When the Biden administration planned to implement quick asylum screenings at Border Patrol holding facilities, they promised a significant change compared to a similar policy under the Trump administration. This change involved ensuring that migrants would have access to legal counsel.
However, after nearly three months and numerous screenings, it seems that the promise of attorney access has not been fully realized. Reports from advocacy groups and interviews with individuals directly involved suggest that access to legal counsel has been limited.
Some sources spoke to The Associated Press anonymously because they were not authorized to discuss the matter publicly.
According to a group of attorneys involved, it is estimated that only around 100 migrants have been able to secure formal representation, while a few hundred others have received informal advice through one-time phone calls prior to the expedited screenings.
Jones Day, a large law firm, has partnered with the administration to offer free legal advice to migrants. Through their phone bank, they have conducted 460 informal phone consultations as of June 21, with each call typically lasting about two hours. However, Jones Day has only taken on two formal clients, according to one anonymous source interviewed by the Associated Press.
Four other advocacy groups that provide free advice, whose names are listed on the immigration court system’s website, have handled fewer phone consultations. This is partly because they started their services later. Representatives from those groups either declined to comment or did not respond to the AP’s requests.
Although the exact percentage is unknown, the number of consultations conducted represents only a small fraction of the thousands of expedited screenings that have taken place since early April. U.S. Citizenship and Immigration Services, responsible for conducting the interviews, did not respond to questions regarding attorney representation.
The U.S. authorities aim to complete screenings within 72 hours, which is the maximum time allowed to hold someone under Border Patrol policy.
The Homeland Security Department stated that the accelerated timeline is intended to provide relief more quickly to eligible individuals and expedite the removal process for those who are not eligible. The Associated Press has made repeated requests to visit a screening facility in order to gain a better understanding of the process.
During the “credible fear interviews,” which are part of the screenings, migrants need to convince an asylum officer that they have a significant chance of persuading a judge that they would face persecution in their home countries based on factors such as race, religion, nationality, political opinion, or social group membership. If they pass the interview, they are usually released in the United States while their asylum case progresses through the legal system.
However, the percentage of people who passed these asylum screenings dropped to 52% in the second half of May, compared to 77% in the second half of March, just before the fast-track process began.
The government figures do not provide an explanation for this decrease and do not specify how many expedited screenings took place in Border Patrol custody without access to legal counsel.
Administration officials have attributed the lower approval rates, at least in part, to a new policy that significantly limits asylum for individuals who travel through another country, like Mexico, to reach the U.S. border.
A lawsuit filed in federal court in Washington last month aims to end the practice of conducting these screenings in Border Patrol custody. The lawsuit highlights the limited time applicants have to find attorneys, often only 24 hours, after enduring difficult journeys.
It argues that this time frame “leaves virtually no time or ability for noncitizens to consult with anyone or meaningfully prepare for these often life-or-death interviews.”
Migrants who pass the screenings and continue to pursue their asylum cases are often reluctant to discuss their experiences. U.S. Senator Alex Padilla, a Democrat from California, expressed concern and disappointment over reports of limited attorney access at Border Patrol facilities.
The exact number of screenings conducted at Border Patrol facilities, which do not allow in-person attorney visits, has not been disclosed by the administration. However, it is believed to be in the thousands.
The Department of Homeland Security announced on June 5 that asylum officer conducted over 11,500 screenings on the border in the three weeks following the lifting of pandemic-related asylum restrictions.
It’s worth noting that some of these screenings may have taken place at U.S. Immigration and Customs Enforcement centers, which do permit attorney visits.
Under normal circumstances, about three out of four migrants pass the credible fear interviews, although a much smaller percentage ultimately succeed in obtaining asylum.
However, during the five months when expedited screenings were implemented during the Trump administration, the results were significantly different. Only 23% passed, while 69% failed, and 9% chose to withdraw their applications, according to the Government Accountability Office.
President Biden ended the fast-track review program established by his predecessor within a month of taking office. This decision was part of an executive order aimed at restoring and improving the asylum processing system at the border.
The renewed asylum screenings began in the Rio Grande Valley of Texas and subsequently expanded to tent complexes in Laredo and El Paso, Texas; Yuma, Arizona; and San Diego.
These temporary Border Patrol detention centers, constructed since 2021, are equipped with numerous phone booths for conducting interviews.
In the initial weeks of April, Jones Day attorneys managed to provide preparation and informal legal advice to all migrants who sought assistance via phone calls. However, their capacity was soon overwhelmed, according to a source with direct knowledge of the effort.
Some legal service providers faced a dilemma regarding whether to participate in the “Enhanced Expedited Removal” program, which includes the screenings.
One concern was that they would not receive compensation for their services, and there was also apprehension about the potential implications of approval and the perception of lending legitimacy to the process.
Americans for Immigrant Justice decided to join the Jones Day-led effort due to the high stakes involved in the interviews, which can have life-or-death consequences.
Cindy Woods, national policy counsel for the organization, acknowledged the challenging nature of the situation and the way the new program has been implemented.
Attorneys involved in providing legal advice during the expedited screenings are facing challenges in responding to calls, particularly those received at night or on weekends. They lack a reliable method to return messages promptly.
Securing formal representation for the screening process may require a signature, which often necessitates assistance from agents who may not always be available.
In one instance, a client of Cindy Woods, an attorney, had to wait for five hours on the phone while an agent printed a consent form and faxed it back to the attorney with the client’s signature.
According to a report by the National Immigrant Justice Center, which collaborates with the Jones Day-led phone bank, six out of 23 clients did not have access to pen and paper to take notes during their consultations.
Despite having connections to the Trump administration, with attorneys like Don McGahn serving in high-ranking positions, Jones Day has developed a robust practice of representing asylum-seekers for free through its “Border Project.” Since opening an office in Laredo along the banks of the Rio Grande in 2017, the firm has provided legal education to over 10,000 migrants.
With more than 1,100 lawyers dedicating over 280,000 hours to these cases, Jones Day’s commitment is unparalleled among major law firms.
The firm has chosen not to publicly comment on its involvement in providing legal advice for the expedited screenings.
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