The New York Times recently reported a new procedure at the border of Mexico for people making attempts to illegally cross into the United States. The number of crossings is the lowest it has been in many years. Everyone is detained and thereafter interviewed. According to the Times at the interview, ICE examiners do not give illegal crossers any hints or ask if they are applying for asylum. If they do ask for Asylum, ICE holds a “credible fear” –- meaning assesses whether the person is credible in his claim that he should be granted because if he is deported, he will be persecuted and harmed — and rates the outcome “positive or negative.”
This procedure differs greatly from what the Biden Administration was until about 6 months ago. But the same thing was going on with the Trump Administration. While Trump Administration detained people to keep them from crossing, separated families, and talked about a wall the courts repeatedly struck down his efforts to keep people from crossing into the country. Under Biden, the normal procedure was to apprehend the person who was seeking asylum, briefly interview them and then give them what was called an ATD, an alternative to detention. That was also called a notice to appear and appeared on I-862. That form directed the respondent who was then given an alien number, a nine-digit number, which followed them throughout the immigration system to appear in immigration court.
In our experience, most people showed up at the notice to appear. Many times, they came to us before the notice appeared and they really came for only one reason. They wanted a work authorization. They did not want to sneak into the country. They wanted to become legally authorized to work. We would file an I-589 application for asylum and withholding of removal with the Nebraska Service Center which would trigger the issuance of a notice of a biometrics exam which they would appear for to identify themselves and be fingerprinted. Once that was done, the I-765 could be applied for within 150 days of applying for asylum. We would thereafter appear with them at what is called a mere master hearing, and they would then set a date for an individual hearing or merits hearing as it is sometimes called which was a trial on the merits as to whether or not the respondent could establish that they were entitled to asylum based on a fear of religious or political persecution or persecution because of a social class including homosexuality. Those cases were intended to be fast tracked, but the process would often take 3 or 4 years.
In our experience during those times, the applicants always provided us with information, continued to work, filed tax returns and hoped that they would be ultimately granted asylum by the immigration court.
It should be noted that all of these people crossed the border illegally. What that means is that they did not enter the United States through the normal channels with a visa and pass-through customs and border protection.
Anyone who applies and receives a visa can, once they are in the United States, apply for asylum. Those asylum applicants do not go to immigration court initially. That issue is handled administratively by United States Customs and Immigration Services or USCIS.
The new procedure for people who come across the border illegally is that they are detained and sent to a prison. There are two prisons in particular that seem to have the largest number of individuals. One is in Natchez, Mississippi and the other is in Pearsall, Texas. Once there, they are all interviewed by someone from ICE. The ICE officer holds what is called a credible fear hearing. If the officer finds that the individual has a credible fear of persecution, the person will then be sent back and held by ICE. Once there is a credible fear hearing determination by ICE, the person can no longer go to immigration court. In fact, the immigration court has no jurisdiction under a recent case to make any kind of determination as to credible fear of persecution once that determination has been made by ICE.
In ICE’s custody, you are then required to make a request to ICE explaining that the person intends to live in the United States legally and that they will abide by the laws, pay taxes and seek an employment authorization.
We have found these applications are granted since ICE would like to have these people out of custody.
What is the difference between the former ATD or “catch and release” to the current apprehension and holding for a credible fear hearing? The difference is we are not simply letting people into the United States and relying on them to appear. There have been incidences where people, one notable and oft repeated one being some criminals from Venezuela, appeared at the border, were able to get by to not seek any work authorization and committed a heinous crime. That won’t happen. Thus, as has been discussed here, there is essentially a closure of the border. As the Times reported, the levels are the lowest they have been in many years. People can still apply for asylum, they can still go through the procedures, but they are no longer free to roam until they decide to show up for the required notice to appear handed to them under the old procedure.