The Door That Was Never Opened: Due Process, Non-Refoulment, and the Failure of Expedited Removal

Katherine Chaffee

Edited by Samantha Tonini, Dillon Murti, Judge Baskin, and Sahith Mocharla

For many, fleeing gang violence, political persecution, or torture would be the biggest challenge in any journey. However, for thousands of would-be asylum seekers at the US-Mexico border, escape from dire straits is met only by being turned away at their destination, without a lawyer, without a hearing, and without anyone asking whether returning home might kill them. In recent years, the U.S. government has deployed a series of policies designed to limit or entirely block access to asylum, including Title 42 public health expulsions, metering systems that force asylum seekers to wait indefinitely in dangerous border regions, and executive bans on asylum eligibility [1]. At the center of these policies is a legal mechanism called ‘expedited removal’, which permits border officials to remove individuals without a hearing with an immigration judge. The United States, specifically Congress and the executive branch, cannot legally comply with its non-refoulement obligations when expedited removal denies asylum seekers meaningful due process at ports of entry. This is because the procedure’s speed and limited review create a systematic risk of returning individuals to the very persecution they fled.

To clarify, non-refoulement is a foundational principle of international refugee law that prohibits states from returning a person to a country where they face a serious risk of persecution, torture, or death. The term comes from the French refouler, meaning to push back or repel. It is the legal justification for all asylum seekers. This is the minimum obligation every state owes to those fleeing harm [2]. Non-refoulement is just one aspect of asylum, which is a form of legal protection granted to individuals who have fled their home country and can demonstrate a well-founded fear of persecution based on race, religion, nationality, political opinion, or membership in a specific social group. Under U.S. law, any person who reaches U.S. soil or a port of entry has the legal right to apply for asylum, regardless of how they arrived [3] [4].

Non-refoulement obligations bind the United States through multiple, overlapping legal agreements and statutes. The U.S. is a member state of the United Nations, a party to the 1951 Refugee Convention, and a signatory to the 1967 Protocol. The 1951 Refugee Convention established the modern framework for refugee protection, defining who qualifies as a refugee and enumerating their rights. The most critical provision of the Convention, Article 33, prohibits any contracting state from returning a refugee to a territory where their life or freedom could be threatened. Even though the U.S. did not ratify the 1951 Convention directly, it acceded to the 1967 Protocol. This incorporated Article 33’s protections in full and legally binds the United States to its terms [5] [6]. 

Beyond the Refugee Convention, the United States ratified the Convention Against Torture (CAT) at the General Assembly of the United Nations in 1994, which again applies an even stronger non-refoulement standard. Article 3 of CAT imposes an absolute prohibition on returning any person to a country where they face a substantial risk of torture. CAT makes no exceptions for national security, public order, or immigration enforcement [7]. This absolute aspect of the CAT distinguishes it from the Refugee Convention and makes it a particularly powerful legal constraint on expedited removal. Also, non-refoulement is now widely recognized as a norm of customary international law and is binding on all states. Each state is expected to enforce this to maintain good standing with the U.N. and within international relations [8].

Domestically, Congress codified these obligations through the Refugee Act of 1980, which amended the Immigration and Nationality Act (INA) to implement U.S. asylum commitments [9]. The Act explicitly created the right to apply for asylum under 8 U.S.C. § 1158 and established withholding of removal under 8 U.S.C. § 1231(b)(3), which mirrors the non-refoulement standard presented in Article 3 of CAT [10]. The timeline of the Act and statutes made Congress’s intent unmistakable: the United States was bringing its domestic law into compliance with the 1951 Convention and 1967 Protocol. Non-refoulement was not merely a goal—it was an enforceable statutory command. Additionally, the Fifth Amendment Due Process Clause applies to noncitizens present in the U.S., as set by the precedent in Zadvydas v. Davis (2001) [11]. This case consolidated habeas corpus petitions from two individuals. One, Kestutis Zadvydas, a lawful permanent resident, born in a German displaced persons camp (likely to Lithuanian parents), was ordered removed due to criminal convictions but detained indefinitely after both Lithuania and Germany refused repatriation. The second, Kim Ho Ma, a Cambodian national, was ordered deported following a manslaughter conviction but held without any prospect of removal. In a narrow 5-4 decision, the Court ruled that the law implicitly requires a reasonable time limit on such detention, emphasizing the importance of balancing individual liberty interests with community safety concerns. The Court held that after six months of post-removal order detention, if the alien can provide a good reason to believe that removal in the reasonably foreseeable future is unlikely, and the government cannot rebut those findings, the alien must be released. This meant the Fifth Amendment's Due Process Clause applies to non-U.S. residents as well, and it should be in regard to non-refoulement obligations too.

Expedited removal was created by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), which allows border officials to deport individuals without immigration court review. Expedited removal was expanded significantly during the first Trump administration in 2017 and again in 2026. Now, the process applies far beyond ports of entry and reaches deep into U.S. territory [12]. The only procedural protection left to asylum seekers subject to expedited removal is a credible fear screening. This is a brief interview conducted by an asylum officer to determine whether the individual has a plausible fear of persecution. If the officer finds that there is no credible fear, the asylum seeker may be deported within days of this decision. This is often an unreasonable decision to be made by a singular officer when language barriers, trauma, and lack of counsel undermine the reliability of these screenings. Individuals are not provided an attorney, as in the United States criminal courts, and financial barriers often prevent asylum seekers from hiring one themselves.

Additionally, the government has neglected to reform a process in which officers pressure asylum seekers to withdraw claims. The nonprofit Human Rights First has documented this well and also shown that officers often conduct interviews in inappropriate settings, such as border patrol vehicles and detention facilities [13] [14]. The American Civil Liberties Union similarly describes cases in which individuals expressing fear of return were nonetheless induced to sign documents indicating that they did not fear persecution, resulting in their removal. In a specific case, a woman told officers she feared returning to her home country. Officers forced her to sign documents anyway, saying that she was not afraid. She was deported because the officers had used “coercive tactics to convince individuals to speedy deportations" [15]. She had no legal counsel and no time to decide on her own before the officers compelled her to sign the documents against her will.

Before analyzing how expedited removal is unconstitutional, it is necessary to establish the legal standard courts use to evaluate whether a government procedure provides sufficient due process. In Mathews v. Eldridge (1976), the United States Supreme Court established the controlling test for procedural due process claims [16]. The Court held that identifying specific aspects of due process requires consideration of three distinct factors. First, the private interest that will be affected by the official action. Second, the risk of erroneous deprivation of that interest through the procedures used. Third, the probable value of additional procedural safeguards, and the government's interest. This includes the fiscal and administrative burdens that additional procedures would likely entail. This test remains the prevailing governing standard today and is applied by the Supreme Court and lower courts in a wide range of administrative and governmental contexts. In the context of this argument, the Supreme Court has applied Mathews to core immigration and national security matters. Scholars describe this as the “Mathewsization” of immigration law, which has undermined much of the categorical exceptionalism that once shielded immigration proceedings from meaningful due process scrutiny [17].

The first factor makes courts weigh the interests of the affected individual and the injury threatened by official action. In the context of expedited removal, the private interest at stake could not be more apparent. An asylum seeker facing deportation risks returning to persecution, torture, or death, which are the exact harms non-refoulement is intended to prevent. Under Matthews, the greater the private interest, the more due process is constitutionally required. No interest is heavier than life and liberty itself. This factor clearly weighs in favor of asylum seekers and demands durable procedural protections. 

The second factor requires courts to consider the effect of the private interest in the event of an inaccurate determination, as well as the value of any additional procedural safeguards. This is where expedited removal fails most evidently. The credible fear screening, a brief interview conducted by a single low-level officer with no requirement of legal representation, no guaranteed interpreter, and no meaningful or timely appellate review before deportation, is a procedure structurally subject to error. These processes failed to adequately account for the trauma response that affects how fear is communicated. 

Additional safeguards, such as mandatory legal representation and independent review of negative credible fear determinations, would substantially reduce the risk at a comparatively modest cost. Empirical estimates suggest that legal representation in asylum cases typically costs between $3,000-$8,000 for standard cases, and it rarely exceeds $15,000 even in complex proceedings [18]. This is a one-time cost per person in a system that processes hundreds of thousands of removals annually. Yet, unrepresented asylum seekers are granted protection at drastically lower rates, suggesting that the absence of counsel, not the merits of the claim, is often the determining factor [19]. According to the U.S. Commission of Religious International Freedom, asylum seekers without counsel were granted asylum only 2% of the time, while 25% are granted asylum with counsel [20]. These dynamics indicate that relatively modest expenditures on counsel could prevent a significant number of erroneous removals. Counsel dramatically lowers the risk of wrongful denial, reducing system inefficiencies, meaning the additive safeguards are not purely additive costs, but offer meaningful returns. In monetary terms, the Legal Services Corporation found that the reported return on investment (ROI) when providing civil legal aid across 42 statewide studies ranges from $1.15 to $17.99 per dollar spent [21]. Between the studies, this averages to $6.72 per dollar spent, with a median of $6.77 per dollar spent. Thus, in the case of asylum, the government would actually save money by providing legal counsel.

The third factor requires consideration of the government’s interest, including the responsibility involved and the financial and administrative burdens that additional or substitute procedural requirements would entail. The government has a legitimate interest in managing border security efficiently and deterring irregular migration. These interests are real; however, they do not justify a system that routinely produces wrongful deportations. The financial burden of providing legal representation at the credible fear stage or establishing independent review bodies is not so prohibitive that it risks returning people to persecution. In fact, the financial burden is proven to be likely profitable. The government is already legally obligated under the Refugee Act and CAT to conduct individualized assessments before removal. The third element of Matthews does not permit the government to uphold this obligation weakly. The test only asks whether the additional burdens are proportionate to the issue at hand. In this case, they clearly are.

When the three elements of the Matthews test are applied, expedited removal fails the constitutional standard. The interest at stake is survival. The risk of a wrong decision is well-documented, and the consequences are irreversible. The government’s efficiency interests, while legitimate and considered, cannot tip the scales against those two realities. Due process does not demand perfection, but it does demand that an individual's right to survival be maintained as best as possible. One rushed interview, conducted without a lawyer or appeal, does not clear that bar.

Further, the United Nations High Commissioner for Refugees (UNHCR), the body charged with supervising compliance with the 1951 Convention, has repeatedly stated that accelerated border procedures must include adequate safeguards to ensure non-refoulement. Specifically, the UNHCR’s guidance makes clear that such procedures are only permissible when accompanied by individualized assessment and a meaningful opportunity for appeal [22]. Expedited removal, as currently structured, violates neither requirement. The real-world consequences of this procedural failure are not hypothetical. Human Rights First documented thousands of reported attacks, including kidnappings, torture, and sexual assault, against asylum seekers who were returned or stranded in Mexico under Title 42 and related policies (between January 2021 and April 2022). In 2025, the Trump administration removed asylum seekers without conducting the legally required credible fear screening at all. This practice is both a direct violation of U.S. statutory law as well as international treaty obligations. These are not isolated failures; they are the predictable result of a system that is designed for inconsiderate speed over accuracy and safety [23].

Domestic courts have also stated that expedited removal procedures are legally restricted. In Grace v. Whitaker (2018), the U.S. District Court for the District of Columbia struck down executive policies that had imposed heightened standards during credible fear screenings [24]. They ruled that they conflicted with the INA and Congressional intent. The court found that several of the new credible fear policies violated both the Administrative Procedure Act and the INA, concluding that these policies must be set by Congress, not the executive branch; thus, those policies were unlawful. This ruling confirmed that the executive branch’s power to design expedited removal procedures is not unlimited. Instead, it is constrained by Congress and its statutory framework that is constructed to ultimately protect asylum seekers.

