46 Pages Posted: 24 Jul 2006
Immigration inspectors are authorized to deport persons who arrive at U.S. ports without valid travel documents. This process, which usually occurs within 48 hours and does not allow for judicial review, is called expedited removal. This article begins by summarizing the findings of the few studies allowed access to the process. The authors extrapolate from the studies to demonstrate that thousands of genuine asylum seekers have erroneously been deported via expedited removal. The greatest cause of erroneous deportation is a failure by the agency responsible for the process, Customs and Border Protection (CBP), to follow its own rules. The heart of the article is a simple inquiry: given the stakes involved, why doesn't CBP follow its own rules? One report found CBP's failure "simply inexplicable." Drawing on the work of Jerry Mashaw, among others, the article attempts to "explain the inexplicable." It demonstrates that a mix of bureaucratic and personal realities, including CBP's dominant enforcement culture, combine to promote noncompliance with many of the rules intended to protect asylees. This showing has important implications for those who would repair the system. CBP's enforcement culture is likely to defeat any attempt to ensure compliance with the rules simply by reiterating them. A method is needed for moderating the culture, so that deporting the wrong person becomes as unacceptable in the future as admitting the wrong person is right now. The article closes with numerous suggestions to help achieve the required change, as well as a few recommendations for specific rule changes.
Keywords: immigration, asylum, international migration, human rights
Suggested Citation: Suggested Citation
Pistone, Michele R., Rules are Made to be Broken: How the Process of Expedited Removal Fails Asylum Seekers. Georgetown Immigration Law Journal, Vol. 20, p. 167, 2006; Villanova Law/Public Policy Research Paper No. 2006-12. Available at SSRN: https://ssrn.com/abstract=918836