Question: Who is in charge at this stage?
Answer: US Customs and Border Protection, aka “Border Patrol”.
US Customs and Border Protection officers manage all 329 Ports of Entry, including land crossings, airports, and seaports. They also patrol in between Ports of Entry. CBP handles more than 410 million travelers per year.
Answer: There is no process for someone to ask for asylum in their home country or anywhere outside of the United States. One has to actually cross the border, and be physically in the US, if only by a few inches.
Question: Why can’t people who want to ask for asylum cross legally?
Answer: They can, but it is difficult. Border Patrol Agents are stationed well before the actual border in order to turn back asylum seekers before they can enter.
The Port of Entry is often inaccessible.
An asylum seeker can try to ask for asylum at a Port of Entry. Since Border Patrol agents position themselves at a significant distance in front of the actual border to check passports, visas and other travel documents before allowing people to continue to the border itself, it is difficult to ask for asylum at a legal port of entry.
Since at least 2016, each Port of Entry maintained a “waiting list” of sorts, allowing a small number of people to actually approach the Port of Entry to request asylum each day, a process is called “metering”. The policy was suspended in March 2020, when Title 42 went into effect and borders closed to anyone without papers. At that time, 15,000 people were formally on these waiting lists, and an unknown number had not been allowed to add themselves to it because they were frozen.
In September 2021, the wait lists were declared illegal. However, they are usually managed in Mexican-side shelters and camps. As of February 2022, wait lists were still open in Reynosa and Nuevo Laredo only, and just under 30,000 people were registered.
They continue to wait at the border in insecure housing or the squalid encampments around border crossings.
Question: Can people who cross illegally ask for asylum?
Answer: Yes, but it is difficult….
Both US and international law guarantee the right of anyone to request asylum, whether they have come to a Port of Entry, crossed the border illegally, or are residing inside the US illegally, up to one year after entry.
Title 42 denies people the right to ask for asylum
Title 42 is a policy that was put into place by the Center for Disease Control (CDC) in March of 2020. It says, in effect, that the US can suspend the introduction of people into the United States if there is the danger that they introduce a communicable disease. Guidance from the Department of Homeland Security detailed that the concern was not for the health of the US in general, but specifically for conditions in border patrol holding facilities used for processing. It has also been described as the primary tool to expel all who approach or cross the border, including those who wish to seek asylum.
Border Patrol guidance from July 28,2021
U.S. Border Patrol (USBP) continues to experience a migrant surge across the Southwest Border that exceeds our throughput capability and detention capacity. In an effort to manage current detention levels, specifically in sectors like RGV, where encounter numbers are overwhelming organic and downstream effects, USBP SWB Sectors will maximize the use of Title 42(T42) for single adults (SA) and family units (FMU).
Currently, under the guidelines of Title 42, CBP conducts some basic processing, including collecting biometrics and recording the contact. The process takes only a few minutes before the person is expelled. Those who are expelled under Title 42 are called “encounters” in CBP data sets.
In FY2021, 1.66 million “encounters”, representing about 711,000 unique people, were expelled under Title 42. There is no consequence for an “encounter”, and people will often make more than one attempt. Removals under Title 42 are called “expulsions”.
Can Asylum Seekers get past Title 42 restrictions?
If they “spontaneously” say that they fear being tortured to the country they are being returned to, the Border Patrol Officer decides whether the claim is “reasonably believable” before beginning the referral process to an Asylum Officer. This pre-screening is illegal. From March 2020 to September 2021, approximately 3,200 people were screened, and only 272 were allowed to begin the asylum process.
Before COVID and Title 42, most people who crossed the border were processed under Title 8 (Immigration Law). During the pandemic enforcement of Title 42, only those that CBP wanted to process for another reason before they are removed – including referrals to a Credible Fear Interview – were placed into “expedited removal” proceedings under Title 8. These people are referred to as “apprehensions” in CBP data sets, and there are legal consequences for this kind of processing. In FY2021, 619,000 people were processed under Title 8 for a variety of reasons.
Question: Who is in charge at this stage?
Answer: Immigration and Customs Enforcement (aka ICE)
ICE is responsible for the custody and management of all people who are in US immigration proceedings. They hold people for court appearances, manage detention facilities, supervise people in Alternatives to Detention programs, find and arrest people who are not here legally or do not fulfill their obligation to report to ICE, and remove people to their home country when ordered to do so by the court.
Question: Who qualifies to be put into Title 8 proceedings?
Answer: Unaccompanied children, families with children, people from places other than Mexico or Central America (theoretically)
Question: What happens after “apprehension”?
Answer: Detention, parole, or expulsion
Generally, the law authorizes detention for those who are subject to removal. However, how that law is applied depends on current policy, space, humanitarian considerations, personal history, and COVID.
Those with prior orders of deportation are charged with re-entry and removed.
In FY2021, those “apprehended” were deported at a rate of 95% (in October, 2020). As COVID waned, that percentage has dropped to about 50% (in August 2021).
Unaccompanied children are sent to federal shelters.
