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Dismissing Credible Fear in Washington State

August 10, 2018

In the midst of a crackdown against immigration in the United States, recent changes instituted by Attorney General Sessions have reversed longstanding practices in asylum law. For example, he has ruled that most fleeing gender-based violence and gang violence should not meet standards for asylum, dramatically curtailing the possibilities for many migrants. Notably, his ruling dictates not only that courts should not find such claims meritorious, but also that people presenting such claims should not clear the initial “credible fear” standard that allows applicants an opportunity to be heard by a judge. Such changes have generated concern among immigrants and human rights defenders, and with good reason: enshrined in domestic and international law, the right to asylum is a vital protection for many fleeing life-threatening conditions in their home countries.

Yet while news coverage surrounding the turning-back of asylum seekers typically focuses on the southern border, it’s important to understand that the most recent developments build on long-established trends in immigration enforcement, evident along the northern border as well. And there are signs that long before their cases reach a judge, or even an officer charged with assessing credible fear, many asylum-seekers’ cases may simply be dismissed by the Border Patrol.

A collection of 173 documents released by Customs and Border Protection to UWCHR under the Freedom of Information Act.

A collection of 173 documents released by Customs and Border Protection to UWCHR under the Freedom of Information Act. Browse the documents.

Here in Washington state, under the Freedom of Information Act (FOIA), researchers at the University of Washington Center for Human Rights requested records of all stops, apprehensions, or encounters made by agents of US Customs and Border Protection (commonly known as the Border Patrol) within Washington state from January 1, 2017 to May 17, 2017. In response, CBP released a cache of 173 records, including incident reports and I-213 forms (also known as “Records of Deportable/Inadmissible Alien”). These records allow a glimpse into CBP’s border enforcement work during the first five months of 2017, and reveal worrisome patterns in the way CBP officers interacted with asylum seekers well before the contemporary crisis. While the extensive redactions here limit the conclusions we can draw, UWCHR has decided to release these records now to contribute to the evolving public discussion of asylum policy.

What the law mandates

CBP officers are often the first representatives of the U.S. government to encounter a migrant who has crossed a U.S. border. In cases where the migrant expresses fear of returning to their home country, CBP officers are required by law to refer him or her to a credible fear interview with a USCIS asylum officer. CBP officers themselves are not empowered to assess the credibility of fear claims.

In recent months, reports from the southern border suggest that CBP officers are blocking asylum-seekers’ access to official points of entry and prosecuting them for unlawful entry if they cross at other points, in violation of U.S. and international law. Yet related practices may also be occurring at the northern border, where CBP documents themselves suggest that many individuals who report fear of returning to their home country are not referred to asylum officers for credible fear interviews. This trend is particularly pronounced among Mexican nationals and individuals encountered by CBP in county jails.

Department of Homeland Security "Record of Deportable/Inadmissible Alien (I-213)" form noting an asylum-seeker's credible fear claim.

Department of Homeland Security “Record of Deportable/Inadmissible Alien (I-213)” form noting an asylum-seeker’s credible fear claim.

In some, but not all cases where individuals reported fear of return upon contact with CBP, the incident reports and/or I-213 forms included in this collection are stamped with “credible fear claim.” (For an example, see here). Presumably, these were cases where the CBP officer deemed the individual’s claim to merit attention. Such judgment is also reflected in the narratives included on these forms, which sometimes (but not always) mention DHS form M-444 and/or referral to an asylum officer (for an example, see here). This provides some indication that in such cases, appropriate procedure may have been followed.

CBP documents suggest arbitrary disregard of fear claims

Yet of the 52 cases reviewed in which, according to the CBP officer’s notes, the person said they were afraid to return to their country of origin, only 20 were stamped “credible fear claim” on the cover sheet. In these cases, CBP’s records offer no indication that CBP took any action to begin the asylum process on their behalf. For example, in this case, CBP approached a man “walking through ditches and other structures that would obscure him from sight” near the US-Canadian border. The man readily acknowledged that he did not have legal authority to be present in the United States, but stated a fear of torture and persecution if he were to be returned to Mexico. It was determined that he had a prior order of removal, and he was detained so that the order could be reinstated, leading to his eventual deportation. He is the father of three minor children, one US-born and two born in Mexico.

Read CBP documentation of detention of 9 individuals during bus searches in Washington State from January through May, 2017.

Read CBP documentation of detention of 9 individuals during bus searches in Washington State from January through May, 2017.

