Fourteen states have filed a suit in federal court to prevent the implementation of the Department of Homeland Security’s (DHS) interim final rule for asylum procedures in expedited removal proceedings, which will go into effect on May 31.

The expedited removal process permits DHS to summarily remove migrants who’ve arrived at a port of entry or been apprehended after making an illegal border crossing “without further hearing or review” if they (1) lack valid entry documents, or (2) tried to procure their admission into the United States through fraud or misrepresentation.

However, if they express a fear of returning to their own countries, they are interviewed by a DHS asylum officer to determine whether they have a credible fear of persecution. If they do, they are referred to the immigration court in the Justice Department’s Executive Office for Immigration Review (EOIR) for an asylum hearing in removal proceedings.

Removal proceedings are adversarial. The migrant’s asylum application is subjected to scrutiny by a government lawyer to prevent fraudulent or otherwise unmeritorious applications from being granted.

The rule in question — and subject of the lawsuit — authorizes asylum officers to adjudicate these cases in non-adversarial asylum merits interviews; the applicants can be represented by counsel, but there won’t be any government attorneys. The asylum officer’s decision is final if he grant’s asylum. If he denies asylum, the applicant will be referred to the immigration court for removal proceedings at which point he can resubmit his asylum application.

Detention is mandatory in expedited removal proceedings, but DHS can release migrants by granting parole status on a case-by-case basis for “urgent humanitarian reasons or significant public benefit.” The rule will permit DHS to consider the availability of detention facilities in deciding whether to grant parole.

The states claim in the lawsuit that DHS doesn’t have the authority to let its asylum officers adjudicate asylum applications in expedited removal proceedings and that making the shortage of detention facilities determine whether migrants will be released violates the restriction that parole must be granted on a case-by-case basis. They argue it would permit DHS to grant parole en mass whenever there is a shortage of detention facilities.

Reason for expedited removal proceedings


Published originally on the Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at