November 4, 2024
Submitted via Federal eRulemaking Portal
Department of Homeland Security
Department of Justice
Executive Office for Immigration Review
Daniel Delgado
Acting Deputy Assistant Secretary for Immigration Policy Office of Strategy, Policy, and Plans
Department of Homeland Security
Lauren Alder Reid
Assistant Director
Office of Policy
Executive Office for Immigration Review Department of Justice
Re: Comments in Response to Rulemaking: Secure the Border (CIS No. 2778-24), Docket No: USCIS-2024-0006, A.G. Order No. 6053-2024.
Dear Mr. Delgado and Ms. Reid:
We write as class counsel in Flores v. Garland, Case No. 85-4544 (C.D. Cal.) to address conflict between the Final Rule 89 FR 81156, Securing the Border (Oct. 7, 2024) (“Final Rule”) and asylum and international law and to express the deep and permanent harm that its policies have inflicted and will inflict upon children, families, and others if made permanent.
Under the 1997 and 2022 Flores Settlement Agreements, Flores counsel is responsible for monitoring conditions in Department of Homeland Security (“DHS”) and Office of Refugee Resettlement (“ORR”) facilities where minors (both unaccompanied and in family units) are held. This responsibility includes monitoring conditions in U.S. Customs and Border Protection (“CBP”) facilities. Flores counsel routinely visits CBP facilities and interviews Class Members and their families. In the course of those interviews, we have witnessed the profound impact the policies now sought to be extended in the Final Rule have had on those apprehended by Border Patrol (“BP”).
Flores counsel are also staff at nonprofit organizations that work closely with immigrants and community partners who serve them, and therefore frequently speak with individuals released or deported from CBP custody. Since the Interim Final Rule 89 FR 48487, 48487-91, Securing the Border (June 7, 2024) (“IFR”) went into effect, we have also spoken to individuals who have been removed from the United States pursuant to the IFR.
The Final Rule announces an extension of the IFR’s scheme of policies, which raise obstacles in each step of the process of seeking asylum. These policies are explicitly intended to reduce the number of people who are able to seek asylum at the border, and, based on our interviews, the consequences are brutal. Even the “safety valve” components of the IFR and Final Rule, which purportedly carve out protections for valid asylum claims, are meaningless in practice, as ambiguous rules authorize line officers to make discretionary decisions about the threshold for manifesting fear, what constitutes meaningful opportunity to consult in preparation for a Credible Fear Interview (“CFI”) as required by statute, and what might warrant a CFI under the new heightened standards. On the ground, rather than meaningfully implement the safety valve to protect those with valid claims, BP agents follow the clear intent of the Rule - to ban asylum at the border - routinely telling asylum seekers, “There is no asylum here anymore.”
These mass deportations also result in prolonged detention for children and their families. During custody, CBP separates children from their families in most circumstances where the child is older than 12 years, or the adult caregiver or family member is not a biological parent. The food is often cold and makes some of the children sick. Medical care, hygiene, and comforts are limited. There are no windows and blinding lights are on at all times in most facilities, so that people inside don’t know whether it’s day or night. Children and their parents report to us that many CBP staff members and officers are indifferent or degrading. Children face all this, often alone among strangers, with no reassurance about what will come next. For too many children, what comes next will be deportation to the country they fled. When summary deportation is the outcome, they will frequently wait weeks for deportation planes, without the support of their loved ones.
In the first six weeks following the IFR’s implementation, CBP claims more than 92,000 people were summarily deported pursuant to the new policies, and deportations continue at that pace.[1] The Final Rule will add hundreds of thousands to that list, many of whom will be persecuted or killed in their home countries.
Table of Contents
I. The Final Rule Expands the Unlawful and Inhumane Policies Implemented Under the IFR Far Beyond the “Emergency Conditions” By Which It Was Originally Justified. 6
III. In CBP Facilities, the Interim Rule Causes Terror, Confusion, and Mass Deportations of Children and Families who Never Had Any Opportunity to Express Their Fear of Returning. 7
a. The requirement that asylum seekers “manifest fear” in CBP custody is impossible to meet for many asylum seekers with legitimate claims, especially children, and leaves discretion to unqualified entry level employees to deny access to the asylum process entirely. 8
c. The exceptions to the prohibition on asylum provide insufficient protection to individuals seeking asylum, and under the final rule, articulating eligibility for an exception requires specified, technical knowledge of the law. 11
d. The heightened CFI standard will result in denials of valid claims for asylum, returning asylum seekers, including children and families, to grave danger. 13
g. The policies in the Final Rule result in prolonged detention of children and families in inhumane conditions. 16
I. Introduction
Rather than responding to the alarms raised by commenters regarding the IFR, the Final Rule expands and extends its devastating policies, making it even more difficult to end the supposedly “emergency measures” based on decreased encounters at the border.
Overall, the impact of the Final Rule will be to make permanent what is essentially the end of asylum at the border for hundreds of thousands of asylum seekers. On its face, the Final Rule violates 8 U.S.C. § 1182. As applied to the children and families in CBP custody who we regularly interview, the policies in the Final Rule are implemented with disregard for refugee protections that the Rule claims remain preserved, causing profound harm. No exceptions or safety valves exist for most people, resulting in enormous numbers of people being summarily deported to countries where they will be persecuted or killed. Crossing the border without inspection is, for most people we have interviewed, a desperate last resort. Denying them the opportunity for asylum under this Final Rule violates both international law and U.S. immigration law.
