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Addressing the Legacy of Expedited Removal: Border Procedures and Alternatives for Reform — Refugees International [1]
['Yael Schacher']
Date: 2021-05-11
Introduction
Though he has already revoked some of the former administration’s highly restrictive policies on asylum, President Biden has thus far left in place an expulsion policy first imposed by the Trump administration under Title 42 of the U.S. Code, and based on the unreasonable assertion that public health requires such restrictive measures be essentially directed at asylum seekers. Ports of entry have remained closed to asylum seekers except to a select few exempted from Title 42 in response to a lawsuit challenging the policy. This month, the Biden administration moved to expand the humanitarian exemption process further, tasking NGOs with identifying vulnerable migrants in Mexico and getting information about them to U.S Customs and Border Protection officials (CBP) in order to speed processing at ports. In addition, since February, Mexico’s refusal to accept back expelled Honduran, Salvadoran, and Guatemalan families with young children has meant that the Border Patrol has released some families and allowed them to proceed to their destinations—often the homes of relatives—to pursue their claims for asylum there. This is currently a practice borne of the necessity of limiting congregate detention during the pandemic. But a return to the pre-existing policy and practice—a border screening process called expedited removal—will recreate long-standing problems, and the Biden administration should now consider alternatives.
Under expedited removal, border officials are tasked with asking migrants who lack valid travel documents about their fear of return to their home country and with referring them to preliminary interviews with asylum officers if they express this fear. U.S. asylum officers assess whether the migrants have “a credible fear” of persecution—that is, a significant possibility of establishing eligibility for asylum. If they fail this interview, they are removed or remain detained (without real access to counsel) for a review by an immigration judge within seven days. A negative decision by a judge is final and leads to removal. A positive credible fear decision leads the Department of Homeland Security (DHS) to place the asylum seeker in full (non-expedited) proceedings designed to secure the “removal” of unauthorized migrants, and the asylum seeker must then prove to an immigration judge (who works for the Executive Office of Immigration Review in the Department of Justice) that they merit refugee status.
Expedited removal created an entirely “defensive” system—whereby asylum seekers are presumed removable. It is also an adversarial system, and, as applied, has undermined the right to seek asylum at the border and recognition that asylum is a legal pathway to protection regardless of status. For example, prior to a determination of eligibility, U.S. officials have criminally prosecuted those who have sought refuge but have been without travel documents or have entered without inspection. Many arriving asylum seekers get screened out even before credible fear assessments can be made, as they have been unfairly rejected by CBP officers who did not ask them about fear or inform them of their right to seek protection. Those who CBP refer for credible fear interviews are required to show they can meet a complex legal protection standard just after arrival and while detained; those denied at the credible fear stage have inadequate opportunity for appeal. Expedited removal has cut off access to the federal courts for border arriving asylum seekers; as a result, asylum jurisprudence is left to develop without addressing protection issues raised by a large majority of today’s asylum seekers. In practice, expedited removal has limited the ability of Central Americans in particular to obtain access to protection and fair assessments of their asylum claims, and many have been removed to life-threatening danger.
Expedited removal has been justified as a means to promote efficiency in asylum processing. Yet over the last decade, when large numbers of families have come to the border to seek refuge, expedited removal has proven extremely inefficient. President Trump expanded expedited removal—extending its application far beyond the border (anywhere within the United States to anyone present for less than two years without authorization), putting credible fear interviews in the hands of enforcement officers, and raising eligibility standards.
On February 2, 2021, President Biden issued Executive Order 14010 on “Creating a Comprehensive Regional Framework to Address the Causes of Migration, to Manage Migration Throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum Seekers at the United States Border.” The Executive Order called for a review of the use of expedited removal within 120 days. The Order suggests that the Biden administration intends to implement expedited removal in a way that is more efficient and respectful of due process after the lifting of Title 42. For reasons described in this brief, it is highly questionable that such a system will prove to be fair or even effective and workable. Thus, this issue brief suggests alternative ways the United States can have a fair and efficient system that better fulfills its obligation to provide access to protection at the border. A different reception system at the border is an essential component of a new, comprehensive, protection-oriented approach to migration from Central America.
