By Alvaro Peralta | 64 Am. U. L. Rev. 1303
In 2013, a Guatemalan woman sought protection in the United States because she was being persecuted on account of her ethnicity. She was harassed, abused, and raped several times before she fled Guatemala. When she expressed her fear to U.S. border patrol agents, she was told, “[D]on’t talk. These are all lies. . . . All Guatemalans are telling the same lies.” Border patrol agents forced her to sign a removal order and prevented her from speaking to an asylum officer about her fear of persecution. They ordered her removed from the United States, and she returned to Guatemala where she suffered additional abuse. She filed various police reports, but authorities dismissed them. In 2014 she attempted to re-enter the United States, this time with her young son. After being forced to recount various occasions of rape and abuse next to her son, the asylum officer determined she did not have a credible fear of persecution, thus preventing her from presenting her asylum claim before a judge.
Similar stories permeate across U.S. southwest border sectors. Often, immigrants fleeing from persecution have valid asylum claims that would allow them to stay in the United States temporarily, and yet they find themselves blocked by an immigration system that aims to protect them. Indeed, the United States’s expedited removal process has increasingly narrowed the right to apply for asylum. The expedited removal proceeding is a more streamlined process for removing noncitizens than the regular removal proceedings under section 240 of the Immigration and Naturalization Act (INA). Civil rights groups have criticized this statutory procedure, claiming that it illegally denies asylum status in favor of expediency in immigration proceedings. Conversely, detractors claim that the expedited removal process is in line with the nation’s immigration priorities and the federal government’s goal to increase border protection at a time when illegal migration is rising.
This Note argues that the expedited removal system violates various legal safeguards for noncitizens seeking protection from persecution in their home countries. Part I introduces the statutory framework governing asylum applications and the expedited removal provision. This Part also provides context for some of the abuses taking place with respect to the referral and screening processes for asylum applicants. Part II argues that the expedited removal of asylum seekers violates statutory, regulatory, and constitutional safeguards as a result of the procedural barriers it imposes. Specifically, this Part discusses three barriers to statutory, regulatory, and constitutional due process: the application of a more stringent credible fear standard, the failure to refer eligible aliens for screening interviews, and a lack of access to counsel throughout the asylum process. Lastly, Part III proposes ways to correct the mistreatment of asylum seekers in the United States.