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‘Poppycock!’: Federal Court Denies Trump’s Attempt to Use Border Patrol Agents as Asylum Officers


A federal court dealt a substantial blow to President Donald Trump on Monday morning by tossing a controversial policy that gave Customs and Border Protection (CBP) agents the authority to conduct “credible fear” interviews for asylum seekers.

“[D]efendants, their agents, and any persons acting in concert with them, are enjoined from removing plaintiffs from the United States,” an order from the U.S. District Court for the District of Columbia notes. “[D]efendants, their agents, and any persons acting in concert with them are preliminarily enjoined from continuing to implement the [policy] or otherwise permitting [CBP] agents to conduct asylum interviews or make credible fear determinations.”

The policy was enacted in the summer of 2019 by way of an agreement between Bureau of Citizenship and Immigration Services (CIS) then-acting director Ken Cuccinelli and Acting CBP Commissioner Mark Morgan. Prior to that policy, since 2002, all “credible fear” interviews were conducted by asylum agents with the Refugee, Asylum, and International Operations (RAIO) Directorate which operates under the CIS umbrella.

The Cuccinelli-Morgan agreement resulted in the same class of law enforcement agents performing the duties of asylum officers who make a first instance judgment of law enforcement decisions made on the border. The potential conflict of interest here during “credible fear” interviews conducted by CBP agents was salient.

The Refugee Act of 1980 contains provisions that allow the government to expedite the removal of certain refugees–but only under extremely limited circumstances. Such deportations are legal solely in cases where the people claiming refugee status do not have a “credible fear” of being persecuted in their home country.

Under the relevant federal law,” the term ‘credible fear of persecution’ means that there is a significant possibility, taking into account the credibility of the statements made by the alien in support of the alien’s claim and such other facts as are known to the officer, that the alien could establish eligibility for asylum.”

In essence, asylum-seeking immigrants–statutorily defined as “refugee[s]”–are legally afforded greater protections when facing imminent deportation than other undocumented immigrants. This has been the largely untouched state of the law and administrative practice for several decades. But recent efforts by the White House have significantly diluted and disrupted this system.

Judge Richard Leon sketches the asylum-seeking plaintiffs:

[F]our mothers and their seven children from Honduras, Ecuador, and Mexico who seek asylum in the United States based on fears of kidnapping, rape, torture, and murder by individuals connected to politicians or drug cartels in their home countries. With their lives potentially on the line, they challenge [the Cuccinelli-Morgan agreement] delegating authority from U.S. Citizenship and Immigration Services to allow agents from U.S. Customs and Border Protection to conduct “credible fear” interviews for asylum seekers.

The immigrant plaintiffs sued for an injunction that would have stopped their deportations based on various statutory, constitutional and international treaty-based claims.

Leon’s ruling says that “many” of the claims raised by the immigrant plaintiffs are “important” but is relatively brief and only addresses their statutory claim that using law enforcement agents as asylum officers “violates” the Immigration and Nationality Act (INA).

According to the plaintiffs, CBP agents “receive less training than real asylum officers and have received insufficient training to qualify to serve as asylum officers per the statutory requirements” of the INA.

The government, on the other hand, argued that CBP agents acting in the asylum agent role receive “trainings consistent with [CIS’s] prior training history and experience” and thus satisfy the INA’s requirements.

Leon rubbished that line of thought in characteristic fashion:

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. Under the [Cuccinelli-Morgan agreement], CBP agents receive “approximately 80 hours of distance training and up to 120 hours of face-to-face training.” If “comparable” means “similar or equivalent,” then 2 to 5 weeks of distance and in-person training for CBP agents is in no way “comparable” to at least 9 weeks of formal training for CIS asylum officers. Indeed, the Government admits that it decided that “[t]he full scope of training required for USCIS asylum officers is not necessary for [CBP agents] assigned to the limited role of conducting credible fear interviews.”

The order also dinged the Trump administration for explicitly straying from the statutory text of the INA.

“However, regardless of the reasoning for DHS’s decision, Congress disagreed,” the decision notes. “To make matters worse, the [Cuccinelli-Morgan agreement] 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. These procedures plainly violate Congress’s requirements.”

Additionally, Leon expressed disbelief that any law enforcement agent is able to perform the dual role of both adversary and disinterested administrative official.

“After all, law enforcement officers typically ‘function as adversaries’ whose role is ‘to investigate criminal activity, to locate and arrest those who violate our laws, and to facilitate the charging and bringing of such persons to trial,'” the judge notes. “Not surprisingly, CBP itself characterizes its agents as “highly trained law enforcement personnel” who conduct screenings at the border for illegal immigration, narcotics smuggling, and illegal importation, and apprehend individuals for suspected violations of U.S. law.”

Government attempts to correct the deficiency also failed:

The Government’s response that it has “taken steps to eliminate or at least minimize the possibility for such interviews to become adversarial,” hardly seems sufficient. Indeed, its primary example of these so-called “steps” is simply ceasing an interview if an agent discovers he or she was involved in apprehending the asylum seeker being interviewed. While eliminating such obvious conflicts of interests is surely necessary, it provides little comfort that CBP agent interviews will be nonadversarial. For that matter, neither does the Government’s assurance that it has mandated that CBP agents “[c]onduct non-adversarial [credible fear] interviews.” In the final analysis, CBP agents need to receive, at a minimum, the same amount of training that CIS asylum officers receive if they are going to overcome their adversarial instincts and act as neutral decision-makers. Because they clearly have not received such training, the Court need not address at this stage what else may be required, or whether CBP agents could ever serve as asylum officers, a job traditionally performed by CIS officers.

“These training requirements are essential for a functioning asylum process, which is why Congress required them,” the decision concluded.

Lawyers representing the immigrant plaintiffs hailed the ruling.

“Such a great victory this morning! For our clients and for all asylum seekers,” said attorney Elizabeth Wydra.

Read the full ruling below:

ABB v Morgan Injunction Opinion by Law&Crime on Scribd

[image via MANDEL NGAN/AFP via Getty Images]

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