President Joe Biden scrapped expedited asylum screenings during his first month in office as part of a gutting of Trump administration border polices that included building a wall with Mexico. Now he is preparing his own version.
Donald Trump's fast-track reviews drew sharp criticism from internal government watchdog agencies as the percentage of people who passed those "credible fear interviews" plummeted. But the Biden administration has insisted its speedy screening for asylum-seekers is different: Interviews will be done exclusively by U.S. Citizenship and Immigration Services, not by Border Patrol agents, and everyone will have access to legal counsel.
The decision to use fast-track screenings comes as COVID-19 asylum restrictions are set to expire on May 11 and the U.S. government prepares for an expected increase in illegal crossings from Mexico. The Texas border cities of El Paso, Laredo and Brownsville have declared local states of emergency in recent days to prepare for the anticipated influx.
Normally, about three in four migrants pass credible fear interviews, though far fewer eventually win asylum. But during the five months of the Trump-era program, only 23% passed the initial screening, while 69% failed and 9% withdrew, according to the Government Accountability Office.
Those who get past initial screenings are generally freed in the United States to pursue their cases in immigration court, which typically takes four years. Critics say the court backlog encourages more people to seek asylum.
To pass screenings, migrants must convince an asylum officer they have a "significant possibility" of prevailing before a judge on arguments that they face persecution in their home countries on grounds of race, religion, nationality, political opinion or membership in a social group.
Under the Biden administration's fast-track program, those who don't qualify will be deported "in a matter of days or just a few weeks," Homeland Security Secretary Alejandro Mayorkas said Thursday.
The expedited screenings will be applied only to single adults, Mayorkas said.
Despite the administration's assurances that people will have access to legal services, some immigrant advocates who were briefed by the administration are doubtful. Katherine Hawkins, senior legal analyst at the Project on Government Oversight, noted that advocates were told attorneys would not be allowed inside holding facilities.
The Trump administration used fast-track reviews from October 2019 until March 2020, when it began using a 1944 public health law known as Title 42 to expel immigrants on the grounds of preventing the spread of COVID-19. The speedy screenings were among Trump-era immigration polices that President Biden rolled back in a February 2021 executive order.
Unlike the Trump administration, the Biden administration won't limit migrants to just one phone call. But it's unclear how many calls U.S. authorities can facilitate, especially if there is no answer and attorneys call back, Hawkins said.
US to limit asylum to migrants who pass through a 3rd nation
The Biden administration's proposed rule is similar to a ban pursued by President Trump in 2019, and is almost certain to face legal challenges.
Screenings initially will be limited to Spanish-speaking countries to which the U.S. has regular deportation flights, according to Hawkins and others briefed. The administration began limited screening this month in Donna, Texas, in the Rio Grande Valley, and later expanded to large tents in other border cities, including San Diego; Yuma, Arizona; and El Paso, Texas. Migrants will get a video presentation to explain the interview process.
Mayorkas, a former federal prosecutor, didn't speak in detail about access to legal counsel in remarks Thursday about a broad strategy that, in addition to the screenings, includes processing centers in Guatemala, Colombia and potentially elsewhere for people to come legally to the U.S. through an airport.
"We have expanded our holding capacity and set up equipment and procedures so that individuals have the ability to access counsel," Mayorkas said.
The Homeland Security Department's inspector general took issue with lack of legal representation under Trump's expedited screening. There were four cordless phones for migrants to share when screenings began in El Paso. Guards took them to a shack to consult attorneys.
Phone booths were later installed but didn't have handsets for safety reasons, forcing migrants to speak loudly and within earshot of people outside, the inspector general said.
Facilities built under President Biden are more spacious with plenty of phone booths, according to people who have visited.
"There are rows of cubicles, enclosed," said Paulina Reyes, an attorney at advocacy group ImmDef who visited a San Diego holding facility in March.
The administration has not said how many attorneys have volunteered to represent asylum-seekers. Hawkins said officials told advocates they are reaching out to firms that offer low- or no-cost services to people in immigration detention centers.
Erika Pinheiro, executive director of advocacy group Al Otro Lado, which is active in Southern California and Tijuana, Mexico, said she has not been approached but would decline to represent asylum-seekers in expedited screenings. They arrive exhausted and unfamiliar with asylum law, hindering their abilities to effectively tell their stories.
"We know what the conditions are like. We know people are not going to be mentally prepared," she said.
The Biden administration aims to complete screenings within 72 hours, the maximum time Border Patrol is supposed to hold migrants under an agency policy that's routinely ignored.
It's a tall order. It currently takes about four weeks to complete a screening. Under Trump's expedited screenings, about 20% of immigrants were in custody for a week or less, according to the GAO. About 86% were held 20 days or less.
U.S. Citizenship and Immigration Services has identified 480 former asylum officers or those with training to assist about 800 on the expedited screenings, said Michael Knowles, a spokesman for the American Federation of Government Employees Council 119, which represents asylum officers. Despite the staffing surge, Knowles said officers worry about the pace of the work, "like an assembly line, 'hurry up, hurry up,' when you have lives at stake."
"All hands will be on this deck for the foreseeable future," Knowles said. "We don't know how long."
