Process [Ill]Defined: Immigration Judge Reviews of Negative Fear Determinations

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Jocelyn Cazares Willingham, Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law.

In 2023, the Biden Administration announced its plan to enhance the use of summary removals, which are administered and completed by low-level immigration officers without further process unless there is an articulated fear of return by the noncitizen. This fear articulation triggers a fear interview with an asylum officer who determines whether the noncitizen has a credible or reasonable fear of return—a process that the Biden Administration further shortened while effectively imposing a higher fear standard through a recent finalized rule. A negative fear determination results in immediate removal unless the noncitizen requests review by an immigration judge. In 2019, only 15,476 migrants subject to the fear screening process requested review of their negative fear determinations. In most of these reviews, 74.3 percent, the immigration judge affirmed the asylum officer’s negative fear determination, resulting in the humanitarian relief seeker’s deportation as the decision in these reviews is not subject to appeal or further review. This Article seeks to highlight how the lack of clear process in an immigration judge’s review of an asylum officer’s negative fear determination under 8 C.F.R. § 208.30(g) and 8 C.F.R. § 1208.31(g) leads to an unchecked judicial discretion that can serve as a barrier to justice and humanitarian relief for those fleeing severe harms in their countries of origin or removal. This Article presents the first sustained examination and critique of the immigration judge review process that grounds decisions to expeditiously return migrants. After a review of the literature on this corner of our immigration system, I present some rare insights into this immigration judge review process based on descriptive data collected from an accompanying national survey of immigration advocates with direct experience in these proceedings. I then argue that that the fear screening process in its current form is in violation of the United States’ international and domestic obligations and should be dismantled. The lack of clearly defined procedures and meaningful standards, and the vast discretion afforded to immigration judges in these proceedings result in egregious failures of both process and substance. In the current process, expediency is championed over accuracy—belying the pretense of humanitarianism and charity that cloaks the entirety of our system of humanitarian protection. Lastly, I present some suggestions for reform to minimize the risk of erroneous fear determinations and ensure a fairer process for all migrants—not just those who win the adjudication lottery by being assigned to an immigration judge who approaches review of asylum an officer’s negative fear determination as the migrant’s legitimate opportunity to be heard and questioned.