A Suspended Death Sentence: Habeas Review of Expedited Removal Decisions

Lauren Schusterman*

Expedited removal allows low-level immigration officers to summarily order the deportation of certain noncitizens, frequently with little to no judicial oversight. Noncitizens with legitimate asylum claims should not find themselves in expedited removal. When picked up by immigration authorities, they should be referred for a credible fear interview and then for more thorough proceedings.

Although there is clear congressional intent that asylum seekers not be subjected to expedited removal, mounting evidence suggests that expedited removal fails to identify bona fide asylum seekers. Consequently, many of them are sent back to persecution. Such decisions have weighty consequences, but they have remained largely immune from judicial review. This is in part due to a provision of expedited removal, 8 U.S.C. § 1252(e)(2), that prevents the federal courts from hearing habeas petitions that challenge the decisions made in expedited removal. Circuit courts are split on whether this provision violates the Suspension Clause based on diverging interpretations of when noncitizens become entitled to habeas rights.

This Note argues that, based on the Supreme Court’s interpretation of the Suspension Clause and the historical purpose of habeas review, noncitizens who are physically in the territorial United States are entitled to habeas rights. As a result, 8 U.S.C. § 1252(e)(2) is unconstitutional. Asylum seekers in the United States are entitled to habeas review of their expedited removal determinations unless Congress enacts an adequate substitute for this review.

*J.D. Candidate, May 2020, University of Michigan Law School. I am grateful to Professor Chris Whitman for her mentorship and feedback as well as to Professors Eve Brensike Primus and David B. Thronson for helping me understand the intricacies of habeas and immigration law. Thank you to my parents and sister for their unyielding love and support, to my friends for constantly motivating me, and to all of the Michigan Law Review for their helpful edits.

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