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Jeffrey S. Chase, June 29, 2020
"In Thuraissigiam v. Barr, the U.S. Supreme Court by a 7-2 margin recently rejected a ruling by U.S. Court of Appeals for the Ninth Circuit that the Immigration and Nationality Act's limits on the scope of habeas review of credible fear determinations violate the Constitution's suspension clause.
In its majority decision, two concurrences and one dissent, the justices grappled with the scope of relief covered by the suspension clause, as well as how broadly its decision Thuraissigiam should be applied.
As background, Jayakumar Thuraissigiam, a 41-year-old Sri Lankan citizen, crossed the southern border, only to be arrested 25 yards later. Under laws in effect since 1996, he was subject to immediate removal, but was provided an interview which would have allowed him to apply for asylum before an immigration judge only if he established a so-called credible fear of persecution.
The U.S. Department of Homeland Security official who conducted the interview believed Thuraissigiam's account of being abducted in a van and severely beaten in his native country. But the official let the removal order stand on the grounds that the story was too vague to merit asylum, as the abductors were not identified and their motive unclear.
The decision was affirmed by an immigration judge in a decision that provided no explanation of its reasoning. The law provided no further means of review. However, Thuraissigiam filed a habeas petition in U.S. District Court for the Southern District of California on the grounds that the asylum interview did not apply the correct legal standard.
The district court found that it lacked jurisdiction to consider the question. Title 8 of the U.S. Code, Section 1252(e)(2) limits the scope of habeas review from a credible fear determination to the narrow questions of whether the noncitizen had in fact been ordered removed, and whether they possessed an immigration status entitling them to remain legally in the U.S.
Excluded from habeas review is any inquiry into the credible fear determination itself. It was this statutory limitation on review that the Ninth Circuit found unconstitutional.
The Supreme Court's majority opinion, authored by Justice Samuel Alito, in which Chief Justice John Roberts, and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined, applied a narrow view of the scope of habeas relief, noting the court's prior holding that the suspension clause "protects the writ as it existed in 1789," i.e., at the time that the Constitution was adopted.
The majority stated that the purpose of habeas corpus is to protect from unlawful detention. Determining that such concept was not viewed in 1789 as encompassing "the right to enter or remain in the country or to obtain administrative review potentially leading to that result," the majority held Thuraissigiam's claim to fall outside of the scope of what the suspension clause protects.
To further distinguish what was being sought from the concept of a challenge to detention, the majority continued that even if successful in establishing credible fear, Thuraissigiam would remain subject to mandatory detention for the duration of his removal proceedings.
The court further observed that if released, Thuraissigiam's lack of immigration status would render him subject to detention and removal. Drawing an analogy to its denial of habeas relief in Munaf v. Geren, in which U.S citizens captured in Iraq sought not release from detention, but rather to block transfer to the Iraqi authorities for prosecution and to be transferred to the U.S. for prosecution instead, the court concluded that "claims so far outside the 'core' of habeas may not be pursued through habeas."
The court also distinguished this case on its facts from two recent successful invocations of habeas by noncitizens.
In comparing Boumediene v. Bush, the court noted that the foreign prisoners of war challenging their detention in Guantanamo Bay, Cuba, were not seeking entry to the U.S. And in Immigration and Nationality Service v. St. Cyr, it noted that the noncitizens invoking habeas relief were, unlike Thuraissigiam, long-time lawful permanent residents of the U.S.
The majority also found the fact that Thuraissigiam was apprehended 25 yards into the country meant that he had not legally effected an entry, thus rendering the due process clause inapplicable to his case.
Justice Stephen Breyer, joined by Justice Ruth Bader Ginsberg, concurred in the outcome of this particular case, based on the facts that Thuraissigiam was apprehended a mere 25 yards inside the border and had never lived in or been lawfully admitted to this country.
But he added that the decision should not address the broader question of whether the suspension clause may ever protect those challenging deportation, citing language in Boumediene describing habeas corpus as "an adaptable remedy." Justice Breyer concluded that the suspension clause had not been violated in applying the INA's limitation on habeas review to Thuraissigiam's facts, but added that he would go no further than this fact-specific finding.
