Biden ends 2 Trump programs designed to limit asylum-seekers

The Biden administration has ended a pair of Trump-era program that forced asylum-seekers to remain in U.S. Customs and Border Protection custody while awaiting a hearing. Advocates had pushed to end the programs, calling them among Trump's "most horrific attacks on America’s long tradition of asylum."

The moves were among major changes to policies along the border announced Tuesday, as President Joe Biden ordered his newly minted Homeland Security Secretary Alejandro Mayorkas — sworn in that afternoon — to "promptly cease implementing" the Prompt Asylum Case Review program and the Humanitarian Asylum Review Program, and "consider rescinding any orders, rules, regulations, guidelines or policies implementing those programs." 

The Prompt Asylum Claim Review was focused on Central American migrants, though it also included people from Brazil. The Humanitarian Asylum Review Process focused on people from Mexico. DHS sought to complete the screening process, the first step in a successful bid for asylum in the United States, within 5 to 7 days after a person was taken into custody. 

Biden said that while there was a "lot of talk" about the number of executive orders he signed, especially regarding immigration, he was "eliminating bad policy." 

"And I want to make it clear—there's a lot of talk, with good reason, about the number of executive orders that I have signed—I'm not making new law; I'm eliminating bad policy," he said. "What I'm doing is taking on the issues that—99 percent of them— that the president, the last president of the United States issued executive orders I felt were very counterproductive to our security, counterproductive to who we are as a country, particularly in the area of immigration." 

The two programs were one of the Trump administration's "most horrific attacks on America’s long tradition of asylum," the American Immigration Council said.

"These policies rush asylum seekers through the most important interviews of their lives while detained in freezing and unsanitary facilities. The facilities are like legal black holes—off-limits to any visitors, preventing them from being able to meet with an attorney in person to prepare for the asylum screening—even though such face-to-face preparation is critical. Even asylum seekers’ telephone access to attorneys is extremely limited," the immigration advocates group said. 

From October 2019 to March 2020, the Department of Homeland Security and the Department of Justice's Executive Office for Immigration Review pursued the two programs designed to streamline the asylum process so that migrants seeking safe refuge in the U.S. would receive a decision — and likely face deportation — with 10 days or less, rather than the months or years it often takes. 

The programs were part of a series of policies put into place as the Trump administration strained to manage the influx of Central American families that came to the U.S. following the administration's disastrous handling of its "zero tolerance" policy in 2018 that included separating children from their parents. After apprehensions dropped more than 25 percent from 2016 to 2017, suddenly the administration apprehended more than 871,000 people in 2019. By the end of the year, apprehensions were the highest they'd been since 2006 when more than 1 million people were taken into custody. 

Advocates complained that the programs were installed in "secret" and were designed so that asylum-seekers, which included mothers with children, were often "without a meaningful chance to speak to an attorney to prepare," said Royce Murray, the managing director of programs at the American Immigration Council during a telephone conference about the program in October 2019. 

Levy noted that people also faced a "heightened standard" to receive protection because of a Trump-era "transit ban," which required people to seek asylum in the first country they arrived in, limiting Central American migrants who have to pass through at least Mexico before arriving at the southwestern border of the U.S. 

The standard known as reasonable fear is "more difficult to pass," said Taylor Levy, an attorney based in El Paso. She noted that she had two clients from El Salvador, who both faced deportation within days after arriving in the U.S. in 2019. Families remained in custody at Border Patrol stations, and they faced "horrific conditions" and were only allowed to speak to an immigration judge via a telephone, which limited their ability to present evidence, especially the kind of documentary evidence that might otherwise help an asylum applicant make it past the first hurdle, and receive some protection in the United States, Levy said. 

One woman tried to present "printed proof" of various threats, but she was "never allowed to show that to anyone," Levy said. The program, she said, felt like CBP was playing  "duck-duck-goose" and "arbitrarily choosing people for PACR," or the Migrant Protection Protocols, sending them back ot Mexico, or allowing people to stay in the U.S. under release-under-recognizance. 

The AIC noted that pass rates for the initial asylum screening under PACR/HARP plummeted. Before the two programs were put into place, 74 percent of asylum seekers passed their screening interview. Under the two programs, only 19 percent to 29 percent of people were successful, the AIC said. "Despite the Trump administration’s inclusion of “humanitarian” in the name of the policy, PACR/HARP is a sham designed to ensure that asylum seekers will fail," they said. 

Last week, the the Government Accountability Office released a report critical of the two programs, which were implemented in three Border Patrol sectors, including the El Paso Sector, the Rio Grande Valley Sector, and the Yuma Sector—which straddles the Colorado River and includes Yuma County, Arizona and Nevada. 

The GAO said that 5,290 people were processed under the pilot programs, and of those about 69 percent of claims of fear were denied during the programs. However, the agencies "couldn't account for the status" of hearings for roughly half of the people who did pass this hurdle. The GAO recommended "better case tracking." 

Around 393 people were processed under PACR in Yuma, and around 3,121 people were processed through PACR in total, according to the GAO.

Yuma also managed 114 people under HARP. People who were taken into custody by U.S. customs officers in the Tucson Sector were shunted to Yuma Sector, which served as one of three "hubs" for the two programs. Agents in the Border Patrol's Tucson Sector would have also transferred immigrants to Yuma, but were hemmed in by lawsuit over the conditions at the sector's holding cells, where immigrants in custody could face squalid and overcrowded conditions in freezing cells. Around 174 people were processed through HARP in the Tucson Sector. 