As described more fully below, the below-signed commenters routinely interview children in BP custody in our role as class counsel in Flores v. Garland, Case No. 85-4544 (C.D. Cal.). Attorney Carlos Holguin brought Flores in 1985 because conditions in CBP (then INS) facilities were inhumane. CBP continues to fail to hold children in “safe, sanitary conditions” that consider their “unique vulnerability as minors.”[2] The Flores Settlement also understands that no detention is safe or healthy for children. For this reason, like the T.V.P.R.A., it requires that children be promptly released. For children who arrive with family members, their wellbeing and their family members’ wellbeing is inextricably intertwined.
Through Flores monitoring interviews, we have witnessed the ways that the Rule creates confusion, inequity, and massive cracks that thousands of asylum seekers will fall through. The policies in the Final Rule leave critical portions of the asylum process to the discretion of Border Patrol agents, officers, and staff who are not trained nor qualified to determine whether a claim is credible. Class members and their families reported to us that when they try to manifest fear to one officer, they are often told they need to speak to a different one. However, the supposedly “correct” agents to whom to report fear are rarely, if ever, in direct contact with detained asylum seekers. The children and families we interviewed told us that CBP staff routinely tell anyone who attempts to manifest fear – and often announce to large groups of people – that they are ineligible for asylum or that asylum does not exist, rather than refer them for an interview.
Additionally, the Final Rule has curtailed children’s legal access and protections to the extent that they have become meaningless. The Final Rule has already restricted the once-48-hour window for consultation to just four hours.[3] Worse, it specifies that these must fall between 7am and 7pm, but otherwise leaves line CBP staff in complete control of the timing and process. Sometimes, staff takes families to a phone on a Sunday or holiday. Other times, they don’t take them until after their CFI. More often, the families we interviewed reported that CBP refuses to provide any opportunity for consultation at all.
Furthermore, CBP staff direct individuals, including children’s parents and caregivers, to sign paperwork throughout processing. Based on our interviews, it appears in some cases that they have directed them to waive their right to review by an immigration judge or to accept voluntary departure on behalf of themselves and their children without explaining what they are signing. Confusing rules, heightened standards, limited exceptions, and the discretionary authority of CBP staff to block access to the asylum process combine to eliminate the possibility of asylum for most people who cross the border between ports of entry, including thousands of children who are fleeing persecution.
One mother we interviewed told us that after the first several days in custody, she had given up trying to ask CBP staff questions about asylum or what would happen to them. Her attempts to report her fear of return had been met repeatedly with silence or with retorts that “asylum doesn’t exist here anymore,” and “you should not have come to this country.” She recalled sleepless nights, being woken by CBP staff entering the pod, reading a country name, and forcing everyone from that country out to board a deportation plane. Some of the women begged the indifferent officers for asylum as they filed out of the room. Sometimes they were lined up, separated, or made to wait while others left, without explanation. The mother was constantly afraid her name would be called next for deportation. She had given up hope that she would get a CFI, and she was also desperate to get her children out of detention. She told us, “Not one person I have met in this facility has gotten asylum. I am terrified that my son and I will be deported, and we will be killed. Only God is with us here.”
The Final Rule has resulted in prolonged detention of children in atrocious conditions, stripped of essential coping mechanisms like the support of a trusted adult or access to physical activity or the outdoors. In August 2024 over 1,200 children accompanied by their families had been held longer than three days in CBP custody – many for a week or longer. Of those children, 76% were 12 years old or younger. We can confirm based on our interviews with detained children that in practice, the Final Rule is subjecting children and families to cruelty and chronic traumatic stress in detention while denying them their fundamental human right to seek safety and relief from persecution.
II. Commenting Parties
The National Center for Youth Law (“NCYL”) is a non-profit law firm that has fought to protect the rights of children and youth for over fifty years. Headquartered in Oakland, California, NCYL leads high impact campaigns that weave together litigation, research, policy development, and technical assistance. NCYL also collaborates with public agencies to develop policies and practices to better support children and families. NCYL's Immigration Team works to ensure that immigrant children are able to live in communities rather than in government custody and have the resources they need to heal and thrive. NCYL is counsel to the plaintiff classes in Flores v. Garland and Lucas R. v. Becerra.
The Center for Human Rights and Constitutional Law (“CHRCL”) provides training and technical support to direct legal service providers, addresses systemic injustice through advocacy and impact litigation, and advances and protects the civil, constitutional, and human rights of immigrants, refugees, children, and communities impacted by systems of oppression.
Children’s Rights (“CR”) is a national advocacy organization dedicated to improving the lives of children living in or impacted by America’s child welfare, juvenile legal, immigration, education, and healthcare systems. CR uses civil rights impact litigation, advocacy and policy expertise, and public education to hold governments accountable for keeping kids safe and healthy. CR's work centers on creating lasting systemic change that will advance the rights of children for generations.
NCYL, CHRCL, and CR are class counsel in Flores.
I. The Final Rule Expands the Unlawful and Inhumane Policies Implemented Under the IFR Far Beyond the “Emergency Conditions” By Which It Was Originally Justified.
The IFR was promulgated as a temporary emergency measure. Section 2(a) of Proclamation 10773 provided that the suspension and limitation on entry would be discontinued 14-calendar-days after the Secretary determines that there has been a 7-consecutive-calendar-day average of fewer than 1,500 encounters between POEs.[4] However, on September 27, the President amended the Proclamation so that the 7-consecutive-calendar-day average must remain below 1,500 encounters between POEs for 28-consecutive-calendar-days before the 14-calendar-day waiting period is triggered.[5] In the immediate post-pandemic period, there were around 5,100 average daily encounters; even under the IFR, there are 2,100 daily encounters between POEs.[6] The requirement that there be four consecutive weeks with average daily encounters of under 1,500 means that the asylum restrictions in this Final Rule will remain in place indefinitely, effectively erasing asylum law for anyone recently arriving at our border.
