The Biden Administration Continues to Thwart Access to Counsel for People Seeking Asylum
This spring, the Biden administration relaunched a Trump-era program forcing people who ask for asylum at the southern border through expedited and truncated asylum screenings while in Customs and Border Protection (CBP) custody. CBP’s own standards state that people should not be held in CBP custody longer than 72 hours, yet this program results in detention lasting days or even weeks longer than that. Forcing people through a complex and emotionally taxing asylum screening process in this environment inevitably results in systemic barriers to legal access and rapid deportations that send people directly back to persecution, torture, or death. The National Immigrant Justice Center (NIJC) and more than 100 other organizations continue to call on the Biden administration to end the harmful and abusive practice of conducting fear screening in CBP custody.
NIJC has been attempting for the past six weeks to provide legal services to people forced to undergo these screenings, known as credible fear interviews (CFIs), while still in CBP custody. To date, NIJC has conducted legal consultations with 23 people. These services are exclusively telephonic, as CBP continues to deny attorneys physical access to CBP facilities. On May 25, NIJC issued our first report describing the ways in which the government actively undermines access to counsel in order to rush people through to deportation. Unfortunately, little has changed in the weeks since. NIJC’s attorneys continue to experience obstacles at every turn as they try to provide consultations and representation to people undergoing this expedited process while navigating the harmful new asylum ban that NIJC and other immigration advocates are challenging in federal court.
This second report outlines how CBP and U.S. Citizenship and Immigration Services (USCIS) continue to routinely and severely obstruct access to counsel for people attempting to seek asylum in CBP custody. The data shared here is cumulative since NIJC began attempting to provide legal services in early May. Those barriers include: limiting access to phones for legal consultations; failing to notify attorneys of their clients’ scheduled screenings and immigration court reviews; denying asylum seekers in CBP custody access to pen and paper; and requiring that people physically sign a notice of entry of appearance to secure the attorney/client relationship, while often failing to facilitate the required signature.
“Forcing people seeking asylum through credible fear interviews in CBP custody is cruel. Detaining those who come to seek safety is wrong. Curtailing an already restrictive process and treating asylum screening like a deportation machine is wrong. One person I represented had been held in CBP custody for two weeks before she spoke with an asylum officer. During that time, she was denied medical attention despite asking for treatment for her anxiety. She has since been deported, but the government has not told me or her mother to where she was deported.”
— Lee VanderLinden, NIJC supervising attorney
Findings:
1. USCIS failed to notify NIJC attorneys of their clients’ scheduled fear interviews.
As of June 9, 2023, NIJC had agreed to provide legal representation for 13 people in CBP custody after conducting a legal consultation with them by telephone. In every case, the attorneys submitted a notice of entry of appearance of counsel to CBP and requested to be present at their clients’ CFIs. The CFI is the threshold screening interview to determine asylum eligibility, and a denial can result in immediate deportation. The Biden administration is currently requiring many people to undergo their CFI within 24 hours of arrival in the United States. In 10 of these 13 cases, USCIS failed to notify NIJC of the interview and subjected the person to their CFI without counsel. In one of the three cases where NIJC did receive notice of the interview, it was only because the client shared the name and phone number of his NIJC attorney with the asylum adjudicator and asked them to call before proceeding with the interview.
USCIS’s failure to notify counsel of scheduled CFIs is all the more shocking given that NIJC’s attorneys have been zealous and diligent in communicating with USCIS and CBP to request notification. An NIJC attorney seeking to represent two asylum seekers in CBP custody emailed her notices of appearance and requested to attend her clients’ CFIs on three separate occasions over the span of five days. She received no acknowledgement or response. Only upon notifying officials at Department of Homeland Security (DHS) headquarters of these cases was she informed that both of her clients had already been interviewed without counsel present.
NIJC’s legal team has observed significant technical problems with the systems DHS and EOIR use to schedule immigration judge reviews and to record notices of appearance of counsel.
2. The Executive Office for Immigration Review (EOIR) failed to notify NIJC attorneys when their clients were scheduled for immigration judge review after failing their CFIs.
