By Caitlin Kierum*
In October 2019, the Trump administration began covertly testing two asylum programs—Prompt Asylum Claim Review (“PACR”) and Humanitarian Asylum Review Process (“HARP”)—in El Paso, Texas.[i] The programs aim to streamline the entire asylum-seeking process, normally a lengthy endeavor,[ii] so that asylum seekers receive a decision in ten days or less.[iii] At face value, these programs appear to be a positive move towards a process that does not leave asylum seekers in limbo for extended periods of time. However, the upshot of these programs for asylum seekers is that they are detained in grossly inadequate[iv] Customs and Border Protection (“CBP”) facilities—they are often unable to even speak to a lawyer, much less obtain legal counsel, prior to their credible fear interview.[v] This results in many asylum-seekers being wrongfully denied asylum simply because they are unable to get the help they desperately need to navigate the system.[vi] In response to the implementation of these programs, Las Americas Immigrant Advocacy Center filed a complaint on December 5, 2019, seeking to enjoin the PACR and HARP programs and have them declared contrary to law, in part because they are arbitrary and capricious under the Administrative Procedure Act (“APA”).[vii] I argue that if the court does not enjoin these conditions, it will be a signal to the Department of Homeland Security (“DHS”) and the Trump administration that their actions regarding asylum seekers are beyond the purview of the APA, and consequently, may be beyond the purview of the judiciary as a whole. The ramifications of such a decision on asylum seekers and immigration lawyers seeking to assist them would be devastating.
The APA requires judges to “set aside agency action” that is found to be “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[viii] While the goal of the APA is to limit the scope of judicial review and allow administrative agencies to carry out their duties as seamlessly as possible without constant judiciary interference,[ix] it does allow for judicial review of agency actions in specific situations. More specifically, agency action must be “the product of reasoned decision making” in order to survive arbitrary and capricious review.[x] Yet, an agency’s reasoned decision making cannot only include the positive reasons for enacting its new policies, but must also consider the detrimental impacts a policy change might have.[xi] Furthermore, it must respond to forceful criticisms of its policies.[xii] Although DHS has listed reasons behind its decision making, namely that asylum proceedings move expeditiously so that detainees do not have a prolonged waiting period in CBP facilities,[xiii] these reasons are insufficient as they do not consider the detrimental impacts that are currently affecting asylum seekers, nor do they respond to the forceful criticism regarding the PACR and HARP programs.
The detrimental impacts of these programs have been bolstered by data, which has recently come to light due to the Senate Judiciary Committee’s interest in ending these programs.
The United States Customs and Immigration Service processed 398 PACR cases and 189 HARP cases between the program’s initiation in October 2019 through December 9, 2019.[xiv] And, following this period, DHS expanded the programs beyond their initial pilot test in El Paso, to the Rio Grande Valley and Arizona.[xv] Based on the House Judiciary Committee’s review of the situation, the programs “systematically deny [asylum seekers] due process, leave them in life-threatening circumstances, and ultimately deny the opportunity to justly seek asylum” under the guise of being programs which are for the benefit of asylum seekers.[xvi]
However, the judicial branch should not stand by passively with the assumption that the legislative branch can effectively step in to stop these policies when they have the tools to enjoin these programs themselves. In fact, the judiciary is poised to be the first responder in this instance, as CBP has denied answering specific questions raised by the legislative branch due to “ongoing litigation.”[xvii] If the APA is expected to continue to serve as a check on the decision making authority of DHS, the outcome of this case must be a declaration that the PACR and HARP policies are contrary to law because they do not consider detrimental impacts to asylum seekers. A reviewing court should therefore order DHS to reconsider its decision in light of its negative impacts under the APA.
*Caitlin Kierum is a Junior Editor on MJEAL. They can be reached via email at firstname.lastname@example.org.
[i] Kate Huddleston, We’re Suing to Make Sure that CBP Can’t Keep Asylum Seekers from their Lawyers, ACLU (December 18, 2019), https://www.aclu.org/news/immigrants-rights/were-suing-to-make-sure-that-cbp-cant-keep-asylum-seekers-from-their-lawyers/.
