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NIJC Calls for Program’s Termination

As families continue to flee persecution and torture around the world, the Biden administration keeps introducing new inhumane programs intended to deport people as quickly as possible. The most recent program, the Family Expedited Removal Management (FERM) program run by Immigration and Customs Enforcement (ICE), is short-circuiting families’ access to attorneys, fairness, and a meaningful opportunity to pursue asylum.

In a new policy brief, the National Immigrant Justice Center (NIJC) calls for the Biden administration to end the FERM program, stop detaining and punishing asylum seekers, and restore access to the U.S. asylum process through community-based reception programs. FERM is a program that places parents and children apprehended at the U.S. border into a rapid fear-screening process, while keeping families under heavy surveillance. Borrowing from the carceral and criminal probation system, ICE requires one parent to wear an ankle monitor and remain confined in their home at nighttime — a new “home curfew” that effectively amounts to house arrest despite the fact that these families are in civil asylum processing. Asylum screenings and court hearings occur within days of families’ arrival in their destination cities, as they struggle to address basic necessities such as housing, schooling, childcare, mental health services while under surveillance.

Under these restrictive conditions, most families cannot find an attorney: “I was very nervous when we had our credible fear interview, which was almost two hours long,” a mother, now an NIJC client, said about her experience facing her initial asylum screening under the FERM program. “It was very difficult to explain myself because the officer kept telling me I had to answer questions with only yes or no answers. I wish we had an attorney with us, but I didn’t have time to find an attorney because my interview date was so quick. I was able to speak to a couple of lawyers, but they said my interview was so soon, they could not help me.”

In the policy brief, NIJC legal staff describe the due process obstacles they have encountered while attempting to provide legal services to families subjected to FERM proceedings in the Chicago Immigration Court. The barriers families face closely mirror the systemic obstruction that NIJC recently confronted for asylum seekers in Customs and Border Protection (CBP) jails. Nevertheless, the Biden administration is rapidly expanding FERM, currently in effect in nearly 30 cities nationwide and growing weekly to other parts of the country.

NIJC has been able to provide legal representation to seven families in the Chicago area who were enrolled in the FERM program, far from meeting the need for legal services. NIJC staff have found:

  1. Access to counsel is near impossible under FERM. FERM has no built-in process for families to find attorneys. Local nonprofits who seek to help families, such as NIJC, have no information about how to find them in time to ensure they have lawyers to provide them with guidance. NIJC attorneys have had as little as one day to meet families, review their credible fear interview records, and prepare for their review before the immigration court.
  2. FERM disparately harms Indigenous families. FERM has no restriction on placing Indigenous families in these rushed proceedings. Five of the seven families NIJC has represented have been Indigenous and, in each case, DHS has refused to provide these families with interpretation services in their Indigenous languages during their interviews.
  3. FERM is punitive by design. FERM is premised on restrictive conditions and rushed timeframes, both of which have a punitive impact on families seeking asylum.

NIJC recommends that ICE terminate FERM and other expedited processing in CBP custody to protect asylum seekers’ rights to due process. NIJC and partner organizations have presented numerous and varied solutions to the Biden administration to improve asylum access without jailing or punishing asylum seekers, including enhancing funding, support and coordination with non-governmental organizations providing respite and social and legal services to new arrivals.

Read the policy brief