President Joe Biden has committed to undoing the Trump administration’s across-the-board assault on America’s asylum system – which ramped up both in policy and in rhetoric in the administration’s waning days. Most recently, the Biden administration issued an executive order directing reviews of many asylum policies, including a directive to “cease implementing” and “consider rescinding” the “Prompt Asylum Claim Review” and “Humanitarian Asylum Review Process” (PACR/HARP) policy. It is imperative that the Biden administration fully rescind this policy, in order to repair the asylum system.

PACR/HARP is one of the most draconian Trump administration attacks on asylum, yet it has garnered relatively scant public attention. Under this policy, for the first time, asylum seekers in expedited removal proceedings are held in Customs and Border Protection (CBP) detention rather than Immigration and Customs Enforcement (ICE) detention centers during the initial asylum screening process. This shift, like family separation, started via a pilot program in El Paso, Texas in October 2019. It was largely invisible at the time, because no outsiders – even attorneys – are allowed in CBP detention centers. And while the change sounds administrative, the consequences are severe. CBP custody is notorious for horrendous conditions and designed only as a short-term (not even overnight) holding space. CBP detention was not designed to and does not provide any real opportunity for asylum seekers to access attorneys and to prepare for screening interviews that can ultimately mean life or death. PACR/HARP eviscerates asylum seekers’ access to protection from the danger they have fled.

Congress designed the credible fear process to ensure that we send no one in danger of persecution or torture back to harm. But by keeping asylum seekers in CBP custody, effectively incommunicado and unable to access the help they need to navigate the asylum process, PACR/HARP has undermined the ability of the initial asylum screening system to work as intended, putting the lives of thousands of asylum seekers at grave risk. As an assault on the asylum system, it is on par with the Trump administration policies that have grabbed headlines – and which are likewise under review by the Biden administration – like the Remain in Mexico program and agreements to send asylum seekers to Northern Triangle countries. In recent days, both the Department of Homeland Security (DHS) Office of Inspector General (OIG) and the Government Accountability Office (GAO) have issued reports highly critical of PACR/HARP.  The DHS OIG concluded that PACR/HARP is inconsistent with CBP detention standards and design, lacks protections for asylum seekers available in ICE custody, and is “not conducive to” preparation for screening interviews.  The numbers reported by the GAO speak for themselves: Before PACR/HARP, 74% of asylum seekers passed their screening interview and were able to remain in the United States to seek protection. The passage rate for those held in CBP facilities under PACR/HARP was only 23%.

It is essential that the Biden administration end this policy for good. Unlike other anti-asylum policies that have been blocked by courts, PACR/HARP has been allowed to remain in effect, for now, in a legal decision that cannot be squared with precedent. During the pandemic, PACR/HARP and similar policies attacking asylum have been largely dormant, as DHS has instead unlawfully expelled almost all asylum seekers at the southern border without any process at all, under the false pretext of public health. But when that policy ends, and for future administrations, PACR/HARP must be fully eliminated.

By depriving asylum seekers of a fair process to present their claims to protection, this unprecedented Trump-era policy will leave the promise of asylum hollow. Even if the Biden administration does not resume PACR/HARP’s implementation, leaving the policy on the books will permit a future president intent on ending asylum to pick right back up where the Trump administration left off: pushing asylum seekers through a sham process without access to attorneys and returning them to the dangers they fled.

PACR/HARP Eviscerates the Asylum Screening Process

PACR/HARP attacks asylum by keeping asylum seekers in a legal black hole, where they cannot meaningfully communicate with the outside world, and in abysmal conditions in CBP jails not designed for overnight stays. The result is that people who are in danger of being tortured or killed in the countries they fled will be returned to that danger.

In ICE detention, where all asylum seekers were previously detained before and during their initial asylum screening (credible fear) interview, attorneys can meet face-to-face for hours and multiple times with asylum-seeking clients. This allows attorneys to establish trust, understand their clients’ narratives of the trauma they experienced in their home countries, and explain to their clients how to approach the screening interview in order to highlight legally salient information.

As a former immigration judge put it in our case, “It is critical for asylum seekers to have access to counsel,” starting “as soon as possible,” to ensure they understand the asylum process and are prepared to discuss the parts of their experiences most relevant to meeting the legal standard for asylum. It is also essential for attorneys to be able to meet with their clients in person – especially with new clients whose claims for protection require them to recount traumatic events. The trust established through face-to-face interactions, and the nonverbal cues that immigration attorneys can pick up on, are not replicable in telephone conversations. As one immigration attorney explained in our litigation, in preparation for the asylum screening, “Telephonic access is simply no substitute.”

