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Appeals Court Determines Asylum Seeker Has Right To Hearing

March 8, 2019 1:13 p.m.

GUEST: Dan Eaton, partner, Seltzer Caplan McMahon Vitek

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This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

Asylum seekers who cross into the U.S. illegally and are rejected for asylum may challenge that decision through an appeals process. That is what a three judge panel on the 9th Circuit Court of Appeals says in a decision published Thursday. Joining me to break down the ruling is Dan Eaton legal analyst and partner at Seltzer Caplin McMann Vita. Welcome Dan. Thank you. Good to be with you Jake. And you know a San Diego judge threw this case out so it was appealed to the 9th Circuit.

What did the 9th Circuit say in its decision ultimately the 9th Circuit said that this immigrant who was arrested as he crossed the border here in San Diego was entitled to further review of the decision to send him back on an expedited basis specifically whether the procedures that were followed in expediting his removal were appropriate and followed what the statute required.

And tell us a bit more about the person behind the case.

It's actually fascinating of the 9th Circuit goes into the circumstances in some detail. This is a Sri Lankan national who is a member of a Tamil which is a minority in that country who says that he was persecuted beaten harassed for supporting a member of the opposition politically and therefore he eventually went to Mexico eventually crossed into America through San DRO and he was arrested. The question was whether as a noncitizen he could invoke habeas corpus relief in a federal court and if so whether he had shown that the procedures that were involved in determining whether he had a credible fear of persecution whether he could challenge those procedures and whether those procedures were sufficient to satisfy the Suspension Clause of the United States Constitution which says basically that the writ of habeas corpus the right to get before a federal judge cannot be suspended absent a state of insurrection or invasion of public safety.

That's interesting and you know asylum seekers who crossed illegally at ports of entry already have a legal right to an appeal. How significant is this ruling that says now the same right applies to people who have crossed the border illegally.

It's a significant thing because first of all it talks about the fact that a noncitizen has a right to invoke this writ of habeas corpus and secondly that they have this right to a meaningful review of the negative credible fear determination that is made first by an asylum officer and then by an immigration judge both of those individuals in this case found that this immigrant had no credible fear of persecution and he would have been subject to expedited removal. Back to Sri Lanka. But there was real question about whether the procedures that were involved in that process were fair.

It was very clear under the statute the Immigration Nationality Act that the Federal Court couldn't meaningfully review the process through which he was subject to expedited removal. There are only three particular instances of three particular features of this process that he can challenge through a habeas review none of which applied one of which is to challenge whether he is a citizen or not. And there was no question he wasn't a citizen. But the question is whether that statute was unconstitutional and what the Ninth Circuit said is that provision of the statute was unconstitutional because it didn't provide basic constitutional protections for a meaningful review of the process through which the negative or credible fear determination was made.

So then again let's touch on you know under this decision what standard do asylum seekers need to reach in order to appeal the immigration judges removal orders.

First of all it's the court it was very careful to say that it's not clear that suspension clause requires a review of the substance or the merits of the negative credible fear determination all that he has a right to do now is challenge the procedure under which that determination was made. And really the extent of his rights are even up in the air. What the Ninth Circuit said was Judge Patel you are the San Diego federal judge who was the trial judge in this case has to look at that again to see whether he has made a showing whether this immigrant has made the proper showing that these procedures were sufficiently flawed to deny any kind of meaningful review of his claim that he had a credible fear of persecution.

Were he to be sent back to Sri Lanka and how could this impact in immigration court system it already has a massive backlog.

It will it's going to add another step. Now whether it's going to paralyze the system is something that you'll have to see and for the process I know there is a view from the people who represented this immigrant that it's not going to bog down the system but it's going to add another step. And here's another thing. There's one more step in this process. And that is that there is now a conflict between the 9th Circuit view on this issue and the Third Circuit out of Philadelphia's view on this issue and where there is a conflict between the circuits on whether a particular statutory provision is constitutional.

That's where the Supreme Court is bound to step in. You can expect that this is going to be subject to further review.

And so then what differentiates that case from the Ninth Circuit case.

Oh well as a matter of principle not much except the reasoning of course which makes all the difference. I don't want to really get into the distinctions that the Ninth Circuit made to the Third Circuit ruling. But the bottom line is that the Third Circuit said that the expedited removal procedure under the Immigration Nationality Act that applied to this immigrant pass constitutional muster. The Ninth Circuit said no it didn't. Because under the suspension clause that I referred to earlier you have to have a right to meaningful review of the negative credible fear determination and that the statute does not allow and this decision is likely to be appealed to the Supreme Court.


Almost certainly will be appealed to the Supreme Court because right now what you have is one circuit court the Ninth Circuit saying the provision under which this immigrant would have been subject to expedited removal is unconstitutional. And the third circuit say no it does pass constitutional muster. So we'll have to see ultimately what a majority the United States Supreme Court says about which circuit is right and when do you think the High Court will hear the case.

I expect that you can expect that it will be heard in its next term the next term starts the first Monday in October this year and in the meantime what will happen to the plaintiff this immigrant will stay in the United States pending further appeals.

All right I've been speaking with Dan Eaton legal analyst and partner at Seltzer Caplin McMann VI tech. Dan thanks. Thank you Jay.