7 Records of Alleged Abusive or Improper Conduct where the event type is “Denial of Access to Counsel”

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

Last Known Accountability Status: Unknown

Victim Classification:

June 20, 2023

“One person I represented had been held in CBP custody for two weeks before she spoke with an asylum officer,” said National Immigrant Justice Center (NIJC) Supervising Attorney Lee VanderLinden, in an NIJC report about CBP blocking access to counsel for asylum seekers in the agency’s custody. “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.

Sector(s): Border-Wide

Agency(ies): CBP

Event Type(s): Conditions in Custody, Denial of Access to Asylum, Denial of Access to Counsel, Denial of Medical Care

Last Known Accountability Status: Unknown

Victim Classification: Female

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

Last Known Accountability Status: Unknown

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

May 25, 2023

“An NIJC attorney was only able to appear with a client in one of the three immigration judge review hearings,” read a National Immigrant Justice Center (NIJC) report about CBP blocking access to counsel for asylum seekers in the agency’s custody. “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.”

— National Immigrant Justice Center. “Obstructed Legal Access: NIJC’s Findings From 3 Weeks of Telephonic Legal Consultations in CBP Custody,” May 25, 2023. https://immigrantjustice.org/staff/blog/obstructed-legal-access-nijcs-findings-3-weeks-telephonic-legal-consultations-cbp.

Sector(s): Border-Wide

Agency(ies): CBP

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

Last Known Accountability Status: Unknown

Victim Classification: Single Adult

January 5, 2022

In the January 8, 2022 San Diego Union-Tribune, reporter Kate Morrissey recounted the experience of two Colombian men who, on January 5, were the first to be sent back to Tijuana under the revived “Remain in Mexico” program. She found that what they underwent “included many of the issues that plagued the program under the Trump administration.”

The Biden administration’s December 2 guidance for the restarted program promised access to counsel. But Morrissey found that “the two Colombian men were not allowed to speak with attorneys while in U.S. custody.” The wife of one of the men, a green card holder in the United States, could have hired an attorney for him to support his claim of fear of return to Mexico, but officials denied his request to call her.

The men, who had turned themselves in to U.S. personnel in order to seek protection after receiving urgent threats in Colombia, recounted poor treatment in CBP custody. They were placed in a cell in a Border Patrol station with “dozens of other men,” forced to sleep on the floor for nearly a week, with lights always on, for lack of bed space. They were not given an opportunity to bathe or shower. “Though they do not speak much English, they realized that agents were speaking badly about them, they said. They recognized words like ‘stupid’ and phrases like ‘go back to your country.’”

As required by the new guidelines, a Border Patrol agent asked the men if they were afraid to return to Mexico, although they said “another agent tried to keep that official from asking the question.” Under the Biden administration’s new guidance, after expressing fear the men were entitled to 24 hours to contact an attorney before speaking with an asylum officer. It was during those 24 hours, they said, that CBP personnel refused to allow them “to make any calls or otherwise access legal counsel.”

They said an agent told them that no matter what happened, they would be sent back to Mexico. So, when the asylum officer asked if they wanted to wait longer in custody in order to access attorneys, the men waived that right, not wanting to spend more time in the crowded cell with their fate already decided.

The men added that they were not asked detailed questions about their medical history, even though the Biden administration’s new guidelines specify medical conditions for exemption from the program (original link). Though the guidance directs that those subject to Remain in Mexico are to receive COVID-19 vaccinations if they need them, one man who had only received the first of his two shots was sent over the border before officials could administer his vaccine.

CBP meanwhile confused the men’s paperwork, Morrissey found. Each man had the first page of the other’s notice to appear in court. And at first, they were scheduled for hearings months beyond the six-month limit that the Biden administration had agreed with Mexico. They managed to reschedule for February after raising the issue with their asylum officer.

Now in Tijuana, the Colombian men told Morrissey that they are “confused and terrified.” They refused to provide their names, fearing that their notoriety leaves them exposed to extortion or attack. “We’re the two from Colombia,” one said. “Everyone knows we’re them. We already have problems.”

— Kate Morrissey, “U.S. failure to follow Remain in Mexico rules show program hasn’t changed as promised” (San Diego, The San Diego Union-Tribune, January 8, 2022) https://www.sandiegouniontribune.com/news/immigration/story/2022-01-08/remain-in-mexico-returns-to-tijuana.

— Robert Silvers, “Guidance regarding the Court-Ordered Reimplementation of the Migrant Protection Protocols” (Washington: Department of Homeland Security, December 2, 2021) https://www.dhs.gov/publication/court-ordered-reimplementation-mpp-policy-guidance.

