Thuraissigiam v. U.S. Dep't of Homeland Sec.

• Decision Date: 07 March 2019
• Docket Number: No. 18-55313,18-55313
• Parties: Vijayakumar THURAISSIGIAM, Petitioner-Appellant, v. U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. Customs and Border Protection; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; Kirstjen Nielsen, Secretary of DHS; William P. Barr, Attorney General; Kevin K. McAleenan, Acting Commissioner of CBP; Thomas Homan; L. Francis Cissna, Director of USCIS; Pete Flores, San Diego Field Director, CBP; Gregory Archambeault, San Diego Field Office Director, ICE; Fred Figueroa, Warden, Otay Mesa Detention Center, Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

917 F.3d 1097

Vijayakumar THURAISSIGIAM, Petitioner-Appellant,

v.U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. Customs and Border Protection; U.S. Citizenship and Immigration Services; U.S. Immigration and Customs Enforcement; Kirstjen Nielsen, Secretary of DHS; William P. Barr, Attorney General; Kevin K. McAleenan, Acting Commissioner of CBP; Thomas Homan; L. Francis Cissna, Director of USCIS; Pete Flores, San Diego Field Director, CBP; Gregory Archambeault, San Diego Field Office Director, ICE; Fred Figueroa, Warden, Otay Mesa Detention Center, Respondents-Appellees.

No. 18-55313

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 17, 2018 Portland, Oregon

Filed March 7, 2019

Lee P. Gelernt (argued) and David Hausman, American Civil Liberties Union Foundation Immigrants’ Rights Project, New York, New York; Jennifer Chang Newell and Cody Wofsy, American Civil Liberties Union Foundation Immigrants’ Rights Project, San Francisco, California; David Loy, ACLU Foundation of San Diego & Imperial Counties, San Diego, California; for Petitioner-Appellant.

Joshua S. Press (argued), and Joseph A. Darrow, Trial Attorneys; Erez Reuveni, Assistant Director; William C. Peachey, Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellees.

Matthew E. Price, Jenner & Block, New York, New York; Blaine Bookey, Karen Musalo, and Eunice Lee, Center for Gender & Refugee Studies, University of California Hastings College of the Law, San Francisco, California; for Amici Curiae Refugee and Human Rights Organizations and Scholars.

Ethan D. Dettmer, Soolean Choy, Priyah Kaul, and Eli M. Lazarus, Gibson Dunn & Crutcher, San Francisco, California; Joshua S. Lipshutz, Gibson Dunn & Crutcher, Washington, D.C.; for Amici Curiae Scholars of Immigration Law.

Noah A. Levine, Wilmer Cutler Pickering Hale & Dorr, New York, New York, for Amici Curiae Scholars of Habeas Corpus Law.

Anjali Srinivasan and Leo L. Lam, Keker Van Nest & Peters, San Francisco, California, for Amici Curiae Scholars of Sri Lankan Politics.

Before: A. Wallace Tashima, M. Margaret McKeown, and Richard A. Paez, Circuit Judges.

TASHIMA, Circuit Judge:

Vijayakumar Thuraissigiam filed a habeas petition in district court pursuant to 8 U.S.C. § 1252(e)(2) to challenge the procedures leading to his expedited removal order. The court dismissed the petition for lack of subject matter jurisdiction. We reverse. Although § 1252(e)(2) does not authorize jurisdiction over the claims in Thuraissigiam’s petition, the Suspension Clause, U.S. Const. art. I, § 9, cl. 2, requires that Thuraissigiam have a "meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law." Boumediene v. Bush , 553 U.S. 723, 779, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008) (quoting INS v. St. Cyr , 533 U.S. 289, 302, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) ). Because § 1252(e)(2) does not provide that meaningful opportunity, the provision violates the Suspension Clause as applied to Thuraissigiam.

BACKGROUND

I. Statutory Background

When a U.S. Customs and Border Protection ("CBP") officer determines that a noncitizen arriving at a port of entry is inadmissible for misrepresenting a material fact or lacking necessary documentation,¹ the officer must place the noncitizen in so-called "expedited removal" proceedings. 8 U.S.C. § 1225(b)(1)(A)(i). By regulation, the Department of Homeland Security ("DHS"), of which CBP is a constituent agency, also applies expedited removal to inadmissible noncitizens arrested within 100 miles of the border and unable to prove that they have been in the United States for more than the prior two weeks. Designating Aliens for Expedited Removal, 69 Fed. Reg. 48877-01, 48879-80 (Aug. 11, 2004) ;² see also 8 U.S.C. § 1225(b)(1)(A)(iii)(II).

