Expedited removal and discrimination in the asylum process: the use of humanitarian aid as a political tool.

• Author: O'Callaghan, Erin M.

In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). (1) Through this act, Congress attempted to combat illegal immigration, while revamping the asylum process in the United States. (2) Some of the harshest new measures were instituted under the "expedited removal" system. (3) This system allows the Immigration and Naturalization Service (INS) to summarily exclude any alien who arrives at a border without proper documents or with false travel documents. (4) The decision to exclude such an alien is not subject to review, thus allowing low-level INS agents to make final decisions about the admission of certain aliens. (5)

The IIRIRA was implemented as an attempt to stem the tide of illegal immigration. Unfortunately, the law also harms true asylum-seekers. Aliens without documents or with false documents may be attempting to hide something from immigration officials, but they may also have legitimate reasons for their lack of valid documentation. (6) The absence of any effective review by the courts could easily lead to a violation of international law's principle of nonrefoulement, (7) as well as other international law principles.

In addition to possible violations of international law, IIRIRA gives too much power to immigration officials. The nature of immigration law strictly limits judicial review of immigration decisions. (8) The expedited removal system allows both INS officials individually and the INS as a whole to grant or withhold asylum on a discriminatory basis with no real checks on this power. Proponents of this system argue that the majority of aliens subject to the expedited removal system are not seeking asylum. (9) They also assert that safeguards built into the system prevent accidental return of true asylum-seekers. (10) These explanations fail to take into account the danger of a systematic refusal of all asylum-seekers from a single country. This danger has increased since the events of September 11, 2001, but has been present throughout the history of United States refugee law. Such a danger does not stem from the mistakes of low level immigration officials, but from the United States' decision to use asylum as a political tool rather than for its intended use: the protection of individuals from persecution.

This Note addresses the special problems that asylum-seekers face under the expedited removal system, particularly with respect to discrimination. The first section reviews the history of the IIRIRA and expedited removal. This history demonstrates that the IIRIRA, and particularly the expedited removal system, was a product of reactionary politics and pandering to general fears of illegal immigration, rather than a well-reasoned response to the problems facing immigration officials. (11)

The next section discusses the removal of any judicial review of certain immigration decisions under the IIRIRA. In addition, this section addresses the historic foundations for the general deference afforded immigration decisions since the 1800s. Finally, this section examines the availability of constitutional protections to nonadmitted aliens.

Section three discusses discrimination in United States immigration law. This section first deals with historical discrimination in general immigration law and in the asylum process. It then examines the potential for discrimination in asylum law under the expedited removal system and addresses the international law implications of allowing discrimination in the asylum process. The section concludes with a critique of the implementation of the expedited removal system.

Finally, discussion turns to possible solutions to these problems recently considered by Congress. Various efforts attempting to reform the problems of the IIRIRA were introduced in the last session of Congress. These reforms dealt with the problems of expedited removal as applied to the asylum process. None of the legislation introduced, however, went far enough. As this Note ultimately concludes, in order to prevent the possibility of discriminatory practices in asylum decisions, expedited removal must not apply to potential asylum-seekers.

THE EXPEDITED REMOVAL SYSTEM

In the years leading up to the passage of the IIRIRA, several events led to a backlog of asylum requests. (12) Upheaval in Haiti and Central and South America led to an influx of refugees seeking escape from human rights violations and civil war. The location of these countries made it easier for refugees to get to the United States compared to refugees from the Soviet Bloc, Africa, and Southeast Asia. (13) The Refugee Act of 1980 compounded the increased influx by loosening the requirements for those seeking refugee status and increasing the numerical caps on yearly grants of asylum. (14)

In an effort to control illegal immigration, the Immigration Reform and Control Act of 1986 (15) added a requirement that immigrants have work permits. (16) Asylum applicants were granted work permits while waiting for their cases to be heard. (17) The INS reasoned that this would allow an asylum applicant to begin to establish a life in the United States rather than live in limbo while awaiting judgment. (18) As a result, many illegal immigrants who sought to receive a work permit filed an affirmative application for asylum. (19) Neither the INS nor any of the administrations in power took steps to increase the number of asylum officers. (20) This lack of personnel translated into an ever-increasing backlog of asylum cases and resulted in a longer time period for review of asylum applications. (21) The increase in time allowed individuals with false asylum applications to work for a longer period of time before the application could be reviewed and rejected, making it more and more attractive for illegal immigrants to misuse the asylum system. (22)

In addition to the backlog at the INS, several incidents led the public to call for reform in the asylum system. (23) For example, in January 1993, two people were shot and killed near CIA headquarters; the killer was an asylum applicant. (24) In February the World Trade Center was bombed. Several of the aliens charged with committing that crime were asylum applicants. (25) Finally, in March, Sixty Minutes aired a report on asylum that described the ease with which any alien with a passport could slip into the country and disappear by claiming political asylum. (26) The recession and unemployment rates at the time made people suspicious of immigrants coming to the United States and taking the jobs of Americans, and these incidents heightened that suspicion. (27) Calls for reform led to the Antiterrorism and Effective Death Penalty Act (28) in 1996, followed closely by the IIRIRA the same year.

Under the IIRIRA, an alien who arrives on U.S. soil, either at a land crossing or at an international airport, must pass through a primary inspection. (29) If the inspecting officer finds discrepancies in the documents or has any questions or suspicions unresolvable in the brief time allotted for the primary inspection, he must refer the alien to a secondary inspection. (30) The secondary inspection requires a careful interview, during which the alien has an opportunity to respond to charges of false or missing documents. (31) The second immigration officer must also inform the alien of the possibility of asylum and encourage the alien to speak up about any fear of persecution. (32)

Aliens who (1) fail to possess valid travel and/or visa documents, or (2) possess false travel and/or visa documents are placed into the expedited removal system. (33) In order to prevent immediate deportation, such an alien must either indicate an intent to file for asylum or express a fear of persecution. (34) If the alien indicates an intention to apply for asylum, the alien must be referred to an asylum officer for further review. (35)

The asylum officer conducts an interview to determine whether the alien has a credible fear of persecution. (36) In order to prove a credible fear, the alien must show a significant possibility that the he would be able to win asylum. (37) If the officer determines that there is no credible fear, the alien is removed "without further hearing or review," (38) unless he requests further review within a specified amount of time. (39) The review is limited in scope and must take place within seven days of the officer's negative determination of credible fear. (40) At the hearing, the asylum-seeker cannot be represented by counsel, although legal counsel may be present. (41)

JUDICIAL REVIEW UNDER IIRIRA

One of the most criticized aspects of IIRIRA has been that it severely limits any review of INS decisions. (42) In the case of expedited removal, IIRIRA effectively removes most forms of judicial review for immigration decisions. (43) Administrative review of any decision is limited to an alien who declares, under oath, that he "ha[s] been lawfully admitted for permanent residence," (44) "ha[s] been admitted as a refugee under section 1157," (45) or he "ha[s] been granted asylum under section 1158." (46) Finally, the Act removes jurisdiction for collateral attacks based on the validity of any order under the expedited removal system. (47)

As an administrative agency, INS decisions and policies are granted a great deal of deference. (48) Immigration law has also been afforded extraordinary deference by the Supreme Court under the plenary powers doctrine (49) and the public rights doctrine. (50) Such deference, coupled with the statute's explicit denial of most forms of judicial review, indicates that Congress intended to give the INS complete authority in determining whether an applicant had a credible fear. The lack of judicial review could allow an official or the agency as a whole to engage in discriminatory treatment without any check by another branch. (51)

The lack of independent judicial review means that the only recourse for an...