Alex Padilla U.S. Senator for California

WASHINGTON, D.C. — Today, U.S. Senator Alex Padilla (D-Calif.), Chair of the Senate Judiciary Subcommittee on Immigration, Citizenship, and Border Safety, Senator Bob Menendez (D-N.J.), Chair of the Senate Foreign Relations Committee, Representative Nanette Barragán (D-Calif.-44), Chair of the Congressional Hispanic Caucus, and Representative Adriano Espaillat (D-N.Y.-13), Vice-Chair of the Congressional Hispanic Caucus, led a letter to the Biden Administration signed by 66 members of Congress calling on the Department of Homeland Security (DHS) Secretary Alejandro Mayorkas and Attorney General Merrick Garland to immediately halt Credible Fear Interviews (CFI) at Customs and Border Protection (CBP) facilities.

“We write today to urge you to immediately halt the practice of subjecting individuals to fear screenings while in Customs and Border Protection (CBP) custody. Requiring asylum seekers to undergo their Credible Fear Interviews (CFI) while in CBP custody and articulate their traumatic experiences within as little as one day of arrival into the U.S. is inherently problematic because of the recency of the trauma many are fleeing and the carceral nature of CBP custody. Compounding this new problematic practice is the difficulty asylum seekers face of trying to figure out how navigate the United States’ very complicated asylum law, overwhelmingly without the benefit of counsel,” wrote the lawmakers to Secretary Mayorkas and Attorney General Garland.

“Due process is a right and value enshrined in our nation’s history. Affording people fair adjudication — including adequate time to obtain evidence, prepare one’s case, and obtain and work with counsel — is particularly key for individuals fleeing life-threatening harm or torture. Hence, we call on your departments to immediately end the policy of conducting fear screenings in CBP custody. Such a process has consistently failed to adhere to basic principles of fairness, humane treatment of those fleeing persecution or torture, and compliance with due process obligations,” continued the lawmakers.

In April 2023, DHS and the Department of Justice (DOJ) began implementing an expedited credible fear screening process at the border, whereby individuals would undergo CFIs in CBP facilities. This new process forces asylum seeking individuals to navigate the complicated immigration system as soon as 24 hours after their arrival to the border, largely without the assistance of counsel. The process fails to comply with due process obligations and does not adhere to basic principles of fair and humane treatment of survivors of violence or torture. The lawmakers call on DHS and DOJ to end CFIs in CBP custody immediately.

In addition to Sens. Padilla, Menendez, and Reps. Barragán and Espaillat, the letter is signed by Senators Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.), Ben Cardin (D-Md.), Martin Heinrich (D-N.M.), Mazie Hirono (D-Hawaii), Ed Markey (D-Mass.), Jeff Merkley (D-Ore.), Patty Murray (D-Wash.), Elizabeth Warren (D-Mass.), Peter Welch (D-Vt.), Ron Wyden (D-Ore.), and Representatives Suzanne Bonamici (D-Ore.-01), Jamaal Bowman (D-N.Y.-16), Salud Carbajal (D-Calif.-24), Tony Cárdenas (D-Calif.-29), André Carson (D-Ind.-07), Greg Casar (D-Texas-35), Kathy Castor (D-Fla.-14), Joaquin Castro (D-Texas-20), Judy Chu (D-Calif.-28), Yvette Clarke (D-N.Y.-09), J. Lou Correa (D.-Calif.-36), Jasmine Crockett (D-Texas-30), Danny Davis (D-Ill.-07), Veronica Escobar (D-Texas-16), Dwight Evans (D-Pa.-03), Maxwell Frost (D-Fla.-10), Jesús G. “Chuy” García (D-Ill.-04), Robert Garcia (D-Calif.-42), Sylvia Garcia (D-Texas.-29), Daniel Goldman (D-N.Y.-10), Jimmy Gomez (D-Calif.-34), Raúl Grijalva (D-Ariz.-07), Sara Jacobs (D-Calif.-07), Pramila Jayapal (D-Wash.-07), Henry Johnson (D-Ga.-04), Barbara Lee (D-Calif.-12), Ted Lieu (D-Calif.-36), Zoe Lofgren (D-Calif.-18), Robert Menendez Jr. (D-N.J.-08), James McGovern (D-Mass.-02), Grace Napolitano (D-Calif.-31), Grace Meng (D-N.Y.-06), Eleanor Norton (D-D.C.), Alexandria Ocasio-Cortez (D-N.Y.-14), Frank Pallone (D-N.J.-06), Chellie Pingree (D-Maine-01), Mark Pocan (D-Wis.-02), Katie Porter (D-Calif.-45), Mike Quigley (D-Ill.-05), Delia Ramirez (D-Ill.-03), Jamie Raskin (D-Md.-08), Andrea Salinas (D-Ore.-04), Linda Sánchez (D-Calif.-38), Janice Schakowsky (D-Ill.-09), Adam Schiff (D-Calif.-28), Rashida Tlaib (D-Mich.-12), Ritchie Torres (D-N.Y.-15), David Trone (D-Md.-06), Juan Vargas (D-Calif.-52), Nydia Velázquez (D-N.Y.-07), and Frederica Wilson (D-Fla.-17).

