U.S. Commission on International Religious Freedom

BARRIERS TO

PROTECTION

THE TREATMENT OF ASYLUM SEEKERS IN EXPEDITED REMOVAL
Barbed wire is seen at Casa del Migrante in Reynosa, Mexico. Casa del Migrante provides housing, food, 

clothing and medical care to people who are planning to cross the border and to those have have been 

deported from the United States (Reuters/Eric Thayer).
BARRIERS TO PROTECTION

THE TREATMENT OF ASYLUM SEEKERS IN EXPEDITED REMOVAL

U. S. C O M M I S S I O N O N I N T E R N A T I O N A L R E L I G I O U S F R E E D O M

COMMISSIONERS

Thomas J. Reese, S.J.

Chair

Daniel Mark

James J. Zogby

Vice Chairs

Kristina Arriaga de Bucholz

Sandra Jolley

John Ruskay

Jackie Wolcott

Ambassador David N. Saperstein, ex officio, non-voting member

AUTHORS OF THIS REPORT

Elizabeth Cassidy

Co-Director for Policy and Research

Tiffany Lynch

Senior Policy Analyst

Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal v

TABLE OF CONTENTS 

Acronyms. .

Expedited Removal Process Flow Chart. . 

Executive Summary. 

Background. 

Methodology. 

The Expedited Removal Process. .

The Expansion of Expedited Removal. .

Findings and Recommendations. .

Management and Coordination. .

Initial Processing. .

Credible Fear Screening. .

Detention. .

Access to Information and Counsel. .

Adjudication of Asylum Claims. .

Prosecution of Asylum Seekers. .

The 2014 Surge. .

Glossary of Terms. .

Appendices. .
vi U.S. Commission on International Religious Freedom

ACRONYMS

ABA American Bar Association 

ATD Alternatives to Detention

BIA Board of Immigration Appeals

BP U.S. Border Patrol

CBP U.S. Customs and Border Protection

DHS Department of Homeland Security

DOJ Department of Justice

EOIR Executive Office for Immigration Review

HPI/GPI Honduran and Guatemalan Pilot Initiatives

ICE U.S. Immigration and Customs Enforcement

IIRIRA 1996 Illegal Immigration Reform and Immigrant 

Responsibility Act

INA Immigration and Nationality Act

ISAP Intensive Supervision Appearance Program

LOP Legal Orientation Program

OFO U.S. Customs and Border Protection Office of Field Operations

OIG Department of Homeland Security Office of Inspector General

ORR Department of Health and Human Services Office of 

Refugee Resettlement

PBNDS 2011 Performance Based National Detention Standards 

RCA Risk Classification Assessment

UAC Unaccompanied non-citizen children

USCIRF U.S. Commission on International Religious Freedom

USCIS U.S. Citizenship and Immigration Services

VTC video teleconference
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal vii

EXPEDITED	
  REMOVAL	
  FLOW	
  CHART	
  (2015)

Interview	
  conducted -­‐ Sworn	
  statement	
  on	
  I-­‐867A/B	
  read	
  aloud	
  to	
  noncitizen	
  and	
  provided	
  in	
  writing	
  -­‐ Specific	
  protection	
  questions asked	
  and	
  recorded	
  -­‐

Not	
  allowed	
  to	
  meet with	
  family,	
  attorney,	
  etc.

Arrival	
  by	
  Sea and	
  Apprehension by	
  DHS	
  within	
  24	
  months	
  of	
  entry	
  without	
  inspection

Appeal -­‐Government or	
  asylum-­‐seeker	
  may	
  appeal	
  the	
  decision of	
  the	
  immigration judge	
  to the	
  EOIR	
  

Board	
  of	
  immigration	
  Appeals	
  (BIA)

Detention by	
  ICE	
  (DRO)

Fear	
  expressed -­‐ If	
  non-­‐citizen	
  indicates	
  intent	
  to	
  apply	
  for	
  asylum	
  or	
  fear	
  of	
  persecution	
  or	
  torture,	
  case	
  is	
  flagged	
  for	
  credible	
  fear referraland	
  additional	
  information	
  is	
  provided	
  about	
  the	
  process	
  (Form	
  M444)

Apprehension	
  by	
  Border	
  Patrol	
  (CBP)	
  within	
  100	
  miles	
  of	
  border	
  and	
  within14	
  days	
  of	
  entry	
  without	
  inspection

No	
  fear	
  expressed -­‐ If	
  non-­‐citizen	
  does	
  not	
  indicate	
  an	
  intent	
  to	
  apply	
  for	
  asylum	
  or	
  fear	
  of	
  persecution	
  or	
  torture,	
  expedited	
  removal	
  order	
  prepared

Inspection by	
  Office	
  of	
  Field	
  Operations	
  (CBP) to	
  identify	
  

arrivals with	
  documents	
  that	
  

are	
  missing,	
  false	
  or	
  obtained	
  

by	
  misrepresentation

Supervisory Review	
  (paper)

AUSA	
  declines	
  to	
  prosecute	
  

AUSA	
  prosecutes	
  –conviction,	
  sentencing	
  and	
  time	
  is	
  served	
  

Possible	
  offer	
  to	
  withdrawapplication	
  for	
  admission	
  at	
  the	
  discretion	
  of	
  the	
  officer	
  – No	
  reentry bar

