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By: Reeves Immigration
In a blow to the asylum process, and thousands of asylum seekers in the United States, the Supreme Court (SCOTUS) issued a decision on Thursday, June 25 that allows expedited removal of some asylum seekers without judicial review. Asylum seekers and other immigrants facing expedited removal, who have not passed a “credible fear” test, will have no opportunity to appeal such decisions to a federal court.
The “credible fear” test is one component of the asylum process that is especially important for those who face expedited removal. This is only a small percentage of people, and most commonly only applies to people who arrive at the border without entry documents, or are apprehended within 100 miles of the border, or within 14 days of crossing the border. Expedited removal is in essence fast-track deportation, and these individuals must pass a credible fear interview before they are even allowed to formally apply for asylum. If a DHS officer, supervising officer, and immigration judge all do not find a credible fear of returning to their native country, then the foreign national will not even be afforded the opportunity to apply for asylum. Today’s SCOTUS decision says that these negative credible fear decisions are not reviewable in federal court.
In a 7-2 split, the court denied that the right of habeas corpus and the right to due process of law require that those whose initial screenings result in rejection be allowed to appeal to a federal court. Writing for the conservative majority, Justice Samuel Alito said that this framework was established by a 1996 law intended to expedite deportations at the border and does not violate the Suspension Clause (Art. I, § 9, cl. 2).
In addition, the majority held that allowing such review would place an excessive burden on the immigration system and the courts. “If courts must review credible-fear claims that in the eyes of immigration officials and an immigration judge do not meet the low bar for such claims,” Alito wrote, “expedited removal would augment the burdens on that system.”
In the dissenting opinion, Justice Sonia Sotamayor, joined by Justice Elena Kagan, wrote that while it is “universally acknowledged that the asylum regime is under strain,” the ruling “handcuffs the Judiciary’s ability to perform its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers.”
Sotamayor’s dissent warns of broad consequences as a result of the decision. “Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all procedural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U.S. citizens or residents.”
What is painfully clear from this decision is that asylum-seekers, now more than ever, need the best legal representation available. It is imperative that an application for asylum, or a claim of “credible fear” be as thoroughly documented and supported as possible, so that the case can avoid a rejection that could carry dire implications. Read more about the asylum process and the options available to those seeking to apply.
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