Flawed Expedited Removal Denies Refugees Asylum Hearings

NEW YORK – As the Biden administration steps up the use of expedited removal, Human Rights First released a new report, “Pretense of Protection: Biden Administration and Congress Should Avoid Exacerbating Expedited Removal Deficiencies.” The report details systemic deficiencies in the implementation of expedited removal, the insufficiency and undermining of safeguards, and the weaponization of expedited removal to deny asylum hearings to refugees seeking protection in the United States.

“Our report reveals an alarming pattern of erroneous credible fear decisions that led to asylum seekers ordered deported without asylum hearings, including Haitians, Nicaraguans, and Venezuelans escaping political persecution and many LGBTQ individuals,” said Rebecca Gendelman, Research and Policy Staff Attorney for Refugee Protection Research at Human Rights First and author of the report. “The U.S. asylum process should focus on protecting refugees at risk of harm, in line with U.S. legal and treaty obligations, rather than speeding their deportation through a fundamentally flawed process.”

Human Rights First recommends the Biden administration avoid the use of expedited removal, stop conducting credible fear interviews in detention, improve regulatory and other safeguards, and address implementation deficiencies. Congress should fund legal counsel for those in the immigration system and reject legislation to heighten the credible fear screening standard or deny refugees full asylum adjudications.

Key findings of the report, which is based on information gathered on more than 350 asylum seekers recently subjected to expedited removal, include:

• Conducting fear interviews in detention exacerbates the fundamental flaws of expedited removal by subjecting asylum seekers to horrendous conditions of confinement, pushing them to undergo interviews without adequate interpretation, and cutting them off from legal representation. Interpretation failures disproportionately impact asylum seekers from Africa and Indigenous people.
• The Trump administration’s weaponization of expedited removal—through a series of illegal policies, regulations, and Attorney General rulings—confirms its  vulnerability to abuse by administrations seeking to unlawfully deport refugees without allowing them to apply for asylum. By FY 2020, positive fear determination rates had plummeted by nearly 50 percent to 44.3 percent compared to 88.3 percent in FY 2016. Through government data received via a Freedom of Information Act request, Human Rights First confirmed that these policies disparately impacted many Black, Brown, and Indigenous asylum seekers from countries the Trump administration targeted.
• Under the Biden administration, the decline in positive credible fear rates has only partially reversed and remains over 25 percent lower than before the Trump administration began its assault on asylum. The high rate of negative credible fear determinations has persisted despite escalating repression, persecution, and violence in many countries people are fleeing, including Haiti and Central America.
• Asylum seekers are now even less likely to be able to correct mistaken negative credible fear determinations and are at heightened risk of return to persecution due to the Asylum Processing Rule severe restrictions – including a draconian and unrealistic seven-day deadline for filing requests for reconsideration – on the Asylum Office’s long-standing authority to reconsider mistaken credible fear determinations.

The report’s findings confirm decades of research concluding that the use of expedited removal results in unlawful deportations of refugees in violation of U.S. law and treaty obligations, wastes resources, and exacerbates asylum backlogs.