Approximately 8-10% of those apprehended were unaccompanied children, and were sent to shelters.
Families were usually released at the border under humanitarian parole.
Parole is a temporary status, and does not offer a path to legal status. It allows time for the person to file a case with immigration court to request relief. Between 15% and 30% of apprehensions were released at the border.
The remainder were detained, assuming there was space available.
As of August, 2021, 15% - 20% were detained for some period of time, including those who were awaiting or had passed their Credible Fear Interview. Mexico will not accept removed migrants who are from countries that are not Mexico or Central America, so other arrangements have to be made for their removal.
Those enrolled in the Migrant Protection Protocols program, aka MPP, aka “Remain in Mexico”, are given a date to appear in Immigration court and returned to Mexico to wait for their hearing. There are usually multiple hearings, and each time, the person must present themselves at a specified Port of Entry for re-entry to attend their proceedings, then they are returned to Mexico to continue to wait.
Question: Who qualifies to enroll in MPP?
Answer: Single adults and families who are from a non-Mexico, Western Hemisphere country can be enrolled in MPP.
Question: How many people are in MPP in Mexico?
The MPP program was put into place in January 2019, resulting in at least 75,000 people being enrolled through the end of 2020. The most common nationalities at this time were Cubans, Ecuadorians, Nicaraguans, and Brazilians.
The program was halted in 2021 amidst lawsuits challenging the legality of the program, and during that time, some people enrolled in MPP were allowed to enter the US to continue their legal process. However, the window was short-lived. MPP was re-instated on December 6, 2021, with roll-out beginning in El Paso. In December and January 2022, 673 people were enrolled in MPP, primarily from Nicaragua, Cuba, and Venezuela. Almost 90% claimed that they were afraid of persecution if they returned to Mexico, but about 70% of those had their claims denied and were sent to Mexico anyway.
There are currently about 26,000 MPP cases pending.
Question: How long do people wait in Mexico under MPP?
Answer: Until their case is completed.
The purpose of the Credible Fear Screening is to decide if there is a “significant possibility” that the person would qualify for asylum under the standard. The interview includes 45 questions and may take more than an hour. The Officer is supposed to be forgiving, as it is not their job to actually decide if the person does in fact qualify.
Question: Who is in charge at this stage?
Answer: US Citizenship and Immigration Services provides the Asylum Officer ICE retains custody of the individual OR CBP transports MPP enrollees to their scheduled interview
Question: How long does it take to get an Interview?
Answer: A month or more
Processing by CBP (3+ days)
Transfer of custody from CBP to ICE, and transfer to an interior Detention Center, which includes the Aurora facility (2+ days)
ICE refers the asylum seeker to USCIS for an interview with an asylum officer (?)
Interview, decision, review of the decision, and service of the decision to the asylum seeker (10+ days)
Theoretically, detention during the Credible Fear Process is mandatory, but because of space limitations due to COVID, ICE can choose to release people under parole instead.
Question: How many people get referred for a CFI?
Answer: About 4% of all encounters
About 75,400 people received referrals in 2021 (Dec 1, 2020 – Dec 15, 2021). USCIS was able to process about 57,400. Almost 39,000 passed the interview, for an approval rate of about 68%.
Question: What happens when the person passes the interview?
Answer: They are taken out of “Expedited Removal” proceedings and placed into “Formal Removal”
The person would be given a "Notice to Appear" in Immigration Court, Form I-862.
Some are placed directly into full proceedings and are never given a credible fear screening. Instead, they are given an NTA. This frequently happens when the border holding facilities are too full, or they don’t have the bandwidth to complete the processing right away.
Some adults and families may be returned to Mexico under the MPP program.
Some families may be paroled directly from the border.
Single adults may be detained for a longer period of time.
Question: Is this policy being proposed to change?
Answer: A proposed rule was filed in the Federal Register on 8/20/21...
...which would allow the results of the Credible Fear Interview to serve as the Asylum Application, to be referred to USCIS instead of EOIR. This would allow the clock for the EAD to begin immediately, remove the need for a lawyer to file the asylum application, and significantly shorten processing times.
It would also allow Border Patrol to remove families quickly under expedited removal. Under current law, families with children cannot be detained for more than a very short period of time, resulting in parole releases directly from the border.
This is an asylum seeker’s first appearance in Immigration Court. They will be asked if they have filed an asylum application and if not, given one. The judge will decide if they should be held in detention or released. The judge will ask if they have a lawyer, or if not, if they intend to get one. If they need pro bono legal services, information about finding it will be given to them. The rest of their court dates will be scheduled.
Question: How many people who pass their credible fear actually file an asylum application?
Answer: More than 70%
In the first quarter of 2022, 70.5% of people who had passed their Credible Fear Interview and received a referral to the Immigration Court actually filed their asylum application.
Question: What happens to those who don’t file their asylum application?
Answer: The will be subject to removal
People who have passed their Credible Fear interview are in Full Removal Proceedings. They have 1 year to file an asylum application to extend their stay in the United States until their final hearing.
Asylum seekers do not qualify for court-appointed legal services, and must hire their own lawyers.
