Two Cheers for Expedited Removal in the New Immigration Laws

Abstract:     
In 1996 Congress adopted a controversial proposal for expedited removal (ER) of aliens who arrive at the border without documents or with improper documents. ER has been subjected to relentless criticism from academics and advocates since then. Although the practice does raise serious questions, much of the criticism has ignored certain key decisions made in the implementation of expedited removal, and some affirmatively mischaracterizes the enforcement scheme. Drawing on his experience as INS General Counsel at the time the 1996 law was being debated and during its initial implementation, the author describes those implementation details, and argues that they provide significant safeguards, particularly for asylum seekers at the border - the group whose situation has generated the most concern under the 1996 changes. ER is consistent with due process, even when judged under the Mathews v. Eldridge test, and is also consistent with UNHCR standards. On balance, expedited removal should be continued, largely because of the way it has contributed to broader border enforcement efforts; its main impact has fallen, in fact, on persons who are not remotely contemplating political asylum. The article sets forth suggestions for modest modifications in ER, and in INS's approach toward outside monitoring. It also argues that the calls to reduce the detention of asylum seekers are unlikely to succeed until there is a considerable improvement in the actual removal of nondetained aliens who receive a final order of removal. Only 11 percent of such persons are now successfully removed, versus over 90 percent of detained aliens, despite the resources expended in obtaining a final order and giving the respondents a full chance to present any defenses in the proceedings. Advocates of a more humane approach to detention need to help develop and promote new mechanisms to improve removal results without incarceration.

Accepted Paper Series