Broken Records: Evidentiary Failures in Expedited Removal and Credible Fear Reviews

Expedited removal, a process allowing for the swift deportation of noncitizens without a full hearing, has become a central mechanism in U.S. immigration enforcement. Although the process was designed to expedite removals, it is riddled with evidentiary and procedural deficiencies that undermine asylum seekers’ rights. This Note examines how systemic flaws in record development during initial “credible fear” screenings—such as officer misconduct, language barriers, and trauma—skew credible fear determinations, leading to erroneous deportations. It further critiques the limited reviewability of negative credible fear findings, highlighting inconsistencies among immigration judges regarding the admission of new evidence, credibility assessments, and access to counsel. Additionally, it argues that the “entry fiction” doctrine, which purports to justify the lack of due process protections in expedited removal, is fundamentally incompatible with U.S. asylum law, due process, and non-refoulement obligations. To address these deficiencies, this Note proposes key reforms to credible fear review: (1) requiring immigration judges to allow new evidence and testimony; (2) utilizing a framework adopted by the Seventh Circuit in Jimenez Ferreira v. Lynch for assessing credibility; and (3) guaranteeing a right to counsel during review proceedings. These changes are necessary to align expedited removal with U.S. asylum law, safeguard due process, and prevent the wrongful deportation of bona fide asylum seekers.

View Full PDF