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Featured Issue: Border Processing and Asylum

This featured issue page provides updates, analyses, and other resources on border policies that have predominately affected asylum seekers including information on the two asylum bans, the Asylum Cooperative Agreements signed with El Salvador, Guatemala, and Honduras, the Prompt Asylum Case Review, and Humanitarian Asylum Review Process. Combined, these policies form an ever-present and increasing barrier to due process protections for migrants, threatening fundamental rights like access to counsel, and a fair day in court.

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Asylum Ban

On November 9, 2018, President Trump issued a proclamation that, in combination with a rule promulgated by DHS and DOJ, bars from seeking asylum individuals who enter the United States from Mexico between ports of entry. The proclamation guts key due process protections for asylum seekers. Under unambiguous laws passed by Congress, all persons arriving to the United States, whether at or between ports of entry, have the right to seek asylum. Not everyone is eligible for that relief; but everyone deserves a full and fair opportunity to pursue it. The proclamation is a transparent end run around our laws and has already come under legal challenge.

On July 16, 2019, the Trump administration issued a joint interim final rule—often referred to as the “Asylum Ban 2.0”—which makes all individuals who enter, attempt to enter, or arrive to the United States across the southern border ineligible for asylum if they have transited through at least one country outside of their country of origin, and have not applied for protection in that country. On September 11, 2019, the Supreme Court issued an order staying a prior injunction that had prevented the government from implementing the rule. The order means that the government can implement the Asylum Ban 2.0 while the case works its way through the courts. For more information on the litigation, see Barr v. East Bay Sanctuary Covenant.

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Asylum Cooperative Agreements

On November 19, 2019, DHS and DOJ issued an Interim Final Rule that was effective the same day, which aims to send individuals seeking asylum along the U.S./Mexico border to Guatemala or other countries with which the United States has entered into “Asylum Cooperative Agreements.” This rule applied to individuals who arrive at a U.S. port of entry, or enter, or attempt to enter the U.S., between ports of entry, on or after November 19, 2019.

According to Reuters, the program will initially be applied at a U.S. Border Patrol station in El Paso, Texas. This first phase will target adults from Honduras and El Salvador and the aim will be to process them within 72 hours. One individual was interviewed through the new process on Tuesday, November 19, and two more were interviewed on Wednesday.

Prior to the launch of this new program, DHS officials were still scrambling to figure out critical details, including how those seeking protection would obtain shelter, food, and access to orientation services, according to government briefing materials obtained by BuzzFeed News.

According to Buzzfeed News, despite the questions, the documents indicate that DHS planned to send 12 asylum-seekers on the first flight to Guatemala that was tentatively scheduled to depart on Tuesday, November 19.

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Prompt Asylum Case Review (PACR) and Humanitarian Asylum Review Process (HARP) Programs

On October 7, 2019, the Trump administration began a pilot program called “Prompt Asylum Case Review,” in the El Paso area to speed up the asylum process for certain non-Mexican immigrants. At the same time, the administration rolled out the “Humanitarian Asylum Review Process,” a virtually identical program which applies to Mexican nationals. Under these program, individuals are kept in holding cells (known in Spanish as hieleras) or are taken to a local 1,500-bed soft-sided facility operated by CBP and receive a decision on their request for protection in 10 days or less without going through the formal asylum process.

Asylum seekers are provided access to a phone in the first 24 hours to call family members or a lawyer before an initial asylum screening. After 24 hours of detention, asylum seekers receive an interview with an asylum officer to determine whether they have a credible fear of persecution and can stay in the U.S. Immigration lawyers and advocates say the pilot program denies asylum seekers proper due process, because immigration lawyers are not allowed to meet with their clients in person and are limited to brief phone conversations.

These pilot programs reportedly apply to individuals subject to the recent interim final rule that bars most migrants traveling to the U.S. Southern land border from seeking asylum unless they are first denied asylum in one of the countries they passed through on their way to the U.S. The rule effectively ends the possibility for Central American asylum seekers to seek asylum in the U.S first. Both of these programs are set to expand across the entire border region in February 2020.

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Cite as AILA Doc. No. 19032731.