How to Protect Refugees and Prevent Abuse at the Border

Over the last few years there has been a sharp increase in the number of asylum seekers detained in “expedited removal” along the U.S. southern border who have expressed a fear of return to their home countries. The overwhelming majority of these people are from El Salvador, Guatemala, Honduras and Mexico. A rise in murders, rape, violence against women, kidnappings, extortion, and other brutality in these countries, which varies due to the particular conditions in each country—fueled by political instability, economic insecurity, breakdown of the rule of law, and the dominance of local and transnational gangs—is prompting many people to flee their homes.

It has been suggested that this increase in requests for protection reflects fraud, and that asylum is a “loophole” that allows perpetrators of fraud to gain entry to the United States. This view has led some to call for more immigration detention and for changes to lower the rate at which people requesting protection in the expedited removal system pass screening interviews, called “credible fear” interviews. Yet there is also broad agreement that protecting those who flee persecution is an important American value. How to address the multiple challenges associated with this increase in protection requests presents the U.S. government with a thorny dilemma, one that is complicated by the political demands to secure the border before moving ahead with immigration reform legislation and by the escalating humanitarian crisis of children at the border.

In order to learn more about the increase in protection requests, and to inform recommendations for addressing these challenges, Human Rights First conducted visits to key border points, border patrol stations and immigration detention facilities in Arizona, California and Texas. This Blueprint is informed by that research as well as our first-hand experience assisting and providing pro bono representation to asylum seekers including many who have come to this country through the southern border.

Over the years, resources for immigration enforcement, including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE), have quadrupled—rising from $4.5 billion in 2002 to $18 billon in FY 2013. Under expedited removal, immigration enforcement officers, rather than immigration judges, can order the deportation of immigrants lacking valid documentation. Following DHS’s decision to expand the use of expedited removal from formal “ports of entry” to those apprehended within 100 miles of the border and within 14 days of illegal entry, the use of this summary deportation process has also risen dramatically. While the United States deported 41,752 individuals through expedited removal in 2004, that number rose to 163,498 in 2012 with the sharpest rise in the last few years. This increase in the use of expedited removal is part of a broader DHS strategy to shift from judicial to primarily non-judicial deportation processes. Not only has the use of expedited removal increased, but so too have the number of individuals referred into expedited removal’s credible fear process, rising from 7,917 in 2004 to 36,035 by 2013. This increase is particularly steep between 2010 and 2013—with the number more than doubling between 2012 and 2013. These numbers amount to only a very small portion of overall CBP apprehensions.

A confluence of factors is contributing to the increase in the number of people expressing fears of return and requiring credible fear interviews. The escalation of immigration enforcement, the significant expansion in the use of expedited removal, and the increased violence pushing some people to flee are all putting pressures on U.S. protection screening and adjudication systems. The violence in countries south of the United States, outlined in Appendix D to this Blueprint, is affecting a wide range of people including women targeted for murder, rape and domestic violence, LGBT persons, journalists, police officers, and ordinary people threatened and terrorized by gangs and drug cartels that sometimes have close ties to government. Smuggling networks are posing a challenge as well. Some experts also believe that, in the wake of CBP’s increased use of expedited removal and reinstatement of removal, a higher portion of border crossers may be returning to homes and families in the United States rather than first time entrants. All of this is happening in the midst of the politically charged debate on immigration reform legislation, which some believe encourages immigrants to come to the United States.

Despite the sharp increase in expedited removal in recent years and the massive increases in resources for CPB and ICE which handle the initial stages of the expedited removal process, there has not been a parallel sharp increase in resources for expedited removal’s credible fear screening process or the subsequent adjudication process before the immigration courts. The immigration system at the border is imbalanced, with extraordinary resources put into the capacities to apprehend and detain but too few resources allocated to the protection and adjudicatory components of the expedited and regular removal processes. This imbalance had led to backlogs and delays that can undermine the integrity of these systems, increase costs at the tail end of the process, and leave asylum seekers in limbo for years. It has also prompted changes that have undermined protection—like the shift to the use of telephone calls to conduct credible fear interviews and changes to heighten the credible fear standard.

As outlined in this Blueprint, the Obama administration and the U.S. Congress have the tools to address these complex challenges. The administration should step up its use of alternatives to detention, effectively implement parole and bond, repair protection safeguards, and enhance tools for addressing abuse, requesting the funding to do so where necessary. Congress should properly resource the protection screening interviews and immigration courts to reduce backlogs and vulnerability to abuse, support legal presentations in more immigration detention facilities and within days of detention, and support the increased use of alternatives to detention. While detention has long been the default tool used by immigration authorities, further escalating reliance on detention would be exceedingly expensive, and numerous studies have documented that case management, supervision, monitoring or alternative measures lead to high appearance rates.