DHS paused the two programs in March 20, 2020 due to COVID-19, the GAO said. 

The GAO's report "proves what we have warned from the start – that CBP jails are utterly unsuitable for this high-stakes process and that asylum seekers forced to go through the Trump administration’s pilot programs do not and will not have a meaningful opportunity to truly seek asylum in the United States," said Andre Segura, legal director for the ACLU of Texas. "Immigrants deserve due process, and yet CBP jails are effectively legal black holes, where no attorney, and in fact no outsider at all, can enter and telephone access is also severely limited."

The Biden administration has moved quickly to shift policies along the border. 

Last week, Biden announced a 100-day moratorium on deportations and said that enrollments to the Migration Protection Protocols, or MPP, would halt. The program originally termed "Remain in Mexico," required asylum-seekers to stay in Mexico while they await their asylum cases in the United States, leaving thousands waiting for months, even more than a year, for their cases to come up. 

However, last Wednesday, a judge in Texas demanded that DHS continue deportations after Texas sued the Biden administration in the first test of Biden's ability to shift the immigration system. 

While the Biden administration has moved to undo some programs, other Trump administration policies remain in place, including an obscure program that allows ICE to rapidly deport people under the Electronic Nationality Verification program. The American Immigration Lawyers Association, along with the American Immigration Council, Human Rights Watch, and the law firm Winston & Strawn LLP obtained documents through a lawsuit to compel the release of records about the Migrant Protection Protocols and uncovered the program. 

The released documents include a 2019 DHS memo describing how the governments in El Salvador, Guatemala, and Honduras agreed to pilot ENV with their nationals. Similarly secret, ENV was given only "fleeting references by officials or in obscure reports. Yet since 2019, the government has used ENV to rapidly deport thousands of people," AILA wrote. 

In some instances, "people are deported within hours of arrival," AILA said. The "rapid process" could make it more difficult for attorney to work with people before their removal, "which could increase the possibility of erroneous removals," AILA said, adding that "more information is necessary to determine the effect of ENV on asylum seekers." 

"While some portions of the DHS memo remain unredacted, it appears that there is no guidance speaking to situations where a person expresses a fear of persecution during the ENV process. This is particularly important given the well-documented failure of CBP officers to properly screen asylum seekers in all cases." 

They also noted that the program could "encourage" immigration agencies to "prioritize the removal of eligible non-citizens from detention centers with the highest populations." With an emphasis of limiting detention space use, "rather than assessing the strength of a person’s case for relief from removal" raises questions around "due process protections and the fairness of this program." 

"DHS maintains broad discretion to release individuals in its custody," AILA said. "The agency’s choice to use detention should not affect due process." 

"Under the ENV program, CBP coordinates with ICE’s Enforcement and Removal Operations to 'remove eligible [individuals] with a final order of removal to their native countries,'" AILA wrote. "As of 2019, the agencies can remove nationals of El Salvador, Guatemala, and Honduras through ENV. It is not clear whether more countries participate as of January 2021." 

A similar program, known as the Interior Repatriation Initiative has been in Mexico since ICE ERO piloted it in 2012, and made it permanent in 2013, AILA said, adding that IRI likely provided "the framework for ENV." 

"The ENV and IRI programs enable DHS to quickly deport from the United States a person with final removal orders without obtaining travel documents from the foreign national’s government," AILA said. Before ENV, immigration officials had to work with consulate offices to verify nationalities. ICE could get electronic travel document for people from El Salvador, Guatemala, Honduras, and the Dominican Republic, but under ENV, travel documents produced electronically and a person’s nationality is verified electronically, "sometimes through the use of biometric identifiers." 

DHS said that it was expanding ENV after Border Patrol and Customs officials decided that the program was a successful "migration mitigation" strategy, and "indicated plans to implement ENV and other strategies in full after the COVID-19 pandemic." 

AILA uncovered parts of ENV through the Freedom of Information Act, and DHS released dozens of documents—90 pages in all—describing parts of the program, and highlighting potential troubles. 

One email from the chief CBP officer in El Paso in April 2020 notes that some children, identified as unaccompanied children, "may actually be part of" a family, and a December 2019 email with the subject line "POE Intake Breakdown" replies that officials are working with "HQ" to "formulate an automated solution; until that happens any ideas on how to make this less burdensome are appreciated—please send to us." 

"The end goal is to have a one-to-one accounting for every inadmissible alien at the ports the previous day," the email reads. 

"DHS describes the ENV program as one of the most 'effective and lasting' pathways for removal," AILA said. "Yet, the government has provided next to no public information about the program. The only public mentions of this program are fleeting mentions in statements or testimonies on other topics and budget justifications." 

"The lack of information about a program that has resulted in thousands of removals since 2019 raises questions about due process. Other programs designed to expedite removal severely limited, or effectively barred, access to asylum for those seeking refuge at our borders," the group said. For example, shortened processes can increase the likelihood of erroneous removals and rush the complex process of individuals expressing their fear of persecution if returned to their home countries. Moreover, there is little to no information about how DHS involves consulates when placing a foreign national in ENV." 

"Going forward, DHS should provide more public information about the operation of the ENV program and similar initiatives for fast-track deportations," AILA said. "The government should ensure that sufficient safeguards are put in place to address these concerns."