On a frigid day in early February, Vijayakumar Thuraissigiam
stands under an awning on a street corner in lower Manhattan along with one of
his attorneys, Celso Perez of the ACLU. Both are bundled in heavy winter
jackets. Perez is holding his phone up and squinting as he concentrates on the
tinny voice of a translator emanating from its speaker.
“I want them to be aware that you’re traveling,” Perez says
into the phone.
The voice on the other line translates what Perez said into
Tamil, the native language of Sri Lanka’s largest ethnic minority. Thuraissigiam,
heavyset in his late 40s with a short black ponytail hidden under his wool cap,
looks at Perez and nods. Behind them stands the imposing façade of the Jacob
Javits Federal building – a 42-story tower that houses the New York headquarters
of Immigration and Customs Enforcement.
Thuraissigiam is there for one of the regular check-ins with
ICE that he must attend in order to comply with the terms of his release from immigration
detention. Perez wants to make sure that ICE knows he is planning to head to
Washington D.C. in a few weeks so he won’t be flagged when his ankle monitor
notifies the agency that he’s left New York.
It will not be a mundane trip. Thuraissigiam is the plaintiff
in a landmark immigration case being argued by the ACLU in front of the U.S.
Supreme Court on March 2nd, over three years after he fled Sri
Lanka. The court’s ruling will have expansive implications not just for him,
but for countless other asylum seekers as well.
The case is complicated, but important. At stake is whether
federal courts have authority to review deportation orders that come through a
fast-track process called “expedited removal.” If the Supreme Court rules they
do not have such authority, it will mean that ICE and CBP will have virtually carte
blanche ability to send Thuraissigiam and asylum seekers like him back to the
countries they fled with no federal judicial oversight, in a process that can
take only a few days.
Thuraissigiam’s path to the Supreme Court began in 2014, in
the aftermath of a brutal civil conflict in Sri Lanka. Before a decisive
military victory by the government ended the conflict in 2009, tens
of thousands of civilians were killed, mostly in the Tamil-dominated
northeastern part of the country.
In 2013, Thuraissigiam worked on a local Tamil politician’s
election campaign. A few months later, men who said they were intelligence
officers working with the government visited his farm. They threw him into the
back of a white van, gagged him, and drove 40 minutes away to a house where they
tortured him by dunking him into a well. While beating him, the men repeatedly
asked about his support for the politician.
Thuraissigiam lost consciousness. When he woke up he was in
a hospital bed. After recovering he went into hiding, and in 2016 he decided to
flee to the United States.
For eight months, he traveled through South and Central
America, at one stage walking through the notorious
Darien Gap, a perilous stretch of remote jungle that separates Colombia and
Panama. Eventually, he crossed into the U.S. near Tijuana, where he asked Customs
and Border Protection officers for asylum.
The process of trying to win asylum in the U.S. typically begins
with what’s called a “credible fear interview.” In this interview, immigration
officers determine whether a person is eligible for protection. It was
intentionally designed by Congress to have a low threshold for success – if the
officer finds that the person has just a “significant
possibility” of winning their asylum claim, they’re placed into the next
stage of the process.
The reason for that low threshold is simple – legislators
who designed the process wanted to make sure there was “no
danger that an alien with a genuine asylum claim” would be returned to
torture or persecution.
But despite Thuraissigiam’s history of abuse at the hands of
the Sri Lankan government, the asylum officer who carried out his interview
didn’t recognize that the details of his story matched with other,
well-established human rights abuses in the country.
That oversight was costly. The asylum officer believed
Thuraissigiam’s testimony, but he was still deemed ineligible for protection,
and after a cursory review by an immigration judge he was given an order of
expedited removal.
Expedited removal was created by Congress through 1996’s
Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). It
applies to certain undocumented immigrants and functions as a parallel
deportation system with next to no due process protections. Until recently, it was
applied almost exclusively at the border to people who had arrived in the U.S.
within the previous 14 days. (A Trump Administration order to expand the use of
expedited removal nationwide and lengthen the eligible timeframe to two years was
recently blocked
by the ACLU.)
Immigration advocates have long criticized expedited removal
proceedings for the near-unchecked power they grant CBP and ICE to make
life-or-death decisions with little oversight. In particular, expedited removal
orders issued to asylum seekers who don’t pass their credible fear interviews
have been subject to essentially no review by federal courts.
For Thuraissigiam, receiving an expedited removal order
meant that a federal judge wouldn’t be able to take a closer look at whether the
asylum officer made mistakes during the screening process or failed to follow
appropriate procedures. Instead, he was going to be quickly sent back to Sri
Lanka, right back into the hands of his torturers.
But the ACLU agreed to take his case, arguing that denying
him access to federal court violated
the Habeas Corpus Suspension Clause of the Constitution. The case, Department of Homeland Security (DHS) v.
Vijayakuma Thuraissigiam, wound its way through the courts until last
March, when the Ninth Circuit Court of Appeals issued a ruling agreeing with
the ACLU’s arguments.
Because of that ruling, for the first time the denial of
asylum claims in expedited removal cases could be reviewed by a federal judge,
opening the door for Thuraissigiam and other asylum seekers to challenge
mistakes made during their initial screenings. The Trump Administration
appealed the decision, setting the stage for the Supreme Court to hear
arguments in the case next week.
The stakes are high. Since the Trump Administration took
office, the need for checks and balances on the asylum screening process has
only grown. Last year, Border Patrol agents began
conducting some credible fear interviews instead of specially trained
asylum officers, leading to a sharp
decline in approval rates. And in a new program being tested in El Paso,
the screening process is taking place entirely in CBP
detention facilities where asylum seekers are illegally denied access to
counsel.
New data published by U.S. Citizenship and Immigration
Services (USCIS) shows that in a six-month period between August 2019 and
January 2020, the pass rate for credible fear interviews dropped
by nearly half.
Thuraissigiam has a gentle demeanor but he speaks in taut,
short sentences and has an air of weariness. He describes the journey to the
U.S. as “very hard,” saying that at one point he went nearly eight days without
eating anything other than biscuits. During his appeal, he was detained by ICE
for nearly two and a half years.
After his check-in, he moves briskly through the streets of
New York in the deliberate, steady pace of a man accustomed to walking long
distances. On the ferry to Staten Island, he gazes at the Statue of Liberty as
it passes by.
The road ahead is long. If the Supreme Court rules in his favor, Thuraissigiam will not automatically be granted asylum. But he will be able to ask a federal judge to take a vital second look at the mistakes that were made during his initial screening. That, in turn, would give him another chance to win the protection that he traveled halfway across the world hoping to find.
“I’m nervous,” he admits, sitting on a couch in the modest apartment on Staten Island where he’s been staying. “I hope it goes well.”
If it does, he won’t be the only one who wins. For asylum seekers looking for an added layer of protection against faulty rulings, his case could mean the difference between life or death.