The September 27 Proclamation further reduces the possibility of lifting these restrictions by deleting section 2(c) of the June 3 Proclamation, which provided that Unaccompanied Children (“UCs”) from non-contiguous countries would not be included in calculating the number of encounters for purposes of section 2(a) and 2(b) of the June 3 Proclamation. Including UCs in the data, even though they are not subject to expedited removal, will serve to inflate the numbers, preventing the trigger that would lift the restrictions.
DHS claimed that the IFR was “designed to [enhance] the Departments’ ability to address historic levels of migration and efficiently process migrants arriving at the southern border during emergency border circumstances.”[7] In the Final Rule, DHS claims that the changes honor “rule’s purpose as an exceptional measure to address emergency border circumstances.”[8] Yet DHS now extends the restrictions well beyond any “exceptional” or “emergency” circumstances, claiming that the extension “seek[s] to avoid a situation where the emergency measures in this rule are discontinued prematurely.”[9] In fact, the changes nearly foreclose any foreseeable end to the “emergency measures,” which have been in place for four months and only lowered daily encounters to 2,100.
III. In CBP Facilities, the Interim Rule Causes Terror, Confusion, and Mass Deportations of Children and Families who Never Had Any Opportunity to Express Their Fear of Returning.
In practice, the Rule is even more draconian than on paper. Through our monitoring responsibilities as Flores counsel, we have conducted visits to CBP facilities where multiple families reported blanket denials of access to counsel, CFIs, and asylum, regardless of the credibility of the asylum seeker’s fear or merit of their claim for asylum. From our observations, the mass deportation scheme under the Final Rule’s new expedited removal processes results in numerous harms to children and their families detained by CBP: it (a) prevents asylum seekers from ever even articulating valid asylum claims under the Rule’s “manifest fear” requirement, which leaves access to asylum at the discretion of entry level employees untrained to make determinations about asylum claims, (b) denies asylum seekers access to counsel, (c) fails entirely to provide the necessary safety valves to protect valid claims for asylum, (d) distorts the CFI standard so that few valid asylum claims can survive it, (e) prevents judicial review in many cases, (f) imposes family separation, and (g) results in prolonged family detention in inhumane conditions.
a. The requirement that asylum seekers “manifest fear” in CBP custody is impossible to meet for many asylum seekers with legitimate claims, especially children, and leaves discretion to unqualified entry level employees to deny access to the asylum process entirely.
The Final Rule, like the IFR, requires someone to “manifest fear” in order to be granted a Credible Fear Interview (“CFI”). 8 C.F.R. § 235.15. The rules governing this process are inconsistent, unclear, and ambiguous. No one ever explains this requirement to individuals apprehended by BP. Sometimes, the vague and generalized instruction to report fear to staff is posted in obscure areas of some CBP holding facilities where immigrants are held after initial processing. Confusion among asylum seekers, combined with inconsistency among BP agents in how they implement the Rule, make it almost impossible to understand, let alone meet, this requirement.
From our observations, each CBP facility appears to have different and arbitrary policies around manifesting fear sufficiently to trigger access to a CFI. For instance, in one facility, we learned that detained individuals needed to manifest fear to a certain type of agent, who would be wearing a green uniform. However, agents in green uniforms did not appear to be the staff who monitored the spaces where children and families were held and were therefore mostly inaccessible to detained individuals. Some of the families who had discovered that they needed to talk to BP agents in green uniforms reported to us that they had never been in direct contact with a BP agent in a green uniform, and therefore could not have manifested fear. When families approached the “wrong” staff person to ask for asylum, they reported that, rather than directing them to an appropriate agent, staff would simply tell them that they could not get asylum.
Even among those who attempted to manifest fear to a BP agent in a green uniform, many reported that they were denied a CFI without explanation. Furthering the confusion and further reducing the likelihood that someone would report fear, many agents simply told individual asylum seekers or groups of asylum seekers that they could not get asylum at the outset of apprehension and processing.
The IFR acknowledges that “[a] manifestation of fear may present with non-verbal or physical cues, through behaviors such as shaking, crying, fleeing, or changes in tone of voice, or through physical injuries consistent with abuse.”[10] Yet the Rule’s mandate that agents never ask about a person’s fear results in agents ignoring obviously distressed people when they do not realize that they must explain before being asked. One mother we interviewed began by immediately begging for help to seek asylum before we could even ask her a question. She reported asking to speak to an agent because she feared returning to her country. The agent approached her, asked for her son’s A number, and walked away without another word. She broke down crying as she talked to us, asking us why he had done that and when he would give her a chance to explain her fear. She kept saying, “we will be killed if they send us back.”
In addition, families we spoke with reported being coerced or misled into signing voluntary departure forms. One father reported being told that he needed to sign an electronic signature box for a computer screen that he could not see. Believing it was part of the intake process, he complied. After he signed, an officer told him he had signed something that meant he could not stay in or return to the U.S. for five years, which indicates he likely signed an expedited removal order without his knowledge. He told us through tears that his family had fled threats and feared for their safety and lives if they returned to their home country. He described how he had carried his four-year-old son on his shoulders through the Darien Gap. But each time they attempted to tell a BP staff member or agent, no action was taken, and they did not receive a CFI. The family was transferred to another facility to be deported the day after we first interviewed them.
