Expedited Removal and Discrimination in the Asylum Process: The Use of Humanitarian Aid as a Political Tool

By O'Callaghan, Erin M. | William and Mary Law Review, March 2002 | Go to article overview

Expedited Removal and Discrimination in the Asylum Process: The Use of Humanitarian Aid as a Political Tool


O'Callaghan, Erin M., William and Mary Law Review


In 1996 Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). (1) Through this act, Congress attempted to combat illegal immigration, while revamping the asylum process in the United States. (2) Some of the harshest new measures were instituted under the "expedited removal" system. (3) This system allows the Immigration and Naturalization Service (INS) to summarily exclude any alien who arrives at a border without proper documents or with false travel documents. (4) The decision to exclude such an alien is not subject to review, thus allowing low-level INS agents to make final decisions about the admission of certain aliens. (5)

The IIRIRA was implemented as an attempt to stem the tide of illegal immigration. Unfortunately, the law also harms true asylum-seekers. Aliens without documents or with false documents may be attempting to hide something from immigration officials, but they may also have legitimate reasons for their lack of valid documentation. (6) The absence of any effective review by the courts could easily lead to a violation of international law's principle of nonrefoulement, (7) as well as other international law principles.

In addition to possible violations of international law, IIRIRA gives too much power to immigration officials. The nature of immigration law strictly limits judicial review of immigration decisions. (8) The expedited removal system allows both INS officials individually and the INS as a whole to grant or withhold asylum on a discriminatory basis with no real checks on this power. Proponents of this system argue that the majority of aliens subject to the expedited removal system are not seeking asylum. (9) They also assert that safeguards built into the system prevent accidental return of true asylum-seekers. (10) These explanations fail to take into account the danger of a systematic refusal of all asylum-seekers from a single country. This danger has increased since the events of September 11, 2001, but has been present throughout the history of United States refugee law. Such a danger does not stem from the mistakes of low level immigration officials, but from the United States' decision to use asylum as a political tool rather than for its intended use: the protection of individuals from persecution.

This Note addresses the special problems that asylum-seekers face under the expedited removal system, particularly with respect to discrimination. The first section reviews the history of the IIRIRA and expedited removal. This history demonstrates that the IIRIRA, and particularly the expedited removal system, was a product of reactionary politics and pandering to general fears of illegal immigration, rather than a well-reasoned response to the problems facing immigration officials. (11)

The next section discusses the removal of any judicial review of certain immigration decisions under the IIRIRA. In addition, this section addresses the historic foundations for the general deference afforded immigration decisions since the 1800s. Finally, this section examines the availability of constitutional protections to nonadmitted aliens.

Section three discusses discrimination in United States immigration law. This section first deals with historical discrimination in general immigration law and in the asylum process. It then examines the potential for discrimination in asylum law under the expedited removal system and addresses the international law implications of allowing discrimination in the asylum process. The section concludes with a critique of the implementation of the expedited removal system.

Finally, discussion turns to possible solutions to these problems recently considered by Congress. Various efforts attempting to reform the problems of the IIRIRA were introduced in the last session of Congress. These reforms dealt with the problems of expedited removal as applied to the asylum process. …

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