Background
Before Expedited Removal: The Refugee Act and Reception of Asylum Seekers, 1980–1996
In March 1980, Congress passed and the President signed the Refugee Act, which mandated the establishment of a procedure whereby those present in the United States or at a land border or port of entry, irrespective of their status, could apply for asylum. The Act also forbade return of anyone to a country where their life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. This meant that the Attorney General, and later the Department of Homeland Security (DHS), was required to permit migrants to request asylum at the border or after entering the country and could not deport anyone before ensuring they would not face persecution.
Just after the law was enacted, more than 100,000 Cubans and some 15,000 Haitians sought refuge in Florida in the span of three months. President Carter used the parole authority of the Immigration Act and established a special entrant status for them in part to avoid undercutting the right to seek asylum before the procedures called for in the Refugee Act were established. A provision of the Refugee Act giving the Office of Refugee Resettlement the authority to set up reception centers was invoked to accommodate the Cubans.[1]
In 1981, the Select Commission on Immigration and Refugee Policy suggested that the United States plan for “mass asylum emergencies” by creating an interagency planning body, the development of federal processing centers, and “group profiles” that would help speed adjudication of individual claims in such circumstances. Instead, the Reagan administration opted for a policy of interdiction that prevented Haitian asylum seekers who fled Haiti by boat from reaching the United States.
The Reagan administration did not publish a regulation clarifying asylum procedures (for those who did reach the United States) until the end of the decade. Immigration officials interpreted existing regulations and policy guidance in ways that limited access to asylum at the southwest border. For example, officials in California expelled Salvadoran asylum seekers by forcing them to sign voluntary departure forms. In 1988 and 1989, the Immigration and Naturalization Service first instituted a policy forbidding Central American asylum seekers from leaving South Texas, thus overwhelming local communities, and then a policy of adjudicating their asylum claims within a single day and detaining them to encourage abandonment of immigration court hearings.
Federal courts ultimately ruled that the Refugee Act of 1980 required a fairer chance to seek asylum and an assessment of claims unbiased by enforcement or foreign policy considerations. Further, Congress, in the Immigration Act of 1990, created an emergency contingency fund to reimburse localities for their support of sudden large numbers of asylum seekers.[2] A Government Accountability Office (GAO) report at about the same time suggested such funding for communities was well advised. “We do not believe that it is feasible to expand INS’ detention capabilities sufficiently” to handle a mass influx, the GAO reported, adding that “detaining all aliens until their cases are resolved is too costly.”[3]
In the early 1990s, the Immigration and Naturalization Service (INS) began to develop an asylum adjudication system that was separated from enforcement and that applied to all asylum seekers, including those who arrived at the border. Asylum officers worked in seven new offices in different parts of the country and reported to the INS Central Office. Asylum seekers applied at these offices and had non-adversarial interviews with specially trained asylum officers. One study of the new system found that, though additional training and staffing were needed, asylum adjudication was becoming fairer—with the exception of newly devised interviews assessing which of more than 36,000 Haitian asylum seekers at Guantanamo Bay had “credible fear of persecution,” a standard that was not found in the Refugee Act or the regulations and consequently was “ill defined.”[4]
INS officials constructed a separate process to handle the asylum cases of Haitians who fled from Haiti after the military coup in September 1991 and whom the Coast Guard indicted on the high seas. INS asylum officers conducted credible fear interviews of these Haitians at the United States military base at Guantanamo Bay from October 1991 to June 1992. Haitians who passed these credible fear interviews could enter the United States to pursue their claims in the asylum office, while those who failed were repatriated to Haiti. Procedural problems abounded with the credible fear interviews at Guantanamo: the interviews were not private and did not allow access to counsel; asylum officers asked applicants for documents to support their cases but did not explain the asylum process. More striking, however, was that credible fear interview pass rates fluctuated from a high of 85 percent in January 1992 to a low of 2 percent in April 1992.[5] The credible fear interview standard used to handle a “crisis” of mass asylum seeker migration proved manipulatable for political and policy reasons; in early 1992, high ranking INS officials stated publicly and at asylum officer trainings that almost all Haitians would be denied.[6] As a result of this flawed process, some Haitian asylum seekers were wrongfully repatriated. Moreover, those admitted to the United States were treated differently than other asylum seekers.[7] Further, because large numbers of asylum officers were diverted to conduct credible fear interviews at Guantanamo Bay, backlogs of cases developed in the asylum offices in the United States.
