In early April, the Biden administration began forcing people seeking asylum at the southern border through newly truncated and rushed asylum screenings while in Customs and Border Protection (CBP) custody. The goal of this new program: rapid deportations. This program is a new iteration of Trump-era programs that were known as “PACR/HARP” — Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP) — which President Biden eliminated by executive order. Asylum grant rates plummeted under PACR/HARP because of the severe due process violations that are inherent to rushed asylum screenings in carceral settings.
Until now, following the termination of PACR/HARP, asylum seekers typically underwent asylum screenings while in the custody of Immigration and Customs Enforcement (ICE) or after release from custody, while living in the safety of the community. Asylum screenings in ICE custody are problematic and fraught with issues. The shift from conducting these screenings in ICE custody to CBP custody, however, brings new deeply troubling dynamics to the process, as set forth below.
This brief report provides the preliminary findings and observations of National Immigrant Justice Center (NIJC) legal staff who have been attempting for approximately three weeks to provide legal consultations and representation to people enduring these new expedited credible fear processes. NIJC staff have conducted nine legal consultations. NIJC's findings demonstrate that the government is actively undermining access to counsel, and that the program appears designed to rush people through to deportation without legal advice or representation.
The Biden rapid deportation policies force people to recount their trauma to immigration officers during a credible fear interview (CFI) conducted within hours or days of an often-harrowing journey. The CFI often determines whether a person lives or dies; it is the threshold screening interview to determine asylum eligibility, and a denial can result in immediate deportation. This whirlwind timeline weaponizes the already harmful expedited removal process with the clear goal of further ramping up deportations. When the program launched, NIJC called it a “recipe for disaster” and noted that CBP detention centers are and would likely always be inaccessible to attorneys and legal service providers. These predictions have since become reality. The Biden administration should immediately halt this deadly program.
"Access to counsel in the CBP CFI process is like a mirage. Despite my client requesting my representation, DHS denied me the opportunity to meaningfully advise him or represent him at crucial stages of an incredibly accelerated process. Instead, I was forced to try to relay critical legal advice to him through his wife, who was in a hospital bed being prepared for major surgery."
— Jess Hunter-Bowman, NIJC senior attorney
1. CBP, U.S. Citizenship and Immigration Services (USCIS) and the immigration courts are actively obstructing access to counsel by failing to notify attorneys of their clients’ scheduled credible fear interviews and/or immigration judge reviews.
In six cases, NIJC entered into attorney-client relationships with asylum seekers and filed notices of appearance using Form G-28, which is the form DHS uses to document formal attorney involvement in a matter. Despite formal notice of attorney representation, in none of these cases has CBP permitted the attorney to appear with their client for their credible fear interview. In fact, not once has NIJC been notified in advance when clients have had CFI interviews, despite explicit requests for such notification from NIJC to CBP and USCIS by email. Of the six matters in which NIJC entered attorney appearance forms, one person was released from custody prior to their CFI and another, to the attorney’s knowledge, has not yet been scheduled for their CFI. For the remaining four, NIJC submitted notices of appearance and requested to be present for the clients’ CFIs and any immigration judge review that might follow.
In all four cases, CBP and USCIS proceeded with the CFIs as though the individuals were unrepresented:
- The government conducted CFIs for all four clients and immigration judges reviewed negative CFI determinations for three. The government did not notify NIJC attorneys of these proceedings, whether at the CFI or immigration judge review stage.
- Because of this lack of notice, all four clients underwent CFIs without counsel present. Only one passed their CFI. For each of the three clients who did not, an immigration judge subsequently affirmed the negative finding. They likely have been or soon will be deported on expedited removal orders, consequently facing a five-year bar from returning to the United States and lifetime disqualification from asylum protection.
- An NIJC attorney was only able to appear with a client in one of the three immigration judge review hearings. In this case, the NIJC attorney only knew the review was happening because his client’s wife informed him. CBP refused the attorney’s requests to speak to his client to prepare for the immigration judge review. At the hearing itself, the immigration judge did not permit the attorney to advocate for his client apart from a short opportunity at the end of his client’s testimony to address factual issues.
- In another case, the NIJC attorney determined the time and place of her client’s immigration judge review hearing using the immigration court web portal. She confirmed the time and place the day of the hearing, only to discover when she logged on to appear by video that the hearing had been assigned to a different judge and had occurred hours earlier. Though the NIJC attorney had an appearance on file, which included her direct phone number, the court did not notify her of the change and she missed the hearing. The client’s negative credible fear finding was upheld by the immigration judge and the client will be deported.
Imagine arriving at the border after a harrowing journey and then being forced to absorb an hour’s worth of complex legal information by memory, then sufficiently retain that information and access it without notes during a high-stakes interview with a government official.
2. CBP’s policies and staff render it impossible for most people seeking asylum to understand the CFI process or obtain meaningful legal assistance.
NIJC attorneys have witnessed numerous ways in which policies put in place by CBP and the conduct of CBP staff have blocked meaningful access to counsel.
- “Wet signature requirement”: USCIS requires that people in CBP custody physically, rather than electronically, sign a Notice of Appearance (the form attorneys submit to inform the government they are representing someone as legal counsel) before it is considered valid. In at least two cases, NIJC staff sent a Notice of Appearance to CBP requesting that the client sign and return the forms, and CBP never returned the forms.