Referral	
  to	
  DOJ	
  for	
  potential	
  federal	
  criminal	
  prosecution	
  for	
  illegal	
  entry

ICE	
  (DRO)	
  

informs	
  USCIS	
  of	
  need	
  for	
  credible	
  fear	
  

interview	
  

Credible	
  Fear	
  Interview by	
  USCIS	
  (Asylum	
  Division)

USCIS	
  Asylum	
  Pre-­‐Screening	
  Officer (APSO) conducts	
  non-­‐adversarial	
  interview	
  using	
  the	
  credible	
  fear	
  standard	
  -­‐ Non-­‐

citizen	
  has	
  no	
  right	
  to	
  legal	
  representation	
  but	
  may	
  have	
  an	
  attorney,	
  family	
  or	
  other	
  

consultant	
  present

Credible	
  fear	
  not	
  

found -­‐ Expeditedremoval	
  order	
  issued-­‐ Non-­‐citizen	
  may	
  

request	
  review	
  by	
  EOIR	
  immigration	
  

judge	
  (Form	
  I-­‐869)

Credible	
  fear	
  found –Referral	
  to	
  an	
  

EOIR	
  immigration	
  

judge

APSO	
  completes	
  the	
  “Record	
  of	
  determination/Credible	
  fear	
  Worksheet”	
  (Form	
  I-­‐870)

Re-­‐interview	
  granted Non-­‐citizen	
  

requests	
  a	
  re-­‐interview	
  by	
  APSO

ICE	
  (DRO)	
  identifies	
  non-­‐citizen	
  who	
  had	
  not	
  expressed	
  fear	
  to	
  CBP

Negative	
  

decision	
  

vacated

At	
  non-­‐citizen’s	
  

request,	
  an	
  EOIR	
  immigration	
  judge	
  conducts	
  a	
  video	
  teleconferenced or	
  in-­‐person	
  review

of	
  negative	
  credible	
  fear	
  finding,	
  usually	
  

within	
  7	
  days

Re-­‐interview	
  denied

Negative	
  decision	
  affirmed

Asylum	
  Hearing -­‐EOIR	
  immigration	
  judge	
  conducts	
  adversarial	
  hearing	
  under	
  INA	
  Sec.	
  240	
  – Non-­‐citizen	
  may	
  apply	
  for	
  asylum,	
  withholding	
  of	
  removal	
  (INA	
  Sec.	
  241(b)(3))	
  or	
  CAT	
  relief –

May be	
  represented	
  by	
  

counsel	
  at	
  no	
  cost	
  to	
  the	
  

government

Non-­‐citizens	
  who	
  have	
  not	
  expressed	
  fear	
  held	
  for	
  removal – Non-­‐citizens	
  who	
  have	
  expressed	
  fear	
  are	
  held	
  for	
  credible	
  fear	
  process	
  -­‐Opportunity	
  to	
  communicate	
  with	
  attorney,	
  family,	
  etc.

Referral	
  to	
  ICE	
  (DRO)	
  for	
  detention	
  and	
  removal	
  by	
  ICE	
  (DRO) or	
  removal	
  directly	
  from CBP

Expedited	
  removal	
  order	
  issued -­‐Once	
  removed,	
  the	
  noncitizen	
  is	
  barred	
  from	
  returning	
  to	
  the	
  US	
  for	
  5	
  years

Supervisory	
  Review	
  (paper)

Referral	
  to	
  ICE	
  (DRO)	
  for	
  detention	
  during	
  credible	
  fear	
  determination

ICE	
  (DRO)	
  removes	
  the	
  Non-­‐citizen

Supervisory	
  Review	
  (paper)

Quality	
  Assurance	
  Review	
  at	
  HQ	
  (paper)	
  

– Not	
  all	
  reviewed	
  -­‐ Randomly	
  selected	
  

from	
  negative	
  and	
  positive	
  credible	
  fear	
  

determinations

During	
  credible	
  fear	
  process,	
  may	
  only	
  be	
  released	
  if necessary	
  to	
  meet	
  a	
  law	
  enforcement	
  objective	
  or	
  for	
  a	
  “medical	
  emergency”

After	
  positive	
  credible	
  fear	
  finding,	
  arrivals	
  to	
  ports	
  of	
  entry	
  mayparoled	
  from	
  detention by	
  ICE,	
  and	
  	
  

those	
  apprehended	
  by	
  Border	
  Patrolmay request	
  a	
  bond	
  hearing	
  before	
  an	
  EOIR	
  immigration	
  judge

Asylum	
  or	
  CAT	
  granted

Asylum	
  or	
  CAT	
  denied

No	
  appeal	
  -­‐Relief	
  stands

EXPEDITED REMOVAL PROCESS FLOW CHART
viii U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 1

EXECUTIVE SUMMARY

Unprecedented numbers of individuals worldwide are forcibly displaced 

by conflict or persecution or migrating in search of improved economic 

opportunities. For example, in 2015, more than one million refugees and 

migrants undertook treacherous journeys across the Mediterranean Sea 

to reach Europe. In fiscal year 2014, 52,000 unaccompanied non-citizen 

children and 68,000 family units from Central America crossed into the 

United States from Mexico. 

