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Commentary Immigration

Opinion: Even with Biden, our asylum system remains under threat

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By Linda Corchado

I knew a different border as a child growing up in El Paso in the 1990s.

A drive across the Bridge of the Americas to visit my doctor was as fluid as driving over the Manhattan bridge to reach downtown Brooklyn. I never needed a passport to cross back into the U.S. from Juarez to establish my citizenship to Customs and Border Protection agents.

Linda Corchado

It should be no surprise that this was also a time when our own deference to international human rights was robust. Any person arriving in the United States had the right to seek asylum before any immigration court without passing any initial screening test. Single, adult Mexican men were the most prominent border crossers at the time.

However, in 1996, Congress fundamentally changed that experience with the introduction of expedited removal to empower CBP to make critical legal decisions to deport non-asylum-seeking migrants found at or near the border.

Twenty-five years later, CBP enjoys impunity like no other law enforcement agency in the country. Whereas U.S. police officers are subject to body cameras and civilian police oversight agencies, what CBP agents do is largely left in the dark. When errors, abuse and neglect do come to light, the U.S. government, across party lines, fails to bring any layer of meaningful oversight or corrective action; instead, it emboldens the agency even more.

Under the Trump administration, CBP tortured families and separated young children from their mothers. From their ports of entry and processing station, where no attorneys are permitted, they decided whether to send certain asylum seekers to wait in Juarez under Remain in Mexico, to Guatemala to seek asylum there instead of in the United States, or placed them in rapid fear screenings, forcing vulnerable and traumatized mothers to present their claims for asylum to officers at record, devastating speed.

In 2019, I fired off at the port director, angry by how my client was humiliated by CBP agents. I remarked at my client’s fear of persecution and how several agents, upon hearing he refused to be sent to Guatemala, surrounded him and snickered that with or without his consent, he would be sent there, because “there was no more asylum in America.”

I spoke to an indigenous woman sobbing from a CBP station. She only spoke the Indigenous language K’iche; no CBP agent ever used an interpreter to communicate with her. Painfully, one Indigenous client after another lost their fear interviews under these expedited fear screenings.

These cases, I said angrily to U.S. representatives who visited the border the fall of 2019, are the kinds of cases we win on the border, yet they had no chance under these rushed screenings. In cases where I did notify CBP that they had erred at the fear screening stage and that my clients, who were scheduled to be removed in just a few hours, actually feared persecution, CBP ignored my pleas and removed them anyway. The agent I spoke to late into the night said if they conceded to me then, and stopped their removal, CBP’s deference in such circumstances would be largely undermined.

On Feb. 2, President Biden issued an executive order calling for the secretary of Homeland Security to review the future of expedited removal. This was, I hoped, a moment of opportunity.

The profile of the asylum seeker continues to morph in tandem with conflict and wars across the world. Asylum seekers speak rare dialects. They have suffered sustained, cruel torture and trauma. They are fearful. They are not the single Mexican male adults who Congress created this expedited removal world for in 1996.

Moreover, CBP agents are not lawyers, sworn to the same ethical standards as officers of the court, nor are they trauma informed. Rather, they are entrenched in a culture with one clear goal, to remove expeditiously.

Five months after President Biden’s executive order, the signs aren’t looking good. Single adults continue to be placed into expedited removal and last week, the administration announced that CBP would also place family units into expedited removal. While single adults must stay detained until they pass a fear screening, Biden officials have agreed to allow families into the United States after they are screened for fear by CBP.

When asked about oversight at the CBP level, officials remain awkwardly silent. Again, it would appear that oversight and enforcement is just an afterthought. Yet here in El Paso is where 7-year-old Jakelin Caal Maquin stopped breathing and died in CBP custody. She and her father traveled from a rural indigenous community in Guatemala to seek asylum.

When the mistakes CBP makes are literally life or death, advocates expect the Biden administration to take an even closer, more critical analysis of our laws and the unjust power dynamics they create.

Our laws are meant to protect against torture and persecution. Yet when the gatekeepers at the border believe the threat to our homeland is the asylum seeker, we inevitably fail at the larger crisis at hand, one of conscience and duty.

Linda Corchado is director of legal services for Las Americas Immigrant Advocacy Center in El Paso.

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