Weekly Blog for March 9, 2019 by Merle Kahn, Esq. – Part I
The Suspension Clause (Habeas Relief) Applies to Noncitizens in Expedited Removal Proceedings and the Suspension Clause ≠ Due Process
An amazing decision came down from the Ninth Circuit this week deserves its own blog. The Ninth Circuit held that the Suspension Clause (i.e., the Government shall not suspend the writ of habeas corpus unless it involves cases of rebellion, or invasion and the public safety may require it) applies to expedited removal proceedings. When I read this decision, I felt like Dorothy Gale when she arrives in Oz:
“The cyclone had set the house down gently, very gently – for a cyclone—in the midst of a country of marvelous beauty. There were lovely patches of green sward all about, with stately trees bearing rich and luscious fruits. Banks of gorgeous flowers were on every hand, and birds with rare and brilliant plumage sang and fluttered in the trees and bushes. A little way off was a small brook, rushing and sparkling along between green banks, and murmuring in a voice very grateful to a little girl who had lived so long on the dry, gray prairies.”
L. Frank Baum, The Wonderful Wizard of Oz. This decision brings us a wonderful new world where we have wonderous tools to help our clients. And as it is likely that the Trump Administration will expand expedited removal proceedings to all noncitizens who cannot establish that they have been physically present in the United States for two years; this case might be pivotal.
The other case that came down this week holds a noncitizen who has been convicted of an aggravated felony who is sentenced to a term of imprisonment of five years with a sentencing enhancement, has been convicted of a particularly serious crime and is statutorily ineligible for withholding of removal. I will blog about that case separately because I think this Suspension Clause case is so important. No cases came down from the Board of Immigration Appeals or the Attorney General.
NINTH CIRCUIT
The Suspension Clause (Habeas Relief) Applies to Noncitizens in Expedited Removal Proceedings
In a case that will likely go to the Supreme Court, the Ninth Circuit held that the Suspension Clause (habeas relief) applies to noncitizens placed in expedited removal proceedings. This case will likely go to the Supreme Court because there is a split in the Circuits. The Third Circuit has come to the opposite conclusion. Castro v. U.S. Dep’t of Homeland Sec., 835 F.3d 422 (3d Cir. 2016). The arguments here blew my mind, and I am so impressed by the attorneys who worked on this case. They have given us another tool that we can use to represent our clients. I also think the Ninth Circuit crafted this decision to appeal to the current justices on the Supreme Court. (They referred to a lot of history). The Ninth Circuit held that INA § 242(e)(2) limiting judicial review of those subject to expedited removal violated the Suspension Clause of the Constitution.
Definitions
Let’s start with definitions so we can try to understand what is going on here. First, INA § 242(e)(2) (judicial review of immigration cases) limits habeas review for people who are subject to expedited removal under INA § 235. Once the government places a noncitizen in expedited removal proceedings, Section 242(e)(2) limits judicial review to these issues:
- Is the person an alien?
- Was the person ordered removed under INA § 235 (expedited removal)?
- Can the person prove that they have been lawfully admitted for permanent residence; lawfully admitted as a refugee; or granted asylum? And
- In determining whether an alien has been ordered removed the court’s inquiry shall be limited to whether the such an order was in fact issued and whether it relates to the petitioner.
With this new decision, the courts may now review of whether the noncitizen is actually inadmissible or is entitled to any relief from removal.
This case might be critically important for many of our clients. Under Trump’s Executive Order from January 25, 2017, all noncitizens who cannot establish that they have been physically present in the United States for two years preceding arrest by DHS are subject to expedited removal proceedings. Executive Order: Border Security and Immigration Enforcement Improvements, at 7, (January 25, 2017). A huge shout out to Karl Krooth for pointing out this change in the law to me. It takes a village to write a blog.
Now let’s talk about the Suspension Clause. If you are like me, you have some vague recollection that you must have heard about this clause in a Constitutional Law class long ago. But for some of us law school was a very long time ago; so, let’s take a quick refresher. The Suspension Clause says, “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.” U.S. Const. art. I, § 9, cl. 2. The Suspension Clause prevents Congress from passing a law that suspends habeas corpus absent a rebellion or invasion. Felker v. Turpin, 518 U.S. 651 (1996). The question here is does INA § 242(e)(2) which limits habeas review for people in expedited removal proceedings violate the Suspension Clause? Or, put another way, does the habeas review to people in expedited removal proceedings satisfy the Suspension Clause? The answer is the INA § 242(e)(2) violates the Suspension Clause. Now you can stop reading.
Facts
Vijayakumar Thuraissigiam, is a native and citizen of Sri Lanka. In June 2016, Mr. Thuraissigiam fled Sri Lanka and went to Mexico. In February 2017, he crossed the border into the United States and was arrested by a Customs and Border Protection (CBP) officer about four miles west of San Ysidro California; 25 yards north of the border. DHS placed Mr. Thuraissigiam into expedited removal proceedings. An asylum officer determined that Mr. Thuraissigiam had not established a credible fear of persecution. Mr. Thuraissigiam requested review by an Immigration Judge who checked the box (literally checked the box) finding that Mr. Thuraissigiam had not established a credible fear of persecution. Mr. Thuraissigiam filed a habeas petition in federal district court. He argued that the expedited removal order violated his statutory, regulatory, and constitutional rights. In his habeas petition, Mr. Thuraissigiam made a pretty persuasive claim for asylum. He said that the government detained and beat him for supporting a Tamil political candidate. You can judge for yourself:
In 2007, he was “detained and beaten” by Sri Lankan army officers and told not to support the candidate. In 2014, after Thuraissigiam continued to support the candidate, government intelligence officers kidnapped, bound, and beat him during an interrogation about his political activities. Thuraissigiam alleged that he “was lowered into a well, simulating drowning, threatened with death, and then suffocated, causing him to lose consciousness.”
