Author:Schusterman, Lauren

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained largely immune from judicial review. This is in part due to a provision of expedited removal, 8 U.S.C. [section] 1252(e)(2), that prevents the federal courts from hearing habeas petitions that challenge the decisions made in expedited removal. Circuit courts are split on whether this provision violates the Suspension Clause based on diverging interpretations of when noncitizens become entitled to habeas rights.

This Note argues that, based on the Supreme Court's interpretation of the Suspension Clause and the historical purpose of habeas review, noncitizens who are physically in the territorial United States are entitled to habeas rights. As a result, 8 U.S.C. [section] 1252(e)(2) is unconstitutional. Asylum seekers in the United States are entitled to habeas review of their expedited removal determinations unless Congress enacts an adequate substitute for this review.

TABLE OF CONTENTS INTRODUCTION I. THE SUSPENSION CLAUSE AND ASYLUM SEEKERS IN EXPEDITED REMOVAL PROCEEDINGS A. The Expedited Removal Process B. The Suspension Clause and Its Historical Application to Noncitizens C. Supreme Court Suspension Clause Jurisprudence in the Context of Noncitizens II. CONFLICTING INTERPRETATIONS OF THE REACH OF THE SUSPENSION CLAUSE A. Alternative Approaches to the Suspension Clause Rights of Noncitizens B. Noncitizens in Expedited Removal Are Entitled to Suspension Clause Protections C. Policy Implications of Instituting Habeas Review for Noncitizens in Expedited Removal III. SUSPENSION CLAUSE RIGHTS OF ASYLUM SEEKERS IN practice: habeas or an adequate substitute A. Habeas Review in Expedited Removal B. What Would an Adequate Substitute Look Like? C. Addressing the Costs Associated with an Adequate Substitute CONCLUSION INTRODUCTION

"The expedited removal system is flawed; it does not account for the realities of immigration. ... The system is also cruel; it gambles with the lives of hundreds of thousands of people per year by offering few procedural safeguards. We can, and should, do better. "

--Judge Pregerson (1)

In 2012, Elena fled Honduras. (2) Gang members murdered one of her brothers because he was gay, killed another brother because he refused to join the gang, and shot her sister when she refused a gang leaders advances after being raped and impregnated by him. (3) A different gang member pursued Elena and, when she rejected him, shot at her house. (4) When she learned that this gang member was planning further retaliation against her, she decided to flee Honduras and head to the United States for safety. (5) When Elena crossed into Texas, she told a Customs and Border Patrol (CBP) agent that "she feared for her life." (6)

Because Elena expressed a fear of returning home, she could not be deported without first having a "credible fear" interview to prove that she had a significant probability of successfully claiming asylum. Elena, like others who have fled persecution, had a legal right to apply for asylum in the United States. (7) To quality for asylum, a person must show that they have "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." (8) The asylum officer made a negative credible fear determination, finding that Elena did not have a "credible fear," because during her interview she said that her fear was not on account of one of these protected grounds. (9) While her claim likely fell under the protected particular social group category, she probably did not understand what that term meant at the time. (10) Given the complexity of asylum law, which can confound even trained asylum lawyers, it is not plausible that unrepresented asylum seekers will be able to understand and answer these questions accurately. (11) After failing her credible fear interview, Elena requested review of the determination by an immigration judge (IJ). (12) Three months later, Elena finally had her hearing, conducted via video conference, which consisted of only one question before the IJ affirmed the asylum officer's decision. (13) Without recourse to further judicial review, she was subjected to expedited removal and deported two weeks later. (14)

Elena's story is not unique. Hundreds of thousands of immigrants each year are subject to expedited removal. (15) Created as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), the expedited removal process streamlines deportations at the border by allowing low-level immigration officers to summarily deport nearly anyone who arrives without proper entry documents. (16) In the name of efficiency, immigrants are stripped of their due process rights to challenge their removal orders in court. (17) Indeed, most of them are never afforded even the paltry formal procedural protections that Elena received. (18)

Elena was able to forestall the expedited removal process because she expressed a fear of persecution. She was flagged as an asylum seeker and, accordingly, granted a credible fear interview, as required under section 235 of the Immigration and Nationality Act (INA). (19) But as her experience demonstrates, the mere promise of procedural safeguards is insufficient. Immigrants like Elena, whose asylum claims are deemed not credible, find themselves subject to expedited removal and imminent deportation. (20) This streamlined process has sacrificed accuracy for efficiency and resulted in the erroneous deportation of an incalculable number of bona fide asylum seekers. (21) Subsequent events made clear that Elena was a bona fide asylum seeker. After being deported back to Honduras, she faced the exact persecution she had feared. (22) She was tortured by the gang member who had targeted her previously, and "[o]ther gang members cracked her thirteen-year-old son's skull." (23) She fled to the United States again, and that time, immigration authorities agreed that she had a credible fear based on a protected ground. (24) But because of her previous deportation order, Elena was barred from applying for asylum. Instead, she would have to meet the higher showing required for withholding of removal. (25) In a sense, Elena was one of the lucky ones. Many asylum seekers who are erroneously subjected to expedited removal "never get [this] second chance to prove their claims." (26)

If Elena had access to judicial review to challenge the IJ's determination before being subjected to expedited removal, she likely would not have faced further persecution before her credible fear was recognized. Typically, a detained person has a constitutional right under the Suspension Clause to challenge the cause of their detention before a federal court by filing a habeas petition. (27) The Suspension Clause, found in Article I of the Constitution, provides that the right to habeas review may not be suspended except "when in Cases of Rebellion or Invasion the public Safety may require it." (28) Nevertheless, in the absence of a rebellion or invasion, a provision of the IIRIRA, 8 U.S.C. [section] 1252(e)(2), the "jurisdiction-stripping provision," essentially nullifies this right by allowing habeas review of only a very narrow set of issues in the expedited removal process. (29) Unfortunately for Elena, habeas review of the "substantive and procedural soundness" of the credible fear determinations made in expedited removal is explicitly barred. (30) Congress may only suspend habeas review in this way if either (1) noncitizens in expedited removal do not have Suspension Clause protections or (2) Congress has enacted an adequate and effective substitute for habeas review. (31)

Circuit courts are split as to whether noncitizens in expedited removal are entitled to habeas rights and whether the jurisdiction-stripping provision of the IIRIRA is constitutional. (32) The Third Circuit has adopted a case-by-case approach, in which the court looks at the noncitizen's connection to the United States to determine access to habeas rights. (33) In contrast, the Ninth Circuit adopted a bright-line rule: all asylum seekers within the borders of the United States, even recent, surreptitious entrants, are entitled to the Suspension Clause's protection. (34)

This Note argues that asylum seekers who are subjected to expedited removal after failing their credible fear interviews are entitled to the protection of the Suspension Clause. Thus, the jurisdiction-stripping provision is unconstitutional because expedited removal does not provide an adequate substitute for habeas review. Part I provides a broad overview of expedited removal and the Suspension Clause. Part II analyzes the historical purpose of the Suspension Clause, the Court's habeas precedent, and the policy concerns associated with restricted habeas review in expedited removal, and argues in favor of adopting the Ninth Circuit's approach to entitlement to habeas review. Finally, Part III explores the required scope of habeas review and discusses ways to modify expedited removal so that it can be an adequate substitute for habeas review.


    The goal of providing asylum to genuine refugees appears at times to be in tension with the goal of efficiently processing...

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