Sector(s): San Diego, San Diego Field Office

Agency(ies): Border Patrol, Office of Field Operations

Event Type(s): Abusive Language, Conditions in Custody, Dangerous Deportation, Denial of Access to Counsel

Last Known Accountability Status: No Steps Taken

Victim Classification: Colombia, Single Adult

Late December 2021 and Early January 2022

A January 2022 Human Rights First report discussed examples of CBP personnel hindering access to counsel for migrants placed into the “Remain in Mexico” (RMX) program, even though the Biden administration’s December 2021 guidance guarantees that those who fear return to Mexico may have the opportunity to consult with an attorney before their non-refoulement interviews with U.S. asylum officers (original link).

A Nicaraguan asylum seeker reported to Human Rights First that CBP officers threatened that his non-refoulment interview would be rescheduled and his detention in horrible CBP custody extended, if he insisted on speaking to an attorney, thereby pressuring him to go ahead without an attorney. In another case, CBP officers tricked an individual who is unable to read into signing a document waiving his opportunity to have counsel during the RMX fear screening interview. CBP officers told him that by signing the document he would be indicating that he had a fear of returning to Mexico, according to attorneys from the Border Project.

Multiple asylum seekers who did not pass RMX fear screening interviews and were returned to Ciudad Juárez in December 2021 reported that CBP officers falsely told them that they would have to pay for an attorney consultation for the RMX fear screening even though the Border Project was providing free legal consultations at the time. As a result, the individuals went ahead with their non-refoulement interviews without legal counsel.

In early December 2021, RMX returnees interviewed by Human Rights First in Ciudad Juárez said that they were not provided informational flyers explaining access to legal services until after the non-refoulement interview was completed or, in some cases, as they were being returned to Mexico by CBP. Several individuals returned to Tijuana under RMX in early January 2022 also reported that they were not informed that they could consult with a lawyer until after the non-refoulement interview was already completed, according to a volunteer with the California Welcoming Task Force.

CBP officers told a Nicaraguan asylum seeker detained in El Paso he could only speak with a lawyer selected for him by DHS, which he would have to pay for. The man told Human Rights First that his request to contact his family to ask them to hire a lawyer was denied by CBP. As a result, he was unable to speak with a lawyer before CBP returned him to Ciudad Juárez under RMX.

As RMX relaunched in San Diego in January 2022, asylum seekers and migrants there “told a volunteer from the California Welcoming Task Force that they were not informed of the opportunity to contact counsel prior to the non-refoulement interview and were told by CBP officers that they would be returned to Mexico regardless of the outcome of that interview.”

— A Shameful Record: Biden Administration’s Use of Trump Policies Endangers People Seeking Asylum (New York: Human Rights First: January 13, 2022) https://www.humanrightsfirst.org/resource/shameful-record-biden-administration-s-use-trump-policies-endangers-people-seeking-asylum.

Sector(s): El Paso Field Office

Agency(ies): CBP

Event Type(s): Denial of Access to Counsel, Lying or Deliberate Misleading

Last Known Accountability Status: Unknown

Victim Classification: Nicaragua, Single Adult

September 2021

A Human Rights First report described DHS expulsions of asylum seekers from Haiti, especially following the mid-September arrival of thousands of Haitian migrants in Del Rio, Texas.

DHS detained many of those expelled to Haiti for days in the United States prior to expulsion—undercutting the administration’s claims that the expulsions were being carried out to protect public health—and transported them in shackles on flights to Haiti. DHS officers frequently refuse to tell those being expelled where they are being taken and, in some cases, cruelly lie that the flights are destined for Florida or elsewhere in the United States. Mirlande Joachim, an attorney representing more than a dozen Haitian asylum seekers detained after crossing near Del Rio told Human Rights First that CBP and other DHS officers routinely refused to allow her to speak to her clients and that most were expelled without a fear screening despite her and the clients’ repeated attempts to request them.

— Julia Neusner, Kennji Kizuka, “Illegal and Inhumane”: Biden Administration Continues Embrace of Trump Title 42 Policy as Attacks on People Seeking Refuge Mount (New York: Human Rights First, October 21, 2021) https://www.humanrightsfirst.org/resource/illegal-and-inhumane-biden-administration-continues-embrace-trump-title-42-policy-attacks.

Sector(s): Border-Wide

Agency(ies): DHS

Event Type(s): Denial of Access to Counsel, Denial of Protection to Most Vulnerable, Lying or Deliberate Misleading

Last Known Accountability Status: Unknown

Victim Classification: Black, Haiti