Federal Court Ruling Denies Families in Immigration Detention Review of Legality of their Removal

Washington, D.C. – Human Rights First today decried the U.S. Court of Appeals for the Third Circuit’s ruling  in Castro v. U.S. Department of Homeland Security that denies 28 mothers detained in Berks County, Pennsylvania the ability to challenge in federal court “expedited removal orders” issued by the Department of Homeland Security (DHS) that denied these asylum seekers their day in immigration court.

“This is an astonishing ruling that has troubling implications that will extend far beyond families fleeing to the United States in search of refugee protection,” said Human Rights First’s Anwen Hughes. “For those families, however, this decision puts in stark relief the lack of safeguards for asylum seekers in the expedited removal process.”

In 2008 the Supreme Court recognized that the Suspension Clause applied to non-citizens being detained at Guantanamo Bay, Cuba, who had been designated by the U.S. government as “enemy combatants.”  The Third Circuit panel today held that the Suspension Clause of the U.S. Constitution—which allows Congress to suspend the writ of habeas corpus only in very limited circumstances not present here—does not apply to the women at Berks because they were taken into custody by U.S. immigration authorities soon after entering the United States with their children.

“This Third Circuit decision denies the protection of the Suspension Clause to mothers and children detained at Berks who have been held in immigration custody in the United States for close to a year now. While we hope and anticipate that there will be further review of this decision, in view of the ongoing danger the expedited removal process and its accompanying detention pose for families with accompanying children, we continue to urge DHS to exercise its discretion to discontinue the use of expedited removal and place families in regular removal proceedings to seek asylum before an immigration court,” Hughes concluded.

Human Rights First has long argued that the expedited removal process, which gives immigration officers the authority to order non-citizens who are subject to that process deported without a hearing,  is flawed. Asylum seekers processed under expedited removal must pass a “credible fear” interview with an asylum officer before they are allowed to file for asylum before an immigration judge. Those who are denied at that level have very limited recourse in the administrative system, and all these expedited processes unfold while these asylum seekers are being held in immigration custody.

“Asylum seekers who go through these interviews are often traumatized and exhausted by their experiences in their home countries, their flight to the United States, and their arrest by U.S. authorities,” Hughes notes. “They may be interviewed by telephone by an officer they cannot see and are at the mercy of interpretation problems and other arbitrary factors that hinder communication, including anxiety about minor children detained with them.”

Human Rights First has seen asylum seekers ordered removed and detained for extended periods, based on expedited removal orders by DHS officers that were legally inconsistent or factually incorrect. These cases have included individuals and families with a clear and urgent need for refugee protection. Human Rights First notes that the continuing problems with these decisions highlights the need for asylum seekers to have access to the courts to review the decision to remove them, access this panel of the Third Circuit just denied them.