Immigrants seeking asylum at the southern border are being wrongfully deprived of legal counsel, according to a new lawsuit filed in D.C. federal court that claims U.S. officials are detaining asylum-seekers in facilities that are effectively “legal black holes.”
Under two expedited asylum review programs the U.S. government recently began piloting in a Customs and Border Patrol facility in El Paso, Texas, asylum-seekers are detained by CBP, which “effectively denies all access” to attorneys while the applicants go through the initial screening process for asylum, according to the complaint, which was filed Thursday by legal services nonprofit Las Americas Immigrant Advocacy Center.
Typically, the initial asylum screening process, called a credible fear interview, would be conducted when an immigrant is transferred from CPB to the custody of U.S. Immigration and Customs Enforcement
, which provides a great deal more lawyer access, the complaint said.
“CBP facilities do not afford in-person or telephonic access to counsel or, in fact, any meaningful communication with the outside world,” it said. “CBP, unlike ICE, provides no system to locate people in its custody. Its facilities were designed for short-term detention and not for asylum-seekers going through a credible fear process.”
People who are in the process of applying for asylum are entitled under the law to speak to a lawyer before their credible fear interview and can have an attorney attend the hearing with them, the complaint said. The difference in outcomes between those who have access to an attorney and those who don’t is stark, according to Las Americas.
“Case outcomes demonstrate that attorney access is essential for noncitizens in immigration proceedings,” the group said in its complaint. “Detained noncitizens with representation in immigration proceedings are more than twice as likely to receive relief from removal as those without representation.”
They are also entitled to have access to an attorney during the process, the complaint said, under the Immigration and Nationality Act and federal regulations governing credible fear proceedings. The complaint also claims that the due process clause of the Fifth Amendment is violated when immigrants do not have meaningful access to an attorney during the proceedings.
The two programs at the center of the lawsuit are the Prompt Asylum Claim Review program, or PACR, and the Humanitarian Asylum Review Process, or HARP. Both apply the same policy, but the PACR program pertains to asylum-seekers from outside Mexico and the HARP program applies to those from Mexico.
The programs have been implemented in the CBP’s El Paso sector, the complaint said. As of the end of November, 392 asylum cases were processed through PACR and 137 through HARP, it said.
In-person attorney visits are not allowed at CBP facilities and immigrants are handed a list of attorneys they can call, according to Las Americas. The list has been called “the list of ghosts” by detainees, it said, because of their difficulty in connecting with anyone on the list.
“Although Las Americas is on the ordinary list of free and low-fee attorneys provided by ICE to those with pending credible fear proceedings, it is not receiving calls from individuals in PACR and HARP based on the list that CBP provides. Other legal services providers report similar experiences,” the complaint said.
Las Americas wants the court to declare the policies that hold individuals and families in CBP custody during their credible fear proceedings to be illegal, freeze any proceedings that are pending under those programs, shut down the programs, and provide new credible fear proceedings to anyone previously subject to them.
“Regardless of what stage immigrants are at in their claims, they should know what their rights are, they should be well informed of the process, and advocates like us should always be available and accessible to them,” said Linda Corchado, director of legal services for Las Americas. “These programs are built to deny asylum-seekers these protections.”
The Department of Homeland Security
and the Department of Justice, both named in the lawsuit, did not immediately respond to requests for comment Friday.
The plaintiffs, which include Las Americas and three families who sought and were denied asylum, are represented by the ACLU
of Texas, the ACLU National, and the ACLU of the District of Columbia.
Counsel information for the defendants was not immediately available.
The case is Las Americas Immigrant Advocacy Center v. Wolf et al., case number 1:19-cv-03640
, in the U.S. District Court for the District of Columbia.
--Editing by Marygrace Murphy.