Pretense of Protection: Biden Administration and Congress Should Avoid Exacerbating Expedited Removal Deficiencies
The expedited removal process Congress created permits border officers to order the deportation of certain individuals charged with inadmissibility under U.S. immigration law without an immigration court hearing. One component of this process, credible fear screenings, was supposed to ensure that people seeking refugee protection in the United States had an opportunity to apply for asylum and were not summarily deported to persecution or torture.
The expedited removal process Congress created permits border officers to order the deportation of certain individuals charged with inadmissibility under U.S. immigration law without an immigration court hearing. One component of this process, credible fear screenings, was supposed to ensure that people seeking refugee protection in the United States had an opportunity to apply for asylum and were not summarily deported to persecution or torture. Over the years however, the bipartisan U.S. Commission on International Religious Freedom (USCIRF) and various other organizations have documented serious deficiencies and due process concerns with the expedited removal process. The Trump administration further weaponized expedited removal through a series of illegal rights-violating policies, regulations, and Attorney General rulings that led to the wrongful deportation of many refugees with credible fears of persecution. Asylum seekers wrongly deported through expedited removal have been persecuted, tortured, and murdered after being returned by the United States to the country they had fled. In addition to endangering asylum seekers and violating U.S. legal obligations to refugees, the use of expedited removal wastes resources and exacerbates backlogs.
Despite these well-documented flaws, the Biden administration has announced its intention to “utilize expedited removal for a greater number and more diverse category of noncitizens,” including when the use of Title 42 to block and expel asylum seekers and other migrants at the border ends. In April 2022, a Department of Homeland Security (DHS) official stated that DHS had already begun “to increase the use of expedited removal for some single adults,” including those from El Salvador, Guatemala, and Honduras. In May 2022, the Biden administration began to implement an Interim Final Rule, referred to as the Asylum Processing Rule, which relies on expedited removal to channel asylum seekers who receive a positive determination after a credible fear interview (CFI) for full initial adjudication before the U.S. Citizenship and Immigration Services (USCIS) Asylum Office. In addition, the Asylum Processing Rule imposes severe restrictions on a critical due process safeguard that previously allowed the Asylum Office to reconsider its erroneous negative credible fear determinations.
At the same time, some members of Congress have resurrected and repackaged highly flawed legislative proposals to weaponize the expedited removal process and deny access to asylum hearings to more refugees by heightening the credible fear standard, which was intended by Congress to be a low screening threshold.
Expanding the use of expedited removal or heightening the credible fear standard would be grave mistakes that would result in the illegal return of refugees to persecution and torture. Already during the Biden administration there have been mounting reports of due process violations and wrongful deportations of asylum seekers through the flawed expedited removal process. Nicaraguan and Honduran asylum seekers have been summarily deported without receiving the legally required fear screenings they had requested. Haitians, Nicaraguans, and Venezuelans escaping political persecution and many LGBTQ individuals have received erroneous negative fear determinations. These mistaken decisions are due to USCIS’s failure to apply the existing Congressionally-mandated credible fear standard and because of inherent flaws in the credible fear process that prevent some asylum seekers from fully explaining their fear of persecution or torture.
In February 2021, the Biden administration issued an Executive Order directing DHS to review the expedited removal process and submit a report to the president within 120 days with recommendations to create a process that adheres to “standards of fairness and due process.” Human Rights First and other refugee- and human-rights organizations have urged the administration to avoid the use of expedited removal. While the Biden administration rescinded a Trump-era regulation that had expanded the geographic and temporal scope of expedited removal, as of July 2022, DHS has yet to publicly announce the results of its review and continues to wield expedited removal, including against tens of thousands of asylum seekers.
Rather than use the fundamentally flawed expedited removal process, the Biden administration should instead refer asylum seekers for asylum adjudications with the Asylum Office without subjecting them to CFIs, fully restore the authority of the Asylum Office to reconsider negative credible fear determinations, and work with Congress to fund legal representation. While expedited removal remains in U.S. law, the agencies should issue regulations to reduce the risk of erroneous negative fear determinations and avoid the weaponization of expedited removal by subsequent administrations. Full recommendations can be found at the end of this report.
This report updates Human Rights First’s ongoing research, most recently from April 2021, December 2021, October 2021, and June 2020, documenting the harms of expedited removal and dangers of weakening already insufficient safeguards to prevent the unlawful deportation of refugees to persecution and torture. The report is based on research conducted by Human Rights First between August 2021 and July 2022, including 49 interviews with asylum seekers and information from attorneys and legal advocates on 307 additional asylum seekers, USCIS data on credible fear determinations received through a Freedom of Information Act (FOIA) request by Human Rights First, other publicly available government statistics, civil rights violations complaints, published investigations by other human rights organizations, and media reports.