Originally published by The NY Times
Creating yet another roadblock to the Trump administration’s efforts to deport ineligible migrants, a federal appeals court ruled on Thursday that immigration authorities can no longer swiftly deport asylum seekers who fail an initial screening, opening the door for thousands of migrants a year to get another shot in the federal courts to win asylum in the United States.
The ruling broadens constitutional protections for undocumented immigrants at the border and opens a new legal gateway for some of them to appeal for permission to stay in the country, even when an asylum officer and an immigration judge have made a determination that they do not have a credible fear of persecution in their homeland.
“The historical and practical importance of this ruling cannot be overstated,” said Lee Gelernt, deputy director of the American Civil Liberties Union’s Immigrants’ Rights Project, who argued the appeal on behalf of a Sri Lankan migrant who had been turned away at California’s border with Mexico in 2017. He said the ruling “reaffirms the Constitution’s foundational principle that individuals deprived of their liberty must have access to a federal court.”
After dropping precipitously over five decades, the number of migrants intercepted at the southern border — the key indicator of how many undocumented people are entering the United States — is soaring again, driven by an influx of families from Central America fleeing violence and poverty. Immigration authorities received more than 99,000 requests for asylum interviews during the 2018 fiscal year, including more than 54,000 submitted at the southwest border.
President Trump has said that migrants are exploiting the asylum system by making baseless and fraudulent claims in order to remain in the United States, and his administration has taken a number of steps to make the process harder, including narrowing the grounds for winning asylum, limiting the number of asylum seekers who can be processed at the border each day and requiring some applicants to wait in Mexico while their cases make their way through the courts.
In 2016, the most recent year for which data is available, an estimated 7,200 migrants were denied permission to apply for asylum after their initial interviews and were placed in expedited deportation proceedings. An analysis by the Transactional Records Access Clearinghouse at Syracuse University found that in June 2018, only 15 percent of initial asylum reviews found that the asylum seeker had a credible fear of persecution, about half the proportion that had prevailed a year earlier.
Thursday’s court decision will most likely send that trend in the other direction, legal analysts said.
“This is a historic decision,” said Stephen Yale-Loehr, an immigration scholar at Cornell Law School. “But the government will surely appeal this to the Supreme Court.”
The opinion, from the United States Court of Appeals for the Ninth Circuit, extends constitutional habeas corpus guarantees to those applying for asylum at the border and provides that they can seek a hearing in the federal courts before being summarily deported — though the court did not specify what standards the courts must use to evaluate such petitions.
The ruling applies to asylum seekers in the nine western states included in the court’s jurisdiction and, because it conflicts with an earlier ruling rejecting such legal protections in the Third Circuit, the issue is likely to be resolved ultimately by the Supreme Court. In the meantime, legal analysts said, the court’s decision is likely to have sweeping implications for immigration deterrence efforts by enabling thousands to remain in the country while they seek the court review.
Under current procedure, every migrant who arrives at the border and expresses a fear of persecution in his or her homeland is referred for an interview with an asylum officer. Those who succeed in convincing the officer that they have a credible fear are allowed to enter the country and proceed with their asylum cases in the immigration courts. Those who don’t can request a review by an immigration judge, but it is usually cursory and favorable decisions are rare. There is usually no access to a lawyer, and no opportunity to challenge the decision; deportation quickly ensues.
In the case before the appeals court, Vijayakumar Thuraissigiam, a member of Sri Lanka’s Tamil ethnic minority, was arrested about 25 yards north of the border near San Ysidro, Calif., and told an asylum officer that he was fearful of returning to his homeland. The officer found no credible fear, and that finding was upheld by a supervisor and an immigration judge.
Mr. Thuraissigiam was in deportation proceedings when he filed a habeas corpus petition in the federal court. He argued that the asylum officer had failed to elicit important background about his case, including that he had been detained and beaten by Sri Lankan army officers on two occasions, and at one point had been lowered into a well and nearly drowned. He also said there were communication problems between the translator and both the asylum officer and the immigration judge.
As a result, his lawyers argued, he was deprived of “a meaningful right to apply for asylum.”
A district court judge in Los Angeles rejected that argument, but the three-judge appeals court panel, sitting in San Francisco, held that even though an asylum seeker may lack the right to a full trial in immigration court, the Constitution requires a more complete review than what immigration law currently provides.
At its “historical core,” said the 48-page opinion written by Judge A. Wallace Tashima, “the writ of habeas corpus has served as a means of reviewing the legality of executive detention, and it is in that context that its protections have been strongest.”