9th Circuit Provides Additional Protections For Asylum Seekers

Expedited removal is a process that allows U.S. Customs and Border Protection, or CBP, to order a non-citizen removed without providing an opportunity for a hearing before an immigration judge, or IJ. CBP has the power to issue an expedited removal order if the non-citizen arrives at a port of entry without proper documents, or is apprehended within 100 miles of the border within 14 days of entry and lacks proper documents. Non-citizens who claim a fear of returning to their home country receive a credible fear interview by an asylum officer. Those who are apprehended in the United States, who either have a prior removal order or departed under that order and re-entered the U.S. illegally, are subject to reinstatement of removal. Those who have an aggravated felony conviction and are not Lawful Permanent Residents are subjected to administrative removal. Non-citizens who in these situations and present a fear of returning to their home country will be eligible for a reasonable fear interview.

Asylum seekers are generally unrepresented in credible fear interviews. The interviewing asylum officer, therefore, has an affirmative duty to elicit testimony about all potential protection claims including asylum, withholding of removal and protection under the Convention against Torture. According to the Asylum Officer Lesson Plan on Credible fear, “asylum officers have an affirmative duty to elicit all information relevant to the legal determination. The burden is on the applicant to establish a credible fear, but asylum officers must fully develop the record to support a legally sufficient determination.” 

If the asylum officer makes a negative credible fear decision, the asylum seeker may request review by the IJ in a very cursory hearing. If the IJ upholds the asylum officer’s negative credible fear finding, judicial review is extremely limited. Under the Immigration and Nationality Act of 1965, judicial review of expedited removal orders is available only in habeas corpus proceedings—a protected federal court action against the government asking the court to review the government’s custody determination. In these habeas proceedings, the non-citizen can contest three determinations made by the Department of Homeland Security, or DHS: (1) whether the person is a non-citizen; (2) whether the person was “ordered removed” via expedited removal; and (3) whether the person is a lawful permanent resident or has another status exempting him or her from expedited removal.


The Court’s Decision

Vijaykumar Thuraissigiam, a citizen of Sri Lanka, entered the United States without inspection and was placed in expedited removal proceedings. Thuraissigiam claimed a fear of persecution and received a credible fear interview. The asylum officer made a negative credible fear decision and the IJ upheld that determination. Thuraissigiam filed a habeas corpus petition in the U.S. District Court for the Southern District of California, alleging procedural errors in the credible fear interview, such as the asylum officer’s failure to fully elicit facts regarding Thuraissigiam’s fear, as well as communication and translation issues. The district court dismissed the petition for lack of jurisdiction. On appeal, the 9th Circuit concluded that the federal jurisdiction limiting provision violated the Suspension Clause of the U.S. Constitution. The court further concluded that habeas review provides important oversight of whether DHS complied with required credible fear procedures. It remanded the case to the district court for a decision on the legal challenges presented in Thuraissigiam’s habeas corpus petition.


Going Forward

Prior to this decision, only non-citizens eligible for a reasonable fear interview could appeal the IJ’s reasonable fear determination in the 9th Circuit. Thanks to this decision, asylum seekers in the 9th Circuit’s jurisdiction who have received a negative credible fear decision by the asylum officer and the IJ can now seek review of that expedited removal order in the federal district court via a habeas corpus petition. This added review is especially important given the administration’s intentions to expand expedited removal to non-citizens apprehended more than 100 miles from the border and beyond 14 days after entry.