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Court rules in favor of asylum seekers facing expedited removal

Immigration Services

A federal appeals court issued a ruling recently that is good news for migrants residing in Kentucky and elsewhere in the United States who are seeking asylum. In the ruling, the court determined that asylum seekers who are facing "expedited removal" have the right to pursue a judicial review of this ruling, per the U.S. Constitution.

The expedited removal system was established in 1996 and is generally applicable to migrants who enter the U.S. without a visa or the necessary immigration documents. Under the expedited removal process, those seeking asylum have a brief interview with an asylum officer, who decides whether the migrant's fear of returning to his or her country of origin is "credible." If the officer believes the migrant's fear is not credible, there will be a perfunctory review before an officer of the Department of Justice. If the DOJ officer agrees that the migrant's fear is not credible, the migrant will face deportation and removal from the U.S. with no further legal hearings or other opportunities for appeal.

The interview is meant to make sure that those with potentially meritorious claims are granted a full asylum hearing rather than being immediately deported. However, the Ninth Circuit Court of Appeals has determined that these limits on judicial review keep asylum seekers from having the opportunity to present their case to an actual judge, and thus are unconstitutional per the habeas corpus suspension clause. This clause is meant to keep the government's from putting people in detention with no legal justification. The court based its decision in part on a 2001 Supreme Court ruling that stated that the Constitution requires at least some judicial intervention in cases involving the deportation of migrants.

This ruling is good news for asylum seekers. However, even those seeking asylum could face deportation and removal if it is determined that they lack a credible fear of returning to their country of origin.

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