Judicial Review in Expedited Removal Proceedings: Applying Sims v. Apfel to Assess the Role of Issue Exhaustion

• Publication year: 2021

Judicial Review in Expedited Removal Proceedings: Applying Sims v. Apfel to Assess the Role of Issue Exhaustion

Emily C. Snow
University of Georgia School of Law

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JUDICIAL REVIEW IN EXPEDITED REMOVAL PROCEEDINGS: APPLYING SIMS V. APFEL TO ASSESS THE ROLE OF ISSUE EXHAUSTION

Emily Carden Snow^*

For noncitizens in expedited removal proceedings, obtaining judicial review of removal orders is an uphill battle. Some barriers to judicial review are statutory: noncitizens must first exhaust their administrative remedies, and they may seek review only in a federal circuit court of appeals. Other barriers are judicial—i.e., imposed by courts, not statutes.

A circuit split has emerged over one of these judicially imposed barriers to judicial review. Some courts have held that expedited removal proceedings do not accommodate legal challenges to removal. In those circuits, noncitizens preserve the opportunity for judicial review even when they do not raise a legal challenge during those proceedings. Other courts have held that noncitizens must contest the legal grounds for their removal during expedited removal proceedings. This circuit split has fragmented the judicial review process for expedited removal orders, with detrimental effect.

In Sims v. Apfel, the U.S. Supreme Court provided a framework for assessing the propriety of a judicially imposed issue-exhaustion requirement. Central to the Court's analysis was the degree to which administrative proceedings are inquisitorial rather than adversarial. But expedited removal proceedings are neither inquisitorial nor adversarial, and they offer far fewer procedural protections than full removal proceedings. This Note argues that, under Sims, requiring issue exhaustion is inappropriate in appeals from expedited removal proceedings. In the absence of a statutory mandate, circuit courts should not construct an additional barrier to judicial review by imposing an issue-exhaustion requirement.

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Table of Contents

I. Introduction....................................................................849

II. Background....................................................................853

A. Immigration Legislation in The United States . 853
B. Expedited Removal and Judicial Review............855

1. The Expedited Removal Process.......................855
2. Judicial Review of Expedited Removal Orders .......................................................................... 858

C. Circuit Split: The Role of Issue Exhaustion in Expedited Removal Cases....................................860

1. Etienne v. Lynch: Declining to Require Issue Exhaustion....................................................... 860
2. Malu v. U.S. Attorney General: Requiring Issue Exhaustion.......................................................861

III. Administrative Remedy Exhaustion and Issue Exhaustion....................................................................863

A. Conceptions of Administrative Exhaustion.....863
B. Sims v. Apfel Framework for Judicially Imposing Issue Exhaustion..................................................865

IV. Issue Exhaustion in Expedited Removal Cases........866

A. Applying Sims v. Apfel..........................................868
B. Accommodating Legal Challenges....................870
C. Situating Issue-Exhaustion Requirements.......872

V. Conclusion......................................................................873

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I. Introduction

Suppose a noncitizen, who has been convicted of a crime, is placed in expedited removal proceedings. Their crime was not violent, but under the governing immigration law, it is considered an "aggravated felony." After moving through the administrative process and receiving a final removal order, the noncitizen wishes to contest, in a federal circuit court of appeals, the legal question that their conviction was an aggravated felony. Can that circuit court review the agency's decision, or has the noncitizen failed to exhaust their administrative remedies by not raising this legal issue during the expedited removal proceedings?

