University of Michigan Law School
Civil Rights Litigation Clearinghouse
new search
page permalink
Case Name Thuraissigiam v. U.S. Department of Homeland Security IM-CA-0153
Docket / Court 3:18-cv-00135 ( S.D. Cal. )
State/Territory California
Case Type(s) Immigration and/or the Border
Attorney Organization ACLU Chapters (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
Case Summary
This case, currently being heard by the U.S. Supreme Court, is about whether the Constitution requires that noncitizens facing "expedited removal" have access to any review by federal judges. The Department of Justice has taken the position before the Supreme Court that there is no constitutional ... read more >
This case, currently being heard by the U.S. Supreme Court, is about whether the Constitution requires that noncitizens facing "expedited removal" have access to any review by federal judges. The Department of Justice has taken the position before the Supreme Court that there is no constitutional right to any judicial review of any deportation order, because the Suspension Clause--which bars congressional suspension of access to the judicial writ of habeas corpus (that is, to judicial review)--does not apply to deportations.

On January 19, 2018, a Sri Lankan citizen--arrested after crossing the U.S.-Mexico border without documentation and placed in expedited removal proceedings--filed this suit in the U.S. District Court for the Southern District of California. Represented by the ACLU, the plaintiff sued the U.S. Department of Homeland Security, several of its constituent agencies, and individual agency officials; he filed a habeas petition to challenge that the summary procedures leading to his expedited removal order violated his statutory, regulatory, and constitutional rights. He sought to vacate the removal order and requested relief in the form of a “new, meaningful opportunity to apply for asylum and other relief from removal.” Judge M. James Lorenz and Magistrate Judge Andrew G. Schopler were assigned to the case.

The plaintiff is a native of Sri Lanka and a Tamil, an ethnic minority group in Sri Lanka. The plaintiff fled Sri Lanka in 2016 and at some point ended up in Mexico. On February 17, 2017, the plaintiff crossed the border into the U.S., where he was arrested and placed in expedited removal proceedings. After the plaintiff indicated a fear of persecution in Sri Lanka, an asylum officer (employed by DHS) interviewed the plaintiff. The officer determined that the plaintiff had not established a credible fear of persecution. After a supervising officer and an immigration judge affirmed the officer's finding, the case was returned to DHS for the plaintiff's removal.

The plaintiff's petition asserted two causes of action. First, the plaintiff asserted that the credible fear screening deprived him of a right to apply for asylum, violating 8 U.S.C. § 1225(b)(1) and the international Convention Against Torture. Second, the plaintiff contended that the asylum officer and immigration judge violated due process by failing to provide the plaintiff with a meaningful opportunity to establish his claims. The core of the plaintiff's claim is that the government failed to follow the required procedures and apply the correct legal standards when evaluating his credible fear claim

On March 5, 2018, the defendants filed a Fed. R. Civ. P. 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction, arguing that under 8 U.S.C. § 1252(e)(2)(B), federal courts are jurisdictionally barred from hearing direct challenges to expedited removal orders. Then, on March 7, 2018, the plaintiff filed an emergency motion for stay of removal, where he argued that the court does have jurisdiction to hear his petition under 8 U.S.C. § 1252(e)(2)(B) and to "review ... whether the negative credible fear determination was properly made." The plaintiff also asserted that the stay of removal was necessary because returning to Sri Lanka would expose him to extreme danger.

On March 7, 2018, Judge Lorenz recused himself and Judge Anthony J. Battaglia was randomly assigned to the case. On March 8, 2018, Judge Battaglia issued an order dismissing the case with prejudice for lack of jurisdiction, denying the plaintiff's emergency motion to stay removal proceedings, and denying the petitioner's ex parte application for temporary stay. Judge Battaglia reasoned that the clear reading of the applicable federal statute and consistent case law from the Ninth Circuit foreclosed the court's ability to analyze the removal order or review the credible fear determination that resulted in the plaintiff's removal order. The Ninth Circuit has held that the federal statute in question only allows the review of expedited removal orders explicitly enumerated in the statute. Thus, the court cannot broaden or expand the statute to include review based on the plaintiff's contentions. Judge Battaglia also held that the "statute’s 'strict restraints' on habeas review of expedited removal orders did not effectively suspend the writ of habeas corpus and were therefore constitutionally sound." 287 F. Supp. 3d 1077 (S.D. Cal. 2018).

On the same day, the plaintiff appealed the district court's dismissal and moved for a stay of removal pending appeal. On March 13, 2018, a Ninth Circuit motions panel initially denied the plaintiff's motion to stay removal. However, that decision was reversed on March 21, 2018, and the removal was stayed pending appeal.

