Washington Law Review


Preventing Erroneous Expedited Removals: Immigration Judge Review and Requests for Reconsideration of Negative Credible Fear Determinations

March 27, 2018 | 93 Wash. L. Rev. 459

Abstract: The Central American refugee crisis has renewed criticism of expedited removal, which allows immigration officials to remove without a hearing certain noncitizens who seek to enter or have entered the United States. Asylum seekers who arrive at the border or ports of entry without entry documents undergo a screening process to determine whether they have a “credible fear of persecution.” An individual who receives a positive credible fear determination is entitled to a full hearing before an immigration judge. In contrast, an individual who receives a negative credible fear determination is typically subjected to expedited removal. Scholars and human rights advocates have long argued that the credible fear determination process fails to adequately identify bona fide asylum seekers, and that the power vested in individual immigration officers is susceptible to abuse.

This Comment examines two little-discussed administrative mechanisms that can prevent the erroneous expedited removal of asylum seekers: review of a negative credible fear determination by an immigration judge (IJ); and requests for reconsideration (RFRs), whereby a person who receives a negative credible fear determination may petition the Asylum Office for a positive fear finding or a re-interview. The Comment describes the mechanics of, and current practices surrounding, IJ review and RFRs. Data from the Executive Office for Immigration Review (EOIR) and U.S. Citizenship and Immigration Services (USCIS) suggest that IJ review and RFRs dramatically improve the accuracy of credible fear determinations, particularly in cases involving detained families. But the immigration agencies have failed to consistently implement either process, undermining their potential to prevent the removal of people who may face persecution in their home countries.

This Comment concludes by proposing reforms to fortify IJ review and RFRs. EOIR should allow counsel to advocate on behalf of clients during IJ review and should permit asylum seekers to introduce before the IJ information not disclosed during the credible fear interview. Moreover, USCIS should direct the Asylum Office to grant an asylum seeker’s RFR upon a showing that an official erred during the credible fear interview or that a second interview will yield new information about the asylum seeker’s claim.

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