In a strongly-worded dissent joined by Justice Elena Kagan, Justice Sonia Sotomayor took a very different view than the majority on both the facts and the law. The dissent found that the majority skewed the nature of the claim by framing it as simply a request to remain in the country.
The dissent also noted that the majority did not reference Thuraissigiam's assertions that the system by design denied him of a meaningful ability to establish his claims, or "that the translator and asylum officer misunderstood him, and that he was not given a 'reasoned explanation' for the decision."
The dissent continued that the majority mischaracterized the scope of relief available, observing that habeas has been found in past cases to address more than release from detention, and "has never demanded the kind of precise factual match with pre-1789 case law that today's [c]ourt demands."
Justice Sotomayor cited St. Cyr and Boumediene as examples involving issues not meeting the 1789 threshold test, stating that both of those decisions "instruct that eliminating judicial review of legal and constitutional questions associated with executive detention, like the expedited-removal statute at issue here does, is unconstitutional."
The dissent also took issue with the majority's due process determination, arguing that it would be more proper for such constitutional protection to accrue upon physical entry rather than lawful admission, which the dissent characterized as "hinging upon dynamic immigration laws that may be amended at any time."
The impact of the court's decision will be magnified by a ruling of the U.S. Court of Appeals for the D.C. Circuit, issued two days earlier, allowing the Trump administration to implement new rules vastly expanding the scope of expedited removal.
When Congress created expedited removal in 1996, it aimed to target those arriving at airports and other ports of entry who relied on asylum claims to gain admission. The legislation sought to quickly turn away those whose claims were found dubious by a trained asylum officer.
But as the facts of this case illustrate, newly arrived asylum seekers, who are detained and unsure of their ability to remain in this country, who might be traumatized, have not had time to consult with a lawyer or gather evidence, and might be suspicious of being questioned by government officials based on their experiences with similar officials in their native countries, often don't make the best witnesses.
Oddly, asylum seekers are not entitled to be represented by counsel during the very abbreviated review allowed before an immigration judge of a negative finding. Such review hearings can last as little as a couple of minutes, and do not require an explanation from judges as to the reasoning behind their decisions.
The process is further complicated by the 1996 legislation's introduction of a new standard of review called "credible fear." In recognition of the above-cited problems, credible fear was designed to provide a very low threshold for entry as a safeguard against the removal of genuine refugees.
But unlike the standards for asylum and withholding of removal, which have been defined and enforced by the federal courts, challenges to how the standard should be interpreted or whether it was correctly applied generally cannot reach the Article III courts. Thus, the proper application of the standard has always relied on the honor system.
Over time, the mass of arriving asylum seekers shifted from airports and sea to the southern border. And a surge in those fleeing violence in Central America and Mexico led to a large increase in the number of those subject to credible fear review. In addition, the law was expanded by regulations in 2004 to apply expedited removal to those caught within 100 miles of the border within 14 days of arrival.
The Trump administration enacted regulations last year that remove all geographic restrictions, and apply expedited removal and its accompanying credible fear requirements to those lacking legal immigration status who are confronted anywhere in the country and who cannot demonstrate they have been in the U.S. continuously for at least two years.
The D.C. Circuit's June 23 decision in Make the Road New York v. Wolf removed an injunction imposed by the district court, allowing the regulations to take effect.
As with Thuraissigiam himself, credible fear determinations at present tend to be less about the applicant's credibility, and focus more on whether their facts satisfy legal requirements that remain very much in flux.
For example, the Board of Immigration Appeals in 2014 issued a precedent decision holding victims of domestic violence to be eligible for asylum based on their membership in a particular social group. As a result, those with credible claims of domestic abuse were generally found to have a credible fear. But in June 2018, former Attorney General Jeff Sessions vacated the BIA precedent, adding in a footnote to his decision that few such claims would henceforth be able to establish a credible fear of persecution.
Credible fear approval rates subsequently plunged in such cases in spite the new standard's application being blocked in December 2018 by a judge in the U.S. District Court for the District of Columbia.
So while the majority decision in Thuraissigiam pointed to a 77% approval rate in credible fear interviews conducted over the past five years, it did not mention the claim that credible fear approval went from 97% for domestic violence victims to less than 10% for those held at Dilley Detention Center in Texas.
Nor does it address the recent assignment of border patrol agents employed by the enforcement-minded U.S. Customs and Border Protection, who have found credible fear at a much lower rate than U.S. Citizenship and Immigration Services asylum officers, who have traditionally conducted such screenings.
Furthermore, in June 2019, USCIS Acting Director Ken Cuccinelli sent USCIS asylum officers a strongly worded email exerting pressure to find credible fear less frequently, a clear attempt to raise the threshold being applied, citing the need to "better secure the homeland."
And regulations recently proposed by the Trump administration would create a more rigorous process for credible fear determinations, while applying a higher standard to those judged to be eligible for withholding of removal only.
Thus, as more asylum seekers are subjected to credible fear determinations under an increasingly uncertain standard, the Supreme Court's opinion has closed the lone avenue for obtaining federal court review of the propriety of a negative determination.
Jeffrey S. Chase is a former immigration judge in New York City and is the founder of the Round Table of Former Immigration Judges, which was awarded the American Immigration Lawyers Association 2019 Advocacy Award.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 Thuraissigiam v. Barr , No. 19-161, __S.Ct. __ (U.S. June 25, 2020).  Thuraissigiam v. Barr, No. 19-161 at *9 (June 25, 2020). 287 F. Supp. 3d 1077 (S.D. Cal. 2018).
 917 F.3d 1097 (9th Cir. 2019).
 Thuraissigiam v. Barr, No. 19-161 at *11 (June 25, 2020).
 Thuraissigiam v. Barr, No. 19-161 at *12 (June 25, 2020).
 Thuraissigiam v. Barr, No. 19-161 at *14 (June 25, 2020); Munaf v. Geren, 553 U.S. 674 (2008)
 Boumediene v. Bush, 553 U.S. 723 (2008).
 Thuraissigiam v. Barr, No. 19-161 at *32 (June 25, 2020).
 INS v. St. Cyr, 533 U.S. 289 (2001).
 Thuraissigiam v. Barr, No. 19-161 at *33 (June 25, 2020).
 Thuraissigiam v. Barr, No. 19-161 at *35 (June 25, 2020).
 Make the Road New York v. Wolf, No. 19-5298 (D.C. Cir. June 23, 2020).
 The concept was inspired by a 1993 report on Sixty Minutes on asylum-seekers arriving at New York's JFK Airport.
 EOIR, Immigration Court Practice Manual (June 11,2020) https://www.justice.gov/eoir/page/file/1284746/download at 16.
 See, e.g. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (holding the burden of proof for asylum, requiring a "well-founded fear of persecution," may be satisfied by a ten percent likelihood of persecution); INS v. Stevic, 467 U.S. 407 (1984) (holding that withholding of deportation requires a clear probability of persecution, requiring a showing that persecution is more likely than not).
 Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). Matter of A-B-, 27 I&N Dec. 316, 320, n.1 (A.G. 2018).
 Amanda Holpuch, "Asylum: 90% of claims fall at first hurdle after US process change, lawsuit alleges," The Guardian, Nov. 13, 2019, https://www.theguardian.com/us- news/2019/nov/13/asylum-credible-fear-interview-immigration-women-children-lawsuit.
 Grace v. Whitaker, 344 F. Supp. 3d 96 (D.D.C. 2018). Furthermore, recent decisions of the First and Sixth Circuits have upheld the continued viability of domestic violence-based asylum claims. See Juan Antonio v. Barr, ___ F.3d ___ (6th Cir. 2020); De Pena Paniagua v. Barr, ___ F.3d ___ (1st Cir. 2020).
 Thuraissigiam v. Barr, No. 19-161 at *6 (June 25, 2020).  Holpuch, Ibid at note 15.
 Hamed Aleaziz, "Border Patrol Agents Have Approved Fewer Than Half of Asylum Screenings," BuzzFeed News, Nov. 7,2019, https://www.buzzfeednews.com/article/hamedaleaziz/border-patrol-asylum-
 Hamed Aleaziz, "A Top Immigration Official Appears To Be Warning Asylum Officers About Border Screenings," BuzzFeed News, June 18,2019, https://www.buzzfeednews.com/article/hamedaleaziz/uscis-director-asylum-officers- email.
 https://www.federalregister.gov/documents/2020/06/15/2020-12575/procedures-for- asylum-and-withholding-of-removal-credible-fear-and-reasonable-fear-review."