The program allowing CBP Officers to conduct “credible fear” interviews was about more than just “efficiency.”

Guest blogger: Gemma Malki, law student, University of San Francisco

In 2017, former Attorney General Jeff Sessions, claimed that the “failure” to address the “fraud and abuse” in the asylum system should be redressed with efficiency in the credible fear screening process.[1] The failure  was due to the “loopholes” left open in the statute for asylum lawyers to take advantage of.[2] As a result, United States Citizenship and Immigration Services (USCIS) asylum officers face hundreds of thousands credible fear reviews that have overwhelmed the system at the border.[3] The group most impacted by this “failed” system? The “frustrated” Customs and Border Patrol (CBP) officers who seek to protect the borders.[4]

Galvanized by President Trump’s 2019 “Memorandum on Additional Measures to Enhance Border Security and Restore Integrity to Our Immigration System,” USCIS came to an agreement with CBP, in January 2020, in which a CBP officer will conduct the preliminary, credible fear interview that is typically conducted by a trained USCIS agent.[5] The memorandum and agreement sought to streamline the asylum process by imposing on border agents the workload of credible fear interviews.[6] However, it believed that this effort made it more difficult for individuals fleeing persecution to receive asylum.[7]

CBP has faced previous accusations regarding allegations of mistreatment and human rights violations at the border.[8] And now, introduction of adversarial techniques in the interviewing process only jeopardizes the remaining semblance in humanity that the immigration process has to offer. CBP is a law enforcement agency that should refrain from using militarized border tactics in the interview room. A credible fear interview elicits personal stories of persecution, violence, rape, and trauma.[9] Many individuals risk their lives in the remote desert only to be faced with inhumane conditions at the border, followed by adversarial and hostile interviews with untrained border agents. Statutory training requirements are in place for reason: an agent needs to be adept at non-adversarial techniques and be knowledgeable of international law and country conditions to accommodate the difficulties applicants face when retelling traumatizing stories. Streamlining the process of credible fear, in addition to an administrative impact, has psychological consequences. The sentiment behind the recalibration of the administrative process instigates re-traumatization of asylum seekers at the border.[10]   

On January 30, 2020, in A.B.-B. v. Morgan, the plaintiffs, four mothers and their children, filed a lawsuit in the U.S. District Court for the District of Columbia against the acting commissioner of the U.S. Customs and Border Patrol to prohibit the enforcement of a new immigration policy which allows a CBP officer to conduct credible fear interviews once an individual has made a claim of credible fear of persecution.[11] The plaintiffs requested a preliminary injunction to prevent enforcement of the new rule.[12] The complaint alleges that the agreement is in violation of the Immigration and Nationality Act (INA).[13] The plaintiffs argue that only asylum officers may conduct these interviews because they are statutorily required to receive professional training in country conditions, asylum law, and non-adversarial interview techniques.[14] CBP agents do not receive the full scope of training and therefore are not qualified to conduct the interviews.[15] The four plaintiffs allege that in each of these cases, the CBP officer conducted aggressive interrogations, failed to elicit relevant information, incorrectly wrote down what the asylum seekers said, and committed other errors.[16] The defendant-CBP acting commissioner argued to the contrary, that the CBP receives sufficient training comparable to the training of CIS officers.[17] The defendants claimed that CBP officer do not receive the full scope of training; however, it is argued that the CBP officer’s full scope of training is not required to conduct the credible fear interviews because the task itself is “discrete” and, therefore, not necessary for the CBP officer to undertake in order to efficiently conduct the interview.[18] 

On August 31, 2020, the District Court of D.C. granted the preliminary injunction to prevent enforcement of the agreement because CBP officers do not receive sufficient training as required by the INA.[19]

[1] The United States Department of Justice, Attorney General Jeff Sessions Delivers Remarks to the Executive Office for Immigration Review. https://www.justice.gov/opa/speech/attorney-general-jeff-sessions-delivers-remarks-executive-office-immigration-review

[2] Id.

[3] Id.

[4] Id.

[5] A.B.-B. v. Morgan, No. 20-cv-846, 2020 WL 47632 at *3 (D.C. Aug.31,2020).

[6] Julia Ainsley, Trump Admin Wants to Make Asylum Hard by Putting Border Agents in Charge, NBC News (April 9, 2019, 10: 21 AM), https://www.nbcnews.com/politics/immigration/trump-admin-wants-make-asylum-harder-putting-border-agents-charge-n992436

[7] Id.

[8] Amnesty International, USA: “You don’t have any rights here,” https://www.amnesty.org/en/latest/research/2018/10/usa-treatment-of-asylum-seekers-southern-border/

[9] Julie Vervoff, Asylum Officers Are Being Replaced by CBP Agents, ACLU (May 6, 2019, 5:15 PM), https://www.aclu.org/blog/immigrants-rights/ice-and-border-patrol-abuses/asylum-officers-are-being-replaced-cbp-agents/

[10] Id.

[11] A.B.-B., No. 20-cv-846, 2020 WL 47632 at *1 (D.C. Aug.31,2020).

[12] Id.

[13] Id.

[14] 8 U.S.C.A. § 1225(b)(1)(B)(E)(i)

[15] A.B.-B., No. 20-cv-846, 2020 WL 47632 at *6 (D.C. Aug.31,2020).

[16] Id. at 1.

[17] Id. at 7.

[18]  Supplemental Brief for the Petitioner at 11, A.B.-B., et al. v. Morgan, et al., No. 20-cv-846-RJL (D.D.C. 2020).

[19] A.B.-B., No. 20-cv-846, 2020 WL 47632 at *7-8 (D.C. Aug.31,2020).

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