On March 7, 2019, Judge Wallace Tashima of the Ninth Circuit issued an opinion reversing the district court's dismissal and remanded the case for further proceedings. Keeping in line with precedent, the appeals held that 8 U.S.C. § 1252(e) does not authorize jurisdiction to hear the plaintiff's petition. The appeals court then addressed whether the federal provision restricting habeas review violates the Suspension Clause (Article 1, § 9 of the Constitution, which 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”). The court found that the statute, which prevents judicial review of whether DHS complied with procedures or applied the correct legal standards, did not satisfy the constitutional minimum that requires such review. Therefore, the court concluded that the expedited removal statute violated the Suspension Clause because it bars claims relating to a procedural error. Judge Tashima remanded proceedings to the district court to consider the plaintiff's legal challenges to the procedures that led to the removal order. 917 F.3d 1097.

On August 2, 2019, the defendants filed a petition for writ of certiorari to the U.S. Supreme Court. The petition was granted on October 18, 2019 and oral argument was held before the Supreme Court on March 2, 2020.

The Court issued an opinion on June 25, 2020. The Court held that (1) the Illegal Immigration Reform and Immigrant Responsibility Act, in limiting habeas review in expedited-removal proceedings, does not violate the Suspension Clause because this interpretation of the writ would extend it far beyond the intended scope of the Constitution, and (2) the Sri Lankan plaintiff lacked the procedural due process right to judicial review of the adverse determination regarding whether or not he had a credible fear of persecution if sent home, as he was owed no additional processes than that dictated by the statute. Justice Alito authored the opinion which was joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh. Justice Thomas authored a concurring opinion and Justices Breyer authored a separate concurrence, joined by Justice Ginsberg. Justices Sotomayor and Kagan dissented.

The Court reversed the Ninth Circuit's judgment and remanded the case with directions that the application for habeas corpus be dismissed. In accordance with this opinion, on August 12, 2020, the Ninth Circuit issued an order affirming the district court's dismissal of the petition for a writ of habeas corpus. Accordingly, on October 6, the Ninth Circuit issued a mandate regarding the dismissal. The case is now closed.

Aaron Gurley - 02/24/2020
Rachel Kreager - 10/29/2020


compress summary

- click to show/hide ALL -
Issues and Causes of Action
click to show/hide detail
Issues
Constitutional Clause
Due Process: Procedural Due Process
Suspension Clause
General
Habeas Corpus
Immigration/Border
Asylum - criteria
Asylum - procedure
Convention against Torture
Deportation - procedure
Plaintiff Type
Private Plaintiff
Special Case Type
Habeas
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex Parte Young (Federal) or Bivens
Immigration and Nationality Act (INA), 8 U.S.C. §§ 1101 et seq.
Defendant(s) U.S. Citizenship and Immigration Services
U.S. Customs and Border Protection
U.S. Department of Homeland Security
U.S. Immigration and Customs Enforcement
Plaintiff Description Sri Lankan citizen who was ordered to be removed
Indexed Lawyer Organizations ACLU Chapters (any)
ACLU Immigrants' Rights Project
ACLU National (all projects)
Class action status sought No
Class action status granted Moot
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 01/19/2018
Case Closing Year 2020
Case Ongoing No
Additional Resources
click to show/hide detail
  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Department of Homeland Security v. Thuraissigiam
Date: 01/22/2020
By: ScotusBlog
[ Detail ] [ External Link ]