These large, mixed flows of people require that nations have credible, 

effective immigration laws and processes to identify and protect bona fide

refugees and asylum seekers. In the United States, one such system is the 

Expedited Removal process. Under Expedited Removal, foreign nationals 

arriving in the United States without proper documentation or with fraudulent documentation can be returned to their countries of origin without 

delay, and without the immigration court removal hearings, unless they 

establish a credible fear of persecution or torture. This report examines the 

U.S. government’s treatment of asylum seekers in Expedited Removal. 

Expedited Removal is a complicated administrative process carried 

out by multiple agencies of the U.S. Department of Homeland Security 

(DHS), including U.S. Customs and Border Protection (CBP) and U.S. 

Immigration and Customs Enforcement (ICE). For asylum seekers, DHS’s 

U.S. Citizenship and Immigration Services (USCIS) and the Executive 

Office for Immigration Review (EOIR) of the U.S. Department of Justice 

(DOJ) also are involved. 

CBP first encounters non-citizens when they apply for admission to 

the United States at U.S. ports of entry, or after they cross the U.S. border, 

and identifies those subject to Expedited Removal and, from that group, 

those seeking asylum. During this initial processing, CBP officials are 

required to explain Expedited Removal and its consequences, advise 

non-citizens to ask for protection without delay if they have any fear or 

concern about being returned home, and ask four questions related to 

fear of return. CBP then turns non-citizens subject to Expedited Removal 

over to ICE for detention and removal. While in ICE detention, those 

who claimed fear of return are screened by USCIS asylum officers to 

determine if their fear is credible, defined as “a significant possibility” 

of establishing eligibility for protection. If USCIS finds a credible fear 

of persecution or torture, the asylum officer places the non-citizen in 

removal proceedings before an EOIR immigration judge, in which he or 

she may apply for asylum or other relief or protection from removal, and 

ICE may release the asylum seeker from detention while the immigration 

court proceeding is pending. If USCIS does not find credible fear, the 

non-citizen may request a review by an immigration judge, but if credible 

fear is again denied the person is removed promptly thereafter. 

These large, mixed flows of 

people require that nations 

have credible, effective 

immigration laws and 

processes to identify and 

protect bona fide refugees 

and asylum seekers.
2 U.S. Commission on International Religious Freedom

The International Religious Freedom Act of 1998 authorized the U.S. 

Commission on International Religious Freedom (USCIRF) to designate 

experts to conduct a study to assess the situation of asylum seekers in 

Expedited Removal. USCIRF released its first assessment in the 2005 Report 

on Asylum Seekers in Expedited Removal, which documented serious flaws 

placing asylum seekers at risk of return to countries where they could 

face persecution and inappropriate, prison-like detention conditions. 

To address these problems, USCIRF made a series of recommendations 

designed both to help protect U.S. borders and ensure the fair and humane 

treatment of bona fide asylum seekers. 

This follow-up report, based on field research and a review of public 

information conducted by USCIRF between 2012 and 2015, evaluates the 

current situation of asylum seekers in Expedited Removal and the implementation of USCIRF’s 2005 recommendations. The research revealed 

that, although DHS had taken some measures in response to the 2005 

study, there were continuing and new concerns about the processing and 

detention of asylum seekers in Expedited Removal, and most of USCIRF’s 

2005 recommendations had not been implemented. Furthermore, since 

USCIRF’s original research, both the U.S. government’s use of Expedited 

Removal and the number of individuals in Expedited Removal seeking 

asylum have grown significantly. As a result, flaws in the system now 

potentially affect even more asylum seekers. 

Key findings include: 

• There continues to be a need for a high-ranking DHS official to 

coordinate refugee and asylum issues among the various agencies 

involved in Expedited Removal. 

• USCIRF’s observations and research revealed continuing and new 

concerns about CBP officers’ interviewing practices and the reliability of the records they create, including: flawed Border Patrol 

internal guidance that conflates CBP’s role with that of USCIS; certain CBP officers’ outright skepticism, if not hostility, toward asylum 

claims; and inadequate quality assurance procedures.

• CBP’s and USCIS’ reliance on technology to process and interview 

increased numbers of border crossers has improved efficiency, but 

the impersonal nature of the interviews raises concerns that this 

may be at the expense of identifying and protecting asylum seekers.

• USCIS’ 2014 revised lesson plan for asylum officers on credible 

fear and a new detailed interview checklist may have moved what 

should be a screening interview closer to a full asylum adjudication. 

• ICE continues to detain asylum seekers before their credible fear 

interviews, and, in some cases even after being found by USCIS to 

have credible fear, under inappropriate penal conditions. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 3

• ICE’s 2009 directive on parole, and its increased use of Alternatives 

to Detention, have improved opportunities for release of asylum 

seekers found to have a credible fear, in line with USCIRF’s 2005 

recommendations. 

• ICE’s failure to develop uniform procedures to determine bond 

amounts and its extensive use of ankle bracelets over other alternatives, without individually assessing each asylum seeker’s 

non-appearance risk, raise serious concerns. 

• Detained asylum seekers with whom USCIRF met lack any real 

understanding of their rights, responsibilities, and, if relevant, the 

next steps in their asylum cases. 

