In the first few weeks after President Biden’s new border policies were implemented, his administration saw a sharp decline in the number of people allowed to apply for asylum after entering the United States illegally.
But lawyers advising asylum-seeking migrants say the changes make it nearly impossible for them to do their job and leave those most in need of protection struggling to find help.
Lawyers cannot meet clients who are in the custody of the border police. Or call them. Or leave messages for them. There is no system for finding out where a customer is being held. And the government sets times for key meetings where a lawyer should be present, and changes dates and times often without notice.
These barriers are a byproduct of changes in how and where the government conducts what it calls a credible fear interview, a decisive step that determines whether someone who has crossed the border illegally and fears persecution or torture at home should be allowed to seek asylum in the United States.
Prior to the changes, the interviews were conducted in immigration and customs law enforcement detention facilities, which have a long history policies for inmates to access lawyers. The migrants were transferred there from border custody and it took an average of 30 days from the moment someone was picked up by the border police to the final decision on whether the person would be allowed to apply for asylum.
Now, many people are being interviewed in customs and border protection facilities, reducing the time to an average of 13 days.
The government has also raised the limit on who can apply for asylum, which has reduced the number of people allowed to apply after crossing the border illegally. As of June 2019, around 74 percent of people questioned had the opportunity to apply for asylum. Last month, just 30 percent were, according to government data.
Biden officials say the new rules work by limiting the ability to apply for asylum to people with a good chance of winning their case down the road. The administration has added hundreds of telephones and private booths to border facilities so people can consult a lawyer.
« DHS has taken significant steps to ensure that non-citizens who say they fear return are offered a safe and efficient process that protects their confidentiality and privacy, » said Luis Miranda, a spokesman for the Department of Homeland Security, which oversees customs and border protection.
« We are operating within a broken system that only Congress can fix, » he added.
The Trump administration has put in place policies to also limit who can seek asylum, but has faced judicial challenges. Mr. Biden chose not to continue the legal battle over those policies when he took office.
But as illegal southern border crossings have reached record levels, Biden has taken increasingly restrictive measures and enacted rules similar to those of the Trump era. His administration officials say their approach, which is also facing a legal challenge, is different from former President Donald J. Trump’s because, they say, access to legal aid is built into their plan.
But in interviews, reports and judicial documentsasylum lawyers say that’s not quite the case.
« It’s just a fig leaf of legal access, » said Greg Chen, who heads the government relations division for the American Immigration Lawyers Association.
Some lawyers have refused to take on clients because the quality of representation they can provide under these circumstances is so compromised, Chen said.
“Lawyers are essentially getting into the guerilla just to get into a process with a mole-hitting environment,” said Faisal Al-Juburi, spokesperson and vice president of development for the nonprofit group RAICES, one of five organizations on a list that the government provides to help migrants held in custody by customs and border protection.
Lawyers have long complained about the conditions and remote locations of ICE’s detention facilities. But they say CBP is much worse.
Customs and border protection facilities have been designed to book and charge migrants crossing the border illegally. They were never intended to hold people for more than a few days or provide access from the outside world.
But the Biden administration instructed Customs and Border Protection to make sure migrants could try to get through to a lawyer before talks that could mean life or death.
A senior CBP official, who was allowed to speak on condition of anonymity, said the agency was aware of the challenges asylum lawyers were facing and that it was clear to the government that the demand for legal representation was greater than ever. But, the official said, the fact that lawyers are raising these concerns based on their experiences demonstrates that migrants in CBP custody do have some level of access to legal aid.
In addition to adding phone booths for migrants, the administration has set up CBP liaison email accounts that lawyers can contact for help by mailing detainees the forms they must sign to formalize representation.
But a migrant’s access to phones appears to be unpredictable, the lawyers said. And often, connecting email accounts are black holes, said Lisa Koop, national director of legal services for the National Immigrant Justice Center.
Ruth Pebror, an attorney for the organization, said hours can pass without a single call to a legal aid hotline. Another attorney said there were times when 150 calls came in at once.
During one of her shifts, Ms. Pebror answered a call from a 20-year-old Colombian man who said he fled his country because paramilitary groups threatened him and his family.
After their call, Ms. Pebror emailed a CBP account, seeking to formalize her representation of the client. Days passed and Ms. Pebror said she heard nothing as her client was being interviewed without her and determined he was ineligible to seek protection. She hoped she could help him during his appeal before an immigration judge. But the court moved the time of her hearing to earlier in the day without telling her. The judge denied her client’s appeal, and Ms. Pebror never spoke to her client again.
« As far as I know, it’s been removed, » he said.
Cynthia Bautista, a California-based attorney, said an asylum official told her she would conduct her client’s credible fear interview at 9 or 2 p.m. the next day. But she never called that day, Ms. Bautista said, and she had no way of finding out what happened to her client.
« I was freaking out, » she said, concerned that the government had already expelled her client.
The next day, a Saturday, Mrs. Bautista received the call she had anticipated 24 hours earlier. It was noon and the asylum officer told her it was time for the interview. Ms Bautista said it was fortunate that she was home and was able to take the call, which lasted for three hours. Eventually, her client was released and allowed to apply for asylum.