In six cases, EOIR failed to notify NIJC attorneys when an immigration judge review was scheduled after their clients did not pass their CFIs. The stakes are extremely high at an immigration judge review; if the judge agrees with the preliminary denial, the person will be swiftly deported to their country of origin or to Mexico. Although DHS refers cases to EOIR for immigration judge review, DHS has never informed NIJC of the presiding court or hearing date for any clients in CBP custody. Attorneys frequently have to conduct significant research to determine which immigration court is hearing their client’s case to enter their court appearance, hoping that they will be notified of their hearing date and time. Additionally, NIJC clients rarely have an opportunity to consult with counsel prior to the review hearings.
Because the government is rushing people so swiftly through expedited proceedings, NIJC’s legal team has observed significant technical problems with the systems DHS and EOIR use to schedule immigration judge reviews and to record notices of appearance of counsel. In two cases, the people seeking asylum were not permitted to obtain a telephonic consultation with an NIJC lawyer until after they had already failed their CFI. The NIJC attorney then entered their notices of appearance with CBP, but were unable to enter their notices of appearance with the immigration court because their clients’ profiles had not been registered in the immigration court system. The immigration judges proceeded with the CFI reviews and affirmed the denials, without counsel present.
3. CBP regularly refuses to cooperate with attorneys to obtain their clients’ signatures for representation as required by USCIS’s “wet signature” rule.
For most people undergoing asylum screenings in CBP detention, USCIS requires attorneys to obtain a “wet signature” (i.e. physical signature) from their clients in CBP custody to validate their notice of appearance of counsel. This rule is absurd; what it means in practice is that attorneys are required to get a signature from their client even though they are denied access to the facilities where their clients are detained. The only way for attorneys to meet this requirement is to send an unsigned notice of appearance to CBP and for CBP staff to obtain the signature and send it back to the attorney of record. CBP regularly fails to even respond to emails from NIJC attorneys requesting that they facilitate a client’s signature.
In four cases, CBP failed to respond to multiple emails from NIJC attorneys requesting assistance with obtaining their client’s signatures on a notice of appearance. In three of these cases, USCIS proceeded to conduct the clients’ CFIs without counsel present. In the fourth case, USCIS convinced NIJC’s client to return to Mexico on a voluntary return order, a decision with significant legal consequences.
In one case, a USCIS officer told the person they could either proceed without representation or delay their interview by days to seek counsel.
4. In some cases, CBP has fully denied access to consultations prior to CFIs.
Although the Biden administration claims that attorney consultations are available for anyone facing CFI in CBP custody, NIJC has spoken to at least three asylum seekers who were never permitted to call for a legal consultation while awaiting their CFI. In one case, a USCIS officer told the person they could either proceed without representation or delay their interview by days to seek counsel. Fearing more uncertainty and prolonged detention, the client proceeded with the interview and was denied. NIJC immediately entered a notice of representation and received a copy of the CFI decision three days later — one day before the person’s immigration court review. In another case, a CBP officer pointed a person seeking asylum to the phone booths and told him that he could call either his family or an attorney — not both. The client called his family.
Even where CBP has allowed consultations, these consultations are frequently interrupted by dropped calls and time limits. For one person, this meant telling NIJC of the sexual abuse she survived as a child over three calls and through very poor sound quality. It was her first time telling anyone, let alone an attorney she just met telephonically, of the trauma she had suffered.
5. CBP continues to deny access to pen and paper.
In response to concerns raised by NIJC and other legal service providers about CBP’s failure to provide pens and paper for people who were being forced to memorize critical information about the CFI process and U.S. law during their telephonic legal consultations, CBP assured legal service providers that people would have access to these basic supplies. However, in most cases CBP still refuses to allow people access to pen and paper during their consultations.
Of the 23 people for whom NIJC has conducted consultations, only six people had access to a pen and paper (half of whom received them only upon NIJC’s request). In one case, a CBP officer told an NIJC attorney that these basic supplies were in “short supply.” Pens and paper are critical to help people remember their attorney’s name and phone number in addition to complex legal information. In one case, the only reason USCIS called NIJC before conducting a CFI was because the client had the name and number of their attorney written down and requested that they be contacted.
6. DHS is subjecting people with specific vulnerabilities and past trauma to expedited processing in CBP custody.
NIJC’s clients include individuals with specific vulnerabilities for whom the process of a truncated screening process is often re-traumatizing and destabilizing. The people NIJC has represented in CBP custody include two 19-yearold youth, two LGBTQIA individuals, and at least two survivors of childhood sexual abuse. They each were forced to recount their past trauma to an attorney and to an asylum officer within 24 hours of arriving in the United States, all while sitting alone in a phone booth in a carceral setting.
Inevitably, the combination of rapid processing programs with the asylum ban leads to unlawful removals and even more deviation from proper protocol intended to screen whether a person has a credible fear of persecution if they are removed from the United States.
7. Due process violations of rapid processing are compounded by the asylum ban.
NIJC has recently begun serving asylum seekers who face double punishment as they seek protection in the United States: not only are they forced to undergo rapid screenings while in CBP jails, but they also face the Biden administration’s asylum ban. Nearly half of asylum seekers NIJC has served (11 out of 23) are subject to the asylum ban. The ban has required both NIJC and USCIS to engage in, and indeed focus on, lines of inquiry that are unrelated to the individual’s fear of return to their country of origin, such as their use of the fundamentally flawed CBP One mobile app and whether they sought asylum en route to the United States.
Inevitably, the combination of rapid processing programs with the asylum ban leads to unlawful removals and even more deviation from proper protocol intended to screen whether a person has a credible fear of persecution if they are removed from the United States. Because the Mexican government has agreed that the United States can remove people of certain non-Mexican nationalities to Mexico, asylum officers’ questions in many CFIs have shifted to focus on whether a person is afraid to return to Mexico, rather than whether they fear return to their country of origin. One NIJC client, a political dissident from Cuba, underwent a full CFI during which the asylum officer’s questioning focused exclusively on the harm she may face if returned to Mexico, rather than Cuba. The implications are dizzying for asylum seekers already navigating punitive and inhumane policies with little to no support.
A key Biden administration justification for this harmful program is its speed; however, due process violations and arbitrary transfers have led to at least one NIJC client spending nearly a month in custody. Two clients were transferred hundreds of miles to Louisiana ICE facilities without any notice to NIJC, prompting fears of imminent removal as attorneys frantically searched for their clients’ whereabouts.
8. People seeking asylum are spending weeks in dangerous CBP jails, where most are unable to connect with legal services.
Attorneys and family members have no way to identify where people are being detained. Unlike Immigration and Customs Enforcement, CBP does not have any mechanism that allows attorneys or family members to identify where their clients are detained. It is onerous and often impossible for attorneys to contact their clients during this expedited process because there is no uniform or reliable way to call or schedule a call with a client in CBP custody.
Additionally, NIJC continues to struggle to overcome the logistics of CBP’s telephone system. NIJC’s legal team has been told that CBP is unable to patch more calls through to attorneys because CBP does not have staff available to do so. We are keenly aware that NIJC is only reaching a tiny fraction of the asylum seekers in CBP custody, and CBP’s ongoing failure to better facilitate even this small number of calls is troubling.
A Biden administration key justification for this harmful program is its speed; however, due process violations and arbitrary transfers have led to at least one NIJC client spending nearly a month in custody. Two clients were transferred hundreds of miles to Louisiana ICE facilities without any notice to NIJC, prompting fears of imminent removal as attorneys frantically searched for their clients’ whereabouts.
CBP detention kills
At least four people NIJC counseled were detained in Donna, Texas, at the same facility where eight-year-old Anadith Tanay Reyes Álvarez developed a life-threatening fever that resulted in her unforgivable and preventable death. Tragically, Anadith’s story is not an anomaly, as many other Black, Brown, or Indigenous children and adults have met untimely deaths in CBP custody over the past few years. Several class action lawsuits have challenged unsanitary and unconstitutional conditions in CBP custody. Nevertheless, the Biden administration has tethered asylum seekers’ fate to CBP by jailing countless people in the same conditions and without proper access to counsel.
Conclusion
After six weeks of attempting to provide legal services for asylum seekers held in CBP custody, NIJC continues to see no justification for this cruel and harmful Biden administration policy. Obstruction of legal access is part of its design, leaving little daylight between the Trump administration’s expedited processing policy and the current administration’s new iteration. DHS must end this program and afford every asylum seeker meaningful access to counsel outside of government jails.