During the 2020 presidential campaign, then-candidate Joe Biden criticized President Donald Trump’s repeated attacks on the U.S. asylum system, which allows people fleeing violence, war, persecution, and torture to seek protection in the United States. Biden’s campaign website accused Trump of “bullying legitimate asylum seekers,” and pledged to “restore our asylum laws” and to ensure “individuals are treated with the due process to which they are entitled and their human rights are protected.” More recently, President Biden’s Department of Homeland Security Secretary Alejandro Mayorkas has called asylum “one of our crown jewels,” and vowed to uphold it.
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This rhetoric is very different from Trump’s claim that asylum is “a scam,” and his advisor Stephen Miller’s statement that “I would be happy if not a single refugee foot ever again touched American soil.” But behind the rhetoric, the Biden administration left in place for several years Miller’s policy of expelling migrants for “public health” reasons. And when these expulsions finally end, as they are expected to in May of this year, the administration is planning to replace them with more restrictions on asylum modeled on the Trump administration’s. If and when those restrictions go into effect, in the words of a current administration official, “Asylum at the border no longer exists as we previously thought of it.”
The Biden administration has proposed regulations making most people ineligible for asylum if they pass through another country before reaching the United States and fail to obtain one of a limited number of appointments with border officials available through a new smartphone app.
Mayorkas rejects comparisons between this proposal and the Trump administration’s similar transit ban. Asylum seekers “are not banned,” Mayorkas said in a recent public appearance. “It’s not a ban. It’s a raised bar. … There are exceptions.”
It is true that there are some exceptions to the administration’s proposed restrictions. Asylum seekers would be exempt from the ban if they could show by a “preponderance of the evidence” that it was impossible for them to make an appointment with the smartphone app, or if they could show they faced “exceptionally compelling circumstances” such as “an acute medical emergency” or “an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder.”
But the burden is on migrants to prove these facts, and the administration is reportedly preparing to copy a separate Trump policy that would make providing that proof almost impossible: holding migrants virtually incommunicado in horrible conditions in Customs and Border Protection (CBP) custody before their initial interview with an asylum officer.
DHS has announced that it plans on “increasing and enhancing the use of expedited removal.” Customs and Border Protection can summarily deport migrants without a hearing before a judge. Crucially, it is supposed to have an exception for those seeking asylum, provided they make a claim of protection and pass an initial screening known as a “credible fear” interview.
Before their interviews, asylum seekers are generally detained in Immigration and Customs Enforcement (ICE) jails. The interview is meant to be a low bar: To pass, asylum seekers must show only a “significant possibility” that they will qualify for protection. In recent years, about three-quarters of asylum seekers have passed this initial screening.
But there’s good reason to think that those numbers could change if this new policy goes into effect, and asylum seekers are forced to remain in Border Patrol holding cells instead of ICE detention. Given the terrible conditions in those cells, and the Border Patrol’s history of violating migrants’ rights and coercing them into giving up their claims of protection, the new policy could make it practically impossible for many people to show they qualify for exceptions to the asylum ban touted by Mayorkas.
A Frightening Precedent
In October 2019, the Trump administration began a program where asylum seekers were jailed not by ICE but by Customs and Border Protection before their credible fear interviews — and the percentage of migrants who passed their credible fear interviews dropped from 74% to 23%.
It might seem surprising that switching the location of detention would have such a dramatic effect. ICE jails, after all, are not particularly humane places. POGO has documented serious problems there, including overuse of solitary confinement, inadequate oversight, medical neglect, and preventable deaths.
But for all their flaws, ICE jails are required to provide certain basic amenities like beds, blankets, showers, a decent number of toilets and sinks, time outside of cells, phone access, and a chance to privately consult with lawyers and read legal materials. Because CBP detention is supposed to be short term — limited to 72 hours — standards are much lower. There are no beds, only a sleeping mat or cot at best. There is no privacy; dozens of people are crowded into a room, often sharing a single sink and toilet. Food and water quality are terrible. Phone and shower access is extremely limited, and in-person visits with lawyers are not allowed. And rights violations are common.
