Judicial review of expedited removal
🔹 I. Overview of Expedited Removal
Expedited removal is a process created by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, codified at 8 U.S.C. § 1225(b)(1). It allows the Department of Homeland Security (DHS) to summarily remove certain noncitizens who:
Arrive at the U.S. border or port of entry without valid entry documents or with fraudulent documents.
Are apprehended within 14 days of entry and within 100 miles of a land border (as per DHS designation).
Do not express a credible fear of persecution or torture.
The statute greatly limits judicial review under 8 U.S.C. § 1252(a)(2)(A) and § 1252(e). Generally, courts may only hear limited challenges involving:
Whether the person is a citizen or not.
Whether the person was ordered removed under expedited removal.
Whether the person is a lawful permanent resident, refugee, or asylee.
Despite this statutory limitation, courts have considered certain constitutional and procedural challenges.
🔹 II. Key Cases on Judicial Review of Expedited Removal
1. INS v. St. Cyr, 533 U.S. 289 (2001)
Issue: Whether the limitation on judicial review in IIRIRA eliminated habeas corpus for legal permanent residents seeking relief from removal.
Holding: The Supreme Court held that judicial review of constitutional claims and questions of law remains available under the habeas statute (28 U.S.C. § 2241) even where IIRIRA limits direct judicial review.
Importance for Expedited Removal: Though this case did not directly deal with expedited removal, it laid foundational principles for maintaining judicial review of constitutional and legal issues in immigration removal proceedings, even when statutes purport to restrict such review.
2. American Immigration Lawyers Association (AILA) v. Reno, 199 F.3d 1352 (D.C. Cir. 2000)
Issue: Whether courts can review the application of expedited removal procedures and the policy under which they are administered.
Holding: The D.C. Circuit held that there is no jurisdiction to review individual expedited removal orders or the procedures followed, even in a class-action suit. The court emphasized that § 1252(a)(2)(A) and § 1252(e) prohibit broader challenges to the implementation of the expedited removal process.
Importance: This case confirmed that expedited removal is largely shielded from judicial review, especially in systemic or facial challenges.
3. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)
Issue: Whether a noncitizen detained at Ellis Island for over 20 months without entry into the U.S. was entitled to due process and judicial review.
Holding: The Supreme Court ruled that noncitizens who are not formally "admitted" into the U.S. are considered as if they are still outside the country (even if physically present), and hence have limited constitutional protections.
Importance: While predating IIRIRA, this case underpins the “entry fiction” doctrine, later used to justify limited judicial review and constitutional rights for noncitizens subject to expedited removal.
4. Boumediene v. Bush, 553 U.S. 723 (2008)
Issue: Whether Guantanamo Bay detainees (noncitizens held outside U.S. territory) had the right to habeas corpus.
Holding: The Court ruled that the Suspension Clause of the Constitution guarantees the right to habeas corpus even for noncitizens held at Guantanamo Bay.
Importance: Although not an immigration case per se, the decision reaffirms that constitutional protections may extend to noncitizens in certain situations, suggesting that some judicial review should be available, even for those ostensibly outside the U.S. under “entry fiction.”
5. Department of Homeland Security v. Thuraissigiam, 591 U.S. ___ (2020)
Facts: Vijayakumar Thuraissigiam, a Sri Lankan national, was apprehended shortly after crossing the U.S. border and placed into expedited removal. He claimed a fear of persecution but was denied after a credible fear interview. He filed a habeas petition alleging violations of due process.
Issue: Can a federal court review the denial of a credible fear interview under habeas corpus?
Holding: The Supreme Court ruled that Thuraissigiam could not use habeas corpus to challenge the procedures used in expedited removal, and that the limitations under § 1252(e) are constitutional.
The Court held that noncitizens seeking initial entry have limited procedural rights.
It emphasized that the Suspension Clause was not violated because habeas corpus historically did not allow such relief for arriving noncitizens.
Importance:
Major victory for the government in restricting judicial review of expedited removal.
Reinforced the “entry fiction” and narrowed the scope of habeas corpus for procedural claims in expedited removal.
Clarified that noncitizens apprehended near the border with no prior lawful status have minimal due process rights.
6. Castro v. U.S. Department of Homeland Security, 835 F.3d 422 (3d Cir. 2016)
Facts: 28 asylum-seeking families from Central America were placed in expedited removal after failing credible fear interviews.
Issue: Did federal courts have jurisdiction to review their expedited removal orders under habeas corpus?
Holding: The Third Circuit held that it lacked jurisdiction under § 1252(e), and the Suspension Clause was not violated, because the petitioners were not seeking release from custody but rather access to further immigration proceedings.
Importance: Reinforced a narrow interpretation of habeas rights for individuals in expedited removal. Constitutional challenges to the procedures used were deemed outside judicial review.
🔹 III. Summary of Legal Principles
Statutory Limits Exist: Under 8 U.S.C. § 1252, expedited removal orders are shielded from broad judicial review, allowing only limited challenges related to status or procedure.
Entry Fiction Doctrine: Noncitizens not formally admitted are treated as if outside the U.S. for constitutional purposes, limiting their due process rights.
Habeas Corpus Is Narrowed: While the Constitution protects habeas rights (St. Cyr, Boumediene), courts (Thuraissigiam, Castro) have allowed Congress to restrict its use in immigration contexts.
Judicial Review Is Available for Citizens or LPRs: If someone claims to be a U.S. citizen or lawful permanent resident, courts must review such claims.
Credible Fear Process Is Largely Immune: Denials of credible fear are rarely reviewable, unless there's a gross procedural defect or the petitioner fits within a narrow exception.
🔹 IV. Conclusion
Judicial review in the context of expedited removal is highly constrained. The statutory regime, backed by Supreme Court precedent, has created a system where noncitizens at or near the border, with no lawful status, are subject to swift removal with minimal opportunity for judicial intervention.
However, constitutional challenges, especially regarding citizenship or unlawful detention, remain viable in some instances. The debate continues as to whether this limited review strikes the proper balance between border control and due process.
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