On February 17, 2017, Vijayakumar Thuraissigiam was apprehended by a US Customs and Border Protection officer at the southern U.S.-Mexico border four miles west of the San Ysidro, California, port of entry. He claimed he faced a “credible fear of persecution” if returned to Sri Lanka and was referred to the United States Citizenship and Immigration Services (USCIS) to be interviewed. An asylum officer determined that he had not established a credible fear of persecution and a supervisor approved the decision.
Thuraissigiam then requested review by an immigration judge who affirmed the negative credible fear and returned the case to the Department of Homeland Security (DHS) for Thuraissigiam’s removal.
In January 2018, Thuraissigiam filed a habeas petition in federal district court, naming as respondents DHS, several of its constituent agencies, and individual agency officials. Thuraissigiam argued that his “expedited removal order violated his statutory, regulatory, and constitutional rights,” sought to vacate the order, and requested relief in the form of a “new, meaningful opportunity to apply for asylum and other relief from removal.”
Thuraissigiam alleged that in Sri Lanka he had been harassed for supporting a Tamil political candidate and that in 2007, he was “detained and beaten” by Sri Lankan army officers who warned him not to support the candidate. He further claimed that in 2014 when he continued to support the same candidate, government intelligence officers kidnapped, bound, and beat him while interrogating him 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.”
He said he had been savagely beaten in Sri Lanka by men who had blindfolded and abducted him and that he had spent 11 days in a hospital recovering from his injuries.
Couldn’t identify alleged assailants
While the asylum officer “believed” Mr. Thuraissigiam, he rejected his request because he could not identify the assailants or definitively establish their motives.
Subsequently an immigration judge decided Thuraissigiam did not have a credible fear of persecution in Sri Lanka and the US Department of Homeland Seccurity (DHS) began expedited removal proceedings.
His case was then taken up by the American Civil Liberties Union (ACLU) on the basis that the current process where potential asylum seekers only get an administrative officer examining their case with no neutral federal judge is flawed and that Thuraissigiam has a right to have his case heard before a federal court.
Ninth Circuit Court ruling
In a win for Thuraissigiam and ACLU, the U.S. Court of Appeals for the Ninth Circuit ruled in March 2019 that asylum seekers are entitled to federal court review of their expedited removal orders.
However, in October, the Trump administration appealed to the Supreme Court to review the decision of the 9th Circuit Court of Appeals and the Court agreed to review the appeals court ruling that migrants targeted for quick deportation have the right to make their claims before a federal court.
Justice Alito in his opinion for the majority, rejected the lower court’s ruling that the Constitution guarantees a “meaningful opportunity” for asylum seekers to make their case to a judge if they are turned down in an initial screening. Alito said the system set up by Congress weeds out “patently meritless claims” and provides for quickly removing those making them. Most pass their initial screening, he noted, but those who do not have no additional recourse.
Responding to today’s ruling, ACLU attorney Lee Gelernt said in a press release: “This ruling fails to live up to the Constitution’s bedrock principle that individuals deprived of their liberty have their day in court, and this includes asylum seekers. This decision means that some people facing flawed deportation orders can be forcibly removed with no judicial oversight, putting their lives in grave danger.”