Appeals Court Says Asylum Seekers May Now Challenge Their Deportation in Federal Court

Written by Emma Winger

Many asylum seekers who travel to the United States seeking protection often receive something much less—they are arrested by immigration officials and provided no meaningful way to challenge their deportation in federal court. 

Last week, in Thuraissigiam v. U.S. Department of Homeland Security, the Ninth Circuit Court of Appeals became the first federal appeals court to say that depriving these asylum seekers of federal court review violated the U.S. Constitution. This decision adds a key level of protection for a vulnerable population currently under attack by the Trump administration. 

Because of their circumstances, asylum seekers are often unable to meet the legal requirements to enter the United States. If they lack proper documentation, they are forced into an expedited removal process. A single asylum officer decides whether their fear is credible and there is only a cursory review by an immigration judge. In Fiscal Year 2016, 41 percent of all deportations were through this expedited removal process. 

The process is deeply flawed. Immigration officers routinely violate even the minimal protections in place for asylum seekers in expedited removal proceedings. Immigration officers fail to inform migrants that they may seek asylum in the United States, do not inquire about their fear of persecution, provide inadequate interpretation, and fail to correctly record the results of the interview or explain the reasons for denying a claim. When an asylum seeker asks for review by an immigration judge, they often do not have an immigration attorney. 

Vijayakumar Thuraissigiam, an asylum seeker from Sri Lanka, faced this flawed expedited removal process. In his case, the asylum officer and immigration judge failed to follow the required procedures and failed to apply the correct legal standards when they evaluated his fear claim. He tried to challenge it in federal court, but the district court held that it could not consider Mr. Thuraissigiam’s claims under the immigration laws. 

When he appealed that decision, the Ninth Circuit reversed it, concluding that the laws limiting federal court review violated the Suspension Clause. The court explained that the Suspension Clause—part of the original Constitution and therefore pre-dating even the Bill of Rights—was designed to protect access to the courts. This vital protection, available through habeas corpus proceedings, has been accessible to non-citizens as well as citizens in the United States since its founding. 

The court concluded that Mr. Thuraissigiam and other asylum seekers who raise similar procedural challenges to the expedited removal process have the right to challenge their expedited removal process in federal court. 

Though the government could ask for an additional review from a larger group of Ninth Circuit judges or take the case to the Supreme Court, the decision in this case is significant. For now, more asylum seekers may have their day in court, securing a vital protection and giving them an opportunity to challenge a rushed deportation process. 

Fuente: http://immigrationimpact.com/

https://www.inmigracionyvisas.com/a4062-Asylum-Seekers-May-Now-Challenge-Their-Deportation-in-Federal-Court.html

DACA Is Still In Effect As It Heads To The Supreme Court

Written by Aaron Reichlin-Melnick

The Ninth Circuit Court of Appeals issued a stinging rebuke to President Trump’s ongoing efforts to end the Deferred Action for Childhood Arrivals (DACA) initiative last week, unanimously upholding a lower court injunction which had blocked the Trump administration from ending the program. 

Just three days before that hearing, the Department of Justice (DOJ) took the unusual step of asking the Supreme Court to bypass the appeals process and hear the DACA case before the Ninth Circuit issued a decision. Now that the Ninth Circuit has ruled, the Supreme Court could take up the case as early as next spring—with DACA remaining in effect until they rule. 

Back in September 2017, the administration announced that it would be ending DACA, the initiative which allows undocumented immigrants brought to the United States as children to receive temporary permission to remain in the country. Multiple lawsuits challenging the termination of DACA soon followed. 

In one of those challenges, a federal court in San Francisco found that the administration’s termination of DACA was “based on a flawed legal premise” and ordered the government to continue processing renewal applications. Courts in New York and the District of Columbia soon followed suit with similar orders, which remain on appeal. 

The Ninth Circuit’s decision concluded the same. Though DOJ had argued the original DACA initiative was illegal and unconstitutional—supposedly giving the agency no legal ability to review or continue the program—the court found differently. The Ninth Circuit determined that it had the authority to review and reject the administration’s conclusions as to whether DACA was legal. 

Noting that many previous presidents (including Eisenhower, Reagan, and H.W. Bush) had provided discretionary immigration benefits to large groups, the Ninth Circuit declared that DACA “was a permissible exercise of executive discretion.” Since the administration had offered essentially no other reason for ending DACA beyond its claim that DACA was illegal, the Ninth Circuit held that the government had improperly ended DACA. 

Importantly, the Ninth Circuit was clear that the administration could have chosen to end DACA as a matter of discretion at any time—but had chosen not to, instead relying on the legal conclusion that it simply had no authority to continue the initiative. It is possible that the administration chose not to use its discretion to end DACA because in doing so it would have been forced to admit it was legal. 

Although judges ruled 3-0 against the government, at least one judge on the Ninth Circuit would have gone even further. In a concurring opinion, Judge Owens declared that the plaintiffs should have been granted an injunction due to the administration’s “unconstitutional racial animus” against DACA holders. Most DACA beneficiaries are Latino, people who have borne the brunt of the president’s attacks on immigrants. 

Now that the Ninth Circuit has ruled, the case is directly on path to the Supreme Court. Until the Supreme Court issues a decision, individuals who have DACA can continue to apply for DACA renewals and the government will continue to process them. If the Supreme Court accepts the case, it is likely that a decision would come at the end of the term in June. Until then, the initiative remains in place.

Última Actualización: Noviembre 19 de 2018
Fuente: www.immigrationimpact.com