The families we have spoken to since the IFR went into effect were confused and desperate. One 21-year-old mother told us that she had asked for asylum every time she could get the attention of staff, but that they had ignored her or told her she was going to be deported. She had tried to use a phone, but staff forbade her from doing so. She wondered if her family in the U.S. was worrying about whether she was alive. Then she hid her face from her toddler, who was playing at her feet, and cried. She said that she would be hesitant to call them now if she could, because she would not want to give them false hope that she and her child would be safe. She could not bear to tell them that she would not be given the chance to seek asylum.
One Salvadoran father told us that when he arrived, he immediately asked for asylum. A CBP agent told him, “It’s safe in El Salvador now, so you cannot get asylum.” Later, another officer informed him that they were waiting for a plane that would deport his family. Again, he asked for asylum. The officer said, “since a new law in June, we are no longer granting asylum to anyone, everyone will be deported.”
The IFR, and now the Final Rule, has signaled to CBP staff that they should deter entries between POEs by preventing those who do enter between POEs from seeking asylum. The new “manifestation of fear” requirements spur BP agents to avoid contact with asylum seekers and otherwise avoid providing opportunities to properly manifest fear under the Rule. Under the protection and prompting of the regulation, CBP flagrantly disregards asylum and refugee law and doubles down on a culture of using CBP facilities not for processing, but for punishment. Children and families consistently reported that agents would make statements to entire pods of detained people and directly to individuals expressing fear such as, “There is no more asylum,” “You cannot get asylum in an election year,” or “No one from El Salvador, Guatemala, Mexico, or Honduras can get asylum.” These statements deterred asylum seekers from expressing fear, which they had been told was futile. They also intimidated people who were afraid to defy agents who had already told them, in so many words, not to even try expressing a fear of return.
b. The Final Rule denies asylum seekers, including children, their statutory right to counsel.
An individual seeking asylum has a statutory right to “consult with a person ... of the [noncitizen’s] choosing” before being subject to a CFI. 8 U.S.C. § 1225(b)(1)(B)(iv). The Final Rule (in accordance with the IFR) shortens the period for consultation to just four hours, rendering the window effectively meaningless.[11] The implementation of this guidance reveals that the Final Rule provides only the mirage of adhering to this critical statutory right on paper, while eviscerating it in practice.
For instance, although the Guidance requires that noncitizens be provided a four-hour window between 7am and 7pm, commencing when they are given access to a phone, to consult prior to a CFI, there is no requirement that the 4 hour period occur on a business day.[12] Several people reported being taken to a phone booth on a Sunday or holiday and given a chance to make a call, but unsurprisingly being unable to reach anyone.
One mother and daughter shared that they had begged to speak with a lawyer, but CBP staff told them they couldn’t. They described a long phone call which we believe was a CFI based on their description, and then suddenly being taken back to the holding pod. A few days later, the mother was taken to a room with a phone and told she could finally make a call. She was bewildered. It was a Sunday, and she reported that the three numbers on a sheet of paper hanging on the cell wall, partly obscured behind the phone, rang and rang with no answer.
CBP facilities generally consist of small, prison-style cells without phones or windows or (in soft-sided facilities) large, open pods where groups of people are detained together. Based on our interviews, pods where unaccompanied minors are detained sometimes have access to phones, but pods that detain adults and families often have no access to phones, and anyone who wishes to make a call must request to be escorted by a BP agent to a phone booth in a separate part of the facility. Based on reports from the families we interview, the policy in CBP facilities is to rarely, if ever, take adults or children in families to a phone. BP agents told some children that if they are detained with their parents, they do not have the right to use a phone, because the phone is only for calling family members. Many adults reported being told repeatedly that no one could call a lawyer from CBP. On the rare occasion an adult reported being able to access a phone, it was usually for one or two minutes, and the BP agent often dialed the family member’s number for the adult, preventing them from using the phone to call a lawyer or consult confidentially with anyone.
One asylum seeker asked for a list of attorneys and the ability to contact a lawyer during her CFI. A Border Patrol agent came into the room and told her if she persisted with that request, she would be detained much longer, so she proceeded without a lawyer.
Although unaccompanied children sometimes have access to phones, they reported to us that they were permitted to call family only if BP officers accompanied them and dialed the phone number. Children reported that they did not have any opportunity to call a lawyer.
Families consistently reported to Flores counsel that they had never received any opportunity to use a phone before their CFI. Some asylum seekers reported being given an opportunity to use the phone after failing their CFI, but not before. Others were told to email the asylum office if they wanted a lawyer, but were given no subsequent opportunity to access a computer.
Thus, our interviews confirm that the four-hour window is one of a plethora of false “safety valves” that exist on paper in this ill-conceived scheme. In reality, the miniscule window for legal consultation does nothing to protect the right to seek asylum enshrined in immigration and international law.
c. The exceptions to the prohibition on asylum provide insufficient protection to individuals seeking asylum, and under the final rule, articulating eligibility for an exception requires specified, technical knowledge of the law.