The government offers several defenses of expedited removal. First, the plenary power doctrine. The principle is rooted in cases like Shaughnessy v. United States ex rel. Mezei (1953) and allows Congress and the executive branch broad, nearly unreviewable authority over immigration enforcement [25]. Shaughnessy is considered the Supreme Court’s strongest statement of the plenary power doctrine in immigration law. In this case, the Court upheld the indefinite detention of Ignatz Mezei, a long-time lawful permanent resident who was denied re-entry after a trip abroad, on the basis that the government was not required to disclose its reasons for exclusion. This decision also cemented the entry fiction doctrine, treating Mezei as legally non-entered and therefore outside the protections of due process, despite his physical presence on U.S. soil. The decision was 5-4, with four justices dissenting because Mezei’s indefinite detention without a hearing violated due process. Second, the government points to the Department of Homeland Security v. Thuraissigiam (2020), in which the Supreme Court held that asylum seekers in expedited removal have limited habeas corpus rights, giving the executive significant discretion to remove individuals without the judicial branch getting involved [26]. Third, the government argues that asylum seekers at ports of entry have no constitutional rights as they have not formally entered U.S. territory. Under the entry fiction doctrine established in Shaughnessy v. United States ex rel. Mezei (1953), individuals stopped at the border are legally treated as if they have not entered the United States, even if they are physically present on U.S. soil. This limits their access to constitutional protections, including the Fifth Amendment’s due process [27].

But these defenses are flawed. Regarding the Fifth Amendment, the Supreme Court has repeatedly held that due process protections are not limited to citizens. The text of the Fifth Amendment itself prohibits deprivation of liberty without due process for “any person” not “any citizen” [28]. In Zadvydas v. Davis (2001), the Court explicitly confirmed that the Due Process Clause applies to noncitizens within U.S. territory. Additionally, in Yamataya v. Fisher (1903), the Supreme Court found that noncitizens are required due process, specifically in the deportation process [29]. Thus, regardless of the asylum seeker’s citizen status, they have a right to due process, especially in non-refoulement cases. Then Matthews established the balancing test courts use to evaluate what process is constitutionally required. This framework has been used by courts to guide noncitizen removal proceedings for a long time. While the entry fiction doctrine does limit some constitutional protections at the border, Thuraissigiam addressed only the narrow question of habeas corpus relief. The ruling did not shield expedited removal from all Fifth Amendment scrutiny, nor did it authorize procedures that conflict with statutory rights that Congress directly extended to asylum seekers, regardless of entry status.

Even if the Court were to accept that the Fifth Amendment does not fully apply at the border, non-refoulement obligations under the CAT still bind the United States to an absolute degree. CAT Article 3 contains no exceptions, nor for national security, sovereignty, or the entry fiction doctrine. The plenary power doctrine, even though it is broad, cannot override binding treaty obligations that the United States voluntarily assumed. The United States then enacted the Refugee Act of 1980 to bring U.S. law into compliance with international refugee norms. Congress intended non-refoulement to be enforced domestically, as Whitaker confirms. Sovereignty is not a license to return people to persecution.

Furthermore, at the heart of a yet-to-be-decided (as of April 2026) case in Noem v. Al Otro Lado is a border enforcement practice the government refers to as “metering” [30]. This is a policy under which U.S. Customs and Border Protection officers (CBP) stationed themselves just north of the international boundary line at ports of entry along the U.S.-Mexico border and physically blocked asylum seekers from stepping onto American soil. CBP determined that once noncitizens set foot on U.S. soil, they could not send them back to Mexico without conducting an inspection, so they instructed their border officials to stop people just before the boundary line when enforcing the metering policy. The practical consequences were severe. Asylum seekers were turned back into Mexico, sometimes on false claims that there was no capacity to process them, forced to wait for years at the border in vile conditions, falling victim to cartel members, and many were violently assaulted, kidnapped, raped, or murdered, as noted by Human Rights First [31]. The legal consequence was equally as detrimental. By stopping people before they “arrived,” the government argued it had no obligation to inspect them, no obligation to accept asylum applications, and no obligation to conduct a credible fear interview, because of the INA’s requirement that immigration officials inspect all noncitizens seeking admission and refer any asylum seekers for an eligibility interview only attaches once someone “arrives in” the United States.

