June 20, 2023

“As the Biden administration prepared to launch speedy asylum screenings at Border Patrol holding facilities this spring, authorities pledged a key difference from a Trump-era version of the policy: Migrants would be guaranteed access to legal counsel,” the Associated Press reported on July 2, 2023. A May 1 fact sheet from DHS had explained, “CBP and ICE have expanded holding capacity and set up equipment and procedures so that individuals have the ability to access counsel” (original link).

A report from the National Immigrant Justice Center (NIJC) found otherwise. As of June 20, NIJC had carried out telephonic legal consultations with 23 asylum seekers compelled to defend their cases in rapid, telephonic credible fear interviews (CFIs) with asylum officers while in CBP custody, shortly after being apprehended at the U.S.-Mexico border. The organization found that “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.”

All consultations with clients must happen over the telephone, as “CBP continues to deny attorneys physical access to CBP facilities,” NIJC noted, adding that this makes it impossible to return calls.

Even getting an agreement to represent an asylum seeker before their CFI has been made very difficult: USCIS requires migrants to physically (not electronically) sign a document agreeing to be represented. CBP, however, often fails to deliver those documents to asylum seekers in the agency’s custody, NIJC found:

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 another case, “a CBP officer [probably a Border Patrol agent] pointed a person seeking asylum to the phone booths [in the holding facility] and told him that he could call either his family or an attorney — not both. The client called his family.”

Despite assurances that it would provide asylum seekers with pens and paper to take notes during their telephonic conversations with counsel, “in most cases CBP still refuses to allow people access to pen and paper during their consultations,” NIJC reported.

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.

— U.S. Department of Homeland Security. “Fact Sheet: Update on DHS Planning for Southwest Border Security Measures as the Title 42 Public Health Order Ends,” May 1, 2023. https://www.dhs.gov/news/2023/05/01/fact-sheet-update-dhs-planning-southwest-border-security-measures-title-42-public.

— Spagat, Elliot. “The Biden Administration Guaranteed Attorney Access for All Migrant Screenings. Most Don’t Have It.” Associated Press, July 2, 2023. https://apnews.com/article/border-asylum-screenings-credible-fear-biden-c0cb41b512609b3894ebcfaa3ed3bb4c.

— National Immigrant Justice Center. “Obstructed Legal Access: June 2023 Update,” June 20, 2023. https://immigrantjustice.org/staff/blog/obstructed-legal-access-june-2023-update.

Sector(s): Border-Wide

Agency(ies): CBP

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

Accountability Status: Unknown

Victim Classification: