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Supreme Court Rules Asylum Seekers Cannot Seek Federal Court Review of Expedited Removal Orders

In Department of Homeland Security v. Thuraissigiam, the U.S. Supreme Court held that restrictions on the ability of asylum seekers to obtain review of expedited removal orders under a federal habeas statute do not violate the Constitution’s suspension clause or due process clause

District Court Blocks Implementation of Notice Expanding Expedited Removal

In a lawsuit challenging DHS’s expansion of expedited removal that was filed by the American Immigration Council, the ACLU, and the law firm of Simpson Thatcher & Bartlett LLP, U.S. District Judge Ketanji Brown Jackson granted the plaintiffs’ motion for a preliminary injunction and issued an order blocking DHS from implementing its July 23, 2019, notice that significantly expanded the categories of persons eligible for expedited removal. In other federal court litigation news, U.S. District Judge Dolly Gee issued a decision blocking a Trump administration regulation that would terminate the Flores Settlement Agreement and allow families to be detained for lengthy periods of time.

I fear I’m going to be killed if I go back to my home country. What can I do?

I’m going to be beaten if I’m sent back to my country!

Question: I have to escape my country. I don’t know what to do. I want to go to the United States and try to get help. What can I do?

Answer: Assuming you do not have proper entry documents, the border patrol will try to remove you from the United States. However, if a person subject to expedited removal indicates a wish to apply for asylum or expresses a fear of persecution, he or she must be referred to an asylum officer for an interview. Consultation with counsel is allowed only if it will not unduly delay the process. The asylum officer must keep a written record of the “credible fear” interview.
A person found to have a credible fear will be placed in full removal proceedings. A person found to have a credible fear who establishes identity and that he or she is not a flight risk or a danger to the community should, absent additional factors, be paroled and not detained. In those proceedings, if found inadmissible by the IJ, the respondent may apply for asylum as a form of relief from removal. The respondent also may apply for any other form of relief from removal for which he or she may be eligible.

Question: What exactly does ‘credible fear’ mean?

Answer: The term “credible fear” is defined as “a significant possibility, taking into account the credibility of the statements made by you in support of the your claim and such other facts as are known to the officer, that you could establish eligibility for asylum.”
Question: Is it as difficult to get a credible fear determination as it would be to win asylum?
Answer: A “credible fear of persecution” is a lower standard than that required for an actual grant of asylum. For an actual grant of asylum, the applicant must show that he or she has experienced past persecution or that he or she has a well-founded fear of persecution in the future. The “well-founded” fear standard has been determined to mean that a reasonable person in the applicant’s position would fear persecution.

Question: What if I cannot get the asylum officer to agree and rule and there is a credible fear of persecution?

Answer: If the asylum officer finds that the you do not have a credible fear of persecution, you can request that the Immigration Judge review the asylum officer’s decision. The Immigration Judge may review the asylum officer’s decision either in person or telephonically, within seven days, and you would have to be detained during the review. If the Immigration Judge determines that you do have a credible fear of persecution, then you will be placed in regular INA §240 removal proceedings, in which you may file an application for asylum and withholding of removal.

Question: If either the asylum officer or the Immigration Judge through review determine that there is in fact a credible fear of persecution, will I be detained the entire time?
Answer: Yes, you should be eligible to ask for bond. There are valid cases that state that individuals, other than arriving aliens, who initially were placed in expedited removal but who subsequently passed credible fear interviews and were placed in INA §240 removal proceedings are eligible for bond. For example, people who are in expedited removal because they have been in the United States less than 14 days and are caught within 100 miles of a land border are eligible for bond once they have passed a credible fear interview.
Question: What about stowaways?
Answer: They are eligible for a credible fear interview exactly as anyone else would be eligible.
Question: What will I get if the asylum officer agrees that there is a credible fear?
Answer: The asylum officer will issue you a Form I-863, Notice to Referral to Immigration Judge. Before the Immigration Judge, you may only apply for asylum, withholding of removal, or relief under the Convention Against Torture. Technically, you would not be able to apply for other forms of relief other than asylum or withholding.
Question: If I get a denied credible fear determination, will I get a form?
Answer: You will get written notice of the decision and the negative decision is issued on Form I-869, Record of Negative Credible Fear Finding and Request for Review by Immigration Judge. It may be possible at this point, however, to arrange for a credible fear “reinterview.”

Question: Who is entitled to the ‘credible fear interview’?
Answer: Anyone who enters the United States because they possess either false documents or no documents. A false document may include a facially valid document that an individual obtained fraudulently or through willful misrepresentation of a material fact. Expedited removal also applies to individuals seeking transit through the United States at a port of entry.

Expidited Removal and Reinstatement

This panel will evaluate whether a noncitizen may be subject to reinstatement of removal and identify strategies for those who may not have a prior order but who may face the possibility of expedited removal.

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