On Thursday, a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit found that asylum seekers at the U.S.-Mexico border who fail their initial threshold of showing a “credible fear” of persecution in their home countries are entitled to a judicial appeal before they can be deported. The decision could severely undermine the Trump Administration’s efforts at securing the border and expeditiously deporting frivolous would-be aslyees in California and Arizona, which are both border states under the jurisdiction of the Ninth Circuit.
The Ninth Circuit looked back at cases dating to the 1700s, determining that under review procedures set by the U.S. Supreme Court in a 2008 case known as Boumediene and by legal precedent set in several immigration cases dating back to the 1950s, Thuraissigiam should be covered by the suspension clause [of tbe U.S. Constitution] because he was arrested in the United States, according to the opinion.
The court went on to hold that a procedure that would not allow the California court to review the immigration judge’s determination in Thuraissigiam’s case would be unconstitutional, according to Thursday’s opinion.
“We … reject the government’s contention that because, in its view, Thuraissigiam lacks due process rights, there are no rights for the suspension clause to protect,” the opinion read. “Boumediene foreclosed that argument by holding that, whether or not due process was satisfied, the suspension clause might require more.”
Vijayakumar Thuraissigiam, the plaintiff in the Ninth Circuit case, is a Sri Lanka native who initially entered the United States illegally in February 2017. As Law360 reports, “He was apprehended by immigration authorities approximately 25 yards from the border, well within the range of 100 miles where certain immigration regulations allow for quicker deportation procedures should individuals fail to establish either that they have been in the U.S. for at least two weeks or that they credibly fear persecution should they be repatriated.”
“Credible fear” aslyum claims are unsuccessful more often than they are successful — and they have become increasingly even more unsuccessful over the course of the Trump presidency. According to USA Today, “By June 2018, only about 15 percent of applicants who appealed to immigration judges were found to have established a credible fear, down from about 33 percent for the same month in 2017.”
It is unclear if the U.S. Department of Justice will week an emergency stay of the Ninth Circuit’s ruling from the U.S. Supreme Court.
The Ninth Circuit’s ruling is in no small degree of tension with how the U.S. Supreme Court has traditionally interpreted the plenary power doctrine over immigration.
As the great Justice Robert H. Jackson, hailed as a “champion of due process” by many and the author of the most famous dissent in 1944’s Korematsu v. United States, said in 1953’s Shaughnessy v. Mezei: “Due process does not invest any alien with a right to enter the United States, nor confer on those admitted the right to remain against the national will. Nothing in the Constitution requires admission or sufferance of aliens hostile to our scheme of government.”
Similarly, as Justice Antonin Scalia argued in his dissent in 2008’s Boumediene v. Bush, “The writ of habeas corpus does not, and never has, run in favor of aliens abroad; the Suspension Clause thus has no application.” And it is well-established in U.S. Supreme Court case law that aliens stopped at the border are legally treated as if they are abroad — and are not treated as if they are lawfully in the interior of the country.