But unlike ICE detention centers, CBP detention centers do not let attorneys – or anyone else from the public – enter at all. Asylum seekers’ access to telephones in PACR/HARP is also extremely limited. As recounted by the plaintiffs whom we represented in challenging PACR/HARP (who were able to contact us only after their removal from the United States), it is functionally impossible for them to cold-call attorneys, find one willing to represent them, and prepare for the screening interview in the brief time available. ICE detention centers, by contrast, must provide asylum seekers seeking to call attorneys with “full telephone access” and “may not limit” their “attempt to obtain legal representation.” And unlike ICE detention centers, which must provide means for attorneys to telephonically connect with clients and a minimum number of telephones, CBP detention centers have no such requirements. DHS OIG’s investigation uncovered that asylum seekers in PACR/HARP could not even have private telephone conversations, as is of course necessary for calls with attorneys: they only had access to speakerphone, and their conversations could be overheard from within the CBP detention center.

Indeed, attorneys cannot even determine if their client or potential client is in fact being held in a CBP facility. While ICE has a system that allows attorneys to look up where detained individuals are held, there is no such system for an attorney or family member to find detention location information for someone in CBP custody.

The conditions in CBP detention, including the infamous hieleras (“iceboxes”), are also notoriously horrible. CBP detention garnered national attention when the Trump administration forced families with small children to sleep outdoors and held people for weeks without showers or a change of clothing. This detention is only designed for short-term, not overnight, detention – making it fundamentally incompatible with the asylum screening process, which lasts for days. There are no beds for sleeping: at best, people must sleep on thin mats on a concrete floor, with a Mylar blanket. The lights are left on at all times. Further, CBP detention centers are not required to provide basic necessities like soap, toothpaste, shampoo, menstrual products, clean bedding, and towels. Before PACR/HARP, asylum seekers had time to rest and recover in an ICE detention center – with basic necessities like beds, showers, and a change of clothes – while preparing for the stressful screening interview. In CBP detention, by contrast, even a good night’s sleep in a darkened room is impossible.

The recent DHS OIG report on PACR/HARP confirms this fundamental incompatibility. DHS OIG concluded that PACR/HARP’s timeline for time in custody was “on its face . . . inconsistent with” CBP standards for duration of detention. It further found that CBP detention “was not designed to offer conditions of detention comparable to” ICE detention centers designed for longer-term stays. And—egregiously—DHS OIG uncovered that asylum seekers in PACR/HARP lacked even “access to pens or paper, the ability to conduct legal research, or the opportunity to keep any documents.” These findings confirm that, by holding asylum seekers in CBP custody, PACR/HARP destroys their opportunity for meaningful preparation for the credible fear process.

When Congress set up the asylum screening process in 1996, it intended for this screening to be a safety valve within the new summary deportation procedures that Congress created simultaneously. The screening was intended to be extremely overinclusive – to “pass” through for a full immigration court hearing all asylum seekers with even a fraction of a chance of securing asylum or other protection – in order to ensure that no one would be erroneously returned to danger in the hasty expedited removal process. By depriving asylum seekers of a fair screening, PACR/HARP effectuates an end run around Congress’s intent. It effectively eliminates this safety valve. Without attorneys and a place to prepare – a place with beds, showers, and basic amenities – people who previously would have passed the initial asylum screening interview will instead be erroneously returned to possible torture or death.

Las Americas: The ACLU’s Challenge to PACR/HARP

The American Civil Liberties Union (ACLU) has challenged PACR/HARP in Las Americas v. Wolf, filed in federal court in Washington, D.C. in December 2019. In November 2020, the district court upheld PACR/HARP, despite the policy’s flaws under the Administrative Procedure Act (APA) and its extensive interference with the asylum screening process. We have filed a motion for reconsideration.

Unsurprisingly, the Trump administration did not meet the basic APA requirements for changing agency policy in creating PACR/HARP. When an agency makes a new policy, the APA requires it to have reasons for the decision and to take into account all important aspects of the problem. And when an agency changes policy, it must consider what it is giving up – including the circumstances that formed the basis for the prior policy.

Yet in its decision to create PACR/HARP and keep asylum seekers in CBP detention, DHS did not take into account, at all, the costs of switching to CBP detention. Namely, it did not consider that ICE detention centers provide asylum seekers with the ability to meet with attorneys in person and by phone and provide for basic hygiene and sleep needs, whereas CBP detention centers do not.

The district court nevertheless held that DHS did not need to consider the protections for asylum seekers the agency was giving up in moving them from ICE to CBP custody. It reasoned that no relevant policy change occurred regarding detention facilities because CBP itself (a component of DHS) had no prior policies as to the credible fear process. Accordingly, in the court’s view, the agency did not give up or reduce protections for asylum seekers because CBP, as a specific component of DHS, previously had no such specific policies.

