News & Insights

Understanding Judicial Review and Expedited Removal

Expedited removal is a process used by U.S. immigration authorities to quickly deport individuals who are caught entering the country without valid documents or by misrepresenting their intentions. This process is governed by 8 U.S.C. § 1225(b)(1), which defines who is subject to expedited removal and the procedures for claiming asylum.

If someone expresses fear of persecution or torture in their home country, they have the right to a credible fear interview with an asylum officer. The officer determines whether there’s a “significant possibility” the individual qualifies for asylum. If the officer finds no credible fear, the decision can be reviewed by an immigration judge (IJ), but this is a limited process. Once the IJ agrees with the asylum officer, the decision becomes final, and removal is typically carried out quickly.

Judicial Review in Expedited Removal

Federal law, specifically 8 U.S.C. § 1252, limits judicial review of expedited removal orders. Courts can only examine specific, narrow questions such as whether someone is mistakenly identified as subject to removal or if they are a U.S. citizen. Courts are barred from reviewing the merits of a credible fear determination or broader claims about the removal decision.

In Castro v. DHS, the Third Circuit Court of Appeals upheld this restriction, ruling that Congress has the authority to limit judicial review in these cases without violating the Suspension Clause of the U.S. Constitution. The Suspension Clause guarantees the right to challenge unlawful detention through habeas corpus but does not require full judicial review for every immigration case. The court determined that individuals apprehended immediately after crossing the border are essentially seeking “initial entry” into the U.S. and therefore do not have the same constitutional protections as those already residing in the country.

What This Means for Asylum Seekers

Asylum seekers who are subject to expedited removal and whose claims are denied face significant hurdles to challenging their removal in court. While they do have access to an asylum officer and a limited review by an IJ, federal law does not allow broader judicial review of their cases. This framework reflects Congress’s intent to prioritize efficient immigration enforcement while balancing limited protections for asylum seekers.