This case, which we brought together with the ACLU of Texas and the ACLU Immigrants’ Rights Project, challenges the federal government’s drastic change in policy to detain asylum seekers effectively incommunicado and in appalling conditions in those facilities throughout their asylum screening process, without any opportunity to meet in person, or even by telephone, with an attorney to obtain the assistance to which they are entitled by law.
Congress has mandated that asylum seekers, including those subject to “expedited removal” proceedings, have the opportunity to access and confer with counsel and third parties while they prepare for an initial screening for asylum and other protection from removal and for a review of that screening determination by an immigration judge. These screenings, known as “credible fear interviews,” are the critical first step for many asylum seekers because they determine whether these individuals and families may pursue a claim for asylum or other protection or, instead, will be summarily sent back to the countries they are fleeing.
The government’s new programs effectively deny all access to counsel and third parties, and therefore, all but guarantee that many asylum seekers will be erroneously sent back to countries where they face danger and that, as a result, some of them will be killed or endure horrific violence. The new programs – known as Prompt Asylum Claim Review (“PACR”) and the Humanitarian Asylum Review Process (“HARP”) – require the detention of asylum seekers in Customs and Border Protection (“CBP”) facilities. These facilities, known as “hieleras” (“iceboxes”) for their freezing temperatures, are legal black holes in which migrants have no meaningful way to obtain or consult with an attorney before their hearings. Since the PACR/HARP programs were launched in the El Paso area, over 500 asylum seekers have been sent to the hieleras and ordered back to their country of origin without the opportunity to access counsel to help them. DHS has stated that it intends to expand PACR/HARP to other parts of the border.
Previously, individuals who crossed the border seeking asylum were transferred to Immigration and Customs Enforcement (“ICE”) detention centers, where ICE is required to provide access to a telephone and the ability to meet with attorneys and other individuals to prepare for an initial asylum screening and review by an immigration judge. Under the PACR/HARP programs, asylum seekers are instead sent to CBP facilities, which do not allow the necessary communication with counsel or any in-person meetings. PACR/HARP detainees are granted an approximate 30-minute window in which to attempt to contact counsel or family members by telephone. Detainees report being unable to reach any attorneys from a list provided by CBP, which detainees have described as a “list of ghosts.” Even if detainees can reach someone during their 30 minutes, the agency does not provide a system to locate people in its custody or any means for attorneys or family members to reach detainees by telephone, so no one can call the detainees back or enter the facility to assist asylum seekers through their immigration process.
The lawsuit was filed on behalf of two Salvadoran families and one Mexican family who sought asylum in the U.S., were put into the program, and were ordered quickly removed back to their home countries, where they now face the threat of horrific violence. Las Americas, a non-profit organization that provides legal services to immigrants detained by the federal government in the El Paso area, is also a plaintiff in the case, which was filed in federal court in the District of Columbia. We are seeking a court order declaring PACR/HARP illegal and blocking the removal of asylum seekers until they are granted adequate opportunity to access counsel.
Both sides moved for summary judgment and the case was argued in February 2020. At the end of the November 2020, the court granted judgment to the government, ruling that it had jurisdiction to consider the challenge to the detention conditions but that the conditions did not conflict with federal immigration law, federal administrative law, or the Constitution.
We appealed the decision and also moved for reconsideration in late 2020. In January 2021, a report from the inspector general of the Department of Homeland Security showed that the government knew its policies were undercutting the asylum process. The case has been effectively stayed while the Biden Administration government decides what to do about the PACR/HARP programs, which are currently paused.