The Final Rule extends the rebuttable presumption of ineligibility for those who do not enter via a CBPOne App beyond the timeframe established in the Circumvention of Lawful Pathways, but does nothing to extend protection to the majority of people who cannot benefit from the app due to linguistic, technological, or other barriers.[13] The Rule claims to allow exceptions to the Circumvention of Lawful Pathways rule, but in our experience speaking with children and families, officers do not explain and may not ask about these exceptions, and they are difficult to prove. To qualify, a person must establish a significant possibility that they could establish, by a preponderance of evidence, that they (1) faced an acute medical emergency; (2) faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or (3) satisfied the definition of “victim of a severe form of trafficking in persons” provided in 8 CFR 214.11. See 8 CFR 208.33(a)(3)(i)(A)-(C), (ii), 1208.33(a)(3)(i)(A)-(C), (ii).
If they are familiar with the CBPOne App at all, people consistently report that they do not know about the restrictions on asylum for those who do not use it or that there are exceptions to those restrictions. Even if they were aware of these exceptions, they would have no way of knowing that they should articulate them in a CFI, during which interviewers rush them through the traumas they experienced in their home country and may not affirmatively ask about the exceptions. Whether because they qualify for an exception but do not know to raise it, or because they raise it in a way that does not clearly articulate that it meets the definition of the exception under the high (and not clearly defined) “significant possibility of establishing by a preponderance of evidence” standard, or because they do not fall into one of these three limited categories of exceptions, or because they do not get a CFI at all and never have an opportunity to explain why they qualify for an exception, countless people fleeing persecution with valid claims to protection will be turned away at our border. For most people who brave the physically taxing and dangerous journey across the border, using a “lawful pathway” is simply not possible. Crossing on foot is a last resort.
The CBPOne App requires access to technology, language and literacy skills, and a good deal of luck. One family we interviewed spoke an indigenous language. One of their young children struggled to translate basic needs on behalf of his family with limited Spanish proficiency, and the family could not have navigated scheduling an appointment through the app. Even when it works perfectly, children and families we interviewed shared that getting an appointment requires 7 or more months of waiting, and then requires that the person find transportation to the POE.
Some people reported to Flores counsel that they have never heard of the app or the rule requiring them to use it. Those who were familiar with the app shared harrowing reasons that they hadn’t been able to use it. One unaccompanied minor in ORR custody told us that he and his mother had been trying to use CBPOne for nearly 8 months, and he finally feared so much for his safety that he separated from his mother and crossed alone; he could not wait for the app any longer. One father reported making a CBPOne App appointment and the difficulties his family faced attempting to wait for the appointment date. While he waited, he was living on the street in Mexico with his young wife and their toddler and infant, without food or protection. When he began to fear for his children’s lives, they decided, out of desperation, to cross the river. A teenage girl reported that she and her mother experiencing two kidnappings on their journey from Central America. After the second kidnapping, which occurred in Mexico, she realized that she could not wait several months longer for her CBPOne appointment. One parent shared that she had decided to make the journey because she wanted better medical care for her daughter. Even though she was not experiencing an acute medical emergency, her daughter needed to receive consistent medical care they could not access in Mexico, and she was unable to safely wait at the border where she did not have secure housing and food.
d. The heightened CFI standard will result in denials of valid claims for asylum, returning asylum seekers, including children and families, to grave danger.
Under the new policies in the IFR and Final Rule, the already high CFI standard is heightened so much that it is unreasonable to expect an asylum seeker to meet it. If the asylum seeker manifests fear and is unable to establish a “significant possibility that the noncitizen would ultimately be able to demonstrate by a preponderance of the evidence that the limitation does not apply or that they meet an exception,”[14] the asylum seeker will be considered only for withholding of removal or CAT protections under the procedures set forth in § 208.33(b)(2)(i), except that “the asylum officer will apply a reasonable probability standard,” which the Rule defines as “substantially more than a reasonable possibility, but somewhat less than more likely than not.” 8 C.F.R. 208.35(b)(2)(i). This heightened standard means that asylum seekers must now show that there is a reasonable probability that they are eligible for withholding of removal or CAT protections at the CFI stage, while being held in stressful and traumatic conditions, when they have not had the opportunity to rest or consult with counsel.
Because of the conditions in which they are held, the difficult journeys they have just endured, and the trauma and violence they have experienced in their home countries or on their journeys, the children and families we interview often struggle to respond directly to questions or stay focused. Some speak extremely rapidly, needing to share their unprocessed trauma in the limited opportunity to do so, while others are unable to speak much, exhausted from sleepless nights worrying, under blinding lights that are left on 24 hours a day in BP detention. For some, the first time they are able to see their parent or child after being separated in detention is at the CFI interview itself. The phone booths where we understand CFI’s take place are tiny and cramped, and often get very hot after a period of time. Sometimes children are very young and have difficulty sitting still or waiting calmly in the phone booths while parents are being interviewed. Intimidating BP agents wait outside the doors. These conditions and more make it very difficult to cogently articulate a legal claim to asylum.
In part for these reasons, the CFI standard is intended to be significantly lower than the standard for final adjudication of an asylum claim. A detained person who is still in the crisis that triggered them to flee their home country cannot be reasonably expected to clearly articulate their eligibility for each element of asylum (and now, the CLP exceptions), withholding, and CAT.
Conducting CFIs by phone in CBP custody is already inherently disadvantageous for individuals trying to seek asylum. In addition to the obstacles accessing counsel identified above, the trauma of past persecution, the added ordeal of the journey and detention, terror about what lies ahead, and brutal conditions - including crowding, inability to sleep, poor food, and constant stress - means that “[a]s a practical matter, a noncitizen ‘appearing at a credible fear interview has ordinarily been detained since his or her arrival in the United States and is therefore likely to be more unprepared, more vulnerable, and more wary of government officials than an asylum applicant who appears for an interview before immigration authorities well after arrival.’” Kiakombua v. Wolf, 498 F. Supp. 3d 1, 39 (D.D.C. 2020) (quoting Zhang v. Holder, 585 F.3d 715, 724 (2d Cir. 2009)). Indeed, the longstanding prior rule was that asylum seekers would be given a 48-hour window of repose, to allow them to recover from their journeys.
