HOSTILE AGENTS WRONG FOR ‘CREDIBLE FEAR’ INTERVIEW

The coronavirus pandemic has shut down most of our country and, along with it, our asylum system. With a March 20 order from the Centers for Disease Control and Prevention restricting crossing at our southern border, almost all individuals fleeing violence and persecution have been prevented from seeking safe haven in the United States. But the reshaping of our asylum system was in the works long before the pandemic.

Since 2017, an onslaught of anti-immigrant policies has chipped away at the legally enshrined right to apply for asylum. One of these policies clandestinely changed the very first step of the asylum process: the “credible fear” interview, which determines whether people seeking asylum can continue in their journey to access life-saving protection in the United States or instead be turned away.

For many people, the “credible fear” interview marks the beginning of the lengthy process to seek asylum in the U.S. Only those who pass the interview can present their full claims to an immigration judge. The standard is intentionally low, so that people with a genuine fear are not summarily deported back to persecution or death. In the interview, people seeking asylum must often provide painful details of the persecution they have experienced. These threshold screenings are meant to be conducted in a non-adversarial and safe setting by asylum officers who are experts in asylum law and specially trained to work with victims of trauma. And for decades, that is how these interviews were conducted.

Last year, however, the federal government — acting through officials who were unlawfully appointed — started to allow some U.S. Border Patrol agents to conduct these sensitive interviews. Although it is not clear yet whether Border Patrol agents have conducted “credible fear” interviews everywhere, “pilot programs” like this often expand to become the norm throughout the border region.

The Border Patrol is part of U.S. Customs and Border Protection (CBP), an agency that describes itself as “the world’s largest law enforcement organization charged with keeping terrorists and their weapons out of the U.S.” This is critical: CBP officials (including those with the Border Patrol) are immigration enforcement officers. Such officials should not be tasked with interviewing survivors of violence about their past traumas. Agents with no relevant experience were rushed through an abbreviated training course in an area that is both extremely complex and highly sensitive. Last year, Border Patrol agents were exposed for making violent, hostile comments directed at migrants. This is the group that has been

making determinations that have life or death consequences for people seeking asylum.

People who have fled life-threatening violence and are apprehended by Border Patrol are detained and questioned, and then interviewed only a day or two after their dangerous journey. Their trauma is still fresh and the opportunities to prepare for the interview are limited. Many do not have the help of an attorney, and those who do are often prevented by CBP from contacting and consulting with their attorney. Unfamiliar with the U.S. immigration system, often facing a language barrier, and without legal assistance, people seeking asylum are particularly vulnerable to abuse.

Within detention centers, people seeking asylum and attorneys report that Border Patrol agents have conducted the “credible fear” interviews like criminal interrogations. People seeking asylum tell of being yelled at, cut off when responding, and scolded if they cry or exhibit other signs of trauma. Instead of being met with trauma-informed, well-trained experts on asylum law, many applicants have been forced to present their cases to aggressive, mostly male immigration enforcement agents.

The results are predictable. People have withdrawn their asylum applications or remained silent, ultimately jeopardizing their ability to access safety in the U.S. And Border Patrol agents have consistently lower credible fear approval rates than asylum officers in the same period. Between last August, when Border Patrol agents began carrying out a significant number of credible fear interviews, and May of this year, Border Patrol agents only granted 35% of all credible fear claims. Over the same period, asylum officers granted 57% of credible fear claims. It seems clear that the goal of this policy is to slam shut the first door people seeking asylum must come through.

On Monday, a court ordered a temporary halt to the program. The court found that Border Patrol agents have not been properly trained to conduct these sensitive interviews.

The program should never be restarted. CBP officials, including Border Patrol agents, must not be permitted to be gatekeepers to the asylum process. Adversarial by the nature of their enforcement role, such officials cannot substitute the neutral, expert role that professionally trained asylum officers have long filled. It is immoral and illegal to place the fate of survivors and other people seeking asylum in the hands of a law enforcement agency tasked with capturing and detaining immigrants.