Border Patrol agents collect handcuffs with leg and waist chains as they transfer custody of Guatemalan nationals to Immigration and Customs Enforcement for deportation at the El Paso International Airport, May 10, 2023. (Photo by Corrie Boudreaux for Source NM)
With the end of the federal migration policy known as Title 42 on Thursday night, advocates along the U.S.-Mexico border expect it to become even harder for migrants to seek protection from persecution, violence and torture in their home countries.
What will take its place, advocates say, will still be like an asylum ban — even if it’s not being named outright.
Margaret Cargioli, directing attorney at Immigrant Defenders Law Center, told reporters on Thursday she is glad to see the harmful, xenophobic and racist policy end.
“But unfortunately, it is being replaced with restrictive and harsh policies that are going to make it very difficult for asylum seekers to be able to have a fair chance at seeking asylum in the United States,” Cargioli said.
Though Title 42 is gone, migrants are still subject to what’s called “expedited removal,” which means people can be fast-tracked and deported.
Instead, migrants will speak to asylum officers with the U.S. Citizenship and Immigration Services who figure out whether they have any chance of successfully presenting a claim.
Now, advocates say, many will be forced to make their asylum claims while in the custody of the U.S. Border Patrol, within days of being apprehended at the border.
Expedited removal subverts due process, “sacrificing protection in the name of speed,” said Zoe Bowman, senior attorney in the defense and deportation program in El Paso and New Mexico at Las Americas Immigrant Advocacy Center.
‘People are being denied due process’
To better understand what is happening to asylum seekers at the border, it’s helpful to look 200 miles north, at an ICE prison in Torrance County, New Mexico.
By the end of last year, there were nearly zero people being held inside the Torrance County Detention Center in Estancia. Then, ICE started transferring people there from other prisons in the El Paso sector, 100 at a time.
The New Mexico Immigrant Law Center regularly visits Torrance to inform migrants about their rights, what to expect in ICE detention, what asylum is, and how to get released.
On Jan. 27, the attorneys arrived at the prison expecting only 100 people to attend. Instead, there were 300 people packed into a room asking for help.
Out of the 134 people who had been through a credible fear interview at that point, only 13% of them passed, which is much lower than the nationwide rate of 56%, said Sophia Genovese, a managing attorney at the Immigrant Law Center.
“People are being denied due process. They’re being denied fair credible fear screenings, and they’re being pushed through this rapidly so that they are deported as quickly as possible,” she said.
The Immigrant Law Center has since January continued to document people inside Torrance being pushed through their credible fear interviews very quickly, she said.
“Torrance’s credible fear interview process is riddled with legal and procedural errors,” Bowman said. “It operates within a xenophobic framework intended as a means of deporting vulnerable asylum-seeking communities as quickly as possible.”
Migrants aren’t receiving legal orientation before their interviews, Genovese said, which are happening sometimes two to three days after they are transferred there.
People can have legal counsel during a credible fear interview, however, it is rare because the interviews are happening so rapidly, Genovese said.
“While the government process has been opaque as to how this will operate, it seems clear that people in CBP custody will not have any meaningful access to counsel or information about decisions made in their cases,” Bowman said. “In sum, just as policies are getting more complicated and burdensome, access to counsel and due process is decreasing for non-citizens in both ICE and CBP custody.”
Rushed interviews likely expanding to Border Patrol tents
Genovese and Bowman anticipate the same thing happening inside Torrance will be expanded to the border.
Advocates and legal experts said this week asylum officers with Citizenship and Immigration Services will be conducting credible fear interviews in large tents called “soft-sided border processing facilities” run by U.S. Customs and Border Protection.
The unreliable CBP One cellphone application — migrants were encouraged to use the app to apply for asylum — has very serious problems, Cargioli said, including glitches and error messages, along with only being available in Spanish and Creole.
Because of barriers like CBP One, Genovese predicted that people will enter between ports of entry, and when they’re apprehended, and they will either be immediately expelled or they will do a credible fear interview.
Immigration police will be incarcerating more people as a result of Title 42’s expiration, the head of the local ICE field office told the El Paso Times on May 5.
“We are expecting that with the end of Title 42 those requirements are going to change, and we do anticipate going to closer to 100% capacity,” Mary De Anda-Ybarra told the newspaper.
With the sheer number of people authorities will now process at the border — and with so few asylum officers — there is pressure to complete these interviews quickly, Genovese said, and there could be mistakes.
“What’s going to result is hundreds, thousands of people erroneously being denied credible fear determinations, despite very clear eligibility for asylum,” she said.
Immigration courts ‘not beneficial’ for most
If a migrant does pass their credible fear interview, they get the chance to go to immigration court to present their asylum claim to a judge. Asylum officers are supposed to approve someone to continue the process if there’s even a 10% chance that person will ultimately qualify for asylum.
If they fail, they can ask an immigration judge to review the officer’s decision. However, it’s very hard to overturn the determination.
Someone in ICE custody at Torrance or at the Cibola County Correctional Facility in Chaparral will be routed to the El Paso Immigration Court. Those held at the Otero County Correctional Facility go to a court inside that prison.
A review by an immigration judge “is not beneficial for the vast majority of asylum seekers,” Genovese said.
In her experience, especially when a migrant does not have legal representation, immigration judges “summarily affirm” asylum officers’ decisions and don’t even talk to the majority of the migrants who enter their courtrooms.
“It’s their right, but it’s not something that I see the judges in El Paso or Otero taking seriously,” she said.
The National Association of Immigration Judges did not respond to a written request for comment.
‘A huge mess’
The situation underscores how the Biden administration is deporting people instead of providing them with safety, Genovese said.
The new asylum rule that went into effect Thursday night denies asylum to migrants who do not ask for it in a third country before arriving at the border.
Those migrants may be considered for “withholding of removal” relief, or relief under the Convention Against Torture, Cargioli said. However, those kinds of relief require people to meet much higher eligibility standards, and do not have as many benefits as asylum, she said.
“It’s frustrating on a humanitarian level, but on a practical level, it’s going to do nothing but create more chaos,” Genovese said. “People are still afraid to go to their home countries.”
It takes a tremendous amount of resources to do immigration enforcement along the border, Genovese said.
“What takes fewer resources is holistic services, providing people the support they need to integrate into the United States, and provide people with basic legal information, so they have all the tools they need to navigate the asylum system,” Genovese said. “But we’re not doing that, and so it’s just going to continue to be a huge mess.”
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