Under the new Rule, families must meet a higher standard in even harsher, more disorienting circumstances. Families reported being woken at 3 in the morning, sometimes the same night they arrived after sleeping only one or two hours, then made to wait until 7am for a several-hour interview. Many individuals reported having been kidnapped, assaulted, or trafficked on their journey to the U.S. They often have crossed dangerous terrain or strong rivers. They report being anxious to speak with worried family members and being afraid of being deported. Families and groups are routinely separated while detained, adding to the fear and trauma. These crisis conditions make it almost impossible to articulate their fear in a manner that can satisfy the heightened standard.
Trauma can prevent the formation of semantic memory, shut down episodic memory, fragment chronology, and cause PTSD stress responses and flashbacks.[15] "Events that are central to an asylum case in a legal sense may not be what an applicant perceived to be important when the events happened . . . Details such as dates, which people often do not remember, may be unreasonable to expect."[16] Trauma may also “confuse the details of particular incidents, including the time or dates of particular assaults and which specific actions occurred on which specific occasion. As events recur, it can become difficult to remember exactly when specific actions occurred even though memory for what happened is clear.”[17] Expecting individuals who are in crisis, navigating detention, separated from their home and everything familiar to them, terrified of what will happen to them, and still processing trauma from traveling to and crossing the border to tell a clear and, complete, and accurate story is already unreasonable, especially when they have had no opportunity to speak to someone who could help them prepare for an interview. Heightening the standard when the circumstances are already so extreme can only result in large numbers of denials of legitimate asylum claims.
Among the few people we interviewed who believed they had received a CFI, many reported confusing, rushed phone interviews, often including only yes or no questions. Interviews were conducted in the presence of a family member or officer, which made it difficult for individuals to share the personal, traumatic details of their experiences. Many families were also terrified, having had bad experiences with CBP agents who yelled at their children, demanded they line up and hold their hands behind their back like “prisoners,” or chastised them for asking for asylum, claiming that their home country was “safe” or that they “should not have come to this country.” They had had no time to process the trauma they experienced in their home country, the grief of leaving their family, the physical stress and fear of the journey, or the anxiety about what would come next. They were unsure whether the phone call was a CFI, who they were speaking to on the phone, or what some of the questions meant. They were not in a state in which they could make their case to an officer.
e. The right to review by an immigration judge is jettisoned by the IFR and Final Rule.
On paper, the Final Rule requires that the asylum officer provide a written notice of decision and “inquire whether the [noncitizen] wishes to have an immigration judge review the negative credible fear determinations.” 8 CFR 208.35(b)(2)(iii). Review only occurs if the asylum seeker knows to request it: “[o]nly if the [noncitizen] requests such review by so indicating on the Record of Negative Fear shall the asylum officer serve… a Notice of Referral to Immigration Judge.” 8 CFR 208.35(b)(2)(v); see also IFR 89 FR 48721 (“Where a noncitizen requests review by an IJ, the IJ reviews the negative credible fear finding de novo.”).
Children and families have reported to us that they were unaware of the right to judicial review. More than one family described having a packet of papers placed in front of them as soon as their CFI ended and being told, without explanation, that they must sign. They believed that they had signed some type of affidavit or processing form, but they had been made to sign a waiver of judicial review.
f. The IFR and Final Rule impose family separation.
Family separation within CBP facilities is common practice within certain sectors. In some facilities, any child older than 12 years of age is generally separated from their family, which makes detention more traumatizing. This separation is especially traumatic because, as children have reported to us, CBP facilities are scary, confusing, and unfamiliar, and children are detained in a large room with other children they have never met. When navigating trauma of this level, children need support from a trusted adult, not only to protect their mental wellbeing but also to advocate for them should they need it. For example, if a child experiences a medical issue, a parent is the best historian of their medical history and would be able to speak up for them when the child is afraid or unable to articulate their needs.
Children under twelve who traveled with an adult other than their biological parent (including primary caregivers, siblings, and other relatives) are often separated from the adult while detained. Under the Final Rule, these technically “unaccompanied” children are generally transferred to the custody of the Office of Refugee Resettlement, while their accompanying adult is extremely likely to be deported without them.
The Rule imposes an impossible choice on many parents. Parents facing deportation often ask whether their children can remain in the U.S. to receive protection if the parent is going to be deported. Parents who traveled through extremely dangerous conditions while caring for their children, often risking their lives to keep their families together, sometimes consider separating from them because they believe their children’s lives are at stake and “manifesting fear” has provided no hope. One twenty-one-year-old mother reported that in her home country, she had been taken from her home at gunpoint in the middle of the night and told that if she returned she would be killed. She fled to the U.S. with her two young children. When it became clear to her that she would be deported despite her efforts at seeking protection, she asked whether there was any way to be deported without her children and wondered whether she should have stopped at the border and sent them across alone. She believed that she was going to be killed when she returned to her country, and she didn’t want her children to die, too.
Thus, the blanket deportations of adults caused by the Rule results in children being left alone after non-parent caregivers are deported without them and incentivizes parents to separate from their children to protect them from family deportations.
g. The policies in the Final Rule result in prolonged detention of children and families in inhumane conditions.
