William & Mary Bill of Rights Journal


Sun Shen


[...] This Note argues that illegal entry often limits the scope of asylum seekers’ due process rights in court and negatively impacts the asylum process in a way that runs afoul with the spirit of due process and fairness. Asylum eligibility should not hinge on whether entry is legal, but whether applicants are able to meet the evidentiary burden. Conditioning asylum seekers’ procedural due process rights on the legality of entry creates arbitrary asylum results and carries high risks of sending back asylum seekers to danger, simply because they were not able to obtain valid travel documents from the governments that persecuted them. Furthermore, illegality of entry creates the concept of undeserving asylum applicants, which often conflicts with the principle of fairness in removal proceedings.

This Note proceeds as follows. Part I discusses important legal issues relevant to understanding asylum seekers’ due process rights in expedited removal proceedings, including Congress’s plenary power over immigration, the asylum application process, and the statutory expedited removal framework. Part II analyzes the Supreme Court’s decision in Department of Homeland Security v. Thuraissigiam, which reversed key determinations from the Ninth Circuit. Part III advances this Note’s main arguments. Illegal entry significantly limits asylum seekers’ due process rights by triggering expedited removal. However, giving the legality of entry undue weight in the asylum process leads to arbitrary adjudications and high risks of error. Asylum eligibility should not be contingent upon legal entry in a way that violates the Due Process Clause of the Fifth Amendment. Finally, Part IV examines how sociopolitical factors complicate the issue.

This abstract has been taken from the author's introduction.