Lawyers say it’s nearly impossible to help asylum seekers in border custody

A group of migrants board a bus that will transport them to a Customs and Border Protection processing center in Jacumba, Calif., on May 15, 2023. (Mark Abramson/The New York Times)

A group of migrants board a bus that will transport them to a Customs and Border Protection processing center in Jacumba, Calif., on May 15, 2023. (Mark Abramson/The New York Times)

WASHINGTON — In the first few weeks after President Joe Biden implemented new border policies, his administration saw a sharp drop in the number of people allowed to seek asylum after entering the United States illegally.

But lawyers advising migrant asylum-seekers say the changes all but prevent them from doing their jobs and leave those most in need of protection struggling to find help.

Lawyers cannot meet with clients who are in Border Patrol custody. Or call them. Or leave them messages. There is no system for knowing where a client is being held. And the government sets times for key meetings when a lawyer needs to be present and changes dates and times often without notice.

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These obstacles are a byproduct of changes in how and where the government conducts what is called a credible fear interview, a decisive step that determines whether someone who has crossed the border illegally and fears persecution or torture in their country should be allowed to seek asylum in the United States.

Prior to the changes, interviews were conducted at Immigration and Customs Enforcement detention centers, which have long had policies allowing detainees access to lawyers. Migrants were transferred there from border guards, and it took an average of 30 days from when someone was picked up by border patrol to a final decision on whether the person would be allowed to apply for asylum.

Today, many people are interviewed at Customs and Border Protection facilities, reducing the time to an average of 13 days.

The government has also raised the bar on who is eligible to apply for asylum, which has reduced the number of people allowed to apply after crossing the border illegally. In June 2019, approximately 74% of respondents were given the opportunity to apply for asylum. Last month, only 30% were, according to government data.

Biden officials say the new rules work by limiting the ability to seek asylum to people with a good chance of winning their case. The administration has added hundreds of telephones and private booths to border facilities so people can consult with a lawyer.

“DHS has taken significant steps to ensure that non-citizens who claim to fear return have a safe and efficient process that protects their confidentiality and privacy,” said Luis Miranda, spokesman for the Department of Homeland Security, which oversees Customs and Border Protection. , said in a statement.

“We operate in a broken system that only Congress can fix,” he added.

The Trump administration has policies in place to limit who is eligible to seek asylum, but has faced legal challenges. Biden chose not to continue the legal battle over these policies when he took office.

But as illegal southern border crossings hit record highs, Biden enacted increasingly restrictive measures and issued rules similar to those of the Trump era. Officials in his administration say their approach, which also faces a legal challenge, is different from that of former President Donald Trump because, they say, access to a lawyer is built into their plan.

But in interviews, reports and court filings, asylum lawyers say this is hardly the case.

“It’s a simple fig leaf of legal access,” said Greg Chen, who heads the government relations division of the American Immigration Lawyers Association.

Some attorneys have refused to take on clients because the quality of representation they can provide in these circumstances is so compromised, Chen said.

“Lawyers are basically getting into guerrilla warfare just to get into a process with a mole cadre,” said Faisal Al-Juburi, spokesperson and vice president of development for the nonprofit group RAICES, one of five organizations on a list the government provides to help migrants detained by Customs and Border Protection.

Lawyers have long complained about the conditions and remote locations of ICE detention centers. But they say CBP is much worse.

Customs and Border Protection facilities have been designed to book and charge migrants who cross the border illegally. They were never intended to detain people for more than a few days or to allow access from the outside world.

But the Biden administration has instructed CBP to ensure migrants could try to connect with an attorney before interviews that could mean life or death.

A senior CBP official, who was permitted to speak on condition of anonymity, said the agency is aware of the challenges asylum lawyers face and that it is clear to the government that the demand for legal representation is more important than ever. But, the official said, the fact that attorneys are raising these concerns based on their experiences shows that migrants detained by CBP have some level of access to an attorney.

In addition to adding migrant phone booths, the administration has created CBP liaison email accounts that attorneys can contact to help send detainees the forms they need to sign to formalize representation.

But a migrant’s access to phones appears to be unpredictable, lawyers said. And often, link email accounts are black holes, said Lisa Koop, national director of legal services at the National Immigrant Justice Center.

Ruth Pebror, a lawyer for the organization, said hours could pass without a single call to a legal hotline. Another lawyer said there were times when 150 calls came in at once.

During one of his shifts, Pebror answered a call from a 20-year-old Colombian who said he had fled his country because paramilitary groups had threatened him and his family.

After their call, Pebror emailed a CBP account, seeking to formalize his representation of the client. Days passed and Pebror said she heard nothing while her client was questioned without her and it was determined that he was ineligible to seek protection. She hoped she could help him with his appeal to an immigration judge. But the court changed the time of his hearing earlier in the day without telling him. The judge dismissed his client’s appeal and Pebror never spoke with his client again.

“As far as I know he was fired,” she said.

Cynthia Bautista, a California-based attorney, said an asylum worker told her he would conduct her client’s credible fear interview at 9 a.m. or 2 p.m. the next day. But he never called that day, Bautista said, and she had no way of knowing what happened to her client.

“I was getting ballistic,” she said, worried the government had kicked out her client.

The next day, a Saturday, Bautista received the call she had been expecting 24 hours earlier. It was noon and the asylum officer told her it was time for the interview. Bautista said she was lucky to be home and able to take the call, which lasted three hours. Eventually, his client was released and allowed to apply for asylum.

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