The Trump administration secretly implemented one of its most horrific attacks on America’s long tradition of asylum—holding asylum seekers in U.S. Customs and Border Protection (CBP) custody during their initial asylum interview.
The “Prompt Asylum Claim Review” and “Humanitarian Asylum Review Process,” (“PACR/HARP”) put in place in October 2019, marked the first time in American history that asylum seekers were forced to remain in CBP custody during this process.
These policies rush asylum seekers through the most important interviews of their lives while detained in freezing and unsanitary facilities. The facilities are like legal black holes—off-limits to any visitors, preventing them from being able to meet with an attorney in person to prepare for the asylum screening—even though such face-to-face preparation is critical. Even asylum seekers’ telephone access to attorneys is extremely limited.
Pass rates for the initial asylum screening under PACR/HARP have plummeted. 74% of asylum seekers passed their screening interview before PACR/HARP. Now under these policies, only 19-29% do. Despite the Trump administration’s inclusion of “humanitarian” in the name of the policy, PACR/HARP is a sham designed to ensure that asylum seekers will fail.
This initial screening process—called the credible fear interview—determines whether someone can seek protection in the United States or will be sent back to the threat of death or torture they fled. People must describe some of the most traumatic experiences of their lives in a way that demonstrates to the asylum officer they fit within the legal categories that allow for protection.
Before PACR/HARP, all asylum seekers placed in the expedited removal process were sent to U.S. Immigration and Customs Enforcement (ICE) custody to await their credible fear interview. ICE jails are still jails—but asylum seekers are typically able to meet with attorneys in person at length to prepare for their interviews and should have access to telephones. And people are provided with at least a bed and a shower.
CBP custody has horrendously unsanitary conditions. Many people are forced to sleep on concrete floors or on thin mats in freezing temperatures that have given these facilities the nickname of “iceboxes.” There are no beds, most have no showers, and food is frequently inedible. People cannot rest or otherwise prepare for their interview.
The court decision rejecting the ACLU’s challenge failed to address the reality that PACR/HARP fundamentally destroyed an asylum seeker’s chance of receiving protections. Instead, the court let the policies stand, even though they destroy the screening process they supposedly implement.
Under the court’s rationale, the Department of Homeland Security (DHS) must only provide the procedures that officers at individual CBP facilities choose to provide. That means that CBP isn’t required to offer a “meaningful” opportunity to consult with a lawyer.
Since the COVID-19 pandemic led to a border shutdown in March, the PACR and HARP programs have been suspended. If left in place when the border reopens, PACR/HARP would further erode the asylum system as we know it. Because of this sham process, people who under the law have the right to stay and seek protection could instead be returned to death or torture.
The ACLU plans to appeal the court’s decision. PACR/HARP was an extreme departure from DHS’ prior policy of conducting all of these asylum screenings in ICE facilities, where agency policy required “procedures that liberally allow an opportunity for consultation in order to ensure compliance with statutory and regulatory requirements,” including in-person and unrestricted telephonic consultation.
The Trump administration never considered the impact that stripping these protections would have on asylum seekers.
While credible fear interviews at ICE facilities were often flawed and many individuals held in ICE custody also were unable to meet with a lawyer, at least there was a possibility of someone obtaining counsel. But under PACR/HARP, obtaining a lawyer was virtually impossible.
Data revealed in a congressional hearing showed that out of more than 4,700 placed into PACR and HARP, just 31 people managed to get a lawyer.
The new administration can get rid of PACR/HARP with the stroke of a pen. When President-elect Biden takes office in January, he must end PACR/HARP to ensure that all asylum seekers have a fair process to seek protection and that the United States does not send anyone else back to harm.
Co-authored by Aaron Reichlin-Melnick, policy counsel at the American Immigration Council and Kate Huddleston, an attorney at the ACLU of Texas who specializes in immigrants’ rights.