Over the past few decades, legislation in the United States has increasingly narrowed the scope of judicial review over immigration proceedings.¹ One practice, in particular, has advanced this trend: the administrative-exhaustion requirement. The obligation to exhaust administrative remedies before appealing a matter to the federal courts is a core tenet of administrative law.² The administrative-exhaustion requirement is neither new³ nor without justification: it serves important purposes of "protecting administrative agency authority and promoting judicial efficiency."⁴

The requirement of exhausting administrative remedies takes on particular significance in the context of immigration law. One

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reason is that the space for judicial review of removal orders is already slim, so any additional barrier to obtaining judicial review—even one as routine as the exhaustion of administrative remedies—looms large.⁵ Another reason is that the circuit courts disagree on the standard for noncitizens to exhaust administrative remedies before seeking judicial review of a removal order.⁶ This circuit split means that some appellate courts will exercise judicial review over a removal order even when a noncitizen did not raise a legal challenge to their removal during the administrative proceedings below, while other courts will decline to exercise review because they believe that their jurisdiction is improper.⁷ Yet similarly situated noncitizens, distinguished only by the circuit court before which they happen to appear, should be entitled to the same measure of judicial review.

This Note considers a narrow category of individuals facing removal from the United States: noncitizens who are not lawful permanent residents and who have been convicted of a crime deemed to be an "aggravated felony" under the Immigration and Nationality Act (the INA).⁸ This specific category, because of these noncitizens' legal status, faces "expedited removal."⁹ As the name suggests, expedited removal is an accelerated process managed by the Department of Homeland Security (DHS) in which noncitizens are denied the standard hearings and procedural protections that other noncitizens usually receive—including those who are similarly convicted of aggravated felonies.¹⁰ This Note further

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considers noncitizens facing expedited removal who wish to challenge the classification of their conviction as an "aggravated felony" before a federal circuit court, despite their failure to raise this issue during the initial expedited removal proceedings.

The federal circuit courts diverge on whether the expedited removal procedure affords noncitizens the opportunity to contest the legal basis for their removal, or whether it accommodates factual challenges alone.¹¹ Some circuits have held that the administrative process that precedes expedited removal does not afford noncitizens an opportunity to challenge the legal grounds of their removal.¹² As a result, noncitizens who do not—or cannot—challenge the legal basis for their removal during these administrative proceedings have not failed to exhaust administrative remedies and thus have not lost the opportunity for judicial review.¹³ Other circuits, in contrast, have held that noncitizens do have the opportunity to raise legal challenges during expedited removal proceedings.¹⁴ For those circuits, not raising a legal challenge to removability constitutes a failure to exhaust administrative remedies sufficient to deprive the reviewing circuit

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court of jurisdiction to consider that legal challenge when raised on appeal.¹⁵

Federal circuit courts thus disagree on whether a noncitizen has effectively exhausted their administrative remedies when they do not raise a legal challenge to their removal during an expedited removal proceeding but do so on appeal before a circuit court. What is missing from this analysis, however, is consideration of the proper scope of the administrative-exhaustion requirement as a prerequisite to judicial review of expedited removal orders. A variation on the traditional requirement of exhausting administrative remedies is the requirement of exhausting issues.¹⁶ By requiring noncitizens to raise legal challenges to their removal during expedited removal proceedings, circuit courts impose an issue exhaustion requirement—above and beyond the administrative remedy exhaustion requirement—that is not present in the judicial review statute.¹⁷

This Note argues that circuits requiring issue exhaustion impose an unjustified barrier to judicial review. Part II provides an overview of immigration legislation in the United States, expedited removal proceedings, and the judicial review process for expedited removal orders. Part II also assesses the circuit split on exhaustion of administrative remedies and evaluates this case law in terms of issue exhaustion. Part III discusses the difference between exhausting administrative remedies and exhausting issues and presents the U.S. Supreme Court's framework for issue exhaustion, Sims v. Apfel. Part IV applies the Sims approach to expedited removal cases, assesses the circuit courts' rationales for issue exhaustion, and considers the proper role of the judiciary in imposing such a requirement absent a statutory mandate. Part V concludes.

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II. Background

A. Immigration Legislation in The United States

The cornerstone of immigration law in the United States is the Immigration and Nationality Act.¹⁸ Although nearly seventy years old, the INA "remains the centerpiece of United States immigration law, providing the modern statutory framework for controlling the exclusion, admission[,] and removal of non-citizens."¹⁹ With the enactment of the INA, "declaratory and injunctive relief replaced habeas corpus as the principal vehicle for obtaining judicial review of a deportation decision."...