Publication Date



For noncitizens in expedited removal proceedings, obtaining
judicial review of removal orders is an uphill battle. Some
barriers to judicial review are statutory: noncitizens must first
exhaust their administrative remedies, and they may seek
review only in a federal circuit court of appeals. Other barriers
are judicial—i.e., imposed by courts, not statutes.
A circuit split has emerged over one of these judicially
imposed barriers to judicial review. Some courts have held that
expedited removal proceedings do not accommodate legal
challenges to removal. In those circuits, noncitizens preserve the
opportunity for judicial review even when they do not raise a
legal challenge during those proceedings. Other courts have
held that noncitizens must contest the legal grounds for their
removal during expedited removal proceedings. This circuit
split has fragmented the judicial review process for expedited
removal orders, with detrimental effect.
In Sims v. Apfel, the U.S. Supreme Court provided a
framework for assessing the propriety of a judicially imposed
issue-exhaustion requirement. Central to the Court’s analysis
was the degree to which administrative proceedings are
inquisitorial rather than adversarial. But expedited removal
proceedings are neither inquisitorial nor adversarial, and they
offer far fewer procedural protections than full removal
proceedings. This Note argues that, under Sims, requiring issue
exhaustion is inappropriate in appeals from expedited removal
proceedings. In the absence of a statutory mandate, circuit
courts should not construct an additional barrier to judicial
review by imposing an issue-exhaustion requirement.