Similarly, in this case, a man from Honduras asserted a fear claim but was placed in removal proceedings with no indication that he was referred for a credible fear screening. He had no criminal record but was apprehended by CBP officers who boarded a Greyhound Bus and asked passengers for documents. A similar fate befell a Liberian national with an expired US visa who was apprehended when agents boarded a Greyhound Bus departing for Montana; he asserted a fear claim but his record bears no indication that he was referred to the appropriate authorities.

This trend is particularly pronounced among Mexicans. Among the cases reviewed by UWCHR, 63 individuals were Mexican nationals, of whom 28 claimed a fear of returning to their country—often due to drug-related violence—but only one received the credible fear stamp or any indication that s/he was referred to an asylum officer. By contrast, however, in this case from May 2017, CBP received reports of a man crossing the border at an unauthorized point of entry and arrived to find a Canadian who admitted to lacking legal permission to be in the United States. The Canadian man “stated that he does fear harm or persecution if he returns to Canada. When questioned further, he could not give specific reasons and was generally vague as to his fear for returning to Canada.” Yet the Canadian’s paperwork is stamped “credible fear claim.”

Furthermore, there are other incidents where the reports do not indicate whether or not the person had a fear of returning to their country at all. On January 17, 2017, as these records show, CBP agents apprehended a group of 5 people from India; none of their reports indicate that they were asked about a fear of returning to their country. Other reports where a fear is not claimed typically spell out the fact that the person has no fear of returning to their country of origin. All five were placed in removal proceedings, but—significant in light of recent developments—one was released with her son due to a lack of family bed space, and another was, at the conclusion of the incident report, “awaiting transport to the local temple in [location redacted], Washington pending removal proceedings. These records harken back to a more humane policy of releasing migrants on their own own recognizance while their legal cases progressed through the system.

Lack of transparency limits conclusions

It is possible, of course, that the discrepancies noted here reflect deficient record-keeping by CBP rather than truly arbitrary handling of asylum-seekers. Documentation practices are known to vary by sector, and could also vary by agent; it is possible that individuals whose records were not stamped “Credible Fear Claim” were nonetheless afforded the opportunity to present a claim to the asylum officer. But in order to ensure due process, it is critical that federal agencies not only provide credible fear interviews in a consistent and thorough manner, but that they also process them consistently and are provide the public access to meaningful information about their operations.

Given the extensive redactions in these documents, and CBP’s refusal to permit access to other records we have requested under FOIA, it is impossible for UWCHR to cross-reference these records against other portions of an immigrant’s file in a way that would allow us to conclusively determine the fate of those referenced here.

We will continue to seek access to records that would permit a fuller picture of how asylum claims are being handled in our state. We have appealed the unnecessary redactions in these documents and are awaiting CBP’s response. We have also filed a request for all documents regarding credible fear interviews from USCIS. Absent greater transparency on the part of the government, however, we are left to posit conclusions—and here, to raise questions—from the data obtained.

National trends show erosion of right to asylum

A recent report by Syracuse University's TRAC Immigration project found dramatic downward trend in court findings of credible fear since January 2018.

A recent report by Syracuse University’s TRAC Immigration project found dramatic downward trend in court findings of credible fear since January 2018.

Syracuse University’s TRAC Clearinghouse recently published a report stating that beginning in January 2018, “findings of credible fear began to plummet,” with levels for June 2018 just half what they were in late 2017. As the authors note, these changes have major implications, since those whose fear claims are deemed not credible typically face expedited removal, a process of swift and summary deportation.

Yet the data from CBP records suggests a concern even further upstream: if a migrant expresses fear to a CBP officer, yet their application is not processed in such a way that they are given an opportunity to make a credible fear claim, they are effectively denied the right to seek asylum.

We are further compelled to raise these questions because the same trends have been documented in studies of CBP’s behavior in other parts of the country. CBP’s practice of unlawfully turning away asylum-seekers without referring them to an asylum officer for screening has been well-documented among the southern border during roughly the same time by Human Rights First, who reported that “Mexican asylum seekers in particular report that CBP agents discount their fear claims and tell them Mexicans cannot get asylum in the United States.” The organization has gained access to heavily redacted records suggesting widespread abuse against asylum-seekers in the San Diego area and has sued CBP to obtain fuller records. Furthermore, these same practices are at issue in pending litigation against CBP.

Our findings here suggest that the problems with CBP’s handling of asylum-seekers may be endemic to the agency and not unique to the southern border. They also underscore the long history of deportation practices, including of asylum-seekers, resulting in family separations. As a result, rolling back Sessions’ “zero tolerance” policies is important, but far from enough to address the human rights problems in U.S. immigration practices.