Full text of the letter is available here and below:

Dear Secretary Mayorkas and Attorney General Garland,

We write today to urge you to immediately halt the practice of subjecting individuals to fear screenings while in Customs and Border Protection (CBP) custody. Requiring asylum seekers to undergo their Credible Fear Interviews (CFI) while in CBP custody and articulate their traumatic experiences within as little as one day of arrival into the U.S. is inherently problematic because of the recency of the trauma many are fleeing and the carceral nature of CBP custody. Compounding this new problematic practice is the difficulty asylum seekers face of trying to figure out how navigate the United States’ very complicated asylum law, overwhelmingly without the benefit of counsel.

Since April, your departments have implemented an expedited fear screening process wherein asylum seekers are held in CBP custody while they undergo their CFIs within as little as 24 hours of their arrival. Mirroring a program President Biden ended upon taking office, these CFIs are conducted telephonically with U.S. Citizenship and Immigration Services (USCIS). If individuals fail these threshold screenings, which many do in these conditions, they can seek review by an immigration judge—although such review is conducted in the same telephonic settings in CBP facilities, promptly after USCIS’s adverse determination, with attorneys often barred from meaningfully participating in the review.

Navigating U.S. laws and agencies in a foreign language and while detained would prove dizzying for most asylum seekers. Undergoing fear screenings in CBP custody would therefore present insurmountable challenges even if every asylum seeker had an attorney by their side. And yet in CBP custody today, asylum seekers face severely obstructed access to counsel. As a threshold matter, CBP does not allow lawyers physical access to their facilities or the opportunity to call their clients. Asylum seekers’ only opportunity to consult with counsel is via the same telephone booths used to conduct CFIs, but many are denied access to call legal service providers. In the few cases where people succeed in retaining counsel, legal service providers have documented USCIS and the Executive Office of Immigration Review (EOIR) routinely failing to even contact their attorneys when their CFIs or Immigration Judge reviews are scheduled. Unsurprisingly, recent figures show a drastic increase in the rejection of asylum seekers during these fear screenings, and their expeditious return to the conditions they fled.

Legal service providers have documented young people under the age of 21, LGBTQIA individuals, and survivors of sexual trauma subjected to this rushed process. Furthermore, many asylum seekers require complex and extended consultations with legal counsel before they are even aware that their previous experiences render them eligible for asylum; this is often the case, for example, for survivors of gender-based violence.

Due process is a right and value enshrined in our nation’s history. Affording people fair adjudication — including adequate time to obtain evidence, prepare one’s case, and obtain and work with counsel — is particularly key for individuals fleeing life-threatening harm or torture. Hence, we call on your departments to immediately end the policy of conducting fear screenings in CBP custody. Such a process has consistently failed to adhere to basic principles of fairness, humane treatment of those fleeing persecution or torture, and compliance with due process obligations.

Sincerely,

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