Question: Is it helpful to hire a lawyer?
Answer: Historically, yes. Currently, no.
In recent years, legal representation doubled a person’s chances of being granted asylum. However, approval rates are currently very low, and they almost match representation rates.
16% of asylum requests were granted overall
18% of asylum requests were granted if the person had a lawyer
Question: How long does it take to complete an asylum case?
Answer: Currently 3 years, 9 months
Backlogs in immigration court are extensive. Currently, there are 1.4 million Notices to Appear pending. Among those, almost 225,000 originated with a Credible Fear claim.
Question: How many people don’t show up for all of their hearings?
Answer: About 95% of people who filed an asylum application showed up for their final hearing.
That is a complicated question. EOIR data says that the rate of those who don't show up was around 15% in 2020, but that does not take into account several factors. If these are counted, the rate is about 5%.
Those whose cases are pending and are still showing up as it progresses are not counted as having completed their process until their final hearing
Those that have been closed administratively, for example, the person moved their case to USCIS
There was a problem, such as their change of address was not processed or there was no date or place on their NTA. If this happens, they “reopen the case” so they can appear properly. Reopened cases are not considered.
Question: What happens if they don’t show up for their court date?
Answer: If they don’t show up for any one of their hearings, they may be ordered removed in absentia.
Immigration Court is considered an “adversarial” setting. That means that the asylum seeker is the defendant. A lawyer from ICE is the prosecutor. There is no jury – the judge will decide.
If the judge grants asylum, the person becomes an “asylee”, with the same standing as a “refugee”. He or she can apply for Legal Permanent Residence within a month.
If the judge rejects the claim, the person will be taken into custody by ICE and deported.
The asylum seeker may appeal the judge’s decision one time to the Bureau of Immigration Appeals.
Answer: Around 16%
The cases represented in this answer began the process at least two years ago under the directives of the previous administration. It is difficult to predict how harsh or generous judges will be in the future.
Works Cited from discussion
American Immigration Council. "A Guide to Title 42 Expulsions at the Border." n.d. American Immigration Council. <https://www.americanimmigrationcouncil.org/research/guide-title-42-expulsions-border>.
Congressional Research Service. "At What Rate Do Noncitizens Appear for Their Removal Hearings? Measuring In Absentia Removal Order Rates." 5 August 2021. Congressional Research Service. March 2022. <https://sgp.fas.org/crs/homesec/IF11892.pdf>.
—. "Immigration: Apprehensions and Expulsions at the Southwest Border." 22 December 2021. Congressional Research Service. February 2022. <https://crsreports.congress.gov/product/pdf/R/R46999/2>.
—. "The Department of Homeland Security’s “Metering” Policy: Legal Issues." 2021 October 15 2021.
Congressional Research Service. February 2022. <https://sgp.fas.org/crs/homesec/LSB10295.pdf>.
Congressonal Research Service. "The Law of Asylum Procedure at the Border: Statutes and Agency Implementation." 9 April 2021. Congressional Research Service. February 2022.
Executive Office for Immigration Review. "Current Representation Rates." 19 October 2021. U.S. Department of Justice. 3 March 2022. <https://www.justice.gov/eoir/page/file/1062991/download>.
—. "Pending I-862 Proceedings Originating with a Credible Fear Claim and All Pending I-862s." 30 September 2021. U.S. Department of Justice. March 2022. <https://www.justice.gov/eoir/workload-and-adjudication-statistics>.
Human Rights Watch. "US: Mexican Asylum Seekers Ordered to Wait." 23 December 2019. Human Rights Watch. February 2022. <https://www.hrw.org/news/2019/12/23/us-mexican-asylum-seekers-ordered-wait>.
Office of Immigraton Statistics. "Migrant Protection Protocols Cohort Report: February 2022." February 2022. U.S. Department of Homeland Security. March 2022.
"Semi-Monthly Credible Fear and Reasonable Fear Receipts and Decisions." 30 December 2021. U.S. Citizenship and Immigration Services. 1 March 2022. <https://www.uscis.gov/tools/reports-and-studies/semi-monthly-credible-fear-and-reasonable-fear-receipts-and-decisions>.
Strauss Center. "Metering Update: February 2022." February 2022. Robert Strauss Center for International Security and Law. March 2022. <https://www.strausscenter.org/publications/metering-update-february-2022/>.
—. "Migrant Protection Protocols Update: December 2020." 3 December 2020. Robert Straus Center for International Security and Law. March 2022. <https://www.strausscenter.org/publications/migrant-protection-protocols-update-december-2020/>.
U.S. Department of Justice. "Asylum Decision and Filing Rates in Cases Originating with a Credible Fear Claim." 19 January 2022. Executive Office for Immigration Review. 2 March 2022.
U.S. Department of Justice, U.S. Department of Homeland Security. "Procedures for Credible Fear Screening and Consideration of Asylum, Withholding of Removal, and CAT Protection Claims by Asylum Officers." 20 August 2021. Federal Register. March 2022. <https://www.federalregister.gov/d/2021-17779/page-46906>.