These solutions are fiscally prudent, effective and reflect American values. For example, alternatives to detention have been endorsed by a wide spectrum of groups and are increasingly turned to in criminal justice systems because they are highly effective measures that can help meet the government’s objective to secure appearance, while mitigating much of the immense human and fiscal costs of institutional detention. Initiatives that provide immigrants with accurate legal information have been demonstrated to improve efficiencies in immigration court, and certainly contribute—along with quality legal counsel—to more just and fair results. Measures such as adequately funding the immigration courts and asylum office, which will require appropriations of additional funding, will strengthen systems that are in urgent need of additional staff and constitute smart investments in the integrity of the U.S. immigration court and asylum systems. For instance, timely asylum and immigration court removal processes deter people from exploiting them. U.S. immigration authorities, at every step in the process, also have extensive tools to identify potential abuse, criminal activity and security risks and these tools have been significantly enhanced in recent years.

Effectively addressing these challenges should be a top priority for both the Administration and Congress. This surge is part of a pressing challenge along the southern border. The United States has a strong interest in maintaining the integrity and effectiveness of its immigration and asylum systems and safeguarding them from abuse. This interest is particularly crucial during a very public debate on immigration reform. America also has a strong interest in maintaining its global leadership in protecting the persecuted. Thirty three years ago, the Refugee Act of 1980, which passed Congress with strong bi-partisan support, enshrined into domestic law America’s historic commitment to protect the persecuted. As the Council on Foreign Relations Independent Task Force on Immigration Policy, co-chaired by former Florida Governor Jeb Bush and former Clinton White House chief of staff Thomas “Mack” McLarty, pointed out—and a group of leading Republicans recently affirmed—the U.S. commitment to protect refugees from persecution is “enshrined in international treaties and domestic U.S. laws that set the standard for the rest of the world; when American standards erode, refugees face greater risks everywhere.” America can and should stand firm as a beacon of hope for those fleeing persecution.

Summary Recommendations

In order to address the increase in protection requests at the border Human Rights First recommends:

Properly Resource Asylum Office Screening Processes and Immigration Courts to Reduce Backlogs and Vulnerability to Abuse

• DHS should request, and Congress should appropriate, funds to increase asylum office staffing and resources to conduct timely in-person credible fear and reasonable fear screening interviews and address backlogs, without diverting staff from conducting timely affirmative asylum interviews.
• DOJ should request, and Congress should appropriate, funds to increase nationally the number of immigration court judges, law clerks, and related resources to address removal hearing delays, eliminate backlogs and conduct timely hearings.

Launch Measures to Support Appearance

• DHS should increase capacity to use alternatives to detention nationally for border arrivals released to locations in other parts of the country who are determined to need appearance support, and Congress should support this initiative.
• DHS should create and staff new positions to support appearance, parole, and alternatives.
• DOJ should request, and Congress should appropriate, funding for timely immigration court hearings which will help support appearance, and steps to provide counsel, outlined below, will also support appearance.
• DOJ and DHS should facilitate immigration court appearance through timely filing of Notices to Appear with, and changes of venue to, court where asylum seeker is actually located.

Address Gaps in Accurate Information about the Process

• DOJ should request, and Congress should appropriate, funds for expansion of cost-efficient legal information presentations to all facilities within a few days of arriving in detention.
• DOJ and DHS should facilitate quality legal counsel early in the process for vulnerable indigent asylum seekers in immigration detention, and Congress should support projects to increase legal counsel for vulnerable populations.
• All immigration officers and government officials should facilitate accurate information on asylum and credible fear.

Strengthen—Do Not Weaken—Protection Safeguards

• USCIS should conduct credible fear interviews in person and in a timely manner, end telephone interviews, revise flawed language in the newly re-issued 2014 Credible Fear Lesson Plan, and intensify supervisory review of decisions under the plan.
• CBP should improve, and implement USCIRF recommendations on, CBP interviews.
• DHS should facilitate updated USCIRF study, and Congress should fund comprehensive USCIRF study, of expanded expedited removal and detention.
• DHS should roll back use of expedited removal, particularly if its protection interview component is not adequately resourced.
• The Administration and Congress should review and address gaps in other protection mechanisms.

Effectively Implement Parole, Bond, and Alternatives to Detention

• DHS should step up capacity to smartly use alternatives to detention nationally in place of detention for border arrivals determined to need appearance support who (present no danger and) are released to other parts of the country.
• ICE should conduct additional training and oversight to effectively implement bond and parole, and should create positions to support appearance.
• DHS should only use facilities, and should develop standards, appropriate to civil immigration detention, and Congress should support this transition.

Enhance Tools for Detecting and Investigating Abuse and Criminal Activity

• DHS should utilize multiple tools for detecting abuse and criminal activity, and refer fraudulent schemes or criminal activity for investigation.
• DHS and DOJ should prioritize prosecutions of individuals who orchestrate schemes that defraud the immigration and asylum systems.
• DHS should increase, and Congress should support if necessary, funds to increase ICE capacity to manage caseload and USCIS capacity to conduct background checks in an automated manner.

Address Triggers of Flight

• The administration should broaden inter-agency attention to promote outcomes to confront impunity and rule of law challenges contributing to flight from Central America and Mexico. All proposed actions should be consistent with U.S. refugee protection and human rights commitments, and include protection mechanisms.
• Support non-profit legal groups to assist displaced victims in countries of origin and carefully assess any informational campaigns.