Under current immigration law, a noncitizen subject to expedited removal from the United States is entitled to make a claim for asylum. Expedited removal applies to noncitizens who enter or attempt to enter the U.S. illegally or through fraud or misrepresentation. This results in either a denial of entry to the U.S. or removal from the U.S. without the opportunity to go before a judge.
Once the noncitizen has made an asylum claim, an asylum officer conducts a “credible fear” interview. The officer then determines if the noncitizen has demonstrated a “credible fear of persecution”. If the asylum officer rejects the claim, that rejection is reviewed by a supervising officer. If the supervising officer agrees with the asylum officer, that decision can be appealed to an immigration judge.
The Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) limits a federal court’s review expedited removal in habeas corpus proceedings. A federal court may only review whether the petitioner: (1) is an alien, (2) was ordered removed from the United States, and (3) can prove by a preponderance of the evidence that he is a lawful permanent resident or a refugee or an asylum and his status has not been terminated. IIRIRA precludes federal courts from reviewing a determination that the petitioner lacks a credible fear of persecution.
The U.S. Supreme Court reviewed the constitutionality of this specific provision in Department of Homeland Security, et al. v. Thuraissigiam.
Vijayakumar Thuraissigiam, a Sri Lankan national, was stopped by U.S. Customs and Border Protection (CBP) after crossing the southern border without inspection. He was detained for expedited removal but made a claim that he feared persecution. He was given a credible fear interview. The asylum officer rejected his claim finding he offered no evidence of his eligibility for asylum. The supervising officer agreed with the decision. After hearing, an immigration judge also agreed. Mr. Thuraissigiam then filed a petition for habeas corpus in federal district court. The district court dismissed his petition. The district court found IIRIRA precluded it from reviewing the credible fear determination. On appeal, the Ninth Circuit Court of Appeals reversed, finding this provision of IIRIRA violates the Suspension Clause and the Due Process Clause of the U.S. Constitution.
On June 25, 2020, in a 5 – 4 decision, the U.S. Supreme Court reversed the Ninth Circuit. The Court found this provision of IIRIRA does not violate either the Suspension Clause or the Due Process Clause.
First, the Court found the Suspension Clause does not apply. The Suspension Clause of the U.S. Constitution provides that habeas corpus can only be suspended in cases of “rebellion” or “invasion.” Also, habeas is generally used to seek release from unlawful detention. Because Mr. Thuraissigiam sought an additional opportunity to obtain asylum, rather than release from custody, his claims were outside the scope of habeas corpus.
Second, the Court found noncitizens detained shortly after an unlawful entry to the U.S. only have those statutory rights provided by Congress. With regard to noncitizens in Mr. Thuraissigiam’s position, Congress provided the right to a determination of whether the noncitizen had a significant possibility of establishing his eligibility for asylum. Mr. Thuraissigiam was given that right. Thus his due process rights were not violated.