- Sporadic access to paper or writing utensils: CBP is not regularly permitting people to have paper or writing utensils with them at legal consultations or during CFIs or immigration judge reviews. Imagine arriving at the border after a harrowing journey and then being forced to absorb an hour’s worth of complex legal information by memory, then sufficiently retain that information and access it without notes during a high-stakes interview with a government official. Impossible for most. Furthermore, without writing utensils, people are unable to even record an attorney’s phone number, making it nearly impossible for clients to contact legal counsel.
- Lack of communication regarding the process: Most people who spoke with NIJC attorneys seemed uncertain and confused as to the process they were undergoing. One person told his attorney he had been taken to the phone booth and told he had to make a call, but with no explanation of who he was calling or why.
- Failure to provide important legal documents: The Form M-444 ("Information about Credible Fear Interview") provides critical information about the credible fear process. Every person undergoing the process should receive this form in a language they understand. However, one person told an NIJC attorney during their consultation they had not received the form. In another case, a CBP officer told an NIJC attorney that the person they were consulting with had been served the M-444, but the person told the attorney he hadn’t received anything. Another person had arrived into CBP custody on May 11, and had not received any paperwork when he spoke with NIJC on May 16. To NIJC’s knowledge, none of the people who consulted with an NIJC attorney received a written decision explaining the outcome of their CFI.
- Unworkable and unsustainable scheduling: The Biden rapid border deportation program rushes people through the CFI and immigration judge review process within days, all while in CBP custody. People have 24 hours to obtain a legal consultation, regardless of when that 24 hours falls. A person arriving on a Saturday at 7 p.m, for example, will have to try to find a lawyer to speak with by phone before Sunday at 7 p.m. It is unworkable and unsustainable for legal service providers to be responsive to a 24/7 on-call model of service provision. One NIJC attorney missed a call from someone likely seeking consultation because it was a Sunday morning and she was on her way to church. At the same time, CBP struggles to facilitate calls to attorneys when attorneys are available. NIJC attorneys typically wait about 45 minutes between calls from asylum seekers in CBP custody during business hours. This means NIJC reaches fewer people than we have capacity to serve, reducing access to counsel.
It is unworkable and unsustainable for legal service providers to be responsive to a 24/7 on-call model of service provision. One NIJC attorney missed a call from someone likely seeking consultation because it was a Sunday morning and she was on her way to church.
3. Requiring people seeking asylum to undergo processing and legal consultations telephonically and while in CBP custody is harmful for survivors of trauma and undercuts people’s ability to successfully present their claims.
Legal consultations regarding asylum eligibility are frequently highly personal and intimate, involving details of past trauma including sexual assault, imprisonment, and torture. In order to provide proper legal advice, NIJC staff must also elicit intimate details about a person’s identity, including gender identity and sexual orientation.
CBP does not allow attorneys to enter its facilities, nor has the agency established video conferencing as an option for the new rapid deportation program. All legal consultations as well as the CFI and immigration judge reviews are conducted by telephone. Many people will simply not feel comfortable disclosing trauma and intimate personal details by phone, undercutting their ability to understand and present their claims. This barrier is particularly detrimental for survivors of gender-based violence and LGBTQI individuals, who may not know intuitively that their experiences may form the basis of an asylum claim in the United States.
NIJC attorneys observed significant distress among the people who received legal consultations, as they were asked to divulge intimate information by phone within minutes of “meeting” the attorney. People also struggled to absorb the news that they would have to again share the details of their past trauma during a CFI that would occur within hours.
With this new CFI program, the U.S. government is actively exacerbating the trauma and suffering of people seeking asylum. In one case, an NIJC attorney spoke with an asylum seeker who discussed a rape she had recently survived in the context of her asylum claim; it was the first time she had disclosed the details of the rape to anyone. In another case, the person consulting with NIJC explained that he was desperate to be released from custody so he could reunite with his U.S. citizen wife and infant child in the United States, as his wife suffers from a serious illness and he feared she did not have much longer to live.
With this new CFI program, the U.S. government is actively exacerbating the trauma and suffering of people seeking asylum.
4. Despite claims to the contrary, CBP is putting Indigenous language speakers through the rapid deportation process.
Access to interpretation for Indigenous language speakers is challenging for both the government and legal service providers, and is impossible to obtain in the truncated time periods of the new program. For this reason, the government has assured legal service providers that it will not place people who speak primarily Indigenous languages through this rapid CFI process. However, this claim was proven false in the case of one person assisted by NIJC, who required interpretation in an Indigenous language. The woman had survived extensive physical trauma, could not express herself fully in Spanish, and specifically requested that her CFI be conducted with a woman. The attorney later learned that the client had been released due to language barriers; nonetheless, it is concerning that she was placed into the program to begin with, especially for the countless individuals who do not have the opportunity to connect with a legal advocate while in CBP custody.
The Biden rapid deportation program overtly denies people meaningful access to legal advice and counsel as they undergo a process that could well determine whether they live or die. This reality is all the more insidious given government officials’ public relations claims that the program would in some way expand legal services. NIJC calls on the administration to stop forcing people to undergo credible fear screenings in CBP custody and to instead ensure that people seeking asylum can do so safely and in a trauma-informed manner and while living in communities where they have access to networks of support.