• The prioritization of funding for the agencies involved in the 

enforcement aspects of Expedited Removal has resulted in adjudication delays and backlogs at both USCIS and EOIR. 

• CBP’s referral of non-citizens who claim fear to DOJ for prosecution 

for illegal entry or illegal re-entry without first allowing USCIS to 

assess their fear claim is problematic and may violate the United 

States’ international obligations. 

• The U.S. government’s detention of mothers and children in 

Expedited Removal who expressed fear of return is inherently problematic and several courts have found that the facilities used do not 

comply with the U.S. government’s own standards for child detention as defined in a 1997 legal settlement, the Flores Agreement. 

• CBP’s and ICE’s implementation of the Honduran and Guatemalan 

Pilot Initiatives to detain separately and remove speedily adults 

from these two countries who do not claim fear has the negative 

effect of limiting these non-citizens’ opportunities to learn about 

their legal rights. 
4 U.S. Commission on International Religious Freedom

To the Secretary of Homeland Security

• Appoint a high-ranking official with sufficient authority and resources to 

make the reforms necessary to ensure the protection of asylum seekers 

in Expedited Removal and to oversee implementation. 

• Reiterate to all agencies and officers implementing Expedited Removal 

that their law enforcement mandate includes fully implementing U.S. 

laws and regulations governing the protection of individuals seeking 

refuge from return to persecution or torture. 

• Request that the DHS Office of Inspector General audit the Expedited 

Removal process for compliance with laws and policies regarding the 

protection of asylum seekers.

To CBP

• Video record all Expedited Removal processing interviews and require 

supervisory and headquarters review of the recordings of a sampling of 

interviews for quality assurance purposes. 

• Retrain all officers and agents on their role in the Expedited Removal 

process, the proper procedures for interviewing non-citizens, and the 

special needs and concerns of asylum seekers and other vulnerable 

populations. 

• Establish a dedicated corps of specially-trained, non-uniformed interviewers to interview women and children to identify fear claims, and 

ensure that female interviewers are included. 

• Track the results of interviews conducted by virtual processing against 

those conducted in person to determine if the two methods are producing materially different outcomes.

• Develop a document that briefly and clearly explains the Expedited 

Removal process, its consequences, the right to seek protection for 

those who fear return, and the right to request a private interview, and 

provide this document to all individuals, in a language they understand, 

as soon as possible when they come into CBP custody.

To USCIS

• Track whether credible fear interview referrals are coming from CBP or 

ICE to better understand when in the process most fear claims are being 

raised.

• Reaffirm in the asylum officers’ lesson plan that the credible fear 

standard is a screening standard requiring a showing of a “significant 

possibility” of eligibility for asylum, not a full assessment of the merits of 

the case.

• Continue to track the results of credible fear interviews conducted 

telephonically and those conducted in person to determine if the two 

methods are producing materially different outcomes.

• Allow asylum officers to convert and adjudicate appropriate Expedited 

Removal cases in which credible fear is found as affirmative asylum cases.

To ICE

• Detain all adult asylum seekers who must be detained, whether before 

or after a credible fear determination, in civil facilities only.

• Require an individualized re-assessment of the need for custody for all 

detainees with a positive credible fear finding, and apply a presumption 

KEY RECOMMENDATIONS INCLUDE
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 5

of bond for detainees with credible fear who do not fall under the 2009 

parole directive. 

• Increase the use of Alternatives to Detention, such as monitored release, 

for asylum seekers, beyond bond and parole opportunities.

• Expand the Know Your Rights presentations that provide detainees with 

basic legal information to all facilities that house asylum seekers. 

• If families are placed in Expedited Removal, detain them only in facilities that meet the standards of the Flores Agreement and individually 

re-assess the need for custody after credible fear is found, with a presumption of release. 

• Ensure that programs that detain nationals of particular countries separately do not have the effect of preventing them from learning about the 

right to seek asylum. 

To EOIR 

• Retrain immigration judges that the interview record created by CBP is not 

a verbatim transcript of the interview and does not document the individual’s entire asylum claim in detail, and should be weighed accordingly. 

• Expand the Legal Orientation Program available in some facilities to all 

detention facilities housing asylum seekers, and provide it to detainees 

before their credible fear interviews. 

To CBP, USCIS, and DOJ

• Work together to develop procedures to allow USCIS to conduct credible fear interviews for non-citizens being referred for prosecution who 

express fear before DOJ pursues their criminal cases. 

To Congress

• Authorize and fund another independent, comprehensive study of 

the treatment of asylum seekers in Expedited Removal at all stages of 

the process. 

• Request the Government Accountability Office to conduct a study to 

assess whether non-citizens removed to their home countries under 

Expedited Removal have faced persecution or torture after their return.

• Increase funding for the adjudicatory aspects of Expedited Removal to 

enable USCIS and EOIR to address backlogs, conduct timely adjudications, and provide due process. 

• Increase funding to EOIR to expand the Legal Orientation Program to 

all facilities housing asylum seekers and to enable it to be provided to 

detained asylum seekers before their credible fear interviews. 

