Release Date:  February 28, 2020
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in DHS v. Thuraissigiam set for March 2

The U. S. Supreme Court will hear oral argument in a case that could extend the rights of illegal aliens. In a March 7, 2019 ruling, a panel of the Ninth Circuit Court of Appeals announced that an illegal alien, caught crossing the U. S. border, is entitled to federal court review of his denial of asylum. The ruling in Department of Homeland Security v. Thuraissigiam announced that a federal law which prohibits habeas corpus review of the alien’s claim violates the Constitution’s Suspension Clause.

When the Supreme Court agreed to hear the DHS appeal of that ruling, the Sacramento-based Criminal Justice Legal Foundation joined the case to argue that under the Constitution Congress has the authority to limit access to habeas corpus by noncitizens who have no substantial connection with this country.

The case involves the February 17, 2017 arrest of a Sri Lankan national named Vijayakumar Thuraissigiam 25 yards inside the California/Mexico border moments after he illegally entered the U. S. Thuraissigiam claimed that he was a persecuted minority in his home country who had been detained and beaten because of his political beliefs. A review of this claim by the Department of Homeland Security concluded that it was not credible and he was ordered deported. In January 2018, Thuraissigiam filed a petition for habeas corpus in federal District Court arguing that the deportation order violated his constitutional rights. The District Court rejected the petition, finding that federal law limited access of illegal aliens to judicial review of claims asserting U. S. constitutional rights.

Thuraissigiam appealed that ruling to the Ninth Circuit Court of Appeals, which on March 3, 2019, reversed the lower court and ordered review of his asylum claim. While agreeing that the federal law restricted judicial consideration of his claims, the Ninth Circuit held that such a restriction violates the Constitution’s Suspension Clause.

In October 2019, the U. S. Supreme Court agreed to consider the government’s appeal of the Ninth Circuit ruling. Thuraissigiam is represented by the American Civil Liberties Union, with briefs in support from ten other organizations, including the American Bar Association, most represented by attorneys from “white shoe” law firms who have donated their services. The American people are represented by the U. S. Solicitor General, with supporting briefs filed by two groups of state attorneys general and the Criminal Justice Legal Foundation.

In a scholarly amicus curiae (friend of the court) brief, CJLF argues that the Constitution gives Congress the authority to limit the right of federal habeas corpus for noncitizens. The Ninth Circuit’s ruling to the contrary violates the separation of powers and is invalid. Thuraissigiam’s attorneys rely on a 2008 Supreme Court ruling in Boumediene v. Bush, where a one-vote majority of the Court extended some constitutional rights to aliens detained at Guantanamo Bay. The Foundation argues that this “deeply flawed” ruling gave rights to aliens “living in the United States,” or at least in territory under its control, not aliens who just stepped across a U. S. border. Extending that ruling to include Thuraissigiam would compound an already improper intrusion into Congressional authority.

“The constitutional privilege of habeas corpus belongs to the people of the United States. While that includes resident aliens as well as citizens, it does not extend to someone who just stepped across the border. Whether border jumpers will be allowed to sue the government in our courts is for Congress, not the courts, to decide,” said CJLF Legal Director Kent Scheidegger.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.