June 20, 2023

As the National Immigrant Justice Center and the New York Times reported, asylum seekers placed in “expedited removal” are forced to defend their claims while in CBP’s jail-like holding facilities within days of apprehension, resulting in elevated rates of failing the “credible fear” screening interview that determines asylum eligibility (70 percent failure in June 2023, compared to 26 percent in June 2019). A denial can result in immediate deportation.

The Department of Homeland Security (DHS) promised that people in CBP custody would have access to counsel for the interview, though this rarely happens, and that people would not be held for longer than 72 hours, yet numerous reports indicate people being held for 10 days and some for up to 30 days. Various groups have voiced concerns about the expedited removal process and the severe obstructions to access to counsel for people attempting to seek asylum including 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. The Times observed:

Lawyers cannot meet with clients who are in the custody of Border Patrol. Or call them. Or leave messages for them. There is no system to find out where a client is being held. And the government sets the schedules for key meetings when a lawyer should be present and changes dates and times often without notification.

The failure to notify counsel of credible fear interviews has occurred within the context of persistent communication from attorneys requesting notification. Among cases cited:

An NIJC (National Immigrant Justice Center) 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.

The NIJC described the re-traumatizing and destabilizing nature of a truncated screening process, notably for individuals with specific vulnerabilities. Their clients have included youth, LGBTQIA+ individuals, and survivors of sexual violence—each forced to recount their past trauma 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. Lee VanderLinden, NIJC supervising attorney described the process for one of their clients:

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.

— National Immigrant Justice Center. “Obstructed Legal Access: June 2023 Update,” June 20, 2023. https://immigrantjustice.org/staff/blog/obstructed-legal-access-june-2023-update.
—Sullivan, Eileen. “Lawyers Say Helping Asylum Seekers in Border Custody Is Nearly Impossible.” The New York Times, July 22, 2023, sec. U.S. https://www.nytimes.com/2023/07/22/us/politics/biden-asylum-policies-border.html.

Sector(s): Border-Wide

Agency(ies): CBP, DHS

Event Type(s): Denial of Access to Asylum, Denial of Access to Counsel, Denial of Protection to Most Vulnerable

Accountability Status: Unknown

Victim Classification: LGBTQ, Sexual Abuse Victim, Single Adult, Teen