Concurrently, the INS was also using the credible fear standard to prescreen asylum seekers (who arrived at ports of entry without proper travel documents) to determine whether to release them from detention during their asylum cases. Those who failed credible fear under this process were not returned to their home countries but rather remained detained pending full adjudication of their claims. A pilot parole program, in which credible claimants would be released pending a determination of their claims, had already proved effective; the problem was that, when the INS General Counsel’s office tried to expand it, enforcement officers rejected parole recommendations for asylum seekers of particular nationalities or required bonds for parole, which asylum seekers could not afford.
The same procedural problems were evident as in the Haitian screenings; credible fear interviews took place without access to counsel and only after several weeks. While waiting, the asylum seekers remained detained. [8] The program overall was under resourced, shirked altogether in some districts, and never effectively evaluated. Officials responsible for overseeing asylum-prescreening were unable to assess the correlation between credible fear determinations made and the ultimate outcome of asylum claims. As the Associate INS Commissioner observed at the time, “asylum pre-screening” and parole of those screened-in was “not a core commitment of the agency.”[9]
The Screening System in the Illegal Immigration Reform and Immigrant Responsibility Act, (IIRIRA), 1997–2004
Despite these experiences, Congress mandated credible fear interviews for asylum seekers in the 1996 Illegal Immigration Reform and Immigrant Responsibility Act. Under the new law, those failing to establish credible fear would be subject to removal. But Congress deliberately set a “low” standard or threshold of proof of potential entitlement to asylum, recognizing that, within two or three days of arrival, asylum seekers are still traumatized and have not had time to gather evidence to support their claim.[10] The 1997 INS regulation implementing the law did not further refine the credible fear standard, insisting that INS would do extensive training that would “ensure that the standard is implemented in a way which will encourage flexibility and a broad application of the statutory” definition (i.e., a significant possibility of establishing eligibility for asylum.)
At the same time, in the name of deterring abuse of the asylum system by migrants without good faith claims of persecution, the statute called for the detention of asylum seekers who arrived without travel documents and eliminated federal court appeals for those who failed credible fear interviews. The 1997 regulation applied expedited removal only to ports of entry, so that it affected less than 10 percent of all asylum seekers and precisely those who asked for asylum at ports of entry rather than those who entered without inspection.
The 1997 regulation devised a particular screening system that went into effect in April 1997. If they did not have valid documents, migrants would be asked “standard questions” regarding “any fear or concern of being removed.” It is this important inspection stage—when there is no access to counsel or assured interpretation—and which determines access to the credible fear interview itself—that has remained of most concern to many advocates since expedited removal went into effect. As the U.S. Commission on International Religious Freedom (USCIRF) observed on its visits to ports of entry early in the new millennium, CBP inspecting officers did not provide required information and refer all who expressed fear to asylum officers. Significantly, at the land border port of entry on the U.S.-Mexico border observed by the Commission, CBP officers were least likely than elsewhere to inform migrants of the existence of protection for those who feared return to their home country or to refer a migrant to credible fear interviews if the migrant expressed fear. The majority of cases observed in which a CBP officer encouraged migrants to withdraw their applications for admission after they expressed fear involved Central Americans. Another study found that women survivors of rape and abuse were particularly vulnerable because they had difficulty expressing fear to border officials and even asylum officers conducting credible fear interviews did not believe they could claim asylum based on gender-related persecution.[11]
