9th Circuit rules asylum applicant has right to go before judge, setting up Supreme Court showdown

9th Circuit rules asylum applicant has right to go before judge, setting up Supreme Court showdown


In a major break from another key appellate court, the San Francisco-based 9th Circuit Court of Appeals on Thursday ruled that a Sri Lankan man who failed his initial asylum screening has the constitutional right to go before a judge — threatening to further clog the immigration court system with tens of thousands of similar claims per year, and setting up an all-but-certain Supreme Court showdown.

The unanimous decision in a lengthy opinion by the three-judge panel could have major implications for those seeking asylum, a process that the White House has long derided as rife with fraud. And it will likely rankle President Trump, who has labeled the 9th Circuit “disgraceful” and politically biased.

The case centers on Vijayakumar Thuraissigiam, 46, who said he was jailed and tortured for political activity during the civil war between the government of Sri Lanka and the Liberation Tigers of Tamil Eelam, according to court documents. He fled the country in 2016, after he was tortured again by intelligence officers, he said in court papers.

He crossed the U.S.-Mexico border on Feb. 17, 2017, when he was arrested by a Border Patrol agent after making it 25 yards into America.


He requested asylum. But he did not pass his initial screening, a “credible fear” interview where he had to show a well-founded, personalized fear of persecution, torture or death if he were to return to his home country. This is based on a sharply limited set of factors, including political or religious belief. The initial interviews are meant to be inclusive; nearly 90 percent of all asylum seekers pass their initial interview, and are generally released into the country where they await court proceedings.

Migrant families from Central America seeking asylum walk down a dirt road after illegally crossing the Rio Grande into the U.S. from Mexico in Penitas, Texas, back in January. REUTERS/Adrees Latif – RC1AFBD3DDF0

Actually obtaining asylum is significantly more difficult, and most people do not end up receiving asylum. The Trump administration last year rolled back an Obama-era expansion of potential asylum justifications, which extended protections to those alleging domestic abuse or gang-related attacks back home.

The White House argued that the asylum system was already overburdened, and that asylum law was never meant to provide safe haven to everyone suffering unfortunate circumstances in their homelands. The number of asylum seekers has ballooned in recent years, and immigration officials say it’s in part because migrants know they will be able to live and work in the U.S. while their cases play out.

That process could take years, in part because the immigration court has a backlog of more than 700,000 cases.

In his case, Thuraissigiam said that the agent rejected his claim after conducting only a cursory hearing, refusing to hear important contextual details that would have bolstered his plea. He asked for a court hearing to appeal the decision, but was denied it. The American Civil Liberties Union (ACLU) sued on his behalf.

The 9th Circuit panel agreed that Thuraissigiam has a right to go before a judge.


“It will mean that thousands of current and future noncitizens will not be sent back to potential death without a federal court looking at their case,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said after the ruling. “The historical and practical importance of this ruling cannot be overstated. This decision reaffirms the Constitution’s foundational principle that individuals deprived of their liberty must have access to a federal court.”

“The historical and practical importance of this ruling cannot be overstated.”

— ACLU spokesman Lee Gelernt

The panel noted that the Supreme Court hasn’t considered the question. The only other court to rule on the issue, the 3rd Circuit based in Philadelphia, reached a different conclusion, deciding in 2016 that immigrants arrested after just crossing the border were not entitled to a court hearing to challenge deportation.

Responding to the 3rd Circuit’s decision, the 9th cited the 2008 case Boumediene v. Bush and wrote that it provided the basis to “reject the government’s argument that Thuraissigiam’s purported lack of due process rights is determinative of whether he can invoke the Suspension Clause” of the Constitution.

In essence, the 9th Circuit made the novel finding that noncitizen asylum applicants have the right under Article One, Section 9 of the Constitution to petition for habeas corpus relief challenging their detentions, even if they lack Fifth Amendment due process rights.


The ruling comes a day after a San Francisco-based district court judge in the 9th Circuit ruled that the Trump administration’s decision to add a citizenship question to the 2020 census “threatens the very foundation of our democratic system” because it would cause a significant undercount of immigrants and Latinos that could distort the distribution of congressional seats.

Chapman University law professor and constitutional law expert John Eastman told Fox News that Wednesday’s ruling was yet another instance of 9th Circuit political bias.

“We’ll see if that ruling stands up on appeal when it gets to the Supreme Court,” Eastman said. “It seems to me that this is another example of ‘perfectly OK if other presidents do it, but not this president.'”

The Associated Press contributed to this report.

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