Congressional Hearings on Asylum Seekers Facing U.S. Expedited Removal Process

On December 12, 2013, the U.S. House Judiciary Committee held a hearing entitled “Asylum Abuse: Is It Overwhelming Our Borders?”  The Committee Chair, Rep. Bob Goodlatte (R-VA), was concerned that rising numbers of claims of persecution at the U.S.-Mexico border indicated rising fraud and abuse.  Yet testimony by U.S. government and independent witnesses did not support an epidemic of fraud and abuse.  Rather, it indicated an increase in “credible fear” of persecution claims from countries experiencing heavy violence. This affirms the importance of a credible fear interview in identifying persecuted persons that reach U.S. borders and in turn, the importance of increased due process and reduced detention to ensure their treatment meets human rights standards.

A credible fear interview is one part of the “expedited removal” process, used by U.S. immigration authorities to deport summarily noncitizens without valid immigration documentation that authorities encounter at or near U.S. borders.  In fiscal year 2013, over 27 percent of U.S. removals were expedited removals, constituting 101,000 noncitizens.  Noncitizens in “expedited removal” can only avoid summary deportation if they request asylum or express a fear of return to their home country.  If so, the Department of Homeland Security (DHS) is required to refer them for a “credible fear” interview with a U.S. Citizenship and Immigration Services (USCIS) asylum officer. If the asylum officer finds a credible fear, the noncitizen can proceed with his or her asylum claim before an immigration judge.  Additionally, the noncitizen may be eligible for “parole” in DHS’ discretion—i.e., release from detention.

Recently, a “surge” has occurred in credible fear claims made in the context of expedited removal.  Over 36,000 credible fear claims were made in FY 2013, more than double the number (13,391) in FY 2012, which was itself a large increase from the approximately 5,000 claims per year from FY 2005 to FY 2009.  Concomitantly, the percentage of those in expedited removal making credible fear claims has risen. According to DHS, in FY 2013 15 percent of those in expedited removal made credible fear claims, compared to 4 to 6 percent of those in expedited removal from 2000 to 2009.

Ruth Wasem of the Congressional Research Service testified that six countries were “leading this increase”—El Salvador, Guatemala, Honduras, and “to a lesser extent” Mexico, India, and Ecuador.  Five of the six are Central and Latin American countries with high-levels of gang and drug-related violence and civil unrest.  Wasem noted that migration inflows from El Salvador, Guatemala, Honduras, India, and Ecuador have also increased.  Thus, Wasem stated the data suggested a “different pattern of migration”—one which, plausibly, involves migrants from these six countries fleeing violence, reaching U.S. shores in larger numbers, and concomitantly expressing fear in larger numbers.  She testified that an “increase in asylum or credible fear claims in and of itself does not signify an increase in the abuse of the asylum process, any more than a reduction in asylum or credible fear claims signifies a reduction” in abuse.

Chairman Goodlatte argued that “aliens are being coached in the asylum process” and that many credible fear claimants have a “direct or indirect association with drug trafficking and other illegal activity.”  But as Wasem testified, current data does not support widespread abuse of the credible fear process.  Both the USCIS representative and Immigration and Customs Enforcement (ICE) representative substantively agreed, responding “no” to the direct question of whether an “epidemic” of inappropriate use of credible fear exists.  Moreover, DHS officials detailed the extensive criminal and national security background checks and screening that credible fear claimants undergo.

In 2005, the U.S. Commission on International Religious Freedom (USCIRF) argued that credible fear and parole mechanisms in “expedited removal” are “vital to ensure that asylum seekers are not mistakenly returned to their persecutors or re-traumatized in detention.”  Today, there is evidence that both of these trends are occurring.

As to detention, Border Patrol officers first place noncitizens in what migrants and Border Patrol agents call the “freezers”las hieleras—cells with temperatures so low that detainees have developed illnesses.  DHS then transfers noncitizens to longer-term facilities, themselves criticized for human rights violations, and takes an average of 27 days to complete a “credible fear” interview.  For many, the process stretches longer.  No lawyer is appointed during this process or in removal proceedings.

DHS can “parole” non-citizens determined to have a “credible fear.”  ICE’s 2009 parole directive provided that parole should be the norm for those who do not present a security or flight risk.  ICE also directed that parole be given to certain vulnerable noncitizens (children, medically ill, pregnant, and witnesses in proceedings).

Yet parole is often denied to those qualified for it.  USCIRF’s 2005 study found inconsistent application of parole guidelines, and reported “widely varying release rates from city to city” and “stories of asylum seekers being detained for years.”  Moreover, as USCIRF recently reported to Congress, “the granting of parole does not automatically mean release.”  Asylum seekers often remain detained because of “failure to substantiate community ties” or “inability to pay for a bond.”

For example, the Capital Area Immigrants’ Rights (CAIR) Coalition and Center for Victims of Torture (CVT) recently reported on asylum seekers who passed a credible fear interview and eventually received asylum, but were detained throughout most of their removal proceedings.  Fahran, an Afghani translator for the US Army, fled Afghanistan and made it to the US border after several months, with infected cuts and bad health, but then spent two years in detention because he could not pay a $2,500 bond.  Isaac was beaten, cut and electrocuted in Uganda, but when he arrived in the United States, he was denied parole for lack of community ties and detained in Virginia for a year.

As USCIRF found, penal detention conditions “may lead some to prematurely terminate their asylum applications and return to their countries of origin.”  Moreover, detention poses “a real risk of re-traumatizing this vulnerable population.” CVT reported that the United States has detained about 6,000 torture survivors since 2010.  Recent Canadian studies show increased post-traumatic stress and depression among detained compared to non-detained asylum seekers.  Meanwhile, other European studies suggest that providing legal assistance and treating asylum seekers with dignity may encourage compliance with immigration proceedings at far less human and financial cost than detention.

Several legislative and administrative proposals would reduce detention and improve due process for persecuted asylum-seekers in expedited removal, and help ensure their treatment meets human rights standards.  Legislation introduced by Senator Barbara Boxer or Representative Lucille Roybal-Allard would require the Border Patrol to improve short-term detention conditions and fix its “freezers.”  Recently-passed Senate reform legislation would improve long-term detention conditions by requiring all facilities contracting with ICE to comply with ICE’s immigration detention standards. It would  impose financial penalties on those that do not comply.  Moreover, the Senate legislation would provide appointed counsel to the “particularly vulnerable” in removal proceedings.  Doing so would promote fairness and encourage compliance with the law.

DHS could also take administrative steps to improve its credible fear process.  It could provide credible fear interviews more quickly by providing additional resources to the USCIS asylum office to conduct credible fear interviews.  As USCIRF recommends, DHS could also codify its parole criteria into formal regulations, to ensure consistency in detaining only legitimate flight or safety risks.  In turn, DHS and Congress could work to allow USCIS asylum officers to grant asylum at credible fear interviews to those who clearly deserve it, rather than referring those asylum-seekers on to formal removal proceedings, and in many cases continuing to impose unnecessary detention.

Mark Noferi
Visiting Associate Fellow, Center for Migration Studies