Blog post by Yajat Bansal, a third-year law student from National Law University Odisha


The indecisive imagery surrounding the application of the Suspension Clause has yet again been underscored by the US Supreme Court in the recent judgement of Department of Homeland Security v. Thuraissigiam. The 9 judge bench on 25th June 2020, pronounced the judgement where the majoritarian view (7:2) upheld that the writ of habeas corpus cannot be attracted by an asylum seeker, undergoing expedited removal proceedings. In addition to this, the court through this decision reflected that the executive enjoys the power to exercise its discretion of determining an alien’s entry as lawful or not, in a much broader sense.  


As per the factual matrix of the above case, Vijayakumar Thuraissigiam was detained 25 yards within the US – Mexico border while he was found entering the US soil without undergoing any due inspection. Mr Thuraissigiam, a Tamilian national of Sri Lanka, pleaded for asylum in the US due to the fear of persecution he faces in his homeland. The Tamilian ethnicity in Sri Lanka has a long history of being the victims of systematic persecution, carried out not only by the Sinhalas (the majoritarian sect of Sri Lanka) but also by the functionaries of the State (including police force etc.). Thuraissigiam claimed that not only was he  a direct sufferer of the state-sponsored violence  but also he was abducted and threatened to be killed by the squads which engage in the ethnic cleansing of Tamils. However, during the credible fear interview, Thuraissigiam omitted to present his claims of fear of persecution on the components like – political opinions, ethnicity, race etc. (components recognized both by the UN Refugee Convention and the US law of Refugee Act of 1980) to the asylum officer. Instead, he merely stressed upon his dire interest to find refuge on the US soil. This lead to the asylum officer discarding his plea resulting in his expedited removal in accordance with 8 U.S.C. §1252(e)(2) and later supported by the Immigration Judge. In his plea for habeas corpus (which shall be discussed later in this article), Thuraissigiam had expressed his concerns over the inadequate carrying out of the due process (like unavailability of a competent translator, safeguards etc.) all of which resulted in his failure to establish the claims of ‘fear of persecution’ efficiently, during the interview.  


Before delving into the questions of law which have remained either unanswered or inadequately addressed by the court in this case, let’s trace the trajectory of the verdicts pronounced by the three courts in the US.  


The courts and their debilitative stance


Thuraissigiam approached the District Court with his plea of habeas corpus, claiming that the order by the Immigration Judge has been pronounced erroneously and in a manner which disrespects due process guaranteed by the law. Upon this, the District Court pronounced that the order of expedited removal process under 8 U.S.C. §1252(e)(2) is beyond any judicial review and that the court has a limited sense of power in such cases where only the questions like the citizenship of the asylum seeker etc. can be assessed.  


This stance was reversed by the Ninth Circuit Court of Appeals which held that the application of 8 U.S.C. § 1252(e)(2) in this case violates the Suspension Clause of the US constitution as there lies no subject matter (like threat to national security etc.) which may aid the prevention of the admission of the writ petition of the applicant.  


However, the Supreme Court overturned the appellate court’s verdict. The majority judgement written by Justice Samuel Alito expressed that the applicant was not empowered to employ the writ of habeas corpus. Justice Alito went on to question the original thought that motivated the founding fathers to incorporate the suspension clause in the US constitution and whether the bounds of this clause have expanded since its incorporation. In addition to this, the majoritarian view also held that the writ of habeas corpus was originally imbibed in the US constitution as “a means to secure release from unlawful detention” rather than a catalyst “to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country.”  


The above ruling not only fails to address the concerns of the matter but also provides an imprecise legal justification to the issues raised by the applicant in his plea. A sequential analysis of the ruling shall enable an observer to decipher the incoherence in the application of the Suspension Clause here. It is pertinent to note here that as per the US Constitution, an asylum seeker has no other remedy but to present his/her case before an Immigration Judge as an appeal against the decision of the Dept. of Homeland Security.  


Judicial evaluation and the questions of Law


The Supreme Court, while pronouncing the judgement has erred in terms of addressing the core concern of the plea of the applicant. Herein,  the majority bench questioned the original thought that lead to the incorporation of the suspension clause. However, the applicant pleaded for the application of this clause in his case only. Even though the judiciary managed to employ constitutional avoidance here, let us see as to where does the court’s question stand with respect to the applicant’s plea.  


If we attempt to trace the origins behind the incorporation of the Suspension Clause, we may find that firstly the provision of habeas was curated as a result of the fear that the early Americans faced from the monarchs of England. The monarchs of England had a long historical account of detaining the Native Americans without following any judicial mechanism. Therefore the tool of habeas was understood as a catalyst to devise a justiciary system. Now, after its incorporation, the founding fathers foresaw the possibility of the crisis wherein, in order to ensure that the social order is remained intact, the executive may be required to imprison the perpetrators without undergoing the judicial check. Therefore it was only after the consideration of the above notion, the Suspension Clause was incorporated in the US constitution. Through this, the executive’s discretion to revoke a prisoner’s constitutional right to writ was limited to only those circumstances wherein the offence committed by the defendant can be understood as a threat to national security (like rebellion etc.). Therefore, the above historical check affirms or rather provides a backbone to the claims advanced by Thuraissigiam in his plea – because his actions cannot be covered under any of the heads mentioned in the Suspension Clause and therefore, his constitutional right to habeas cannot be revoked.  


Now, with respect to the core question of whether the Suspension Clause provides any judicial review over its implementation, the court has refrained to consider the landmark precedent held in Boumediene v. Bush. Boumediene clearly states that “the clause ensures that, except during periods of formal suspension, the Judiciary will have a time-tested device, the writ, to maintain the ‘delicate balance of governance’ that itself is the surest safeguard of liberty.” This was propounded by the court (in Boumediene) with the intent to uphold the notion or the assumption that the founding generation of the constitution held – that all the constitutional privileges, safeguarded by habeas corpus, shall remain intact unless expressly suspended.[1]  


However, in the judgement written by Justice Alito, the majority has expressed that Boumediene cannot attract any applicability in the current case because, even though (in Boumediene) the aliens were allowed to exercise their constitutional right to habeas, “nothing in the Court’s discussion of the Suspension Clause suggested that [the enemy combatants in Boumediene] could have used habeas as a means of gaining entry in the US.” An interesting observation to note here is that in the current case, even Thuraissigiam did not plead for his release, resulting in any form of judicial authorization of his stay on the US soil. Instead, he merely sought habeas as a remedy to facilitate the re-initiation of the asylum-seeking process where he shall be allowed to prove his credible fear and the claims of asylum in light of all the due process guaranteed to an asylum seeker under the US Constitution and The United Nations High Commissioner for Refugees’ Guidelines on the Detention of Asylum Seekers.  


Clearly, the current stance of the US Supreme Court with respect to the applicability of the Suspension Clause has resulted in undermining the pronouncement held in Boumediene v. Bush. What remains to be seen is that, whether the court will provide legal justifications to the lacuna left open in Thuraissigiam and whether the executive shall adopt a more authoritative approach in terms of exercising their discretion to grant asylum to the aliens in the US. The latter is quite a delicate question considering that the officials responsible for examining the veracity of the asylum claims of an alien (like the Immigration Judge etc.) are the government-appointed authorities.  







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