Migrants in custody harder to help, lawyers say
Struggling to aid asylum seekers with their cases
WASHINGTON — In the first weeks after President Biden’s new border policies were put in place, his administration recorded a sharp drop in the number of people allowed to apply for asylum after crossing into the United States illegally.
But lawyers who counsel migrants seeking asylum say the changes make it nearly impossible for them to do their jobs and leave the people most in need of protection struggling to find help.
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. These barriers are a byproduct of changes in how and where the government conducts what is called a credible fear interview, a make-or-break step that determines whether someone who crossed the border illegally and fears persecution or torture at home should be allowed to apply for asylum in the United States.
Before the changes, the interviews were conducted in Immigration and Customs Enforcement detention facilities, which have long-standing policies for detainees to access lawyers. Migrants were transferred there from border custody, and it took an average of 30 days from the time someone was picked up by Border Patrol to a final decision about whether the person would be allowed to apply for asylum.
Now, many people are being interviewed in Customs and Border Protection facilities, cutting the time down to an average of 13 days.
The government also raised the bar for who is eligible to seek asylum, which has reduced the number of people allowed to apply after crossing the border illegally. In June of 2019, about 74 percent of the people interviewed were given the chance to apply for asylum. Last month, just 30 percent were, according to government data.
Biden officials say the new rules are working by limiting the ability to apply for asylum to people with a good chance at winning their case. The administration has added hundreds of phones and private booths to border facilities so that people can consult with a lawyer.
But in interviews, reports and court filings, asylum lawyers say this is hardly the case.
“It’s a mere fig leaf of legal access,” said Greg Chen, who leads the government relations division for the American Immigration Lawyers Association.
Some lawyers have refused to take on clients because the quality of representation they can provide under these circumstances is so compromised, Chen said.
“Attorneys are essentially going into guerrilla warfare just to enter a process with a whack-amole setting,” said Faisal AlJuburi, a spokesperson and vice president of development for the nonprofit group RAICES, one of five organizations on a list the government provides to help migrants held in Customs and Border Protection custody.
Lawyers have long complained about the conditions and remote locations of ICE detention facilities. But they say CBP is much worse.
Customs and Border Protection facilities were designed for booking and charging migrants who cross the border illegally. They were never intended to hold people for more than a few days or provide access from the outside world.
But the Biden administration tasked CBP with making sure migrants could try to connect with a lawyer before interviews that could mean life or death.
A senior CBP official, who was authorized to speak on the condition of anonymity, said that the agency was aware of the challenges asylum lawyers were facing and that it was clear to the government that demand for legal representation was greater than ever. But, the official said, the fact that lawyers are raising these concerns based on their experiences shows that migrants in CBP custody have some level of access to legal counsel.
In addition to adding phone booths for migrants, the administration has created CBP liaison email accounts that lawyers can contact for help sending detainees the forms they must sign to formalize representation.
But a migrant’s access to phones appears to be unpredictable, lawyers said. And often, the liaison email accounts are black holes, said Lisa Koop, national director of legal services for the National Immigrant Justice Center.
Ruth Pebror, a lawyer with the organization, said hours can pass without a single call to a legal aid hotline. Another lawyer said there have been times when 150 calls came in at once.