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May 1, 1998
Moderator: T. Alexander Aleinikoff, Senior Associate, International Migration Policy Program, Carnegie Endowment for International Peace
Panelist: Karen Musalo, Director of the International Human Rights and Migration Project at Santa Clara University
Mr. Aleinikoff welcomed Ms. Musalo to the Carnegie Endowment and thanked her for coming to talk about the Report on the First Year of Implementation of Expedited Removal, the first part of the Expedited Removal Study (the Study) she is co-directing with Deborah Anker of Harvard Law School. Mr. Aleinikoff noted the legal issues, such as due process, involved in the expedited removal system and agreed with the authors that observer access to all stages of expedited removal is crucial to reach a determination about its effectiveness and fairness.
Ms. Musalo began by reminding the audience of the Congressional goals of expedited removal: to weed out fraudulent asylum claims while protecting legitimate asylum seekers. The Study sought to find out if the expedited removal process was achieving its goals. To determine this properly, on-site observation is indispensable; thus, the original Study methodology included 400 to 500 observations of secondary inspections, credible fear interviews, and immigration judge reviews. Unfortunately, the government refused all access to secondary inspections and agreed to observation of credible fear interviews only if the researchers served as lawyers or consultants representing the applicants. To retain impartiality, the researchers chose to decline observer status conditioned on official representation. The government did grant access to the immigration court reviews, but these occur at the end of the expedited removal process and involve a fraction of those affected by it.
Since on-site access was not granted, researchers instead gathered secondary, anecdotal data from non-governmental organizations and attorneys who either represented individuals subject to expedited removal or who came into contact with them at some point in time. Because the 280 individuals in the database are primarily self-selected, Ms. Musalo cautioned that generalizations based on this non-random group are inappropriate. Nevertheless, the cases in the database raised a number of important questions that are summarized below:
The high socioeconomic status (reflected in high education, English fluency, and family contacts in the United States and Canada) and the low percentage of females found in the sample of those not removed at the point of secondary inspection but referred for credible fear interviews.
The small percentage of individuals who request immigration judge (IJ) review of adverse credible fear determinations, despite the high success rate at IJ review for the individuals in the database.
- The high success rate (and low number of expedited removal orders) at the credible fear interview and immigration judge review stages for individuals in the database, many of whom have representation.
- Sharp differences in outcomes by nationality and port of entry
- Differences in detention time by area where detained
In addition, the characteristics and outcomes of actual cases raise concerns about the expedited removal process, some of which are listed below:
- Secondary inspections may be disproportionately screening out women and persons of low socioeconomic status. Stated another way, women and persons of low socioeconomic status without English fluency may have more difficulty making it through the process as designed.
- Some individuals who are found not to have a credible fear may not be fully cognizant of their right to immigration judge review.
- Legal representation may be a significant factor in outcomes of the expedited removal process (this is especially relevant if access to representation is positively correlated with socioeconomic status or ability to pay for attorney services).
- Expedited removal procedures may not be applied uniformly and may vary depending on the port of entry or nationality of the individual.
- INS may not be implementing a uniform and consistent policy with respect to the parole of persons found to have a credible fear.
However, there may be other explanations for the above outcomes:
- Asylum seekers entering the United States through airports (most of the cases in our database) may be of higher socioeconomic status than individuals entering through land ports of entry (however, we do not find evidence to support this).
- Individuals with representation may be of higher socioeconomic status than those without representation (who would therefore be unlikely to make it into our database).
- Differences in outcomes by nationality or port of entry may reflect real differences in credible fear of persecution related to human rights conditions in the countries at issue.
- Attorneys may choose to represent persons with a greater likelihood of success.
Disparities in detention conditions and policies by locale, although more difficult to rationalize, could reflect differences in risks of parole for cases at these different locations.
Expedited Removal Study
International Human Rights & Migration Project
Markkula Center for Applied Ethics
Santa Clara University
Santa Clara, California 95953
Telephone: 408-554-7874; 408-2373
E-mail: musalo@netcom.com