The Final Rule also results in unnecessary harm to children and families by subjecting them to cruel and inhumane conditions for prolonged periods of time. We have witnessed a significant increase in detention times among the people we interviewed after the IFR went into effect, some lasting more than two weeks. Some children had been in the facility for weeks already and had not yet received a CFI or an agent had told them or their parents that they would not receive one. Many also reported accepting voluntary departure out of desperation to get their children released from CBP custody, and then being forced to wait for additional days or weeks for a plane to be available. Even for those who were refused a CFI or failed to pass, many remained in custody for days or weeks waiting for a deportation flight. Children were often separated from some or all of their family members throughout their detention. One woman reported that an agent came to her pod around 3am and took half of the people from El Salvador. She said that the women and their children who were taken had been at the facility for between 9 and 20 days, even though she believed that in that time, they had been denied any opportunity to seek asylum and never went through the CFI process or received a review by an immigration judge.
No type of incarceration can be humane for children fleeing their homes, who spend their time exhausted, lonely, bored, and scared. The Flores Settlement, reached in 1997, recognized this, requiring immigration authorities to promptly transfer children to child-friendly licensed placements and from there, to release children to a family member or sponsor without unnecessary delay. Subsequent enforcement, other litigation, and legislation such as the TVPRA have further entrenched children’s right to be promptly released, in most cases within 72 hours. Flores protects unaccompanied and accompanied children alike. Flores v. Lynch, 828 F.3d 898, 901 (9th Cir. 2016) ("[T]he Settlement unambiguously applies both to accompanied and unaccompanied minors ... ").
In 2022, after a Motion to Enforce the 1997 Settlement, Flores counsel reached another settlement with the government clarifying the rights of children in CBP custody.[18] This 2022 Settlement covers only the RGV and El Paso sectors in Texas, but it is instructive in interpreting the 1997 Settlement, which applies to all CBP facilities. Under the 2022 Settlement, a Juvenile Care Monitor (“JCM”) was appointed as an independent monitor of the covered facilities. Over the two subsequent years, the JCM has filed numerous reports, which show continued violations of the Settlements.
For instance, under the 1997 Settlement, CBP must maintain “adequate temperature control and ventilation.”[19] In the 2022 Settlement, the parties agreed that temperature should be “no less than 69° Fahrenheit and no more than 83° Fahrenheit” and CBP must provide warm clothes to children.[20] Even after continued litigation on this issue, the temperatures are low in CBP. The JCM reported that children continue to suffer from cold while detained and that “[a]s noted in prior JCM reports, there is no reason that children should report feeling cold for extended periods of time while in CBP custody.”[21]
Additionally, CBP routinely holds children separately from their parents or caregivers in large soft-sided facilities for unexplained or illogical reasons. The 2022 Settlement addressed this, making clear that “[a]bsent an articulable operational reason, class members apprehended with adult family members (including non-parents or legal guardians) shall remain with that family member during their time in CBP custody....”[22] The only exception to this mandate is when “there is an operational need to house family members separately,” and in those cases “CBP shall make and record the reasons for holding them apart and all reasonable efforts to ensure that the family members have the opportunity to interact.” Nevertheless, the separations continue. The November 2023 JCM report found that at the Donna facility, “several families ... had been held apart for 5 days at the time of the site visit.”[23] Even more traumatizing, “[i]nterviews with the children being held separately from non-parent family members with whom they had traveled at the Donna Facility reported that most had not had any interaction with a parent since they entered the UC holding pod.”[24] Children are also separated from their parents for the duration of custody in CBP facilities. We interviewed a mother and her daughter who had been in the same facility for several days, but had been separated at intake processing. When they were brought to the room and saw each other, they clung to each other, crying for several minutes. They told counsel that they had not seen or heard anything about one another since being separated, and that each had been terrified that the other had been deported without them.
Medical care is also notoriously lacking. Children have a right to “Medical assistance if the minor is in need of emergency services.”[25] Under the 2022 Settlement, “Agents in the field shall be trained to recognize and respond to signs/symptoms of injury or illness.”[26] The Settlement also requires that “CBP shall have contracted medical support personnel at medical priority facilities in the RGV and El Paso Sectors who shall provide initial assessment, treatment, and referral” and that “CBP shall rely heavily on referrals to local health systems” and “refer class members to the local health system whenever appropriate for evaluation and treatment.”[27] Yet there have been consistent problems with providing prompt care, transferring to hospitals when there is a medical need, and communicating medical needs between staff and upon the child’s release. Eight-year-old ADRA, who was detained with her mother, died in Border Patrol custody at a CBP station on Wednesday, May 17, 2023. The JCM found that “[b]ased on the currently available information, the death of ADRA was a preventable tragedy that resulted from a series of failures in the CBP medical and custodial systems for children.”[28]
In addition, bright lights are often left on throughout the night. Some pods have no clock, and detained children and families frequently do not know the date or time, or even whether it is day or night. Children sleep on mats on the floor, without pillows, with only a thin mylar blanket for warmth. Families have reported to us that CBP staff can be indifferent or hostile, sometimes ignoring children and at other times threatening to deport them or yelling at them for playing.
Furthermore, people detained by CBP, including children, are often not given any opportunity to go outside. The facilities do not have windows. A young mother recounted taking her son, who had a medical issue, to the infirmary. They had been detained for two weeks. While they were waiting for medical staff, a door at the back of the room cracked open. The boy grabbed her hand, repeating, “Mommy, mommy, the sun! I can see the sun!”
