A Reasonable Possibility of Refoulement: The Inadequacies of Procedures to Protect Vulnerable Noncitizens from Return to Persecution, Torture, or Death

Abstract

Due primarily to increases in individuals fleeing violence and turmoil in Central America, over 40% of noncitizens arriving in the United States are put on a fast-track removal process and subsequently claim fear of returning to their home countries. A decade ago, the number was only 5%. This influx of asylum-seekers at the border has led to tension between those who wish to protect them and those who view such migrants as “invaders.” In 2019 and 2020, the Trump Administration proffered sweeping regulatory changes with the aim to substantively and procedurally restrict noncitizens’ access to protection from persecution and torture in their home countries. Although not all of these proposals may ultimately go into effect, it is vital to explore the legality of such provisions lest they reappear in subsequent administrations. Pursuant to domestic and international law, the United States is subject to the non-refoulement obligation, which prohibits forcibly returning a refugee to a country that threatens their life or freedom. All humans have the fundamental right to not be returned to a country where they will be persecuted or tortured, regardless of their legal status in the country where they seek protection. In the United States, noncitizens facing qualifying persecution or torture upon return to their home countries are entitled to protection in the form of statutory withholding of removal (“withholding”) or withholding or deferral of removal pursuant to the Convention Against Torture (“CAT protection”). This Comment argues that noncitizens vindicating their non-refoulement rights by seeking withholding or CAT protection must receive stronger procedural protections because of the fundamental interests at stake. Specifically, two issues are addressed. First, the use of the “reasonable possibility” standard of proof at the fear screening stage, a practice expanded in recent years, is inappropriate and a violation of the non-refoulement obligation. This standard is suited for final determinations on the merits, not threshold screenings. Because of the well-documented problems with fear screenings, even absent an increased standard of proof, this practice would result in an impermissible risk that individuals with valid claims would be returned to face persecution, torture, or even death without ever being fairly heard. Second, the unique position of these noncitizens, from legal and humanitarian perspectives, should entitle them to Constitutional Due Process Clause protections. Because their right to non-refoulement is not subject to the discretion of the Executive, the denial of due process cannot be justified by the “entry fiction,” the legal doctrine that gives certain noncitizens inside the United States limited constitutional protections because the law considers them to be detained at the border.