DHS removes noncitizens eligible for expedited removal "without further hearing or review," subject to only one exception. 8 U.S.C. § 1225(b)(1)(A)(i). If, in an interview with a CBP officer, the noncitizen indicates an intent to apply for asylum or a fear of persecution, DHS must refer the noncitizen for an interview with an asylum officer. Id. § 1225(b)(1)(A)(ii) ; 8 C.F.R. § 208.30. If that asylum officer determines that the noncitizen’s fear of persecution is credible, the noncitizen is referred to non-expedited removal proceedings, in which the noncitizen may apply for asylum or other forms of relief from removal. See 8 U.S.C. § 1225(b)(1)(B)(ii) ; 8 C.F.R. § 208.30(f) ; 8 C.F.R. § 1003.42(f). If the asylum officer finds no credible fear of persecution, the noncitizen will be removed. 8 U.S.C. § 1225(b)(1)(B)(iii). A supervisor reviews the asylum officer’s credible fear determination, 8 C.F.R. §§ 208.30(e)(7), 235.3(b)(2), (b)(7), and a noncitizen may also request de novo review by an immigration judge ("IJ"). 8 U.S.C. § 1225(b)(1)(B)(iii)(III) ; 8 C.F.R. § 1003.42. In 2016, DHS conducted over 141,000 expedited removals. See Refugee and Human Rights Amicus Br. 10. All individuals placed in expedited removal proceedings are subject to mandatory detention pending a final determination of credible fear of persecution or until they are removed. 8 U.S.C. § 1225(b)(1)(B)(iii)(IV).

Congress sharply circumscribed judicial review of the expedited removal process. "[N]o court shall have jurisdiction to review ... any individual determination [or] ... the application of [ § 1225(b)(1) ] to individual aliens" outside of the review permitted by the habeas review provision, § 1252(e). 8 U.S.C. § 1252(a)(2)(A)(iii). Under § 1252(e)(2), a person in expedited removal proceedings may file a habeas petition in federal district court to contest three DHS determinations: whether the person is a noncitizen, whether he "was ordered removed" via expedited removal, and whether he is a lawful permanent resident or has another status exempting him from expedited removal. Id. § 1252(e)(2)(A)–(C). Review of whether a petitioner "was ordered removed" is "limited to whether such an order in fact was issued and whether it relates to the petitioner. Id. § 1252(e)(5). "There shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal." Id. ; see also 8 C.F.R. § 1003.42(f) ("No appeal shall lie from a review of an adverse credible fear determination made by an immigration judge.").³

II. Factual Background

Thuraissigiam is a native and citizen of Sri Lanka and a Tamil, an ethnic minority group in Sri Lanka. See Scholars of Sri Lankan Politics Amicus Br. 3. Thuraissigiam fled his home country in June 2016 and made his way to Mexico. On February 17, 2017, Thuraissigiam crossed the border into the United States. Late that night, he was arrested by a CBP officer four miles west of the San Ysidro, California, port of entry, 25 yards north of the border.

DHS placed Thuraissigiam in expedited removal proceedings. Pursuant to 8 U.S.C. § 1225(b)(1)(A)(ii), CBP referred Thuraissigiam for an interview with an asylum officer after he indicated a fear of persecution in Sri Lanka. On March 9, an asylum officer from the United States Citizenship and Immigration Services ("USCIS") interviewed Thuraissigiam and determined that he had not established a credible fear of persecution. A supervisor approved the decision. Thuraissigiam then requested review by an IJ, who affirmed the negative credible fear finding in a check-box decision and returned the case to DHS for Thuraissigiam’s removal.

III. District Court Proceedings

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. 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 also made various factual allegations about the expedited removal procedures to which he was subject after being apprehended. For one, he alleged that the asylum officer failed to "elicit all relevant and useful information bearing on whether the applicant has a credible fear of persecution or torture" in violation of 8 C.F.R. § 208.30(d) and "failed to consider relevant country conditions evidence" in violation of 8 U.S.C. § 1225(b)(1)(B)(v) and 8 C.F.R. § 208.30(e)(2). Thuraissigiam also alleged that there were "communication problems" between the asylum officer, Thuraissigiam, and the translator, in violation of 8 C.F.R. § 208.30(d)(1)–(2). Thuraissigiam alleged that the IJ hearing included the same procedural and substantive flaws, and that at both hearings, he was unaware whether "information he offered would be shared with the Sri Lankan government." Thuraissigiam’s petition asserted two causes of action:

First, DHS’ credible fear screening deprived Thuraissigiam "of a meaningful right to apply for asylum" and other forms of relief, in violation of 8 U.S.C. § 1225(b)(1), its implementing regulations, and the United States Convention Against Torture, implemented in the Foreign Affairs Reform and Restructuring Act of 1998 ("FARRA"), Pub. L. No. 105-277, div. G., Title XXII, § 2242, 112 Stat. 2681 (1998). The asylum officer and IJ also violated those statutes "by applying an incorrect legal standard" to...