Researchers have found that “Post-traumatic stress disorder, depression, anxiety, weight loss and sleep problems are widespread” among children subjected to immigration detention.[29] Symptoms “were also more severe for immigrants detained for longer durations.”[30] Delays waiting for deportation flights have resulted in longer stays for some children in families. Any amount of time in custody is dangerous to children, but prolonged detention causes deeper and more permanent harm. Children who have accompanied their families seeking safety languish in CBP facilities while waiting for a plane to their country of origin. One four-year-old boy asked, “when are we going to leave this prison?”
The Final Rule will only further entrench this cruelty. If DHS used the extensive resources it will expend under the Final Rule on detention and deportation to increase capacity at POEs and increase accessibility for the CBPOne App, creating safe, fair, and quick pathways for individuals to present their asylum claims to neutral adjudicators without waiting months in danger, this could permit people to seek “lawful pathways.” Instead, the Rule punishes people who were excluded from those pathways, turning back the hundreds of thousands who arrive at the border because they have no choice.
IV. Conclusion
For the foregoing reasons, DHS should not implement the Final Rule, which will serve to prolong indefinitely the IFR’s policy of punishing children, families, and asylum seekers for using the only means available to them to survive. Deporting families to persecution, torture, and death is not a permissible means of reducing encounters between POEs, especially when more effective and less costly means exist – such as staffing POEs and accepting walk-ins for fair and humane asylum hearings at the border.
[1] CBP Press Release, Statistics Show Lowest Southwest Border Encounters in Nearly Four Years (August 16, 2024) (last accessed October 12, 2024), https://www.cbp.gov/newsroom/national-media-release/cbp-releases-july-2024-monthly-update.
[2] Flores Settlement Agreement ¶ 12.
[3] U.S. Immigration and Customs Enforcement, Implementation Guidance for Noncitizens Described in Presidential
Proclamation of June 3, 2024, Securing the Border and Interim Final Rule, Securing the Border, 4 (Jun. 4, 2024)
[4] Proclamation 10773 (“June 3 Proclamation”).
[5] Presidential Proclamation of September 27, 2024, Amending Proclamation 10773 (“September 27 Proclamation”).
[6] Final Rule note 11, citing OHSS analysis of July 2024 OHSS Persist Dataset and data downloaded from the U.S. Customs and Border Protection Unified Immigration Portal (“UIP”) on September 3, 2024 (Summary Statistics tab). There was an average of about 2,100 total encounters per day (including all demographic groups) between POEs at the SWB from June 5, 2024, to August 31, 2024, compared to around 5,100 per day during the immediate post-pandemic period, defined as May 12, 2023, through June 4, 2024.
[7] Securing the Border, 89 FR 48710, 48718 (June 7, 2024) (“IFR”) (emphasis added).
[8] Securing the Border, 89 FR 81156, 81166 (Oct. 7, 2024) (“Final Rule”).
[9] 89 FR 81165 - 66.
[10] 89 FR 48744.
[11] U.S. Immigration and Customs Enforcement, Implementation Guidance for Noncitizens Described in Presidential
Proclamation of June 3, 2024, Securing the Border and Interim Final Rule, Securing the Border, 4 (Jun. 4, 2024)
[12] Id.
[13] 89 FR 81276.
[14] Final Rule, 89 FR 81168.
[15] National Institute for the Clinical Application of Behavioral Medicine, Infographic: How Trauma Can Affect Your Memory (last visited Oct. 12, 2024), https://www.nica bm.com/trauma-h ow-trauma-can-im pact-memory-info graphic/
[16] Michael Kagan, Is Truth in the Eye of the Beholder? Objective Credibility Assessment in Refugee Status Determination. 17 GEO. IMMIGR. L.J. 367, 385-86 (2003)
[17] Deborah Davis & William C. Follette, Foibles of Witness Memory for Traumatic/High Profile Events, 66 J. Air L. & Com. 1421, 1514-15 (2001).
[18] Flores v. Garland, Case No. 2:85-cv-4544 (C.D. Cal.) (May 21, 2022) [Dkt. 1254-1] (“2022 Settlement”).
[19] 1997 Settlement § V ¶ 12.
[20] 2022 Settlement VII(5)(A)(1) and (B)(1).
[21] Flores v. Garland, Case No. 2:85-cv-4544 (C.D. Cal.) (Nov. 13, 2023) [Dkt. 1372] (“Nov. 23 JCM Report”) at 32.
[22] 2022 Settlement Section VII.8.B.1.
[23] Nov. 23 JCM Report at 21.
[24] Id. at 22.
[25] 1997 ¶ 12.
[26] 2022 Settlement Agreement’s section B. Medical Support Approach, Paragraph 3.
[27] 2022 Settlement VII(3)(B)(3).
[28] Flores v. Garland, Case No. 2:85-cv-4544 (C.D. Cal.) (July 18, 2023) [Dkt. 1352] (“July 23 JCM Report”) at 38.
[29] Chloe Reichel, How detention centers affect the health of immigrant children: A research roundup, The Journalist's Resource (July 22, 2019), https://journalistsresource.org/politics-and-government/health-effects-immigration-detention-children/#:~:text=the%20United%20States.%E2%80%9D-,Researchers%20have%20documented%20and%20quantified%20the%20physical%20and%20mental%20health,and%20sleep%20problems%20are%20widespread .
[30] Id.
Comments