KEY RECOMMENDATIONS INCLUDE (CONTINUED)
6 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 7

BACKGROUND

The International Religious Freedom Act of 1998 authorized the U.S. 

Commission on International Religious Freedom (USCIRF) to designate 

experts to conduct a study to assess whether Expedited Removal was 

being implemented consistent with the United States’ legal obligations 

to protect individuals fleeing persecution or torture. Pursuant to this 

authorization, USCIRF experts conducted extensive research in 2003 

and 2004 and released the findings in 2005 in a two-volume report, The 

Report on Asylum Seekers in Expedited Removal (the 2005 Study).1 The 

2005 Study found serious flaws in the processing and detention of asylum 

seekers in Expedited Removal, and made a series of recommendations 

to the responsible agencies in the Departments of Homeland Security 

and Justice (DHS and DOJ). None of the recommendations required 

Congressional action. 

Under Expedited Removal, foreign nationals arriving in the United 

States without documentation or with fraudulent documentation can 

be returned to their countries of origin without delay, and without 

immigration court removal hearings, unless they establish a credible 

fear of persecution or torture. Key problems documented in the 2005 

Study included: 

• incorrect interviewing and unreliable record-keeping practices by 

immigration officers at ports of entry; 

• failures to refer asylum seekers for credible fear determinations; 

• inappropriately punitive detention conditions; 

• wildly varying rates of parole (release) of asylum seekers from detention; and 

• inconsistent asylum adjudications by immigration judges. 

USCIRF Recommendations included:

• appointing a high-level DHS official to address cross-cutting issues 

related to asylum seekers and Expedited Removal; 

• videotaping processing interviews for quality assurance 

purposes and employing “testers” to ensure that required procedures are followed; 

• increasing the training and supervision of officials and immigration 

judges and review of decisions; 

• permitting asylum officers to grant asylum at the credible fear interview stage in appropriate cases; 

1USCIRF, Report on Asylum Seekers in Expedited Removal, Volume 1: Findings & Recommendations, and Volume II: Expert Reports (2005).
8 U.S. Commission on International Religious Freedom

• modifying detention practices to better suit asylum seekers; 

• codifying existing parole guidelines into regulations and better 

documenting and monitoring such decisions; and 

• expanding asylum seekers’ access to legal information 

and representation.

Since the release of the 2005 Study, USCIRF has continued to monitor 

the implementation of these recommendations and issued several follow-up reports, finding progress in some areas but no changes in others.2

In 2008, DHS sent to USCIRF a letter describing measures it had taken in 

response to the 2005 Study and recommendations.3

After the conclusion of the research for the 2005 Study but before its 

release, DHS expanded Expedited Removal from a port of entry program to 

one that applies to non-citizens without documentation or with fraudulent 

documentation apprehended within 100 air miles of the U.S. border and 

within 14 days of entering the United States without inspection.4

 Further, 

the number of non-citizens in Expedited Removals, as well as the number 

of individuals in Expedited Removal claiming fear of return, increased. 

In light of the expansion of Expedited Removal and USCIRF’s assessment that DHS and DOJ had inconsistently implemented the 2005 Study’s 

recommendations, USCIRF again reviewed the treatment of asylum seekers in Expedited Removal to assess developments since 2005. This review 

was less extensive than the research for the 2005 Study, and focused on the 

aspects of the process carried out by DHS. 

2USCIRF, Expedited Removal Study Report Card: 2 Years Later (2007); USCIRF, Assessing the 

U.S. Government’s Detention of Asylum Seekers: Further Attention Needed to Fully Implement 

Reforms (2013). 

3Letter from Stewart Baker, Assistant Secretary for Policy, DHS, to Felice D. Gaer, Chair, 

USCIRF, November 28, 2008.

4 Initially, the expansion applied to only two Border Patrol sectors, though it quickly was 

further expanded to apply along the entire border. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 9

METHODOLOGY

The findings in this report5 are based on primary observations of the 

processing, detention, and adjudication of non-citizens subject to the 

Expedited Removal process who claim fear of return; interviews with 

asylum seekers in Expedited Removal; meetings with DHS officials at 

headquarters and in the field; conversations with immigration attorneys 

and asylum service providers; and a review of public information. In 2014 

and 2015, USCIRF6 traveled to California, New York, New Jersey, Florida, 

Puerto Rico, and Texas to inspect and observe Expedited Removal processing and adjudications and meet with officials at five ports of entry, four 

Border Patrol stations, and five asylum offices. USCIRF also inspected 15 

immigrant detention facilities around the United States, met with DHS 

and facility officials, and interviewed detainees seeking asylum between 

2012 and 2015. 

Part of USCIRF’s research coincided with the surge, in the spring 

and summer of 2014, of Central Americans, many of whom were family 

units or unaccompanied children, illegally entering the United States 

(referred to as the Surge). Adults and family units, the majority of whom 

were female-headed households, were placed in the Expedited Removal 

process.7

 Many of these non-citizens claimed a fear of return and sought 

asylum in the United States. As a result, this report includes findings on 

the U.S. government’s response to the 2014 Surge and its use of Expedited 

Removal for these populations. 

5USCIRF is grateful to DHS for its cooperation with this research, and thanks the many 

officials, at both headquarters and in the field, who facilitated visits and shared their time 

and knowledge. USCIRF also thanks its other interlocutors, particularly the detained asylum 

seekers who volunteered to share their experiences in Expedited Removal. 