Expedited removal underlined a distinction between the few people subject to the “defensive” asylum system—claiming asylum as a defense against removal—and the vast majority of asylum seekers at the time, who were in the “affirmative” asylum system. Many of the latter were people who had the resources to enter the country initially on a temporary visa (such as a tourist, student, or business visa) and then applied to the asylum office. After a non-adversarial interview, an asylum officer granted or denied them asylum; if denied, they had access to a new hearing in immigration court and were not typically detained. The treatment of asylum seekers in the two systems diverged dramatically—in 2003, 190 of the 56,120 affirmative asylum seekers were detained, while 13,759 of the 17,034 placed in expedited removal and applying defensively were detained.[12] Detention is traumatizing and dramatically reduces the ability to secure counsel that can be crucial to winning asylum. In 2003, the immigration court grant rate for those applicants who initially applied for asylum affirmatively was almost double that of the grant rate for those who applied defensively.[13] Further, release from detention of asylum seekers who passed credible fear interviews varied widely from one part of the country to another despite the existence of policy guidance clearly authorizing parole to credible claimants who showed they were neither a flight risk nor a danger to the community. In 2003, while one ICE field office paroled almost 98 percent of applicants, another paroled just 0.5 percent. Release rates in other parts of the country varied widely between those two figures.[14]
After the implementation of expedited removal, the Women’s Refugee Commission interviewed dozens of asylum-seeking women and children who were detained for prolonged periods under “appalling conditions.” At the Wicomico County detention center in Maryland, the Women’s Commission interviewed a Guatemalan asylum seeker whose husband was an affirmative asylum applicant living near Washington D.C. As Wendy Young of the Commission told Congress:
Her husband traveled three hours to deliver some toiletries and personal items to her. The facility refused to let her have them….He…had to tell her to stop phoning him, because [of] the exorbitant rates charged for collect calls...He returned one more time to the prison… [and] was told to "get lost" or risk deportation himself. After five months of incarceration, his wife abandoned her asylum claim and was deported to Guatemala.[15]
Senator Edward Kennedy, one of the co-authors of the Refugee Act, found it particularly disturbing that credible fear interviews occurred while asylum seekers were in detention—frequently alongside criminals in state and local prisons and subject to abusive treatment and a lack of adequate care—and that many asylum seekers were detained after passing these interviews. “By immediately detaining those who have been subjected to persecution and who have lived in constant fear, we contribute to their trauma and hardship. By detaining asylum seekers, we are also restricting their access to adequate legal representation, which they need in order for their claims to be decided fairly….We need to do more to protect the rights of asylum seekers,” he stated to Congress. Senator Kennedy also noted that U.S. practice of detaining asylum seekers was out of line with the guidelines of the United Nations High Commissioner for Refugees.[16]
Between 1999 and 2002 a bipartisan group of legislators—including Senator Kennedy and others who were aware that IIRIRA’s expedited exclusion provisions were not thoroughly discussed during final Congressional consideration of the legislation and, in the words of Senator Sam Brownback, were “flawed”—introduced the Refugee Protection Act.[17] The bill included “safeguards against erroneous exclusion of asylum seekers” (specifically expanded review of removal orders) and mandated parole or alternatives to detention for asylum seekers who passed a credible fear screening. The first version of the bill also excepted from expedited removal anyone coming from countries with poor human rights records or where “conflict or other extraordinary conditions would pose a serious threat to the alien’s safety.”[18] The bill reinforced the idea that different asylum seekers should not be subjected to different treatment based on how they entered the country. The bill also recognized that migrants from particular countries should be presumed to have credible fears and be exempted automatically from expedited removal.[19]
Though the RPA was not enacted, it is significant that, in the early 2000s, certain Central Americans were not subjected to expedited removal precisely because the process lacked safeguards mandated by federal courts for them before IIRIRA.[20]
The Problems with Expedited Removal, 2005–2021
If, in 2000, expedited removal seemed “a key tool in overall border control and anti-fraud strategy” because “the vast majority of people subjected to it never assert a fear of return or of persecution,”[21] this seems less plausible in 2021, given the demographic shift of border arrivals from single Mexican adults to asylum seeking families and children from Central America.