Docket(s)
3:18-cv-135 (S.D. Cal.)
IM-CA-0153-9000.pdf | Detail
Date: 01/24/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Petition for Writ of Habeas Corpus
IM-CA-0153-0003.pdf | Detail
Date: 01/19/2018
Source: Supreme Court website
Order (287 F.Supp.3d 1077) (S.D. Cal.)
IM-CA-0153-0001.pdf | WESTLAW| LEXIS | Detail
Date: 03/08/2018
Source: Westlaw
Opinion (917 F.3d 1097)
IM-CA-0153-0002.pdf | WESTLAW| LEXIS | Detail
Date: 03/07/2019
Source: Westlaw
Petition for a Writ of Certiorari
IM-CA-0153-0004.pdf | Detail
Date: 08/01/2019
Source: Supreme Court website
Petition for Writ of Habeas Corpus
IM-CA-0153-0013.pdf | Detail
Date: 08/02/2019
Source: Supreme Court website
Brief in Opposition
IM-CA-0153-0005.pdf | Detail
Date: 09/04/2019
Source: Supreme Court website
Brief for the United States
IM-CA-0153-0006.pdf | Detail
Date: 12/09/2019
Source: Supreme Court website
Brief for Amici Curiae the States of Arizona, Alabama, Alaska, Arkansas, Indiana, Louisiana, Nebraska, South Carolina, South Dakota, ad Texas in Support of Petitioners
IM-CA-0153-0012.pdf | Detail
Date: 12/16/2019
Source: Supreme Court website
Brief of Amici Curiae Immigration Scholars in Support of Respondent
IM-CA-0153-0007.pdf | Detail
Date: 01/22/2020
Source: Supreme Court website
Brief for Amici Curiae Immigration and Human Rights Organizations in Support of Respondent
IM-CA-0153-0008.pdf | Detail
Date: 01/22/2020
Source: Supreme Court website
Brief for Scholars of the Law of Habeas Corpus as Amici Curiae Supporting Respondent
IM-CA-0153-0009.pdf | Detail
Date: 01/22/2020
Source: Supreme Court website
Brief of Legal Historians as Amici Curiae in Support of Respondent
IM-CA-0153-0010.pdf | Detail
Date: 01/22/2020
Source: Supreme Court website
Brief for the States of Illinois, California, etc. as Amici Curiae in Support of Respondent
IM-CA-0153-0011.pdf | Detail
Date: 01/22/2020
Source: Supreme Court website
show all people docs
Judges Battaglia, Anthony Joseph (S.D. Cal.) show/hide docs
IM-CA-0153-0001
Tashima, Atsushi Wallace (C.D. Cal., Ninth Circuit) show/hide docs
IM-CA-0153-0002
Plaintiff's Lawyers Gelernt, Lee (New York) show/hide docs
IM-CA-0153-0003 | IM-CA-0153-0005 | IM-CA-0153-0013 | IM-CA-0153-9000
Jadwat, Omar C. (New York) show/hide docs
IM-CA-0153-0005
Loy, John David (California) show/hide docs
IM-CA-0153-0003 | IM-CA-0153-0005 | IM-CA-0153-0013 | IM-CA-0153-9000
Newell, Jennifer Chang (California) show/hide docs
IM-CA-0153-0003 | IM-CA-0153-0005 | IM-CA-0153-0013 | IM-CA-0153-9000
Perez, Celso Javier (New York) show/hide docs
IM-CA-0153-0005
Thompson, Sarah D. (California) show/hide docs
IM-CA-0153-0005
Wang, Cecillia D (California) show/hide docs
IM-CA-0153-0005
Wofsy, Cody H. (California) show/hide docs
IM-CA-0153-0003 | IM-CA-0153-0005 | IM-CA-0153-0013 | IM-CA-0153-9000
Defendant's Lawyers Francisco, Noel (District of Columbia) show/hide docs
IM-CA-0153-0004 | IM-CA-0153-0006
Hunt, Joseph H. (District of Columbia) show/hide docs
IM-CA-0153-0004 | IM-CA-0153-0006
Kneedler, Edwin S. (District of Columbia) show/hide docs
IM-CA-0153-0004 | IM-CA-0153-0006
Press, Joshua S. (District of Columbia) show/hide docs
IM-CA-0153-0004 | IM-CA-0153-0006 | IM-CA-0153-9000
Reuveni, Erez (District of Columbia) show/hide docs
IM-CA-0153-0004 | IM-CA-0153-0006
Tripp, Zachary D. (District of Columbia) show/hide docs
IM-CA-0153-0004
Other Lawyers Brnovich, Mark (Arizona) show/hide docs
IM-CA-0153-0012
Cohen, David B. (New York) show/hide docs
IM-CA-0153-0010
Cox, Adam (New York) show/hide docs
IM-CA-0153-0007
Crandell, Rusty D. (Arizona) show/hide docs
IM-CA-0153-0012
Hunger, Sarah Ann (Illinois) show/hide docs
IM-CA-0153-0011
Jessen, Katherine H. (Arizona) show/hide docs
IM-CA-0153-0012
Kanefield, Joseph Andrew (Arizona) show/hide docs
IM-CA-0153-0012
Lazarus, Eli M. (California) show/hide docs
IM-CA-0153-0007
Levine, Noah Adam (New York) show/hide docs
IM-CA-0153-0009
Lipshutz, Joshua S. (District of Columbia) show/hide docs
IM-CA-0153-0007
Metlitsky, Anton (New York) show/hide docs
IM-CA-0153-0010
Mohan, Anna O. (District of Columbia) show/hide docs
IM-CA-0153-0010
Muse, Kathryn Hunt (Illinois) show/hide docs
IM-CA-0153-0011
Notz, Jane Elinor (Illinois) show/hide docs
IM-CA-0153-0011
Price, Matthew E. (District of Columbia) show/hide docs
IM-CA-0153-0008
Raoul, Kwame (Illinois) show/hide docs
IM-CA-0153-0011
Rodriguez, Cristina (Connecticut) show/hide docs
IM-CA-0153-0007
Roysden, Brunn Wall III (Arizona) show/hide docs
IM-CA-0153-0012
Savdie, Andrea (New York) show/hide docs
IM-CA-0153-0010
Sawyer, Kate B. (Arizona) show/hide docs
IM-CA-0153-0012
Scapellati, Ethan M. (New York) show/hide docs
IM-CA-0153-0010
Skinner, Oramel Horace (Arizona) show/hide docs
IM-CA-0153-0012
Sokoler, Jennifer B (New York) show/hide docs
IM-CA-0153-0010
VanDam, Jeff (Illinois) show/hide docs
IM-CA-0153-0011
Wishnie, Michael J. (Connecticut) show/hide docs
IM-CA-0153-0010

- click to show/hide ALL -

new search
page permalink

- top of page -