6Co-Director for Policy and Research Elizabeth K. Cassidy and Senior Policy Analyst Tiffany 

M. Lynch were the primary researchers and authors of this report. Summer 2014 Immigration Law Fellows Adriana Coppola and Jennifer Chan provided research assistance. 

Commissioner Eric P. Schwartz participated in the August 2015 site visit to Texas.

7Under U.S. law, unaccompanied non-citizen children (UACs) not from Canada or Mexico 

are processed by the guidelines set forth in the William Wilberforce Trafficking Victims 

Protection Reauthorization Act of 2008. 
10 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 11

THE EXPEDITED REMOVAL PROCESS

Expedited Removal was added to the Immigration and Nationality Act 

(INA) by the Illegal Immigration Reform and Immigrant Responsibility Act 

of 1996 (IIRIRA). Before IIRIRA, immigration inspectors generally could 

not compel arriving non-citizens to depart the United States; they could 

only allow them to withdraw their applications for admission voluntarily or 

refer them for exclusion hearing before immigration judges. Those referred 

to immigration judges could be detained during their exclusion proceedings, but many were released via parole due to bed space shortages. 

Expedited Removal8 allows DHS officials to return non-citizens arriving in the United States without proper authorization to their countries of 

origin without delay and without an immigration court proceeding. To 

ensure the protection of bona fide refugees, a non-citizen who expresses 

a fear of returning home is referred to a DHS asylum officer for a credible 

fear determination and must be detained, with very limited exceptions. If 

the asylum officer finds a credible fear of persecution or torture, the asylum 

seeker may, at the government’s discretion, be released from detention 

until an immigration judge determines whether the applicant qualifies 

for asylum, withholding of removal, or protection under the Convention Against Torture. If the asylum officer does not find credible fear, the 

non-citizen may ask an immigration judge to make a de novo determination of credible fear. If that too is denied, the individual is ordered removed 

and removed promptly.

Expedited Removal is a complicated process involving multiple agencies in DHS and DOJ. DHS’s U.S. Customs and Border Protection (CBP) 

first encounters non-citizens at ports of entry or after crossing the border, 

and identifies those subject to Expedited Removal. From that group, CBP 

identifies asylum seekers through interviews, during which officials are 

required to explain the Expedited Removal process and its consequences; 

advise non-citizens to ask for protection without delay if they have any 

reason to fear being returned home; and ask four questions related to fear 

of return. Office of Field Operations (OFO) officers interview non-citizens 

at ports of entry; Border Patrol (BP) agents interview those who are apprehended crossing the border. 

Once OFO or BP completes the initial interview process, CBP turns the 

non-citizens over to DHS’s U.S. Immigration and Customs Enforcement 

(ICE),9

 the DHS agency responsible for detaining and removing unauthorized non-citizens. Individuals in Expedited Removal who claimed a fear 

of return in CBP or ICE custody are detained until an asylum officer from 

8 INA section 235(b)(1), 8 U.S.C. § 1225, and its implementing regulations.

9This typically takes 24-48 hours.

Expedited Removal 

is a complicated process 

involving multiple agencies 

in DHS and DOJ:

• U.S. Customs and 

Border Protection (CBP)

• U.S. Immigration and 

Customs Enforcement (ICE)

• U.S. Citizenship and 

Immigration Services (USCIS)

• Executive Office for 

Immigration Review (EOIR)

• Board of Immigration

Appeals (BIA) 
12 U.S. Commission on International Religious Freedom

DHS’s U.S. Citizenship and Immigration Services (USCIS) interviews them 

and determines if their fear is credible.10 The non-adversarial credible fear 

interview typically takes place within 14 days after USCIS receives the 

referral. If USCIS does not find credible fear, the non-citizen may ask an 

immigration judge for a final and unreviewable decision on credible fear, 

generally made within a week.

If USCIS makes a positive credible fear determination, the individual is placed in immigration court removal proceedings and ICE has 

the discretion to release the asylum seeker while DOJ is considering 

the case. Immigration judges at DOJ’s Executive Office for Immigration 

Review (EOIR) conduct removal proceedings where credible fear has 

been found, and the Board of Immigration Appeals (BIA) reviews any 

appeals. Immigration judges also have the power to release on bond 

asylum seekers in removal proceedings after a credible fear finding if 

the asylum seeker requests a bond redetermination. The adversarial 

immigration court process is lengthy and can take months or years to 

complete, depending on whether the individual is detained or released 

and whether s/he pursues appeals. 

Non-citizens removed pursuant to Expedited Removal generally are 

subject to a five-year ban on admission to the United States, violation of 

which may result in criminal prosecution and a permanent bar to admission. Previously-removed non-citizens who re-enter the United States 

illegally are subject to a different summary removal process, called reinstatement of removal.11 Individuals subject to reinstatement of removal are 

ineligible to apply for asylum; they can only seek withholding or deferral of 

removal based on a likelihood of persecution or torture, a harder standard 

to meet and a more limited status if granted.

10Credible fear is found if an asylum officer determines there is “a significant possibility” 

that the person could establish eligibility for asylum.

