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President Biden’s new border policies cut time for migrant attorney consultations

Immigrant rights groups reacted with outrage at the new policy and hinted at legal challenges.
Immigration Separated Families
Posted at 2:46 PM, Jun 05, 2024

Though President Joe Biden has stressed that his new executive actions limiting asylum claims at the southern border are grounded in his belief that immigration is the “lifeblood of America,” his administration is taking even more steps to make it harder for migrants to gain safe harbor in the U.S. — sparking fear and outrage among migrant advocates.

The Department of Homeland Security is reducing the time allotted for migrants to consult with an attorney for a credible fear screening, Scripps News has learned. It's part of the Biden administration’s rollout of sweeping changes to its border policy.

Under President Biden’s new executive actions, asylum claims would be barred for migrants crossing the border unlawfully when daily encounters reach a seven-day average of 2,500, a threshold that has already been surpassed.

The consultation period for migrants to consult an attorney under the new policy will be cut from a minimum of 24 hours to four hours for initial asylum screenings, according to a Department of Homeland Security official who pointed to an effort for faster removals.

“To support expeditious processing at the southern border, DHS is maximizing the use of expedited removal, and in turn, the number of credible fear screenings that can be conducted for noncitizens who manifest a fear either explicitly or nonverbally,” the official stated. “Lengthy consultation periods lead to increased amount of time noncitizens remain in immigration detention before decisions can be made in each case. Increased times in custody can directly contribute to a situation where DHS’s capacity can quickly become overwhelmed. These factors in circumstances described in the Presidential Proclamation constitute unreasonable delays in the credible fear process.”

A view of the U.S.-Mexico border wall

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The minimum four-hour period for consultation before a credible fear interview would apply between 7 a.m. and 7 p.m. from when the individual is provided an opportunity for consultation. The official warned of likely denial of extension requests “as unreasonably delaying the process, except in extraordinary circumstances.”

The standard for fear is also higher under the executive actions.

“I think individuals who do manifest a fear and are ineligible for asylum as a result of the rules measures will be screened for our international obligations under withholding of removal and the Convention Against Torture at a ‘reasonable probability’ standard, which will be a substantially higher standard than the ’significant possibility’ standard that is being used today, while still somewhat below the ultimate merits standard of 'more likely than not,'” a senior administration official told reporters when describing the new policy.

A DHS memo sent to a leader in enforcement and removal operations, obtained by Scripps News, outlines the changes to the credible fear process. CBP will not question a migrant for expedited removal and refer the migrant for a credible fear interview to U.S. Citizenship and Immigration Services if the migrant manifests a fear of return, an intention to apply for asylum or protection or a fear of persecution or torture. However, officers will help in determining whether exceptions to the asylum restrictions apply to a migrant, which can include an acute medical emergency, threat to life or being a victim of a severe form of trafficking.

The changes have sparked concerns over obtaining legal representation for some immigration advocates.

“There goes any chance of getting legal representation,” Gregory Chen, director of government relations for the American Immigration Lawyers Association posted on X. “4 hours (even 24) is not enough time to help someone who has suffered torture, persecution + may need time, counseling, support to talk about trauma. Processing can be faster but this is NOT FAIR.”

A view of the U.S.-Mexico border wall

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Other immigrants' rights groups, meanwhile, reacted to reports of the changes with anger, likening them to the stringent border policies pursued by former President Donald Trump and previewing possible legal challenges to the new policies.

“In 2018 the Trump admin cut the time people are allowed to rest and seek legal assistance before a credible fear interview from 48 hours to 24. They got sued and lost,” noted Aaron Reichlin-Melnick, policy director at the American Immigration Council. “In May 2023, the Biden admin did the same and cut it to 24 hours. Now they’re cutting it again — to just 4 hours.”

Lawyers for the ACLU already told Scripps News they planned to sue over President Biden’s new border actions. “It was illegal when Trump did it, and it is no less illegal now,” Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project, said in a statement.