A circuit split has developed concerning whether applicants for asylum are required to receive notice of evidence needed for removal proceedings. The split centers on a provision of the Immigration and Nationality Act (INA) concerning burden of proof in granting asylum.

The question plaguing the circuit courts is whether the DHS’s expedited removal procedures allow aliens to contest only the factual basis for their removal, and not to raise legal arguments. If so, then a non-citizen has an arguable claim that he has not failed to exhaust his remedy; in other words, because there was no remedy to exhaust, the non-citizen is entitled to appellate review.

Based on this ruling by the CAFC, TC Heartland has begun the process of SCOTUS review, relying on the argument that CAFC has unilaterally overturned Supreme Court precedent in neglecting the holding of Fourco. As the amici briefs churn into the SCOTUS docket for this case, it raises the question of just where the Supreme Court will fall on this.