Immigration and Citizenship

Poppycock!’: Judge Blocks Trump Policy Tapping Border Agents to Screen Asylum-Seekers

A federal judge in Washington, D.C., on Monday blocked a Trump administration policy that allowed border patrol agents to conduct credible fear assessments for asylum-seekers, finding it likely violated federal immigration law.

Senior District Judge Richard Leon issued the preliminary injunction against a January 2020 memorandum of understanding that allowed agents with U.S. Customs and Border Patrol to handle the screenings typically conducted by U.S. Citizenship and Immigration Services officers. The administration had previously allowed the border patrol agents to administer the assessments, but Leon found only the more recent memo was being challenged in the suit.

Leon, who was nominated to the bench by President George W. Bush, is the latest conservative judge on the D.C. federal court to rule against the Trump administration on asylum. U.S. District Judge Timothy Kelly, a Trump appointee, earlier this year threw out a rule that prevented migrants from obtaining asylum if they did not seek the protections in another country while traveling to the southern border.

In Monday’s opinion, Leon found the migrants would succeed in showing that border patrol agents “receive substantially less training than CIS asylum officers to conduct asylum interviews” in violation of the Immigration and Nationality Act.

The federal immigration law requires that officers who conduct the interviews—in which migrants must show they face at least a 10% chance of persecution due to certain factors in order to be eligible for asylum—receive significant training on handling the applications.

In responding to the administration’s claims that the border patrol agents received similar training as asylum officers, Leon wrote, “Poppycock! The training requirements cited in the government’s declaration do not come close to being ‘comparable’ to the training requirements of full asylum officers.”

“To make matters worse, the January MOA precludes any individual CBP agent from conducting credible fear interviews for longer than 180 days, meaning that CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations,” the judge added. “These procedures plainly violate Congress’s requirements.”

The Trump administration has administered a widespread crackdown on asylum proceedings, adopting a slew of policies that make it more difficult for migrants fleeing persecution in other countries to obtain protections in the United States.

The ruling comes in a lawsuit filed by attorneys with Tahirih Justice Center and the Constitutional Accountability Center, on behalf of four mothers and their seven children from Honduras, Ecuador and Mexico seeking asylum in the U.S. All of the migrants failed to pass the credible fear assessment conducted by CBP agents, which were upheld by immigration judges.

Leon also found in Monday’s ruling that it “would certainly seem unlikely” that CBP agent interviews of migrants could be considered to be “nonadversarial proceedings with a neutral decision-maker,” as required under federal regulations and guidelines. He noted that border patrol agents are considered law enforcement, and said federal authorities’ statements on measures they have taken to minimize the possibility of the interviews becoming adversarial “hardly seems sufficient.”

Leon wrote the training requirements for those conducting the credible fear assessments “are essential for a functioning asylum process, which is why Congress required them,” describing the legal framework surrounding U.S. immigration, asylum, and other similar processes as “complex, to say the least.”

“After all, an asylum officer who is not adequately trained in the applicable legal requirements is less likely to ask the right questions of an asylum seeker, or for that matter, to gather the facts necessary to make an accurate determination of whether an asylum seeker has a credible fear of persecution,” he continued. “Indeed, the record here contains several examples of the effects of inadequate training: one CBP agent failed to follow up with questions about an asylum-seeking plaintiff’s sexual abuse, and another failed to inquire into another asylum-seeking plaintiffs husband’s murder investigation.”

Leon also found the immigrants in the case would face irreparable harm, if he did not issue a preliminary injunction to block their removal from the U.S.

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