SAN DIEGO — Border officials this week began referring some asylum-seeking families caught crossing the border for special screenings to see if they are likely to be harmed in the countries where they would otherwise be expelled.
If a family member “manifests” fear of being sent to the place that officials are planning to expel them, all family members must be screened by asylum officers with U.S. Citizenship and Immigration Services, or the family’s asylum claim must be processed under normal protocols, according to government documents obtained by the San Diego Union-Tribune.
Which outcome occurs for a given family will likely depend on what resources officials have at that moment.
The move is the result of judicial orders in multiple legal battles being fought over a controversial policy known as Title 42 that the Trump administration introduced at the beginning of the pandemic and that the Biden administration tried to keep in place until recently.
Title 42 instructs border officials to turn away asylum-seekers and other undocumented migrants at ports of entry and expel them to Mexico or their home countries if they cross without permission. Under U.S. law and international treaty, the United States is normally required to screen migrants in the asylum system to see if they qualify as refugees if they say they are afraid to return to their home countries. But under Title 42, such screenings were skipped.
Thousands of asylum-seekers subject to the policy have been violently attacked in Mexico as they wait indefinitely for border policies to change so that they can request protection from the harms they already fled. Human Rights First has documented more than 10,000 cases of such attacks during President Joe Biden’s term.
Documents to guide officials on the change instruct Border Patrol agents and Customs and Border Protection officers at ports of entry to watch for “manifestations of fear” that include asylum-seekers saying they are afraid of being in that country, asylum-seekers saying they have already been harmed or that they will be harmed in that country, as well as asylum-seekers showing signs of fear. The documents list “hysteria, trembling, unusual behavior, incoherent speech patterns, self-inflicted harm, panic attacks, or an unusual level of silence” as examples of nonverbal signs of fear.
Both the Trump and Biden administrations argued that Title 42 was necessary to slow the spread of the COVID-19 pandemic. But many people, including public health experts, have long pushed back on that argument. A recent study by a University of California, San Diego professor found that the policy didn’t have an effect on COVID-19 infection rates.
In a court case brought by the American Civil Liberties Union on behalf of asylum-seeking families, Huisha-Huisha v. Mayorkas, a panel of appellate judges in the District of Colombia Circuit ruled in March that border officials could not expel families to places where they are likely to be persecuted or tortured. Shortly after the order, in April, the Centers for Disease Control and Prevention announced that Title 42 would end on May 23, so a screening process was never implemented.
But the CDC’s decision was quickly challenged in another court case brought by conservative states including Louisiana, Arizona and Missouri, and a federal judge in Louisiana ordered the Biden administration to continue with the policy while the case proceeds.
The Louisiana ruling meant that the appellate court order now had to be implemented. Officials in charge of Border Patrol sectors as well as ports of entry received instructions to begin referrals for screenings shortly after midnight on Monday.
A spokesperson for the Department of Homeland Security confirmed the change happened Monday because of the Huisha Huisha case.
“Current restrictions at the U.S. border have not changed,” the spokesperson, who declined to be named, said. “Single adults and families encountered at the southwest border continue to be expelled, where appropriate, under the CDC’s Title 42 public health authority.”
Lee Gelernt, the attorney with the ACLU leading the Huisha Huisha case, said that the government’s screening plan may not be enough to protect asylum-seekers from harm.
“We have significant concerns that families who need protection will not be screened because they will be too scared or confused to speak up without prompting and that non-verbal ‘manifestations’ of fear are too difficult to determine,” Gelernt said.
The guidance documents do not require border officials to ask if asylum-seekers are afraid of the place where they will be expelled. That’s similar to the “Remain in Mexico” program, which allowed for asylum-seekers to be screened for removal from the program because of danger only if they proactively asked for it.
The instructions emphasize that CBP officers are not themselves supposed to evaluate the legitimacy or qualifications of someone’s fear but rather send the person to an asylum officer to be screened. During the Trump administration, under the Remain in Mexico program, officials sometimes wouldn’t refer asylum-seekers for screenings when they expressed fear of being in Mexico because the officials didn’t think the asylum-seekers qualified, even though it wasn’t the officials’ role to make that determination.
Asylum officers will determine whether the asylum-seekers in question are more likely than not to be harmed if they are expelled. If they cannot show that their fears rise to that legal standard, which is higher than the standard for initial asylum process screenings, then they will still be sent back.
In the guidance to officials at ports of entry, the document also notes that these screenings do not apply to people who are turned away from ports of entry before they reach U.S. soil.
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