11 If an individual receiving a reinstatement of removal order claims a fear of return to CBP 

or ICE, the person is still referred to a USCIS asylum officer, but for what is referred to as a 

reasonable fear interview and determination. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 13

THE EXPANSION OF EXPEDITED REMOVAL 

Congress made Expedited Removal mandatory for non-citizens arriving 

without proper authorization at ports of entry, and gave the Executive 

Branch discretion to apply it to unauthorized non-citizens apprehended in 

the interior of the United States within two years of entry. When Expedited 

Removal initially was implemented in March 1997, the Justice Department 

applied it only to arriving non-citizens at ports of entry. In November 2002, 

the Immigration and Naturalization Service expanded Expedited Removal 

to apply to undocumented non-Cubans who entered the United States 

by sea within the prior two years. In August 2004, DHS further expanded 

Expedited Removal to apply to undocumented non-Cubans apprehended 

within 14 days after entry within 100 miles of the U.S. international land 

border. Initially implemented in the Laredo, Texas and Tucson, Arizona 

sectors only, this expansion was broadened in September 2005 to cover 

the entire southwest U.S. border. 

With these expansions, the number of non-citizens removed from the 

United States pursuant to Expedited Removal has increased, to a high of 

193,032, representing 44 percent of all removals, in fiscal year (FY) 2013, 

according to DHS statistics: 

FISCAL YEAR EXPEDITED REMOVALS PERCENT OF REMOVALS

1997 23,487 20%

1998 76,671 44%

1999 89,070 49%

2000 85,588 46%

2001 69,923 39%

2002 34,624 23%

2003 43,920 23%

2004 51,014 21%

2005 87,888 35%

2006 110,663 40%

2007 106,196 33%

2008 112,716 32%

2009 105,787 27%

2010 109,867 29%

2011 122,320 31%

2012 163,498 39%

2013 193,032 44%

Source: DHS Office of Immigration Statistics, Annual Reports on Immigration Enforcement 

Actions and Statistical Yearbooks. 

The four largest source countries for non-citizens removed through 

Expedited Removal in recent years have been Mexico, Guatemala, Honduras, and El Salvador. According to DHS statistics, nationals from these four 

countries accounted for 98 percent of all Expedited Removals in FY2013, 

The number of non-citizens 

removed from the United 

States pursuant to 

Expedited Removal has 

increased, to a high of 

193,032, representing 

44 percent of all removals, 

in fiscal year (FY) 2013
14 U.S. Commission on International Religious Freedom

97 percent in FY2012, 96 percent in FY2011, and 92 percent in FY2010.12 Of 

these, Mexicans represented the largest share; they were 75 percent of all 

Expedited Removals in FY2013, 77 percent in FY2012, 83 percent in FY2011, 

and 77 percent in FY2010.13

As Expedited Removals have increased, so too have claims of fear 

by non-citizens in that process. Between 2000 and 2009, USCIS typically 

received approximately 5,000 credible fear interview requests annually, 

according to the agency’s ombudsman.14 In FY2009, the number rose to 

around 8,000; in FY2012, it was around 13,000; and in FY2013, it was around 

36,000.15 In FY2014, USCIS’ credible fear receipts topped 51,000.16 

Additionally, since the 2004 expansion of Expedited Removal to the 

border area, cases involving non-citizens apprehended crossing the border 

between ports of entry (“inland CF” cases) have become an increasingly 

large share of USCIS’s credible fear receipts, as compared to cases involving 

non-citizens arriving at ports of entry (“port of entry CF” cases):

FISCAL 

YEAR

INLAND 

CF

PERCENT 

OF TOTAL

PORT OF 

ENTRY CF 

PERCENT 

OF TOTAL TOTAL

2005 925 10% 8,540 90% 9,465

2006 2,953 55% 2,382 45% 5,335

2007 3,448 66% 1,804 34% 5,252

2008 3,273 66% 1,722 34% 4,995

2009 3,865 72% 1,504 28% 5,369

2010 6,337 71% 2,622 29% 8,959

2011 7,974 71% 3,243 29% 11,217

2012 10,688 77% 3,192 23% 13,880

2013 27,332 76% 8,703 24% 36,035

2014 40,817 80% 10,177 20% 51,001

Source: Statistics Provided at USCIS Asylum Division Quarterly Stakeholder Meetings, 

August and November 2014

These increases have occurred in a context of uneven resource growth 

for the enforcement and judicial aspects of the U.S. immigration system, 

12DHS Office of Immigration Statistics, Annual Reports on Immigration Enforcement 

Actions 2009-2013.

13 Id.

14USCIS Ombudsman, Annual Report 2014, pg. 38.

15 Id. 

16USCIS Ombudsman, Annual Report 2015, pg. 59. To handle this surge, USCIS has prioritized credible and reasonable fear interviews (where the individuals are detained) over 

affirmative asylum interviews, hired additional asylum officers, and sought greater efficiencies in its interviewing processes. Meanwhile, however, the agency has experienced a 

growing backlog of affirmative asylum cases (those filed directly with USCIS by non-citizens 

already in the United States, which also have increased in the past few fiscal years). As of the 

end of December 2014, USCIS had 73,103 pending affirmative asylum cases, an increase of 

700 percent over the backlog at the end of FY2011. Id.