In 2018 and 2019, four children died in CBP custody or shortly after their release, and Congress held hearings on “kids in cages” where pediatricians, human rights workers, and lawyers described horrific conditions. Conditions are somewhat better now, but overcrowding persists, and in virtually every single available recent inspection, the Department of Homeland Security’s inspector general’s office has found that CBP was failing to keep accurate detention records and routinely jailing people for much longer than 72 hours.
Forcing people to remain in CBP custody before their credible fear interviews will make all of these problems worse, just as it did during the Trump administration. Back then, according to an inspector general’s report, CBP set a goal of limiting time in its jails to 7 to 10 days, a timespan which the report noted was both “inconsistent with CBP detention standards and was routinely exceeded,” including for families with children. In spaces meant to hold detainees for only 72 hours, more than half of people were jailed for over 10 days.
In the same report, inspector general staff found that conditions in CBP custody were “not conducive” to preparing for credible fear interviews, given the poor conditions and lack of privacy. At the detention facility that inspectors observed, CBP had set up phone booths within detention facilities for the interviews with asylum officers, but detainees had to use speakerphones, and guards and other detainees could overhear their conversations. While in CBP custody, asylum seekers also did not have “access to pens or paper, the ability to conduct legal research, or the opportunity to keep any documents with them.” Those restrictions would make it almost impossible to prove anything by a “preponderance of the evidence.”
According to a lawsuit by asylum seekers, they received “one window of approximately 30 minutes to one hour to call family members or retained counsel, or to call prospective attorneys.” And, to make matters worse, they wrote, “There is no callback number or other means by which lawyers may attempt to reach clients or prospective clients. The result is that it is functionally impossible for an asylum seeker in one of these programs to contact an attorney.”
Reporting CBP Abuses
Lack of privacy and of access to counsel aren’t the only problems with this plan. Credible fear interviews are one place where asylum seekers can disclose abuses by CBP agents themselves. Holding those interviews in CBP detention leaves people with little or no recourse when their rights are violated by Border Patrol agents — particularly given that they can be expelled or deported directly from Border Patrol detention.
We know that some asylum seekers have used credible fear interviews for this purpose: Human Rights Watch has documented cases where, during interviews with asylum officers, asylum seekers reported horrific abuses by CBP officers including sexual assault, severe physical abuse leading to brain damage and permanent injury, and withholding of medical care.
Even more common were allegations of due process violations, including CBP officials threatening detainees unless they signed papers they did not understand and falsely recording asylum seekers’ answers to questions. In one case, an asylum seeker said he signed a paper he did not understand because an officer told him he needed to sign it to “get food.” In another particularly egregious case, an asylum officer said an applicant told him that “when he expressed he was afraid to return to Honduras, the [Border Patrol agent] told him that he doesn’t have the right to have asylum. That the government was not granting asylum, and not even women were receiving asylum. He was then told that he was going to be sent to a jail where they were going to rape him, and that he was told this because the applicant didn’t sign the paperwork the officer asked him to sign.”
These reports are consistent with immigration lawyers’ accounts of false statements on Border Patrol paperwork, including cases where infants or toddlers supposedly said that they came to the U.S. “to look for work,” as well as studies by the U.S. Commission on International Religious Freedom, which showed CBP failing to ask migrants about fear of persecution or accurately documenting their answers.
These are chronic problems. But when credible fear interviews were conducted outside of the control of Border Patrol agents, there was a possibility that omissions and false statements in CBP paperwork could be corrected later, and abuses could at least be reported to the U.S. government.
If asylum seekers are deported back to danger before ever having the chance to speak to lawyers or have private phone calls, if their only interviews with asylum officers take place in Border Patrol jails where guards might overhear, there will be even less recourse.
All of this would take place in conjunction with major new substantive restrictions on asylum, which the labor union representing asylum officers has warned would force its members “to take actions that would violate their oath to faithfully discharge their duty to carry out the immigration laws adopted by Congress,” and “could make them complicit in violations of U.S. and international law.”
Adding exceptions to asylum bans with one hand while blocking those exceptions from asylum seekers with the other gives the Biden administration a degree of deniability — but it will still ratify the destruction of the refugee protection system.
The Constitution Project seeks to safeguard our constitutional rights when the government exercises power in the name of national security and domestic policing, including ensuring our institutions serve as a check on that power.