Certain categories of immigrants entering the country are subject to an expedited removal proceeding, where they are deported immediately, without a hearing. Immigrants who enter through the country without valid documentation, (such as a visa, border crosser card, passport), either by crossing the border or going through a port of entry, are included as one of the categories. The expedited removal process was created in response to the Illegal Immigration and Reform and Immigrant Responsibility Act of 1996 (IRIRA), passed by Clinton.
The IIRIRA also requires the mandatory detention of certain immigrants, including asylum-seekers, if they are placed in an expedited removal process after entering the country without documentation (again, either by crossing the border or through a port of entry).
The decision to place an immigrant in an expedited removal process is made by a U.S. Customs and Border Protection (CBP) officer. CBP officers have blanket authority, and their decisions are not subject to review or appeal.
There is only one way to stop an expedited removal of an immigrant who crosses the border without valid documentation, and that is to claim political asylum.
Although expedited removals have been around since 1996, they weren't really used much until Bush and Obama, and they've skyrocketed under Trump.
In fact, they appear to be the bedrock of the Trump administrations immigration reform policy, initiated with an Executive Order (EO) signed on January 25, 2017 that focused on increased border security and immigration enforcement.
President Trump's border security EO is basically what AG Session’s “zero-tolerance” policy was all about—significantly expanding the use of expedited removals of immigrants crossing the southern border without valid entry documents.
So, let’s assume that immigrants from Central America have crossed the border without documentation, in an attempt to seek protection, because they were rejected from a U.S. port of entry, or because they did not know another way (there seems to be no indication that this group were trying to "sneak" across the border, so this scenario makes the most sense). What now?
Because they crossed the border without documentation, they would have been placed in an expedited removal process. But U.S. law dictates that immigrants slated for expedited removal who request asylum are to be immediately removed from expedited removal proceedings and referred to an asylum officer for processing.
Immigrants slated for expedited removal who have asked for asylum must first go through an additional screening process, that involves a "credible fear interview," before their full asylum case is heard before an immigration judge.
The screening process is a component of the expedited removal process (also implemented as a part of the Immigration Illegal Immigration and Immigrant Responsibility Act of 1996), to ensure that those with a credible fear of persecution aren't wrongfully sent back to their home country. The screening process also ensures that immigrants have a viable case before further processing.
Immigrants are allowed 48 hours to prepare for their credible fear interview with an asylum officer with the U.S. Citizenship and Immigration Services (USCIS). In order to pass the interview, immigrants must be able to convince an asylum officer there is a "significant possibility" of showing in an immigration hearing that they have suffered persecution, or they fear they will suffer persecution due to their race, religion, nationality, group membership (such as an ethnic group), or political opinion. Comprehensive vetting is also a part of the screening process.
If they pass the credible fear interview, their case is then referred to immigration court for a hearing a year or two down the road (this is because there is a lengthy investigative process and understaffing of immigration judges. If they fail their credible fear interview, they can appeal to an immigration judge who is required to hear their case within one to seven days. If the appeals process is unsuccessful, they are immediately referred back to an expedited removal process, and deported.
The standard for passing the credible fear interview was increased significantly in February 2017, under the Trump administration, and as a result, pass rates dropped from about 78% to about 68%. In addition, human rights groups have documented incidents where Border patrol has failed to refer immigrants requesting asylum for credible fear screening.
Despite the credible fear screening process being implemented as an interim measure to ensure both the protection of legitimate asylum-seekers and not clogging immigration courts up with invalid cases, President Trump has consistently referred to this screening process as a "loophole" in the law.
Also, several reviews by the bipartisan organization, U.S. Commission on International Religious Freedom (USCIRF) of Customs and Border Patrol (CBP) processing of asylum-seekers in 2007 and 2013 found numerous problems, including the failure of Border Control to refer immigrants requesting asylum to an asylum officer in 15% of cases, and the failure of asylum officers to follow standard procedures established to protect asylum-seekers from being returned home.
Quality reviews in 2016 and 2017 found even more problems, including CBP officers showing open hostility toward immigrants, and the failure of CBP officers to conduct credible fear interviews in accordance with the law in the majority of cases (72%). Additionally, a review by the ACLU found similar problems, including most immigrants not being asked by CBP officers if they had a fear of persecution if sent home, (which is a requirement of U.S. asylum law), not conducting interviews in a way that accommodated traumatized individuals who did not speak English, not providing immigrants with orientation materials that included information on pro bono attorneys.
Here are the questions I would like answered:
Have some (or all) of the Central American immigrants being placed in an expedited removal process and deported before having an opportunity to request asylum? And, are they being deported without their children?
Are the Central American immigrants being discouraged from requesting asylum altogether, with their children being used as bargaining chips, as some media outlets have reported?
What will happen to the Central American immigrants who are being processed as asylum-seekers? Is it the intention of DHS to keep them in detention even after they have passed a "credible fear" interview, perhaps for years, with or without their children?
Border control and immigration enforcement are very important, but the legislators of our immigration laws have always sought to balance respect for rule of law with compassion, for both native born citizens and immigrants.
Dr. Michelle Martin is a social worker, policy specialist and Assistant Professor at California State University, Fullerton in the Department of Social Work, where she teaches social welfare policy, and researches dynamics related to immigrants, political asylum-seekers, refugees and other displaced populations.