, injunction issued by Judge Ketanji Brown Jackson of the U.S. District for the District of Columbia is stayed or dissolved. That injunction blocked an attempt by DHS to expand expedited removal under section 235(b) of the INA to any alien who is apprehended after entering the United States without admission or parole and who has not been physically present in the United States for two years, in accordance with authority provided by Congress under section 235(b)(1)(A)(iii)(II) of the INA.

Should the Supreme Court find that the judicial review limitations in section 242(e) of the INA satisfy the constitutional rights of an alien like Thuraissigiam, who was apprehended shortly after he entered the United States, the question will then be whether they also satisfy the constitutional rights of an alien who has been in the United States for just less than two years. It is doubtful that the Court will directly answer this question even if it reverses the Ninth Circuit (and Judge Jackson's injunction is no longer in effect), but it will likely provide clues as to its ultimate conclusions on the issue.