Thuraissigiam v. U.S. Dep’t of Homeland Sec., No. 18-55313, slip op. at *12 (9th Cir. March 7, 2019). Mr. Thuraissigiam argued that the asylum officer failed to elicit all relevant information about his asylum claim; that the asylum officer failed to consider relevant country condition evidence; that there were translation problems; and that he was unaware of whether the U.S. government would share this information with the Sri Lankan government. Under these conditions, I would agree – give the man a full hearing.
Legal Analysis
The Suspension Clause is Separate from the Due Process Clause
To determine whether the Suspension Clause applies, the Ninth Circuit first had to determine whether the Suspension Clause even applies to noncitizens in expedited removal proceedings. (Spoiler alert – it does). Then the Ninth Circuit had to determine whether Congress had suspended the writ of habeas corpus without an adequate substitute. (Spoiler alert – they did). The Ninth Circuit then concluded that the Third Circuit’s analysis in Castro was incorrect because the Third Circuit conflated Due Process protections with habeas protections. (This case is the circuit split that I’m talking about). The Third Circuit in Castro relied on the Supreme Court’s decision in Landon v. Plascencia, 459 U.S. 21 (1982). In Landon the Supreme Court held that a noncitizen ““has no constitutional rights regarding his application” for entry into the country.” Thuraissigiam, slip op. at 30 quoting Landon, 459 U.S. at 32. The Ninth Circuit held that Landon does not apply to this case. While the Fifth Amendment due process guarantees and the Suspension Clause have been “applied in tandem” “this fact does not mean that these rights should be elided, as made clear by the fact that the Constitution, ratified two-and-a-half years before the Fifth Amendment…presupposed the existence of the writ of habeas corpus.” Thuraissigiam, slip op. at *33.
The Ninth Circuit then reaffirms its own cases holding that INA § 242(e)(2) does not violate the due process clause. Garcia de Rincon v. Dep’t. of Homeland Sec., 539 F.3d 1133 (9th Cir. 2008) and, Pena v. Lynch, 815 F.3d 452 (9th Cir. 2016). The Ninth Circuit noted that neither Garcia de Rincon nor Pena addressed whether INA § 242(e)(2) unlawfully suspends the writ of habeas corpus to a petitioner such as Mr. Thuraissigiam. Damn! That’s good lawyering!
History of the Suspension Clause
After dispatching with the Third Circuit’s arguments and Garcia de Rincon and Pena, the Ninth Circuit found that Mr. Thuraissigiam may invoke the Suspension Clause. First, the Ninth Circuit noted that the writ of habeas corpus was available to non-enemy aliens as well as to citizens before 1789. (The Constitution went into effect in 1789). After the states adopted the Constitution, the courts exercised habeas jurisdiction over noncitizens who were within the United States. Thuraissigiam, slip op. at *39. So, we have the original era habeas, and then we have something called the “finality era” habeas. The finality era refers to the period between the Immigration Act of 1891 and the Immigration and Nationality Act of 1952 when the Executive’s decisions to admit, exclude, or deport noncitizens was final. (Which partially explains why there are so few federal immigration cases before 1952). But even in the finality era, the Supreme Court permitted arriving noncitizens to invoke habeas review. Under either test, Mr. Thuraissigiam could invoke the Suspension Clause.
Applying the Suspension Clause
Once the Ninth Circuit determined that Mr. Thuraissigiam could invoke the Suspension Clause, they had to determine whether the habeas review under INA § 242(e)(2) was sufficient or was it too limited that it suspended the writ of habeas corpus. At a minimum, the Suspension Clause must allow the person to “a meaningful opportunity to demonstrate that they are being held pursuant to the erroneous application or interpretation of relevant law. Thuraissigiam, slip op. at *41. The Ninth Circuit noted that the decision to place a noncitizen in expedited removal proceedings and the finding that a noncitizen has a credible fear of persecution are both executive determinations. No judicial court may review these determinations. Under the existing administrative scheme there are no rigorous adversarial proceedings prior to a negative credible fear determination. There is also no requirement that the Immigration Judge provide reasons for their decision. They simply check a box saying that the decision was affirmed. “These meager procedural protections are compounded by the fact that § 1252(e)(2) prevents any judicial review of whether DHS complied with the procedures in an individual case or applied the correct legal standards.” Thuraissigiam, slip op. at *46.
The Ninth Circuit concludes:
Therefore, we hold that § 1252(e)(2) violates the Suspension Clause as applied to Thuraissigiam, although we do not profess to decide in this opinion what right or rights Thuraissigiam may vindicate via use of the writ. The district court has jurisdiction and, on remand, should exercise that jurisdiction to consider Thuraissigiam’s legal challenges to the procedures leading to his expedited removal order.
Thuraissigiam, slip op. at *48. You can read the entire amazing decision here. Thuraissigiam v. U.S. Dep’t of Homeland Sec., No. 18-55313 (9th Cir. March 7, 2019).