Pretense of Protection: Biden Administration and Congress Should Avoid Exacerbating Expedited Removal Deficiencies

The expedited removal process Congress created permits border officers to order the deportation of certain individuals charged with inadmissibility under U.S. immigration law without an immigration court hearing. One component of this process, credible fear screenings, was supposed to ensure that people seeking refugee protection in the United States had an opportunity to apply for asylum and were not summarily deported to persecution or torture. Over the years however, the bipartisan U.S. Commission on International Religious Freedom (USCIRF) and various other organizations have documented serious deficiencies and due process concerns with the expedited removal process. Asylum seekers wrongly deported through expedited removal have been persecuted, tortured, and murdered after being returned by the United States to the country they had fled. In addition to endangering asylum seekers and violating U.S. legal obligations to refugees, the use of expedited removal wastes resources and exacerbates backlogs.Rather than use the fundamentally flawed expedited removal process, the Biden administration should instead refer asylum seekers for asylum adjudications with the Asylum Office without subjecting them to CFIs, fully restore the authority of the Asylum Office to reconsider negative credible fear determinations, and work with Congress to fund legal representation. While expedited removal remains in U.S. law, the agencies should issue regulations to reduce the risk of erroneous negative fear determinations and avoid the weaponization of expedited removal by subsequent administrations. Full recommendations can be found at the end of this report.