The Supreme Court heard oral arguments on March 24th, 2026, so the decision lies in their hands on what is to come. If the Supreme Court concludes negatively––ruling that a person stopped on the Mexican side of the border has not “arrived in the United States”––the implications extend far beyond reinstating one obsolete policy. A decision in favor of the government could validate a broader strategy of externalizing or proactively preventing asylum processing, shifting the point at which legal obligations attach further away from U.S. territory, and could provide a framework for future administrations to implement similar restrictions, including caps, an appointment system, or physical barriers that limit who may seek protection, further violating international non-refoulment standards [32]. At the constitutional level, it would confirm that the executive branch can use enforcement positioning to define and defeat its own statutory obligations, allowing physical geography controlled by government officers to override rights Congress wrote into law. Liberal justices at oral argument flagged exactly this danger, warning that if the government’s reading were taken literally, it would encourage people to enter the country illegally rather than presenting lawfully at posts of entry; as lawful entry would paradoxically carry greater risk than unlawful crossing [33]. This would undermine Congress’s intent when it created the port-of-entry asylum system. A ruling for the government in Al Otro Lado would close the two pathways asylum seekers have historically relied on simultaneously. Metering would block the lawful port-of-entry route entirely, while expedited removal, now expanded nationwide, would sweep up those who entered between ports, carrying what the D.C. Circuit itself described as serious risks or erroneous summary removal by quickly deporting people with little process for them to challenge [34]. The result would be a legal structure in which the right to seek asylum exists on paper but is unreachable in practice. This would violate both global non-refoulment obligations directly and the Refugee Act of 1980, which were meant, in concert, to prevent this exact condition. Thus, the Supreme Court must rule in favor of asylum seekers, in order to protect asylum seekers’ rights and the United States’s obligations with the U.N.

Overall, the United States cannot comply with its non-refoulement obligations when expedited removal denies asylum seekers meaningful due process at ports of entry. The credible fear standard, the absence of guaranteed counsel, the lack of meaningful appellate reviews, and the structural pressures of a system that prioritizes speed over accuracy and safety create an unacceptable and documented risk of wrongful return. International law, through the 1951 Convention, the Convention Against Torture, and customary international law, requires more. Domestic law, through the Refugee Act, the INA, and the Constitution, requires more. Finally, the thousands of asylum seekers who have faced violence after being turned away at the border deserve more. At a minimum, mandatory legal representation at the credible fear stage and independent review of negative credible fear determinations are the essential first steps. Non-refoulement is not optional; it is the legal baseline every asylum system must meet, and expedited removal does not do so.

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[1] HUMAN RIGHTS FIRST, The Human Impact of Anti-Asylum Policies,  https://humanrightsfirst.org/harms-tracker/ (last visited Mar. 26, 2026).

[2] UNITED NATIONS HIGH COMMISSION FOR REFUGEES, Frequently asked questions about the 1951 refugee convention (Jun. 1, 2001), https://www.unhcr.org/us/news/frequently-asked-questions-about-1951-refugee-convention.

[3] U.S. CITIZENSHIP AND IMMIGRATION SERVICES, Asylum, https://www.uscis.gov/humanitarian/refugees-and-asylum/asylum (last visited Mar. 26, 2026).

[4] 8 U.S.C. § 1158 (2024). 

[5] UNITED NATIONS HIGH COMMISSION FOR REFUGEES, The 1951 Convention Relating to the Status of Refugees and Its 1967 Protocol (Sep 2011), https://www.unhcr.org/sites/default/files/legacy-pdf/4ec262df9.pdf. 

[6] Convention Relation to the Status of Refugees, Jul. 28, 1951, 189 U.N.T.S. 137.

[7] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.

[8] Pavitra Khaitan & Jvalita Krishan, The Obligation of Non-Refoulement and Its Erga Omnes Partes Character, HARVARD INTERNATIONAL LAW JOURNAL, Dec. 24, 2022, https://journals.law.harvard.edu/ilj/2022/12/the-obligation-of-non-refoulement-and-its-erga-omnes-partes-character/.

[9] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980).

[10] 8 U.S.C. § 1231.

[11] Zadvydas v. Davis, 533 U.S. 678 (2001).

[12] AMERICAN IMMIGRATION COUNCIL, Expedited Removal Explainer (Feb. 20, 2025), https://www.americanimmigrationcouncil.org/fact-sheet/expedited-removal/.

[13] HUMAN RIGHTS FIRST, Flawed Expedited Removal Denies Refugees Asylum Hearings (Sep. 19, 2022), https://humanrightsfirst.org/library/flawed-expedited-removal-denies-refugees-asylum-hearings/.

[14] HUMAN RIGHTS FIRST, Trapped, Preyed Upon, and Punished (May 7, 2024), https://humanrightsfirst.org/library/trapped-preyed-upon-and-punished/.

