Withholding Protection

Abstract

In June 2018, President Trump wrote a pair of tweets en route to his golf course, calling for “no Judges or Court Cases” at our border and swift deportation of immigrants, essentially without due process. While immigrant advocates were quick to explain the myriad constitutional problems with this proposal, elements of Trump’s dream are already a reality. This Article reveals how a single Customs and Border Protection officer can short-circuit the checks and balances prescribed by U.S. and international law to protect refugees from being returned to harm, and cast a long shadow over a future, meritorious asylum claim.

In light of the growing attention to the plight of those fleeing persecution and seeking asylum at our borders, this Article examines shortcomings in both law and practice, illuminating the long-lasting ramifications of erroneously issued expedited removal orders for asylum seekers and their families. Congress designed the expedited removal system to expedite deportations and circumvent due process before an immigration judge. Certain humanitarian protections are built into the system to ensure that the United States meets its international and domestic legal obligations not to return refugees to a place where they would face persecution or torture. In practice, these humanitarian protections are too often improperly implemented and front-line border enforcement officials, whether manifesting bias against asylum seekers or lacking proper training and expertise, routinely ignore U.S. law and the Department of Homeland Security’s own regulations. This results in the wrongful deportation of asylum seekers and, as revealed in the Article, in permanent negative ramifications for those lucky enough to make it back over the border to in an attempt to re-apply for asylum.

The Article examines the disastrous interplay between two of the “speed deportation” processes of expedited removal and reinstatement of removal, the lack of sufficient safeguards that leave refugee screening at our borders in the shadows, and the absence of judicial review. The Article seeks not only to expose and analyze this problem, but also to improve the situation by considering a suite of pragmatic, actionable solutions to close the gap between the humanitarian protections prescribed by law and the reality faced by asylum seekers at the U.S. border. As an immediate first step to implement the humanitarian protections enshrined in law, the Article explores the merits and risks of using readily available technology: the use of Body-Worn Cameras by Customs and Border Protection officers conducting screenings of potential refugees at the border to fill the protection gap.

Keywords: asylum, withholding, immigration, enforcement, border patrol, body worn cameras, due process