Expedited Review of Asylum Claims

In a case brought in federal court in Philadelphia, 29 asylum-seeking mothers and their 35 children claimed that the expedited process immigration officers used to order their removal was unconstitutional. Officers had interviewed the plaintiffs to determine whether their fears were credible and determined they were not.  The plaintiffs argued that the process was unjust because they did not have time to prepare for the interviews.  On Tuesday, Judge Diamond ruled that courts do not have authority to evaluate expedited removal decisions.  Rather, these proceedings are the prerogative of the executive branch.  As a result, the plaintiffs now face removal to countries they say they fled after suffering persecution. 

What is expedited removal?

Generally, expedited removal is a process the Department of Homeland Security uses to remove certain non-citizens[1] who try to enter the U.S. without proper entry documents, such as visas.  If an officer encounters an individual attempting to enter the U.S. by fraud or without proper documents, the expedited removal process authorizes the officer to order that individual removed without a hearing or review by an immigration judge. Because there is no opportunity to present a case in an immigration court, the removal process may only last hours or days; hence the removal is expedited.

What if someone in expedited removal is a victim of persecution or torture in his home country?

As an exception to the typical expedited removal process, an individual who expresses a fear of returning to his home country will not be refused entry. Instead, he will have the opportunity to speak with an asylum officer who will conduct an interview to determine whether his fear is credible. If the officer believes the individual has a credible fear, he will be allowed to apply for asylum in a hearing before an immigration judge.  On the other hand, if the officer does not find credible fear, the individual will be ordered removed.  The individual may request review by a judge, which usually takes place within one week.  It can take place in person, by phone or video, and although an attorney can be present, she can only serve as a consultant because it is a review and not a full hearing. If the judge agrees with the officer’s decision, the individual will be deported. There is no opportunity to appeal the judge’s order. If the judge does not agree with the officer, the individual will be able to proceed to a full asylum hearing. In many cases, the individual may be released from detention to live with a U.S. citizen or Lawful Permanent Resident relative.

What can an individual in expedited removal do to protect himself if he has a fear of returning to his country?

Most importantly, the individual should speak up about his fear and tell an officer that he wishes to apply for asylum. The interview may be scheduled quickly (often just 48 hours later), but any time to prepare with the help of an attorney can make a big difference. Furthermore, the attorney may be present for the interview (often via telephone).  Requests for interpreters must be accommodated, so those whose native language is not English should ask for one. If at any point, there seems to be trouble communicating with the interpreter, ask for a different one.  In a credible fear interview, the officer must be convinced that the individual has a likelihood of being granted asylum by an immigration judge. Therefore, it is crucial that the individual present a very detailed account of any persecution or torture he suffered.  Any information revealed will be kept confidential.  It is also important to tell one’s story truthfully. There will be an opportunity at the end of the interview for the individual to add information the officer may not have asked about. An attorney may also make a statement of support at the conclusion of the questioning.

[1] individuals who arrived by sea and were encountered within two years, and (2) individuals who are encountered within 100 miles of an international land border and within 14 days of entering the country.

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