McALLEN, Texas (Border Report) — Asylum advocates who offer legal aid are raising concerns and want answers about an expedited screening pilot program that the Department of Homeland Security plans to start at border processing facilities in the Southwest.
A DHS spokesperson on Monday told Border Report the new test program will use asylum officers from the U.S. Citizenship and Immigration Services to conduct credible fear interviews at U.S. Customs and Border Protection facilities. This is in anticipation of the end of Title 42 — the pandemic-related rule that has suspended the right to seek asylum for most at the border to prevent the spread of COVID-19. Title 42 is expected to end on May 11.
“As part of ongoing preparation efforts for the end of the CDC’s Title 42 public health order, DHS will work with legal service providers to provide access to legal services for individuals who receive credible fear interviews in CBP custody. This is part of a planning effort underway to initiate a process that would allow migrants to receive credible fear interviews from specially trained U.S. Citizenship and Immigration Services (USCIS) officers while still in U.S. Customs and Border Protection (CBP) custody,” a DHS spokesperson said.
“The process is designed to ensure that migrants have the ability to contact legal service providers,” the spokesperson told Border Report.
But which legal service providers asylum-seekers will be allowed to contact, and how, is still unknown.
The Associated Press, citing anonymous sources, reported Friday that the screenings will be done via phone at CBP temporary holding facilities.
It also is uncertain where on the border the program will start, and with how many detainees. Border Report asked for the locations, but DHS did not supply that information. This story will be updated if additional information is received.
Several legal advocates told Border Report on Monday their biggest worry is that CBP facilities do not allow lawyers inside. Traditionally, credible fear interviews are given to asylum-seekers at U.S. Immigration and Customs Enforcement (ICE) facilities that have special areas for legal consultations. ICE facilities also have formal ways for asylum-seekers to report abuses or denial of representation.
“It matters where the interviews are held. First, for attorney access. Second, for safety and space concerns,” Priscilla Orta, supervising attorney for the South Texas-based Lawyers for Good Government’s Project Corazon, told Border Report on Monday. “ICE has protocols and procedures that are designed to allow attorneys to have meaningful access to their clients or potential clients. ICE isn’t perfect, but they are designed for this type of detention and for these interviews. CBP is different.”
Aaron Reichlin-Melnick, policy director for the American Immigration Council, echoes those concerns. He told Border Report that lawyers have never been allowed inside CBP facilities and wanted to know if DHS is going to change those rules to ensure asylum-seekers receive proper representation.
“The biggest problem with this is that Border Patrol custody has traditionally been a place where lawyers are not allowed. Advocates have been calling on the Border Patrol to permit in-person physical access to clients held in Border Patrol detention for decades. And the agency has always resisted this,” Reichlin-Melnick said. “Getting into one of those facilities is nearly impossible, even if you have a client that’s detained there. So most of this representation would almost by design have to be over the phone. And that is just far less effective, especially when we’re talking about people who often do not have a lawyer in the first place and are simply seeking to have one.”
Border Report asked DHS officials if lawyers would be allowed inside CBP facilities, and if not, how they would communicate. But the spokesperson did not answer those questions.
Too little time
Asylum advocates say they worry that expedited screenings are designed to rush the asylum process. CBP facilities typically hold migrants for up to 72 hours — many don’t even have shower facilities, Orta says. But preparing a credible fear defense can take weeks and she worries this new process does not afford asylum-seekers enough time.
“This interview determines the rest of a migrant’s life. Seventy-two hours is not enough time to prepare. It is not enough time to find an attorney. It is not enough time to develop rapport with an attorney. These interviews ask people to divulge traumatizing information. It requires that they be prepared to share some of the most difficult things they have ever seen. The idea that they are supposed to do this within 72 hours in facilities that aren’t even required to allow showers is inhumane. CBP is simply not designed for this work,” Orta says.
“The Biden administration finds itself in a position where it wants to be able to carry out its new asylum rule when Title 42 lifts in May, and they’re very clearly exploring as many options as they can to carry out these rapid adjudications at the border as quickly as they can,” Reichlin-Melnick said. “We suspect that this is going to lead to a lot of people whose cases are going to get denied who might otherwise have a winnable claim if they managed to talk to an attorney who can help walk them through what the process is, and help them understand how to advocate for themselves.”
Aaron Reichlin-Melnick, American Immigration Council
This is going to lead to a lot of people whose cases are going to get denied.”
“I truly do not understand why the administration refuses to fully prepare and support the system as it currently exists, as imperfect as it may be. They keep trying to put out new programs that are complicated, violate the law, and violate basic human decency,” Orta says.
The DHS spokesperson said the Biden administration is not wed to this plan, and promises that: “This administration will continue to look at every tool available to make asylum processing more efficient, while upholding due process and other protections, as Congress refuses to act to fix our decades-old broken immigration system.”
The spokesperson added that “should it be necessary to expand capacity for credible fear interviews” they will endeavor to do so, and said they will use their efforts to “inform best practices.”
Reichlin-Melnick says this new pilot program appears similar to the controversial PACR/HARP screening programs that were begun in the fall of 2019 under the Trump administration, and formally ended by President Joe Biden in early 2021, shortly after he took office.
The “Prompt Asylum Claim Review” and “Humanitarian Asylum Review Process” (PACR/HARP) for the first time required asylum-seekers who were in expedited removal proceedings to be held in CBP detention facilities, rather than ICE detention centers during their initial asylum screening process. It started as a pilot program in El Paso, and was expanded to several locations in Texas, Arizona and California.
Under those screening programs, less than 10% of asylum-seekers were found to have credible fears that allowed them to stay in the United States, according to a report by the General Accounting Office.
“By keeping asylum seekers in CBP custody, effectively incommunicado and unable to access the help they need to navigate the asylum process, PACR/HARP has undermined the ability of the initial asylum screening system,” wrote Just Security, a publication based at the Reiss Center on Law and Security at New York University’s School of Law.
Reichlin-Melnick says he is glad the Biden administration is not making this new screening pilot program a full policy, without testing it first.
“At least the Biden administration is trying this on a pilot program first, I suppose rather than just throwing everybody into this But we know from the previous use of what seems to be a very similar program, under the Trump administration, that expedited asylum processing is not a good idea,” he said.
Although Biden issued an executive order to end the program in early 2021, the screening programs were actually used for less than five months from 2019 to early 2020 and were stopped by the coronavirus pandemic and the implementation of Title 42, which has since barred migrants from crossing the border from Mexico to claim asylum in the United States.
But migrants have continued to come to the border and cross and many vulnerable populations have proven they have a legitimate credible fear of returning to their home countries. This has led to an increase in immigration court cases.
Currently, there are over 2.1 million pending cases, according to Transactional Records Access Clearinghouse (TRAC) of Syracuse University, which tracks all immigration cases nationwide.