The Biden administration guaranteed attorney access for all migrant screenings. Most don’t have it

An aerial view on Jan. 31 of the soft-sided migrant processing facility at Otay Mesa in San Diego on Jan. 31. (Mani Albrecht/U.S. Customs and Border Protection via AP)

SAN DIEGO — As the Biden administration prepared to launch speedy asylum screenings at Border Patrol holding facilities this spring , authorities pledged a key difference from a Trump-era version of the policy: Migrants would be guaranteed access to legal counsel.

Nearly three months and thousands of screenings later, the promise of attorney access appears largely unfulfilled, based on advocacy group reports and interviews with people directly involved, some of whom spoke to The Associated Press on condition of anonymity because they were not authorized to discuss the effort publicly.


A coterie of involved attorneys estimate that perhaps 100 migrants have secured formal representation, and only hundreds more have received informal advice through one-time phone calls ahead of the expedited screenings.

Jones Day, one of the world’s largest law firms, has partnered with the administration to provide free legal advice to migrants. Its phone bank handled 460 informal phone consultations, each one typically lasting about two hours, as of June 21, according to one of the people who spoke to AP on condition of anonymity. Jones Day itself had only two formal clients, the person said.

Four other advocacy groups that offer free advice and whose names are posted on the immigration court system’s website have handled far fewer phone consultations, partly because they started much later, the person said. Representatives from those four groups declined to comment or did not respond to requests from the AP.

That represents a mere fraction of the thousands of expedited screenings since early April, though a precise percentage couldn’t be determined. U.S. Citizenship and Immigration Services, whose asylum officers conduct the interviews, didn’t answer questions about attorney representation.

U.S. authorities aim to complete screenings in 72 hours — the limit on holding someone under Border Patrol policy. The Homeland Security Department said the accelerated timeline is meant “to provide relief more quickly to those who are eligible and to more quickly remove those who are not.” AP has repeatedly requested to visit a screening facility to better understand the process.

During the screenings, known as “credible fear interviews,” migrants must convince an asylum officer that they have a “significant possibility” of convincing a judge that they face persecution in their home countries on grounds of race, religion, nationality, political opinion or membership in a social group. If they pass, they are typically released in the U.S. while their case winds through the system.

The percentage of people who passed asylum screenings fell to 52% during the second half of May as the fast-track process picked up, down from 77% the second half of March, just before it began.

The government figures give no explanation and do not say how many expedited screenings occurred in Border Patrol custody without access to legal counsel. Administration officials have attributed lower approval rates in part to a new policy that severely limits asylum for people who travel through another country, like Mexico, to reach the U.S. border.

A lawsuit filed last month in federal court in Washington seeks to end the screenings in Border Patrol custody, noting that applicants get as little as 24 hours to find attorneys after often-harrowing journeys. The lawsuit contends that “leaves virtually no time or ability for noncitizens to consult with anyone or meaningfully prepare for these often life-or-death interviews.

Even migrants who pass are reluctant to discuss their experiences as they to continue pursuing asylum cases. U.S. Sen. Alex Padilla, a California Democrat, said in a statement that reports of lacking attorney access at Border Patrol facilities are “troubling and disappointing.”

The administration won’t say how many of the screenings it has done at Border Patrol facilities, which prohibit in-person attorney visits, though it is easily thousands.

The Homeland Security Department said June 5 that asylum officers did more than 11,500 screenings on the border in the first three weeks after pandemic-related asylum restrictions ended, though some may have been at U.S. Immigration and Customs Enforcement centers, which do allow attorney visits.

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