Sinema pushes for streamlined reviews for asylum seekers
Migrants who fail to win their asylum case would be deported within 15 days
U.S. Sen. Krysten Sinema has joined eight other senators in pressing immigration officials to spin up a pilot program that would streamline the asylum review process, and allow the Trump administration to deport some migrant families within 15 days.
Dubbed "Operation Safe Return," the program would lay out a fast-paced timeline for asylum claims for families who crossed into the United States between the ports of entry, and require Border Patrol agents to begin interviewing asylum-seekers to see if they fear returning to their home countries.
Immigration-rights experts criticized allowing border agents to make case determinations. The program "leans on trusting CBP, which as an agency has proven to be completely untrustworthy," said one attorney, who expressed concerns about "bias" affecting asylum claims.
In a letter to acting Homeland Security Secretary Kevin McAleenan, Wisconsin Republican Sen. Ron Johnson, the chairman of the Homeland Security Committee, led a bipartisan group of senators urging DHS to begin "Operation Safe Return" along a "limited area" of the U.S.-Mexico border.
Johnson and Sinema were joined by Democratic Sens. Joe Manchin and Doug Jones, as well as Republican Sens. Rob Portman, James Lankford, Michael Enzi, John Barrasso, and John Cornyn.
"We have worked with your agencies to develop a streamlined process to rapidly, accurately, and fairly determine those family units that do not have a valid legal claim and safely return those individuals to their home countries," they wrote.
"Through this program, we expect that we can meet our commitments to humanitarian protections while ensuring proper efficiency, timeliness, order, and fairness in the credible fear screening process," the senators wrote.
The plan comes just weeks after U.S. Customs and Border Protection said that in June, 94,897 people were taken into custody by border officials, down 29 percent from a month earlier, when border detentions climbed up to nearly 133,000 people.
Of those taken into custody, nearly 72 percent were either families traveling with children, or children traveling without parents or guardians, most of them from three countries in Central America, where endemic poverty and violence have sent thousands to the southwestern border to seek asylum under U.S. and international law.
DHS officials have argued since 2017 that "legal loopholes" in the U.S. asylum laws have pulled thousands to the border, in recent months, officials have argued that few of the people who come can credibly argue they need asylum in the U.S.
According to court records reviewed by the Transactional Records Clearing House, a non-partisan project at Syracuse University, about 35 percent of people won their asylum cases in 2018.
The "Safe Return" process would use "existing authorities," but would require sending more officials to the border, however, the senators did not outline which agencies under either DHS or the Justice Department—which manages immigration cases under the Executive Office for Immigration Review—would surge agents or officers to the southwestern border.
The program would keep families together, allowing both parents to stay with their children "unless doing so would be contrary to the well-being of the family," the senators said.
The program would exclude people with a serious medical condition, they said.
Border Patrol would be required to conduct "detailed, fair and accurate interviews with participants," within 1 to 3 days of taking someone into custody. Those who "do not claim fear" will subject to "immediate, expedited removal to their home country."
Families who tell agents they fear returning to their home countries will be held an additional 48 hours during a "waiting period." During this period, they will be given a form that describes the credible fear process and a list of pro bono legal counsel. If the migrants do not speak English, they should be given a form in either their native language or "language of fluency," the senators said.
Within 4 days of being taken into custody, families will be processed and should receive "fair access" to available attorneys, the senators said, allowing that some families could "waive access" within 48 hours.
"DHS officials shall confirm that the migrants comprehend the information provided," the senators wrote.
However, attorneys and immigration advocates have long worried about whether agents can serve in this role, and a plan to have Border Patrol agents review asylum claims was immediately criticized and abandoned earlier this year.
"Any time you expedite or streamline a process like this, that's going to raise a concern about the due process, and the rights of people who are legally trying to request asylum," said Mo Goldman, an immigration attorney in Tucson, commenting on the senators' proposal. "It really leans on trusting CBP, which as an agency has proven to be completely untrustworthy."
CBP's mission, Goldman said, is about "protecting the border."
"With the administration they're under there's going to a bias in their determinations, which is not how the process should work," he said. "A lot of people, who come to the U.S, are disorientated, and if they're going to be put into a situation where they're rushed and can't clearly explain their fears of returning home, they're not going to pass the initial test."
Relatively few people are referred by either Border Patrol agents or customs officers to asylum officers who work for DHS under U.S. Citizenship and Immigration Services.
In March, only about 7 percent of people were referred to asylum officers for a credible fear interview, and throughout 2019 only about 10 percent of people were referred to an asylum interview at the border, according to DHS statistics review by David Bier, an immigration policy analyst at the Cato Institute.
A year earlier, the number of referrals reached its peak at 18 percent, or around 93,000 people, he said. For Central Americans, only about 6 percent were referred to these interviews while they were at the border in March.
Under the plan backed by Sinema, within 9 days, or as soon as possible, USCIS asylum officers would be required to conduct credible fear interviews, "prioritizing in-person interviews as resources allow."
"The initial interview by the U.S. Border Patrol shall be considered by the asylum officer, but is not by itself determinative," the letter read.
"Within approximately 15 days," DHS should remove families if an immigration judge upholds the determination by officials that a credible fear claim cannot be substantiated. The senators did not outline an appeals process, nor how the Bureau of Immigration Appeals and other officials could respond if there are problems in a particular asylum case.
Family units who succeed in their initial claims will be put in removal proceedings and allowed to pursue an asylum claim, and they would be placed in "alternative to detention program" as "resources allow," the senators said.
"Our main concern is that our clients tell us, they're afraid of CBP agents," said Laura Belous, an attorney with Florence Immigrant and Refugee Rights Project. "People tell us of horrific stories of verbal abuse and physical abuse by agents," she said. "They're treated like wild animals, and that's just dehumanizing, and it's very difficult for someone to be candid with someone they're afraid of."
Belous also said that the proposal will make it difficult for children to make their own asylum claims, including children who may be gay, or are afraid of abuse from their parents. "They just won't have the opportunity to present that claim separately."
"We're concerned if someone is in charge of your custody, telling your story is really difficult because of the complicated power dynamics," Belous said. "This is especially true for unaccompanied minors, because they're some of the most vulnerable people" coming across the border.
"A lot of them are fleeing severe domestic violence, extreme poverty, and gang recruitment," she said.
The Florence Project has been increasing working with unaccompanied minors in Phoenix and Tucson and she said there has been a "rise" in the number of kids "who have told use that they've been mistreated in CBP custody."
Asylum officers are "specially trained" and "know how to interview people who have suffered trauma," she said, but CBP officials lack that training. She also said there were concerns that the proposal would keep people from getting access to attorneys, and that the speed of the process would hurt people trying to make asylum claims.
"People need time to gather evidence and get testimony, and it's really hard to guarantee due process. And, that's a fundamental aspect of any kind of justice system," she said.
Correction: An earlier version of this story mistakenly implied that migrants who do not make a claim of fear would not be put into removal. Under the proposal, those who “do not claim fear” will subject to “immediate, expedited removal to their home country.”