In Asylum Case, Justices Close Courthouse Doors

      Tens of thousands of Sri Lanka’s minority population Tamils have died in three decades of ethnic and religious conflict in the south Asian island nation formerly known as Ceylon. Despite a ten-year truce in fighting, the Hindu Tamil minority still today faces the threat of what human rights groups regard as genocide at the hands of the Sri Lankan military as directed by the Buddhist Sinhalese majority government.

       Vijayakumar Thuraissigiam, an ethnic Tamil, fears that he could be another victim if returned to his country after a thus-far unsuccessful attempt to obtain asylum in the United States. Thuraissigiam fled Sri Lanka in 2016 after having been abducted and beaten by unidentified assailants. He then found his way to Mexico, crossed into southern California on January 17, 2017, and has been detained in an immigration facility ever since his arrest by a Border Patrol agent just twenty-five yards north of the border.

      Thuraissigiam applied for asylum but, unable to identify his assailants or their motivation, he failed to satisfy two executive branch officials that he had “a credible fear of persecution” if he were returned to his native country. In a courthouse-closing decision last week [June 25], the Supreme Court prevented Thuraissigiam from making his case to an independent federal judge despite two recent precedents allowing noncitizens to use federal habeas corpus to try to gain their freedom.

      The Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam [June 25] upheld provisions in a 1996 immigration law that limit most asylum applicants in their ability to use habeas corpus to obtain judicial review of their asylum claims. Thuraissigiam, represented by attorneys from the American Civil Liberties Union, argued that those restrictions amounted to an unconstitutional suspension of habeas corpus and a due process violation.

      Writing for the Court’s conservative majority, Justice Samuel Alito adopted a dewy-eyed view of the procedural protections for asylum applicants after citing the current backlog of more than 1 million pending cases. Over the past five years, fewer than one-fourth of the applicants have been screened out at the initial interview, according to statistics found by the Government Accountability Office (GAO). Many applicants later drop their claims, and the vast majority of those that survive an initial screening are found to be “meritless,” according to Alito.

      Alito notes that the asylum applicant has two more levels of review after the asylum officer’s initial interview before a supervisor and an immigration judge. Significantly, the immigration judge is actually an executive branch official despite the title. Alito is no fan of government bureaucrats in other contexts, but he expresses confidence that this three-level system of review is sufficient for the purpose without allowing the asylum applicant their day in an actual court of law.

      In a brief filed with the Supreme Court supporting Thuraissigiam’s plea, several asylum law professors instead view Thuraissigiam’s case as “a paradigmatic example” of the need for review by an Article III court. “Bona fide asylum seekers are routinely removed despite having strong claims to protection,” Washington, D.C., attorney Roy Englert wrote in the brief filed on behalf of the professors: Harvard’s Deborah Anker and Sabrineh Andalar, the University of Texas’s Denise Gelman, and the University of California-Hastings’ Karen Musalo.

      Quite simply, according to the professors, asylum officers “fail to provide asylum seekers with sufficient opportunity to show credible fear.” The would-be refugee, unfamiliar with U.S. law and unrepresented by attorney, has multiple disadvantages, according to the professors, in trying to make their case to overworked asylum officers at the border.

      Among several factors, the professors cite reticence, trauma, and language barriers. The would-be refugee may be less than forthcoming because of an internalized habit of secrecy and distrust of authorities from their experiences in their home country. They may also be “reluctant to share the details of their traumatic circumstances,” according to the professors. Language barriers add to the applicant’s difficulty in making their case even if a translator is provided, as required by regulation. The translator may also render the applicant’s story imprecisely based on poor understanding of colloquialisms and idioms in the applicant’s home country.

      These difficulties require the asylum officer, according to the professors, to go beyond the rote recitation of questions in an interview form and to probe deeply into the applicant’s account. “[T]he asylum officer must probe and ask follow-up questions that are informed not only by the asylum seeker’s statements but also by information relating to the country from which the asylum seeker has fled,” Englert writes in summarizing the professors’ views.

      In a densely historical opinion, Alito dismisses as irrelevant Supreme Court decisions from the 19^th century on that allowed noncitizens to get their cases into courts of law, including the quite recent decision in Boumediene v. Bush (2008) permitting Guantanamo detainees to use habeas corpus to challenge their imprisonment.

      Sotomayor is persuasive in depicting the new decision as inconsistent with precedent and the historic purpose of habeas corpus as a safeguard of individual liberty. “The majority,” she writes in a critical summary, “declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas corpus, no matter whether the denial is arbitrary or irrational or contrary to governing law.” So much for the huddled masses yearning to breathe free.