United States domestic law and international treaty obligations guarantee the right to seek asylum on the basis of feared persecution, developed in the wake of World War II and the Holocaust. Today, this fundamental right to asylum is in grave jeopardy as people seeking asylum at the southern border must navigate complicated asylum laws and regulatory asylum bans. U.S. officials require many to present their legal case within hours or days of their arrival while in Customs and Border Protection (CBP) custody. President-elect Donald Trump has vowed to impose even harsher restrictions along the border, many of which will be implemented in CBP facilities.
The Biden administration promised an expansion of legal access along the border but has not permitted lawyers physical access to CBP custody and has obstructed telephonic access. The National Immigration Law Center (NILC) and Human Rights First have published a new report documenting the often insurmountable barriers to access to counsel in CBP custody and the life-or-death consequences for people seeking protection. The report is based on interviews NILC and Human Rights First conducted with legal service providers attempting to provide legal orientations and representation to people in CBP custody.
Through their first-hand accounts, we found:
- The vast majority of people who undergo asylum screenings in CBP custody are never able to speak with a lawyer;
- There is no physical access for lawyers in CBP custody and telephonic legal access is often only on weekends or outside of working hours;
- Bureaucratic and logistical challenges render legal representation in fear screenings nearly impossible; and
- Many providers have declined to provide services because of the severity of obstacles to access.
Together, these findings illustrate that telephonic access is woefully insufficient and unworkable as a means of access to counsel in CBP custody. Obstructed access to counsel has life-or-death consequences. Without access to legal services, people held in CBP custody are left to navigate a confusing and perilous legal process entirely on their own. The United States is summarily returning asylum seekers to persecution and death because they are unable to access counsel during a rushed asylum screening process.
As we anticipate the change in administration in January, we are gravely concerned that government operations in CBP custody have few checks and balances to guard against abuses. Based on our findings, NILC and Human Rights First urge the Biden administration to use their remaining time in office to deliver on their promise of strengthened access to counsel in CBP custody by adopting long-standing recommendations by non-profit legal service providers. In order to safeguard access to asylum, we recommend the following urgent actions:
- Stop the practice of implementing Credible Fear Interviews in CBP custody; and
- Issue a directive permitting lawyers physical access to CBP facilities.
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