The Biden administration is reportedly preparing to launch a program that would subject people who seek asylum at the U.S.-Mexico border to truncated fear screenings while locked up in Customs and Border Protection (CBP) detention centers. Under the previous administration, over 5,000 asylum seekers were detained and rapidly deported under similar policies known as Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP). Reports that the Biden administration is now preparing for a new iteration of the Trump policy, which President Biden has previously condemned, follow prior announcements of its plans to increase the use of expedited removal.
What is Expedited Removal?
“Expedited Removal” is a process by which people may be rapidly deported without ever seeing an immigration judge. Asylum seekers in expedited removal must pass a preliminary screening in order to have access to full adjudication of their asylum claim. This screening, called a Credible Fear Interview (CFI), is meant to set a “low bar” and usher asylum seekers towards full processing.
In practice, this low bar has become an insurmountable hurdle for many reasons. First, CBP frequently fails to refer people for CFIs. Second, even where CBP properly refers people, the CFI process is often dizzying for asylum seekers, who are frequently detained, need guidance on U.S. asylum law, and lack the time and language access they need to prepare for this consequential interview. Third, people placed in expedited removal rarely can secure legal counsel, who would properly guide them through this process and help them articulate their story to a Department of Homeland Security (DHS) asylum officer.
Failing this initial screening has life-or-death consequences. Under expedited removal, people who fail CFIs can be deported (without seeing a judge to present their claim) and barred from re-entry for five years. Someone who fails a CFI and is deported under expedited removal may be prevented from ever seeking asylum in the future — no matter how faulty the prior screening was, or the conditions they faced when they underwent this screening.
Despite these systemic flaws, the Biden administration has indicated it plans to ramp up the use of expedited removal, particularly once Title 42 is no longer in effect. DHS Secretary Mayorkas has made clear that the administration views the use of expedited removal as a counterpart to criminal prosecutions for unauthorized migration, effectively punishing individuals for seeking protection at the border.
What was PACR/HARP?
PACR/HARP refers to a program implemented by the Trump administration that rushed asylum seekers through CFI processing within a 72-hour window, while they were locked up in a CBP detention center. PACR/HARP essentially flipped CFI pass rates on their head: instead of nearly 75% of asylum seekers passing their CFIs, passage rates plummeted to less than 25%. Most people were rushed through their screenings, detained and alone, without any semblance of due process protection. PACR/HARP led to prolonged time in CBP’s unsanitary and unsafe jails and years of delays. PACR/HARP was unfair, inhumane, and inefficient.
PACR/HARP drew condemnation from both Congress and President Biden. Members of Congress led bicameral letters calling for the end of this anti-asylum policy. Nearly two years ago and shortly after taking office, President Biden called for DHS to cease all implementation of PACR/HARP in Executive Order 14010. Unfortunately, the Biden administration appears poised to rekindle a version of this rapid removal policy.
Why is it harmful to conduct CFIs in CBP detention?
Holding asylum seekers in CBP custody while rushing them through fear screenings is a recipe for disaster. CBP custody is largely inaccessible to attorneys and legal service providers. Conditions in CBP jails are so unsanitary that a federal court has found them to be unconstitutional. Abuse is rampant (CBP holding cells are infamously referenced as “dog pounds” or “ice boxes”) with scant oversight, putting lives at risk. These conditions would unsettle anyone, including people fleeing life-threatening harm and required to confide their greatest fears to the U.S. government.
Further, Freedom of Information Act records under the prior administration revealed that access to counsel is a near impossibility under these conditions. Telephonic consultations, even if they become available, are no substitute for fulsome attorney consultations necessary to prepare for these crucial interviews.
Finally, the fatal flaws of expedited removal are compounded when the process occurs within the confines of detention. Just last year, asylum seekers documented a wide range of disturbing practices occurring during current CFI adjudications, including routine scheduling of interviews without notice to counsel; interviews proceeding without proper interpretation, at disparate harm to Black and Indigenous asylum seekers; adjudicators requiring higher burdens than the low bar set by Congress for this initial screening; and subjecting traumatized asylum seekers and torture survivors to adversarial treatment. Unfortunately, these practices are not isolated. Mistreatment, barriers to phone calls and legal counsel, and due process violations are pervasive throughout the U.S. immigration detention systems operated by CBP and U.S. Immigration and Customs Enforcement (ICE). Compounding these systemic problems by forcing asylum seekers through processing while in detention will mean summary returns to harm for asylum seekers.
“When I first told my story, I thought that people wouldn’t listen to me, that people wouldn't believe me. Ultimately, it was important that I had the opportunity to tell my story to a judge, as the environment in court was very different from that of the credible fear interview.”
— Iris, NIJC client and asylum seeker
What should the Biden administration do instead of expedited removal or Title 42?
Speeding up CFIs at the border, whether in CBP or ICE custody, will not yield a fair asylum system. Once more, it will recycle past Trump abuses and rush asylum seekers to their deportation without due process. NIJC has proposed five steps that the Biden administration can take to address the humanitarian need at the border in compliance with domestic and international refugee law. These include redirecting funding to support community welcoming efforts and restoring a fair asylum processing system, instead of detention that retraumatizes asylum seekers and sets them up for failure.
Freedom to heal, secure legal counsel, and access basic resources are human rights. While expedited removal was crafted over 25 years ago, decades of have made clear that people genuinely struggle when they are forced to share their story within days of arrival, especially in a jail setting. People who come to the U.S. in search of protection deserve to have their claims heard in a fair and humane setting. There is still time for the Biden administration to reverse course and enable asylum seekers to share their stories with the proper support in place.
Follow an Asylum Seeker through the Expedited Removal Process:
