Another Blow to Asylum Seekers: Supreme Court Holds Restrictions on Removal Orders Do Not Violate Constitution

In another June decision, the Supreme Court held that restrictions on the ability of asylum seekers to obtain review of expedited-removal orders under a federal habeas statute do not violate the Constitution’s Suspension Clause or Due Process Clause. The Supreme Court ruled that asylum seekers with expedited orders of removal seeking “credible fear” determination cannot seek federal judicial review of administrative denials. This decision furthers the Trump Administration’s goal of deterring immigrants from seeking asylum in the United States by eliminating legal protections and benefits throughout the asylum application process.

Congress enacted expedited removal in 1996, which allowed lower level immigration officers to issue deportation orders to unauthorized immigrants arrested within 100 miles of any port of entry and within 14 days of arrival in the United States. A limited exception to deportation is that immigrants fleeing persecution can seek a credible fear interview with an asylum officer. If the foreign national is found to have demonstrated a credible fear of persecution or torture, they are then entitled to pursue their asylum claim in immigration court. If the asylum officer determines that credible fear does not exist, the foreign national’s only recourse is to request review of the decision from an immigration judge. If the immigration judge finds that there isn’t a credible fear, there is no right to appeal the decision. In this case, the foreign national sought federal judicial review of the immigration judge’s affirmation through a petition for a writ of habeas.

It is important to note the near absence of legal protections and due process available to individual’s seeking credible fear. For starters, a person seeking review of an asylum officer’s decision is not entitled to legal representation, does not have the right to call witnesses, cross examine witnesses, or present evidence in support of their claim, or object to evidence. Furthermore, immigration judges are not part of the judicial branch but rather executive, meaning they are not truly independent fact finders. Their decisions on asylum cases vary widely with some immigration judges averse to asylum, denying close to 100% of their cases while others are more favorable.

By eliminating judicial review for those fleeing persecution and torture and relying on a court system with virtually no due process, the court risks mistakenly deporting persons with viable asylum claims which could result in their death. Human rights groups have found a causal relationship between the deaths of hundreds of deportees and the reasons why they fled their countries. The continued absence of judicial review in the credible fear process will undoubtedly allow many of these preventable egregious errors to continue.