The accelerated reviews seek to accomplish two Trump administration goals: deterring migrants from attempting to cross the U.S. border and pushing asylum seekers out of the United States. El Paso is the only place where the administration is currently testing the program, which started this month, according to U.S. officials.
Migrants apprehended in the El Paso area are taken to a 1,500-bed soft-sided Border Patrol facility that opened in August and remains largely empty because the number of migrants taken into custody has plunged in recent months. They are given one day after arriving to call family or a lawyer, and then they have an interview with an asylum officer to determine whether they have a credible fear of persecution if returned to their home country, according to a CBP official who described the program on the condition of anonymity because he was not authorized to speak about it publicly.
Immigration lawyers and the American Civil Liberties Union said the administration’s pilot denies asylum seekers due process and highlights the limited role lawyers can play; lawyers are not allowed to meet with their clients in Border Patrol stations and are limited to brief conversations by phone.
“This is yet another example of Border Patrol carrying out a pilot project in secret, circumventing Congress and public scrutiny,” said Astrid Dominguez, director of the ACLU’s Border Rights Center. “Border Patrol is fast-tracking deportations while holding migrants at detention facilities . . . and barring oversight to ensure fair and humane treatment. Given Border Patrol’s track record of abuse, the last thing the agency should be allowed to do is shove migrants through a life-or-death decision-making process devoid of basic due-process protections.”
Officials with the Department of Homeland Security did not respond to questions about the program. Kathryn Mattingly, a spokeswoman for the Executive Office for Immigration Review, which oversees the immigration court system, said the rights of migrants are respected.
“EOIR remains committed to ensuring that all who come before its courts will receive due process and a timely, fair adjudication, the outcome of which is based on the law,” Mattingly said.
New Trump administration policies make it difficult if not impossible for non-Mexican migrants to pass a credible-fear interview if they did not seek asylum in the first country they passed through after leaving their homeland. If an asylum officer finds migrants cannot meet the credible-fear standard, the migrants can ask to appear before an immigration judge by telephone. The migrants are then processed for deportation or moved into the custody of U.S. Immigration and Customs Enforcement, depending on the interview finding and the judge’s ruling, according to immigration officials.
Immigration judges from New Mexico are reviewing the credible-fear findings via telephone hearings with migrants in the El Paso project, Mattingly said.
She said that while attorneys can be present at judicial review of fear findings, the law precludes them from representing their clients at the hearing.
In 2017, the Trump administration used El Paso as a pilot test for its controversial “zero tolerance” policy, which required prosecution of everyone arrested for entering the country illegally and separated children from arrested parents. The administration implemented that policy borderwide in spring 2018 but quickly abandoned it under heavy criticism.
A new rule implemented in July generally requires migrants to seek asylum in the first safe country they enter, part of an effort to reduce historically high migration flows. A California federal judge quickly blocked the rule from taking effect, but the U.S. Supreme Court last month ruled that the asylum limits could remain in place while federal courts weigh their legality.
Two sisters from Central America are among the first migrants to face expedited removal in the El Paso pilot test, according to their attorney, Mayra Rodriguez-Alvarez of Hammond, Ind. She asked that her clients not be identified because they fled gang members in their home country who were extorting them.
The sisters crossed the border in El Paso on Oct. 8, surrendered to Border Patrol agents and asked for asylum, Rodriguez-Alvarez said. Each had an infant child, and one was accompanied by her husband.
They had notified the attorney of their plans before leaving their home country and signed forms authorizing Rodriguez-Alvarez to represent them.
The sisters called family members shortly after being taken into custody, but Rodriguez-Alvarez said she couldn’t find out where they were being held until last week. Family members said the sisters repeatedly asked Border Patrol agents to call the attorney, but Rodriguez-Alvarez said she never heard from them.
The sisters failed their interviews to prove fear of persecution if returned home, and then one was ordered deported, Rodriguez-Alvarez said. The woman was not represented by an attorney at her deportation proceeding despite requesting her assistance, Rodriguez-Alvarez said. She was returned to her home country Monday, less than two weeks after crossing the border.
The second sister decided to abandon her asylum claim because her child has become ill in Border Patrol custody, Rodriguez-Alvarez said. She is still being held in El Paso.
“As an attorney you’re supposed to be able to help these people, and you can’t,” she said. “It’s very horrible. It’s very terrifying.”
Taylor Levy, an El Paso immigration lawyer, tried to help Rodriguez-Alvarez’s clients. She went to El Paso Border Patrol Station 1 on Monday, where agents told her that they were conducting a new program and could not provide much guidance.
Correction: An earlier version of this article incorrectly reported that as part of the pilot program, migrants can ask to appear before an immigration judge via videoconference; they can ask to appear before an immigration judge by telephone. The article has been updated.
Moore is a freelance journalist based in El Paso.