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Immigrants Who Were Rejected For Asylum Have The Right To A Federal Judge Review, A Court Ruled

"It’s the first case to hold that asylum-seekers in the border area are entitled to their day in court."

Posted on March 7, 2019, at 6:15 p.m. ET

Migrants walk toward the El Chaparral port of entry in Tijuana.
Guillermo Arias / AFP / Getty Images

Migrants walk toward the El Chaparral port of entry in Tijuana.

LOS ANGELES — The US Court of Appeals for the 9th Circuit ruled Thursday that undocumented immigrants have a constitutional right to a federal court review of denials to their asylum claims in certain circumstances.

Under current immigration laws, immigrants who fail credible fear interviews — the first step in the asylum process in which a person must establish there is a significant possibility they will be persecuted or tortured if they’re sent back to their country — can appeal the finding to an immigration judge. Immigrants who fall under the 9th Circuit’s jurisdiction can now ask a federal judge to review the process and legal standards the government used in determining whether someone has a credible fear.

The three-judge panel held, in a unanimous opinion written by Judge A. Wallace Tashima, that the Constitution's suspension clause, which protects the right to habeas corpus — the ability to ask a court to determine if a detention is unlawful — applies to questions of whether the government followed the required protocols and applied the correct legal standard when evaluating a credible fear claim.

The case was brought by Vijayakumar Thuraissigiam, a native of Sri Lanka and part of the ethnic minority group Tamil. After crossing into the US from Mexico and being apprehended, he was interviewed by an immigration officer and determined to not have a credible fear of persecution.

A group of asylum-seekers from Central America return to Mexico from the US.
Guillermo Arias / AFP / Getty Images

A group of asylum-seekers from Central America return to Mexico from the US.

Thuraissigiam said that in 2007 he was "detained and beaten" by Sri Lankan army officers, and told not to support a Tamil political candidate. Then in 2014 after he continued to support the candidate, Thuraissigiam said government intelligence officers kidnapped, beat, and tortured him about his political activities.

The appeals court — which Trump has blasted as "out-of-control" and "activist" — held that Thuraissigiam had brought two specific claims to the court that could be reviewed: whether the government followed the required procedures and applied the correct legal standards when evaluating his credible fear claim.

The ruling comes as the number of reviews by immigration judges who find an immigrant has a credible fear of returning to their country decreased starting January 2018. The Transactional Records Access Clearinghouse at Syracuse University found that by June 2018, only about 15% of immigration judge reviews found the asylum-seeker had a credible fear — about half the level seen in the second half of 2017.

Sarah Pierce, an analyst at Migration Policy Institute, said that migrants already get reviews with immigration judges but that under the Trump administration overturns of denials have sharply decreased.

"At the very least, today's will increase oversight of a very discretionary process on which people's lives depend," Pierce told BuzzFeed News.

Guillermo Arias / AFP / Getty Images

Lee Gelernt, deputy director of the ACLU Immigrants' Rights Project, said that there are often "legal errors" in the denials of credible fear at the border.

“If the federal court can ensure the proper standard is being used and procedure, it will eliminate, significantly, erroneous denials of asylum,” Gelernt told BuzzFeed News. “What we are seeing is people being denied asylum but had the correct standard been used, they would have prevailed.”

Stephen Legomsky, a former chief counsel at the US Citizenship and Immigration Services during the Obama administration, said the ruling has major implications.

"It’s the first case to hold that asylum-seekers in the border area are entitled to their day in court before they can be sent back to the countries in which they fear persecution or even death," Legomsky said.

"Given the life interests at stake in these cases, and given the cursory manner in which the Trump administration has been dismissing these claims, the federal courts have become critical to assuring the full and fair evaluation that these cases require."


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