However, this narrow focus ignores that CBP’s and ICE’s parent agency, DHS, did change its policy by shifting where asylum seekers are held: previously, all asylum seekers were subject to policies that provided extensive safeguards while in ICE custody – policies, including broad in-person and telephonic access to counsel, that the agency determined were required to meet Congress’s intent to protect asylum seekers. Now, under PACR/HARP, DHS has departed from this policy and practice by allowing some asylum seekers to be processed in CBP custody where these safeguards do not exist. In fact, the recent analysis by DHS’s own OIG recognized that ICE and CBP detention standards are “relevant background information” for an evaluation of PACR/HARP and repeatedly compared ICE and CBP detention—finding that CBP detention centers under PACR/HARP do not measure up.

The court further found that the agency had considered the effect of PACR/HARP on those placed in the policy because PACR/HARP’s impact on asylum seekers is “self-evident.” But under the APA, this isn’t enough: the agency must actually provide reasons for its decision and evidence to support its reasoning. The court cannot invent them. The district court further reasoned that the goal of PACR/HARP is to remove people more quickly, and detention in CBP custody with fewer protections than ICE custody furthers that goal. Even this purported justification was not provided in the administrative record. But, in any case, an agency must nevertheless consider all facets of its decision – including PACR/HARP’s effect on whether asylum seekers could succeed in the screening process, not just faster deportation for those who do not pass the screening. There is simply no evidence it did so.

The district court’s decision similarly errs in its deference to presidential power, effectively granting sweeping executive branch discretion to limit the procedural protections put in place by Congress and to eviscerate any meaningful asylum screening process. The decision acknowledges that PACR/HARP “effectively limits access to counsel” but finds this acceptable because “Congress has broadly entrusted DHS with” the expedited removal process, including asylum screening. It reasons that, as a result, “the availability of a phone and a period of time to make phone calls” satisfies the right to “consult” with an attorney in immigration law. Under the decision’s reasoning, the executive branch need not provide meaningful access to systems for protection, or meaningful access to attorneys to help navigate those systems, for those it holds in detention.

This conclusion is contrary to decades of precedent. Courts have long held that asylum seekers held in immigration detention within the United States must have access to attorneys, including in person, and access to a meaningful opportunity to seek asylum. When the executive branch in the early 1980s held Haitian asylum seekers at remote detention centers, where they were geographically far from immigration attorneys and Creole-speaking translators, a federal court in Florida stepped in to prevent their deportation. The court termed the federal government’s actions in moving this group of asylum seekers to isolated detention centers far from a meaningful opportunity to obtain counsel or adequate interpretation “a human shell game.” Similarly, in the 1980s and 1990s, federal courts in Texas and California stepped in to require immigration detention centers to provide in-person and telephonic access to counsel for asylum seekers. In summer 2018, during the Trump administration’s implementation of its “zero tolerance” policy, federal courts in Oregon and California found that broad in-person access to attorneys was required by law to be provided to precisely the same group of people as those in PACR/HARP – asylum seekers going through the credible fear process – where DHS was holding them incommunicado in federal prisons.

In other words, the “human shell game” that DHS is playing in PACR/HARP – holding asylum seekers functionally incommunicado from attorneys – is an old one. The executive branch has long interfered with asylum seekers’ access to counsel by holding them in remote or inaccessible locations where they cannot meaningfully reach attorneys. Federal courts have recognized their important role in providing the necessary backstop to protect the asylum system from this interference by the executive branch, to ensure that the substantive protections of the asylum system afforded by Congress are not undermined by executive branch changes in procedure or location. They have intervened to ensure that asylum seekers’ access to attorneys and to applications for protection are truly meaningful.

If PACR/HARP remains in place, the policy has the potential to entirely eviscerate the asylum screening process that Congress has created. In the Las Americas litigation, the ACLU has asked the district court to reconsider its decision and, in doing so, to take into account the DHS OIG report demonstrating PACR/HARP’s facial incompatibility with a meaningful asylum screening process. If necessary, the ACLU will pursue an appeal. But the Biden administration should not wait for the courts to decide. It should act to fully end this unlawful and cruel attack on asylum and affirm that the initial asylum screening process requires robust protections for asylum seekers, including meaningful access to attorneys. For those fleeing persecution, it is, potentially, a matter of life or death.

Image:  An American flag flies at the U.S. Border Patrol station where migrants have been detained under unsanitary conditions. Lawyers reported that detained migrant children had been held unbathed and hungry on June 26, 2019 in Clint, Texas. Nearly 100 children were sent back to the troubled facility after it had been cleared of 249 children just days earlier. Then-acting commissioner of U.S. Customs and Border Protection (CBP) John Sanders submitted his resignation in the wake of the scandal. (Photo by Mario Tama/Getty Images)