Early warning signs were visible between 2004-2006, when the number of people placed in expedited removal doubled as it was expanded to apply to those who entered between ports of entry, especially the rising number of “other than Mexicans,” primarily Brazilians and Central Americans.[22] While one of the stated goals of the expansion of expedited removal was to “decrease the deaths of illegal immigrants in the [Arizona] deserts,” the number of bodies found in Arizona kept rising.
Though violence was on the rise in Central America, DHS and State Department officials insisted to Congress that “economic factors” were spurring all Central American migration and that the appropriate response was detention and rapid repatriation.[23] Because DHS wanted to put migrants who crossed the border into expedited removal but did not have sufficient detention space for families, it separated children and sent them to Office of Refugee Resettlement facilities.[24] Pressured by advocates concerned about family separation, Congress, in report language, urged DHS “to release families or use alternatives to detention…whenever possible.”[25] But, in 2006, DHS announced the opening of a detention center in Texas to detain families subject to expedited removal so as to “send the clear message that families entering the United States illegally will be returned home.” Families remained detained there for months even after passing credible fear screenings despite Congressional appropriations for alternative to detention programs that had proven effective.[26] In 2008, the Trafficking Victims Protection Act reaffirmed that unaccompanied children would not be placed in expedited removal proceedings and instead have their asylum claims adjudicated fully by asylum officers in a non-adversarial setting.[27] But the problem of families remained.
In the early 2010s, expedited removal certainly did not deter non-Mexican nationals fleeing violence, absence of rule of law, and human rights violations from coming to the border.[28] Credible fear interviews more than doubled between 2012 and 2013 and asylum officers sent an increasing number of Central Americans who passed their credible fear hearings on to the immigration courts for consideration of their claims; the number of defensive asylum claims eclipsed affirmative ones by 2014.[29] Still, the U.S. Commission on International Religious Freedom (USCIRF), the American Civil Liberties Union (ACLU), and Human Rights Watch documented the way expedited removal as administered hindered the ability to seek asylum, penalized asylum seekers—including those who passed credible fear screenings—with detention, limited their access to counsel, and led to refoulement. As the USCIRF found, “certain CBP officers [expressed] outright skepticism, if not hostility, toward asylum claims.” Human Rights Watch found that CBP referred a particularly small percentage of Central Americans for credible fear assessments and that, more generally, most credible fear referrals came from agencies other than CBP, despite CBP encountering most migrants and being obliged to inform them about the interviews. The ACLU found that language barriers were a major problem in encounters with CBP and that officers pressured asylum seekers to sign forms they did not understand. Further, CBP officers did not accurately record accounts of asylum seekers they inspected on official forms which later were relied upon by asylum officers and immigration judges.[30]
At the same time, the credible fear interview grew more detailed and more like a full merits adjudication than a preliminary screening. In light of the increase in credible fear interviews in 2013, the asylum division of USCIS revised its lesson plan for officers as to how to conduct these interviews. It removed language on the function of the credible fear as a low-threshold screening and instead cautioned against passing those with only a minimal or mere possibility of winning asylum. In the wake of the revision of the 2014 lesson plan, there was a reduction in the grant rate. Before the lesson plan was implemented, in January 2014, 83 percent of those who received credible fear interviews were permitted to apply for asylum. In July 2014, six months later, that figure was 63 percent.[31]
Despite these wide fluctuations, the large majority of asylum seekers still passed credible fear screenings between 2014 and 2019 and were sent on to the immigration courts; the asylum case backlog grew in both the immigration courts and the asylum office, since so many asylum officers were diverted from handling the affirmative case load to conduct credible fear interviews.[32] Unfortunately, resources for adjudication remained insufficient to keep up with need while DHS’s enforcement and detention budgets grew. Asylum officers detailed to the border to conduct credible fear screenings did not obtain adequate training or have adequate time and it showed in the quality of their work: a 2018 USCIS review found that asylum officer notes did not reflect a skilled interview in an estimated 58 percent of cases. For most of these cases, the reason for the error was insufficient follow-up questions.[33] Asylum officers also faced logistical problems with accessing telephone interpretation and private interview space at detention centers. At credible fear interviews, indigenous language speakers received poor interpretation,[34] women survivors of gender violence had to speak to male officers while in front of their children, and some officers cut off asylum seekers and did not elicit important information.[35] In 2019, at least 16 percent (472 out of 2891) of adult women at the Karnes family detention center in Texas failed their credible fear interviews and nearly half (45 percent) of those negative determinations were later vacated, indicating errors in asylum office adjudication.[36]