[ii] See generally Fact Sheet: U.S. Asylum Process, National Immigration Forum (January 10, 2019), https://immigrationforum.org/article/fact-sheet-u-s-asylum-process/ (stating that the asylum process typically takes between six months and several years, with the average wait time for an immigration hearing being 721 days).
[iii] Robert Moore, Trump administration testing rapid asylum review, deportation process in Texas, WASHINGTON POST, (Oct. 24, 2019) https://search-proquest-com.proxy.lib.umich.edu/docview/2308328212/B3DC5D0F710A4525PQ/1?accountid=14667.
[iv] CBP facilities are temporary facilities designed to house people for less than 72 hours while they are being processed prior to their transfer to long-term detention facilities managed by Immigration and Customs Enforcement. Zolan Kanno-Youngs, Squalid Conditions at Border Detention Centers, Government Report Finds (July 2, 2019),https://www.nytimes.com/2019/07/02/us/politics/border-center-migrant-detention.html. Aside from their temporary nature making them grossly inadequate, CBP facilities often do not have beds, so detainees “must sleep on aluminum blankets, mats, or directly on cold concrete floors,” and they do not provide a way for detainees to meet with an attorney in person, or make regular phone calls to family or counsel. Huddleston, supra note 1.
[v] Huddleston, supra note 1.
[vii] Complaint at 34-35, Las Americas Immigrant Advocacy Center v. Wolf (2019) (No. 1:19-cv-03640); Administrative Procedure Act, 5 U.S.C. §§ 555(b) (2012).
[viii] 5 U.S.C. §706(2)(A).
[ix] Jessica Senat, Note, The Asylum Makeover: Chevron Deference, the Self-Referral and Review, 35 TOURO L. REV. 867, 875 (2019).
[x] Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto Ins. Co., 463 U.S. 29, 52 (1983).
[xi] Make the Rd. N.Y. v. McAleenan, 405 F. Supp. 3d 1, 56 (D. D.C. 2019).
[xii] United States v. Nova Scotia Food Prods. Corp., 568 F.2d 240, 245 (2d Cir. 1977).
[xiii]Cross Motion for Summary Judgment at 36, Las Americas Immigrant Advocacy Center v. Wolf (2019) (No. 1:19-cv-03640).
[xiv] Letter from the House Judiciary Committee to Chad Wolf, Acting Director of Homeland Security (January 31, 2020) (on file with the House Judiciary Website, https://chc.house.gov/sites/congressionalhispaniccaucus.house.gov/files/Letter%20to%20DHS%20on%20PACR%20and%20HARP.pdf) (citing data provided to the House Judiciary Committee by the Department of Homeland Security).
[xvi] Press Release, House Judiciary Committee, Congressional Leaders Call for Immediate Halt of Trump Programs that Rush Migrants Through Asylum Screenings: New programs deny due process and rush families through Life-or-death legal screenings behind closed doors (January 31, 2020), https://judiciary.house.gov/news/documentsingle.aspx?DocumentID=2786.
[xvii] Letter from Mark Morgan, Acting Commissioner of U.S. CBP, to Representative Veronica Escobar, U.S. House of Representatives (Feb. 28, 2020) (on file with American Immigration Lawyers of Association, https://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/cbp-responds-to-letter-regarding-concerns) (stating that “due to ongoing litigation, CBP is unable to answer the specific questions [Representative Escobar] raised in [her] letter); Escobar’s letter denounced the HARP and PACR programs for not giving asylum seekers a fair process and requested information regarding details of the programs, such as: when the programs began, how many people have been subjected to the program, how many people have been able to get an attorney under the programs, and how many people have been denied entry after their credible fear interview? Letter from Representative Veronica Escobar, U.S. House of Representatives, to Mark Morgan, Acting Commissioner of U.S. CBP (Nov. 22, 2019) (on file with American Immigration Lawyers of Association, https://www.aila.org/advo-media/whats-happening-in-congress/congressional-updates/congressional-letter-to-cbp-expresses-concerns).