U.S. Asylum Seekers May Face Barriers from Border Patrol

November 13, 2014
by Sarah Childress Senior Digital Reporter, FRONTLINE Enterprise Journalism Group

In this photo taken July 3, 2014, mothers from Honduras traveling with their children prepare to get into a U.S. Customs and Border Protection Services agent's truck after crossing the Rio Grande near McAllen, Texas. (AP Photo/Austin American-Statesman, Rodolfo Gonzalez)

This article has been updated.

Border Patrol officials have regularly prevented people from seeking refuge in the U.S. even when they may have credible claims of asylum, according to a pair of complaints to be filed today with Customs and Border Patrol by immigration attorneys’ groups.

The complaints detail the cases of 23 people who maintain that they were either not asked whether they were afraid to return home, in accordance with U.S. policy, or that their fears were dismissed when they did. The groups say the cases are examples of what has become a “systemic” problem that’s been reported by immigration attorneys nationwide.

The stories highlight an often overlooked aspect of immigration: people who come to the U.S. to escape violence or trauma in their home countries. Few people receive asylum here — only about 25,000 people in 2013. But the stakes are high for those who come to the U.S. illegally and aren’t able to immediately make their case. Those who are deported and return again can no longer apply for asylum and can’t remain permanently in the U.S.

In the complaints filed today, the groups said that many of the people who had a credible asylum claim were prevented by Border Patrol agents from seeking that protection.

This isn’t the first time attorneys have raised complaints about how potential asylum seekers are treated by Customs and Border Patrol officials. The American Immigration Lawyers’ Association filed a similar complaint in 2013 on behalf of 19 clients. They say they haven’t yet received a comprehensive response.

FRONTLINE asked Customs and Border Patrol to comment on the complaints and more broadly about its process for asylum seekers. The agency hasn’t yet responded. [Update 11/14: In an email, the agency said: “DHS takes allegations of this nature seriously and will investigate and if warranted take corrective action.”]

In its emphasis on border security, the U.S. leaves the delicate first step of screening for potential asylum cases in the hands of the Border Patrol. The nation’s largest police force, the Border Patrol has nearly doubled in size in the past eight years to more than 21,000 agents. It has also faced complaints about excessive use of force and other abuses.

Since 2004, Border Patrol agents have also been allowed to deport people using what’s known as expedited removal — a fast-track deportation process that bypasses immigration hearings.

Border Patrol agents are required to ask a few questions first — Why did you come to the U.S.? Are you afraid to return? — and record the answers. Those who say they have a fear of return are supposed to be referred to asylum officers to determine whether they have a credible case, even if they’re marked for expedited removal.

In the Nov. 14 email, the agency made clear that its officers are only supposed to determine whether a person has fear — not whether that fear is valid or whether it qualifies them for asylum — before referring them to an asylum officer. It added: “The applicant does not have to specifically request asylum, they simply must express fear of being returned to their country.”

But the complaints, filed by the National Immigrant Justice Center in collaboration with nine other legal service providers, and the American Immigration Lawyers’ Association, suggest that not everyone is asked whether they are afraid to return. Others said they were told, incorrectly, that fears of domestic or gang violence don’t qualify for asylum. Those who raised fears on their own said they were dismissed or mocked. Some said they were intimidated by Border Patrol officials, who were sometimes “harsh and threatening,” and in some cases, physically abusive.

One woman, identified as JVC in one complaint, said she fled an abusive ex-partner in Guatemala who beat and kicked her and left her padlocked to the stairs, sometimes for days. She told an immigration officer about her fear of return, but was told not to fight her case because she would be detained with criminals for nine months.

After she was deported, JVC fled again, and found a lawyer who arranged a reasonable fear interview with an asylum officer. They found her story credible, but because she had already been deported, she was no longer eligible for the protections of asylum. She is currently applying for a temporary stay.

The complaints noted that immigration attorneys increasingly have found that in some cases, what Border Patrol agents write down when they interview people differs from their clients’ later statements.

Robin Goldfaden, a senior attorney with the Lawyers’ Committee for Civil Rights in San Francisco said her staff examined 34 cases in which asylum officers ultimately determined the clients had a credible fear of returning home. In 20 of those cases, the initial Border Patrol forms indicated that they had no fear of returning home.

“Not everybody recovers from those problems in the first contact,” she said. “If this has been the experience, and this is the documentation, for the people who are able at some point to get into the process to be considered for asylum, we have to ask about the other people we’re not seeing — and why we’re not seeing them.”

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