Questioning the Legitimacy of the Expedited Removal Process – The Tall Task of Protecting the Constitutional Rights of One of America’s Most Marginalized Groups

Authors

Jacob J. Bourquin, Cleveland State University College of Law

Abstract

This Note explores the origin and development of 8 U.S.C. § 1225—a heavily debated facet of the United States’ immigration law. Section 1225, colloquially referred to as the “expedited removal process,” has been interpreted to permit low-level immigration officers to summarily remove certain “arriving” noncitizens from the United States without affording them the procedural due process protections guaranteed under the Fifth Amendment of the United States Constitution to all individuals present in the United States. This Note posits that the current interpretation of § 1225, particularly the interpretation of “is arriving,” and application of the expedited removal process is inconsistent with well-established canons of statutory interpretation—particularly the plain meaning canon, the no superfluous words canon, and the constitutional presumption canon. This Note then puts forth an interpretation that is consistent with these central canons of interpretation. Finally, this Note argues that due to the Fifth Amendment’s broad applicability, the refusal to afford procedural safeguards prior to the denial of life, liberty, and property via the expedited removal process constitutes a wholly unconstitutional due process violation and that even the expansive entry fiction doctrine is not enough to save this unconstitutional removal process. Thus, the expedited removal process, as it is currently employed, must be abandoned and § 1225 must be either amended or repealed.

Recommended Citation

Jacob J. Bourquin, Questioning the Legitimacy of the Expedited Removal Process – The Tall Task of Protecting the Constitutional Rights of One of America’s Most Marginalized Groups, 72 Clev. St. L. Rev. 781 (2024)
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol72/iss3/10