Despite a late 2009 memo that directed DHS to parole credible claimants, between 2015 and 2017, increasing numbers and percentages of asylum seekers remained detained long after passing their credible fear hearings.[37] After a 2015 federal court ruling that limited the time families with children could be detained, expedited removal led to family separations in an effort to subject at least one parent—usually the father—in a family that had entered without inspection to a deterrent “consequence.” Refugees International interviewed a Salvadoran asylum seeker who was released with her children while her husband was placed in expedited removal and detained in January of 2017; the detention of the father and the several month family separation was extremely, and needlessly, traumatic.[38] The GAO reported that for families who were subject to expedited removal and detained at Family Residential Centers, immigration judges vacated more than half of asylum officers’ negative credible fear determinations between 2014 and 2019. This was on top of an already extremely high positive credible fear determination rate at the Family Residential Centers. Not surprisingly, in early 2017 the GAO also found that the right “consequence” (a measure of overall policy efficiency and effectiveness) for families arriving without authorization was a notice to appear in immigration court—not expedited removal and credible fear interviews.
Notable, too, is that, while almost two in three inadmissible Haitians in 2016 were issued notices to appear and paroled into the United States (that is, not subject to expedited removal), the majority of inadmissible Haitians in 2017 were placed in expedited removal (5,200, up from 1,100 in 2016).[39] As such, detention of credible claimants has not been an issue confined to those from Central America. Credible claimants from Haiti and Africa, some interviewed by Refugees International, spent many months in ICE detention, where they lacked access to adequate care and faced discrimination, many to be, eventually, granted asylum.[40]
During the Trump administration, expedited removal was further modified in ways that had discriminatory impacts and led to increases in human rights violations and refoulement. CBP officers increased the pressure on Central Americans to abandon their claims through the documented use of lies, threats, intimidation and coercion, as well as verbal and physical abuse. An activist who had been tortured by police in Honduras told Refugees International that CBP tried to force him to accept deportation in 2018 by transferring to several “hieleras”—freezing detention cells—and telling him his prospects for winning asylum were poor.[41] The credible fear standard was drastically changed to limit who could pass and CBP officers (rather than asylum officers) were assigned to conduct interviews, leading grant rates to plummet.[42] The administration introduced a consequential pilot program—called Prompt Asylum Claim Review (PACR)—that sped up the expedited removal process such that credible fear interviews and reviews of denials by immigration judges were all done telephonically and while Central American asylum seekers were in CBP custody, conditions that the DHS inspector general found were substandard and limited access to counsel. Under this program, almost 70 percent received negative credible fear determinations in contrast to the 80 percent that received positive fear determinations during the George W. Bush and Obama administrations. Immigration judges upheld 99 percent of all negative credible fear determinations in “reviews” of PACR credible fear determinations.[43] And just at the time when the entire screening process was becoming ever more pro-forma, the Supreme Court ruled that an asylum seeker threatened with removal after being denied at the credible fear stage has absolutely no recourse to the federal courts—not even a petition for habeas corpus. In that case, both the credible fear interview and the review by the immigration judge were inadequate, as has been observed in many other cases.[44]
The implications of the Supreme Court’s ruling are all-the-more significant in light of the arbitrary nature of the process and the resulting risks to applicants. As is true for all asylum proceedings in the immigration courts, which immigration judge presides is all important.[45] Moreover, data from the Karnes family detention center raise important questions relating to possible discrimination. The Refugee and Immigration Center for Educational and Legal Services (RAICES), an organization that provides free legal services to detainees at Karnes, reported that immigration judges vacated nearly half of non-Haitian negative credible fear determinations in 2019, but only a quarter of Haitian negative credible fear determinations, with one judge affirming 100 percent of the Haitian cases.
Proposed Fixes: The Good, the Bad, and the Insufficient
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