Do Expedited Removal and Mandatory Detention Cloud the Asylum Process?

Guest post by Nora Coon and Shannon Garcia, law students at Lewis & Clark Law School, Portland, Oregon. This post is the second installment of the Border Criminologies Themed Week on Teaching Immigration Detention organised by Juliet Stumpf. 

Last summer, the number of Central American families crossing the southern border into the US increased considerably. Most were placed in expedited removal proceedings, which allows the government to summarily remove people unless they express a fear of persecution or torture in their home country or indicate an intention to apply for asylum. The Obama Administration, however, announced that mothers and children arriving at the border from Central American countries were categorically ineligible for asylum. The government began detaining them at a makeshift detention facility in Artesia, New Mexico.

By the time the government closed Artesia in December 2014, approximately 1,200 mothers and children had been detained there, and nearly 400 had been deported. About 300 of those deportations occurred before any legal defense program existed to provide attorney representation, an 81% removal rate.

The American asylum system requires vigilance at each step of the process to ensure that those removed are, more likely than not, ineligible for asylum. However, recent data suggest that certain factors are undermining the effective and accurate working of the asylum system. The detention of Central American children and their mothers in Artesia, New Mexico in 2014 provides a useful case study to identify and evaluate potential disruptions to the asylum process that may continue to shape the current US policy of detaining mothers and children.

This post describes two procedural aspects of the detention of mothers with children that may have interfered with the accuracy of the asylum determination process for the mothers and children detained in Artesia. The significance of this inquiry survives the closure of Artesia; the government has redirected asylum-seeking Central American women and children to two new detention facilities in Dilley and Karnes City, Texas, which together have a far larger capacity than the Artesia facility.

This is the first of three blog posts that aim to explore some of the factors that may create aberrations in the asylum process. In the vein of previous posts on this blog, this post will explore the way ‘expedited removal’ and mandatory detention could interfere with the asylum process. Expedited removal and mandatory detention together result in potentially dire errors in asylum applicants’ determinations. In the end, this blog post will not answer definitively the question as to whether the 300 women of Artesia were properly deported. Instead, it will leave room to consider whether each of these women had meaningful access to the asylum process or if aberrations in the policy cut them off from such access.

Expedited removal and mandatory detention: Can two wrongs make a right?

The practice of expedited removal in concert with mandatory detention potentially leads to anomalies in the asylum process. Expedited removal enables the government to more quickly remove arriving ‘aliens’ by limiting procedural protections if an immigration officer determines that the arriving alien is inadmissible. The law prohibits expedited removal, however, if the alien intends to apply for asylum or has a credible fear of persecution. Expedited removal combined with mandatory detention increases the risk of error in the asylum process because the abbreviated process shortcuts past traditional procedural safeguards for asylum applicants. The greatest potential for error arises during the initial encounter with enforcement officers and during the credible fear interview.

Initial encounter with immigration enforcement officers

The initial encounter with US Customs and Border Patrol (CBP) may have affected access to the asylum process for the Artesia mothers and children. CBP officers are the gatekeepers to the asylum process; they screen individuals apprehended at the border for expressions of fear of persecution or intention to apply for asylum. CBP officers have an affirmative duty to read a credible fear advisory script to all arriving aliens in a language they understand. If the individual expresses a fear of return, CBP must refer these individuals to US Citizenship and Immigration Services (USCIS) for a ‘credible fear’ interview. An officer’s failure to inquire can cut off potential asylum seekers from the asylum process.

A 2005 study, for example, concluded that despite relatively high rates (95%) of CBP officer compliance with the legal requirement to inquire whether a noncitizen harbored a fear of return, in more than half of the ‘initial encounters’ studied, CBP officials didn’t comply with the requirement to read to arriving aliens the only paragraph explaining the significance of the question in terminating their right to seek asylum. The study revealed significant failures to accurately record the noncitizens’ responses, as well as clear instances of erroneous return even after the noncitizen had expressed a fear of returning. Advocates report that similar CBP practices continue of noncompliance with the legal obligation to provide information about asylum and to ask about fear of return (see here, here, and here). Several organizations have banded together to initiate litigation against the agency. 

Additional circumstantial evidence fuels the unease about the accuracy of asylum determinations under expedited removal. Individuals often report their fear of persecution only after arriving at detention facilities. Women in detention frequently express that they don’t know to whom and at what point in the process they should communicate their stories. In some instances, women have for the first time conveyed a deep fear of returning home as they board planes to their home countries. All of this raises questions about whether CBP executes the ‘initial encounter’ screening properly and whether the process cuts off the avenue to asylum.

Credible fear determination

The credible fear interview determines whether the arriving mother and child have a ‘credible fear of persecution.’ In this context, ‘credible fear of persecution’ means that there is a ‘significant possibility, taking into account the credibility of the statements made by the alien in support of the alien's claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum under section 208.’ In the past, establishing credible fear required only a minimal or mere possibility of success on one’s asylum claim. According to the US Supreme Court, so long as ‘an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.’

However, in February 2014, the USCIS revised its credible fear instruction materials for asylum officers. Applicants now must ‘demonstrate a substantial and realistic possibility of succeeding’ in their cases. This is a more stringent standard, and advocates maintain that it exceeds what Congress anticipated when it established the expedited removal process. Prior to the institution of this newstandard, 77% of applicants received a positive credible fear finding. After the application of the new, more stringent standard, the rate of positive credible fear findings in Artesia sank to 38%.

These differing percentages don’t mean that each of the 300 women deported without lawyers had a meritorious asylum claim. The drastic change, however, raises the question as to whether some women who were in fact eligible for asylum didn’t pass the credible fear stage of the process.

Conclusion

The expedited removal procedure infects the asylum process with a greater risk of erroneous outcomes, especially under circumstances in which the US presidential administration has declared that all of the women and children would be sent home. More research is necessary to study the strength of the asylum claims of those who have been returned.

The next blog post will expound on the potential for uncertainty in the asylum process by exploring the ramifications for asylum-seekers without access to counsel, while the final post will examine how considerations of national origin further contribute to uncertainty in the asylum process. These two posts will continue to interrogate whether the women of Artesia were properly removed or if there were aberrations in the process that led to unjust outcomes. 

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How to cite this blog post (Harvard style)

Coon, N. and Garcia, S. (2015) Do Expedited Removal and Mandatory Detention Cloud the Asylum Process?. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2015/09/do-expedited (Accessed [date]).