Ninth Circuit Finds Sri Lankan Can Pursue Habeas Petition
There’s a growing need for certified translation of asylum documents from any language to English. We’ve blogged before about the need for certified translators in contesting removal orders in immigration and removal proceedings. In the case below, the petitioner challenged the procedures implemented against him in determining that he did not meet the requirements for applying for political asylum.
The petitioner, a native and citizen of Sri Lanka, filed a habeas petition challenging his expedited removal from the United States. The petitioner, who was Tamil (an ethnic minority group in Sri Lanka) fled his home country of Sri Lanka in 2016. The petitioner eventually made his way to Mexico and crossed the border into the United States approximately eight months later. He was arrested late in the evening of February 17, 2017 approximately 25 yards north of the border.
The Department of Homeland Security (“DHS”) placed the petitioner in expedited removal proceedings. After the petitioner reported that he feared persecution in Sri Lanka, he was referred to an asylum officer for an interview. However, when the petitioner was interviewed by an asylum officer from the United States Citizenship and Immigration Services (“USCIS”) on March 9th, he failed to persuade the officer that his fear of persecution was credible. The asylum officer’s supervisor agreed with the assessment, as did an Immigration Judge after the petitioner requested review of the decision.
Tamil Petitioner Files Habeas Petition in District Court
After the Immigration Judge denied the petitioner’s request for relief, the petitioner filed a habeas petition in U.S. District Court. Specifically, the petitioner claimed that the expedited removal order “violated his statutory, regulatory, and constitutional rights.” Accordingly, the Tamil-speaking petitioner requested a “new, meaningful opportunity” to apply for asylum.
In support of his claims, the petitioner reported that in 2007, he was persecuted in Sri Lanka for supporting a Tamil political candidate and that he had been beaten, detained, and threatened by Sri Lankan officials for his political views. Years later, when the petitioner refused to withdraw his support of the political candidate, the petitioner alleged he was kidnapped, bound, beaten, and interrogated about his political activities. Specifically, the petitioner claimed he “was lowered into a well, simulating drowning, threatened with death, and then suffocated, causing him to lose consciousness.” The petitioner also challenged the proceedings that led to his removal and claimed that the asylum officer had failed to thoroughly obtain and evaluate the circumstances surrounding his fear of persecution. Moreover, the petitioner alleged that there were “communication problems” between himself, the asylum officer and the Tamil interpreter during his interview.
Nevertheless, the district court dismissed the habeas petition based on lack of subject matter jurisdiction and rejected the petitioner’s Suspension Clause claim. The petitioner then appealed the dismissal of his habeas petition, and the district court stayed his removal pending the appeal.
Ninth Circuit Court of Appeals Reverses District Court’s Decision
In considering the petitioner’s appeal, the Ninth Circuit agreed with the district curt that the court did not have jurisdiction over the petition under U.S.C. Section 1252(e)(2)(b), finding that a district court is limited to reviewing three basic factual determinations in an expedited removal order: 1) whether the petitioner is an alien; 2) whether the petitioner was ordered removed under the section; and 3) whether the petitioner can prove that he is an alien lawfully admitted for permanent residency, is a refugee, or has been granted asylum.
However, although the Ninth Circuit held that Section 1252(e)(2) did not authorize jurisdiction over the claims in the petition, the Ninth Circuit found that under the Suspension Clause (U.S. Const. Art 1, 9, cl. 2), “the petitioner must have a meaningful opportunity to demonstrate that he was being held pursuant to the erroneous application or interpretation of relevant law.”
The court explained that the Suspension Clause mandates that “the Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” Under this framework, the issue for the court to consider, then, was whether the habeas review that was available to the petitioner under Section 1252(e)(2) effectively suspended the writ and, accordingly, whether it satisfied the Suspension Clause’s requirements.
The Ninth Circuit summarized the petitioner’s claims as involving allegations that the government denied him a fair procedure, applied an incorrect legal standard to his credible fear contentions, and “failed to comply with the applicable statutory and regulatory requirements.” In other words, the court explained that the central claim of the petitioner’s appeal was that the U.S. government failed to follow proper procedures and failed to apply the correct legal standards in evaluating whether his “credible fear” claim was sufficient for asylum.
The Ninth Circuit ultimately found that Section 1252(e)(2) did not provide the petitioner with a meaningful opportunity to demonstrate that he was being held according to an erroneous application or interpretation of the law. The court further found that there were “meager procedural protections” afforded to the petitioner during the process of determining whether he had a “credible fear” of persecution and held that the insufficient procedural productions were further compounded by the fact that Section 1252(e)(2) prevented judicial review of whether the correct legal standards and processes were applied in individual cases.
Accordingly, the Ninth Circuit held that Section 1252(e)(2) violated the Suspension Clause as applied to the petitioner and held that the district court had jurisdiction over the matter on remand to consider the petitioner’s challenges regarding the procedures that led to his expedited removal order.
The case is Thuraissigiam v. U.S. Department of Homeland Security, et al., Court No 18-55313, decided on March 7, 2019 in the United States Court of Appeals for the Ninth Circuit.
Certified Translation of Supporting Documents for Asylum Applications
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