Attorney General Becerra Files Amicus Brief in Support of Judicial Review for Asylum Cases Subjected to Expedited Removal

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of 20 attorneys general in filing an amicus brief before the U.S. Supreme Court in support of the ability of asylum-seekers to file for habeas corpus review in expedited removal immigration cases. Expedited removal is a fast-tracked process that generally does not allow for access to legal representation, witnesses, or a meaningful opportunity to present evidence and defenses. An individual is exempt from expedited removal if they have a credible or reasonable fear of persecution or torture in their home country. The case currently before the U.S. Supreme Court, Department of Homeland Security v. Thuraissigiam, will address the question of whether asylum-seekers have the right to appeal legally erroneous credible fear decisions to federal courts after denial by agency adjudicators. Current federal law bars noncitizens from filing for habeas corpus review of their credible fear asylum claims, precluding federal courts from reviewing the decisions of immigration officials in cases involving expedited removal. The coalition argues that this particular law violates the Suspension Clause of the Constitution and greatly increases the potential for mistaken deportation and dismissal of legitimate asylum claims.

“People legitimately fleeing violence and persecution deserve to have their cases heard,” said Attorney General Becerra. “America, and the notion of the American Dream, are born from this principle. The Statue of Liberty is our constant reminder of it. We will do our part to protect the rights of asylum-seekers under the Constitution.”

California is home to thousands of asylum-seekers, families of asylum applicants, and asylum recipients. The state has a vital interest in protecting the constitutional rights of current and prospective residents. This case could affect thousands of asylum-seekers in California and across the country by denying them the right to appeal their cases in federal courts. Advocates report that the expedited removal process is rife with problems and has been misused to deport legitimate asylum-seekers, longtime residents with family who are U.S. citizens, children, individuals with valid work and tourist visas, and more. Under the existing process, federal courts in the judiciary currently only have the ability to determine whether someone appealing expedited removal is a citizen, if there is in fact an expedited removal order in place, and if the individual was previously lawfully admitted for permanent residence.

Generally, expedited removal applies to individuals who are apprehended within 14 days of entry into the United States and within 100 miles of the border. In July 2019, the Trump Administration issued new rules expanding expedited removal procedures to apply anywhere in the United States for individuals who cannot establish that they have continuously resided within the country for two years. A federal court has issued a preliminary injunction to prevent those expanded rules from taking effect. In Department of Homeland Security v. Thuraissigiam, the plaintiffs seek to have the federal courts review whether immigration agency officials erred in their findings or violated Thuraissigiam’s statutory or constitutional rights. Federal courts have previously affirmed both the right of noncitizens to apply for habeas corpus and held that there is a strong presumption in favor of judicial review of administrative action. 

The U.S. Court of Appeals for the Ninth Circuit ruled in favor of Thuraissigiam in this case, determining that the Suspension Clause affords noncitizens the right to petition for habeas corpus review of expedited removal orders. The case is currently before the U.S. Supreme Court following an appeal by the Trump Administration.

Attorney General Becerra is committed to fighting for the rights of immigrants in California and around the country. Last year, Attorney General Becerra led a coalition of attorneys general in fighting back against the Trump Administration’s efforts to expand expedited removal. Earlier this year, the Attorney General blasted the Trump Administration’s proposal that would prevent asylum-seekers from becoming self-sufficient while waiting for their cases to be decided. In 2019, he pushed back against an illegal rule attempting to force asylum-seekers to apply for protection in countries they travel through prior to arriving in the United States. Attorney General Becerra also fought back against the U.S. Customs and Border Protection’s practice of denying people access to the asylum process through misrepresentations, threats and intimidation, coercion, and verbal and physical abuse.

In filing the amicus brief, Attorney General Becerra joins the attorneys general of Illinois, Connecticut, Delaware, Hawaii, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

A copy of the brief is available here.