[15] Julie Veroff, Asylum Officers Are Being Replaced by CBP Agents, ACLU (May 6, 2019), https://www.aclu.org/news/immigrants-rights/asylum-officers-are-being-replaced-cbp-agents.

[16] Mathews v. Eldridge, 424 U.S. 319 (1976).

[17] Joseph Landau, Due Process and the Non-Citizen: A Revolution Reconsidered, 47 CONNECTICUT LAW REVIEW 3 (Feb. 2015), https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1614&context=faculty_scholarship.

[18] Ilona Bray, Applying for U.S. Asylum: How Much Will It Cost?, NOLO (Nov. 24, 2025), https://www.nolo.com/legal-encyclopedia/how-expensive-obtain-asylum-the-us.html.

[19] AMERICAN IMMIGRATION COUNCIL, Access to Council in Immigration Cases (Sep. 28, 2016),  https://www.americanimmigrationcouncil.org/report/access-counsel-immigration-court/.

[20] U.S. COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM, Report on Asylum Seekers in Expedited Removal - Executive Summary (Feb. 8, 2005), https://www.uscirf.gov/sites/default/files/resources/stories/pdf/asylum_seekers/execsum.pdf

[21] LEGAL SERVICES CORPORATION, The Economic Case for Civil Aid: A Systematic Review of Economic Impact Studies (2025), https://dcaccesstojustice.org/wp-content/uploads/2025/05/Economic-Impact-of-Civil-Legal-Aid-Brief.pdf.

[22] UNITED NATIONS HIGH COMMISSION FOR REFUGEES, UNHCR Note on the Principle of Non-Refoulement (Nov. 1997), https://www.refworld.org/policy/legalguidance/unhcr/1997/36258.

[23] Rebecca G, Remain in Mexico: Unlawful, Ineffective, and Must Never Return, HUMAN RIGHTS FIRST (Jan. 10, 2025), https://humanrightsfirst.org/library/remain-in-mexico-unlawful-and-ineffective/.

[24] Grace v. Whitaker, 344 F. Supp. 3d 96 (D. D.C. 2018).

[25] Shaughnessy v. U.S. ex rel. Mezei, 345 U.S. 206 (1953).

[26] Department of Homeland Security v. Thuraissigiam, 591 U.S. 103 (2020).

[27] Brandon Hallett Thomas, Separation of Powers in Thuraissigiam: The Entry Fiction as Judicial Aggradizement, 136 HARVARD LAW REVIEW FORUM 3, Jan. 2023, https://harvardlawreview.org/wp-content/uploads/2023/01/136-Harv.-L.-Rev.-F.-226.pdf.

[28] U.S. CONST. amend. V.

[29] Yamataya v. Fisher, 189 U.S. 86 (1903).

[30] Vanna Carter & Olivia Hussey, Noem v. Al Otro Lado, LEGAL INFORMATION INSTITUTE, https://www.law.cornell.edu/supct/cert/25-5 (last visited Apr. 7, 2026).

[31] THE FINANCIAL, The Supreme Court Hears Asylum Turnback Case: What You Need to Know (Apr. 1, 2026), https://finchannel.com/the-supreme-court-hears-asylum-turnback-case-what-you-need-to-know/130077/americas/2026/04/.

[32] Alex Short, Noem v. Al Otro Lado: A Supreme Court Showdown Over Meaning of “Arrival” in U.S. Asylum Law (Mar. 24, 2026), LEHIGH VALLEY IMMIGRATION LAW LLC, https://www.lehighvalleyimmigrationlawyers.com/blog/noem-v-al-otro-lado-a-supreme-court-showdown-over-the-meaning-of-arrival-in-us-asylum-law.

[33] Emma Pitts, A single word could decide asylum policy: Supreme Court hears border case (Mar. 25, 2026), DESERET NEWS, https://www.deseret.com/politics/2026/03/25/supreme-court-oral-arguments-asylum-case-trump-administration-immigration-rights/.

[34] Rebecca Beitsch, Appeals court upholds ruling blocking Trump plan for expedited removals (Nov. 24, 2025), THE HILL https://thehill.com/regulation/court-battles/5620147-appeals-court-blocks-trump-expedited-deportations/