FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT VIJAYAKUMAR THURAISSIGIAM, No. 18-55313 Petitioner-Appellant, D.C. No. v. CV 18-135 AJB U.S. DEPARTMENT OF HOMELAND SECURITY; U.S. CUSTOMS AND BORDER PROTECTION; U.S. OPINION CITIZENSHIP AND IMMIGRATION SERVICES; U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT; KIRSTJEN NIELSEN, Secretary of DHS; WILLIAM P. BARR, Attorney General; KEVIN K. MCALEENAN, Acting Commissioner of CBP; THOMAS HOMAN; L. FRANCIS CISSNA, Director of USCIS; PETE FLORES, San Diego Field Director, CBP; GREGORY ARCHAMBEAULT, San Diego Field Office Director, ICE; FRED FIGUEROA, Warden, Otay Mesa Detention Center, Respondents-Appellees. Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding 2 THURAISSIGIAM v. USDHS Argued and Submitted May 17, 2018 Portland, Oregon Filed March 7, 2019 Before: A. Wallace Tashima, M. Margaret McKeown, and Richard A. Paez, Circuit Judges. Opinion by Judge Tashima SUMMARY* Immigration In an action in which Vijayakumar Thuraissigiam filed a habeas petition to challenge procedures leading to his expedited removal order, the panel reversed the district court’s dismissal of the petition for lack of subject matter jurisdiction, held that 8 U.S.C. § 1252(e)(2) violates the Suspension Clause as applied to Thuraissigiam, and remanded. Under 8 U.S.C. § 1225(b)(1)(A)(i), when a U.S. Customs and Border Protection (“CBP”) officer determines that a noncitizen arriving at a port of entry is inadmissible for misrepresenting a material fact or lacking necessary documentation, the officer must place the noncitizen in so- called “expedited removal” proceedings. Expedited removal also applies to inadmissible noncitizens arrested within 100 * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. THURAISSIGIAM v. USDHS 3 miles of the border and unable to prove that they have been in the United States for more than the prior two weeks. The Department of Homeland Security (“DHS”) removes noncitizens eligible for expedited removal without further hearing or review, subject to only one exception: If, in an interview with a CBP officer, the noncitizen indicates an intent to apply for asylum or a fear of persecution, DHS must refer the noncitizen for an interview with an asylum officer. If the asylum officer finds no credible fear of persecution, the noncitizen will be removed. A supervisor reviews the asylum officer’s credible fear determination, and the noncitizen may also request de novo review by an immigration judge. Congress sharply circumscribed judicial review of the expedited removal process such that “no court shall have jurisdiction to review . . . any individual determination [or] . . . the application of [§ 1225(b)(1)] to individual aliens” outside of the review permitted by the habeas review provision, § 1252(e). 8 U.S.C. § 1252(a)(2)(A)(iii). Under § 1252(e)(2), a person in expedited removal proceedings may file a habeas petition in federal district court to contest three DHS determinations: whether the person is a noncitizen, whether he “was ordered removed” via expedited removal, and whether he is a lawful permanent resident or has another ...
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