Civil rights attorneys filed a lawsuit against the federal government challenging an “expedited removal” pilot program put into place by the Trump administration which strips asylum seekers at certain ports of entry along the U.S-Mexico border of their right to counsel.
According to a press release circulated by the American Civil Liberties Union of Texas (ACLU-TX), the coalition filed a lawsuit in the District of Columbia against several government agencies under the Department of Homeland Security (DHS) that handle immigration and asylum cases.
Reports indicated that the Trump administration implemented two new, secretive asylum processes on or around Oct. 7 which would expedite applicants’ credible fear interview.
Credible fear interviews are an integral piece of the asylum process where those who have fled their home countries are given the opportunity to present a “credible,” or believable fear of torture or persecution if they were to return in accordance with both federal and international law.
The lawsuit filed by ACLU attorneys in D.C. this week alleged that the two new programs, called Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP), force applicants to go through the process while detained in U.S. Customs and Border Protection (CBP) facilities commonly known as “heirlas” or “ice boxes.”
The facilities, notorious among migrants and asylum seekers, generally hold families for several days without access to phones, visits, or attorneys.
According to the press release, this alters the original process, which sent asylum applicants into the custody of Immigration and Customs Enforcement (ICE). The agency is required by law to provide detainees with access to attorneys and telephones in preparation for an asylum hearing with an immigration judge.
Additionally, it has been reported that a separate, expedited asylum process has been implemented for Mexican asylum seekers. On Tuesday, a group of an estimated 60 Mexican families, mostly from southern Mexico, were granted access by CBP to enter the United States and begin processing.
Although the Trump administration’s Migrant Protection Protocols (MPP) do not require Mexican citizens to await the adjudication of their asylum cases in Mexico, there appears to be a large number of Mexican families living in camps on the streets of Matamoros while their asylum claims are processed.
Families who live in the tent camps in Matamoros are considered to be in “detained” status while awaiting asylum hearings in Mexico, although attorneys have stated in court documents that DHS has threatened to refuse payment if an immigration court were to grant the refugees a bond hearing, allowing them to enter the country.
In a statement to The Brownsville Herald on Tuesday evening, a CBP official wrote, “What has been seen in Brownsville recently are ebbs and flows in migration patterns; the Humanitarian Asylum Review Process has not been implemented in that location.”
The ACLU lawsuit challenging PACR and HARP cites the program’s initial implementation in El Paso, where over 500 asylum seekers have been sent to the “hierlas” and ordered to return back to their country of origin as part of the new, expedited asylum proceedings.
The suit was filed on behalf of two families from El Salvador who sought asylum and were ordered removed as part of the new programs and were sent home despite threats of “horrific violence,” according to the organization.
According to the lawsuit, PACR and HARP allow asylum applicants only 30 minutes to contact counsel. No callback number is given to attorneys, and CBP has allegedly forced applicants to proceed with credible fear interviews despite knowing that an attorney is trying to contact the individual.
Attorneys wrote that as of Nov. 26, 392 asylum cases had been processed through PACR. As of Nov. 27, the government had placed at least 137 asylum seekers in HARP.
Expedited removal proceedings are generally applied to asylum seekers who have entered the country without inspection (EWI) before being apprehended by border patrol. The process, implemented by Congress in 1996, did not allow all the protections of full removal proceedings, but does allow for a credible fear interview.
Normally, should asylum seekers pass that credible fear interview, they are transferred into full removal proceedings under the Immigration and Nationality Act (INA), where they are given the opportunity to develop a full asylum case in compliance with the United Nations Convention Against Torture (CAT).
Asylum seekers have a right to counsel, although policies implemented as part of MPP, in addition to PACR and HARP, seeking to bar the entry of asylum seekers at the border has made it impossible for applicants to enter the country in order to access counsel.
Additionally, counsel have indicated that they face communication issues, security risks, threats, and retaliation while crossing the border to consult with clients and cannot get licensed to practice law in Mexico.
The lawsuit alleges that prior to the implementation of PACR and HARP, credible fear interviews did not take place until at least 48 hours after applicants were taken into custody, and they occurred once detainees were transferred into ICE custody.
Applicants were guaranteed access to counsel both before and after the interview. The new programs are expected to eventually be implemented across the entire U.S.-Mexico border and condense the asylum process, which usually spans months, to 10 days or less.
Listed as plaintiffs in the lawsuit were DHS, CBP, U.S. Citizenship and Immigration Services, and the U.S. Department of Justice (DOJ); U.S. Attorney General William Barr, CBP Action Commissioner Mark A. Morgan, Acting Secretary of DHS Chad Wolf, USCIS Acting Director Kenneth T. Cuccinelli, Executive Assistant Commissioner of the Office of Field Operations for CBP Todd C. Owen, CBP Director of Field Operations Hector A. Mancha, Jr., and Border Patrol Sector Chief, El Paso Gloria Chavez.