As Expedited Removals 

have increased, 

so too have claims of fear 

by non-citizens in 

that process. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 15

with the U.S. government prioritizing enforcement over adjudication. The 

Migration Policy Institute reports that CBP’s and ICE’s budgets increased 

almost 300 percent from FY2002 to FY2013, whereas EOIR’s grew by only 

70 percent. As a result, the immigration courts had become “a significant 

choke point in the removal system.”17 By the end of August 2014, the immigration courts had 456,644 pending individual removal cases that had been 

waiting an average of 635 days, both of which were new all-time highs.18

This backlog was an increase of over 100,000 cases from the number at the 

beginning of FY2014.19

Between FY2010 and FY2014, EOIR received a total of around 32,000 

to 45,000 affirmative and defensive asylum cases each year, and decided 

around 17,000 to 20,000: 

FISCAL 

YEAR RECEIVED GRANTED DENIED ABANDONED WITHDRAWN OTHER

2010 32,830 8,519 8,336 1,646 6,274 7,529

2011 42,810 10,137 9,280 1,430 5,136 5,293

2012 45,555 10,715 8,503 1,296 5,356 8,022

2013 39,929 9,945 8,826 1,440 6,409 11,409

2014 41,920 8,775 9,222 1,510 5,796 11,311

Source: U.S. Department of Justice, Executive Office for Immigration Review, Office of 

Planning, Analysis, and Technology, Immigration Courts Asylum Statistics FY 2010-2014.

17Migration Policy Institute, The Deportation Dilemma: Reconciling Tough and Humane 

Enforcement (2014), pg. 17-18. 

18Transactional Records Access Clearinghouse (TRAC), Ballooning Wait Times for Hearing 

Dates in Overworked Immigration Courts (2015). 

19 Id.
16 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 17

FINDINGS AND RECOMMENDATIONS

MANAGEMENT AND COORDINATION

The 2005 Study found extensive problems with DHS’s overall management and coordination of the Expedited Removal process, including poor 

communication among the responsible agencies, insufficient quality 

assurance and data management practices, and no mechanism to address 

system-wide issues. USCIRF’s main recommendation to address these 

flaws was that the Secretary of Homeland Security appoint a high-ranking official to coordinate refugee and asylum matters among the various 

agencies and implement reforms. 

Although then-Secretary Michael Chertoff appointed a Senior Advisor for Refugee and Asylum Policy in 2006, that position was never at the 

level, nor had the authority and resources, necessary to address USCIRF’s 

findings. The position did not report to the Secretary or Deputy Secretary, 

but rather was within the DHS Office of Policy. The position was filled from 

2006 to 2011, but since then has been vacant. 

USCIRF’s current research revealed continuing and new concerns about the treatment of asylum seekers in Expedited Removal and 

confirmed that most recommendations from the 2005 Study remain unimplemented. A high-ranking official, with the Secretary’s clear support 

and sufficient authority and resources, is still needed to implement the 

required reforms, ensure consistent asylum policy and practice, manage 

the Expedited Removal system, and address issues as they arise. 

To the Secretary of Homeland Security 

• As recommended in 2005, appoint a high-ranking official with sufficient 

authority and resources to make the reforms necessary to ensure the 

protection of asylum seekers in Expedited Removal and to oversee 

implementation, including by chairing a regular interagency working 

group of all agencies involved in the Expedited Removal process.

• Reiterate to all agencies and officers implementing Expedited Removal 

that their law enforcement mandate includes fully implementing U.S. 

laws and regulations governing the protection of individuals seeking 

refuge from return to persecution or torture. 

• Request that the DHS Office of Inspector General audit the Expedited 

Removal process for compliance with laws and policies regarding the 

protection of asylum seekers.

To Congress

• Authorize and fund another independent, comprehensive study of the 

treatment of asylum seekers in Expedited Removal at all stages of the 

process. 

• Request the Government Accountability Office to conduct a study to 

assess whether non-citizens removed to their home countries under 

Expedited Removal have faced persecution or torture after their return.

RECOMMENDATIONS

USCIRF’s current research 

revealed continuing and 

new concerns about the 

treatment of asylum seekers 

in Expedited Removal 

and confirmed that most 

recommendations from 

the 2005 Study remain 

unimplemented. 

A high-ranking official, 

with the Secretary’s clear 

support and sufficient 

authority and resources, 

is still needed to implement 

the required reforms, ensure 

consistent asylum policy 

and practice, manage the 

Expedited Removal system, 

and address issues 

as they arise.
18 U.S. Commission on International Religious Freedom

INITIAL PROCESSING

As discussed above, CBP first encounters non-citizens at ports of entry 

or after they cross the border and identifies those subject to Expedited 

Removal and from that group, those seeking asylum. OFO officers process 

non-citizens arriving at ports of entry and BP agents process non-citizens 

apprehended along the border through interviews taken as sworn statements on Form I-867. Form I-867 seeks to ensure that non-citizens who fear 

return are identified and not erroneously returned to countries where they 

may face persecution. The form has two parts: (1) side A (see Appendix A) 

includes a required script explaining the Expedited Removal process and 

its consequences and advising non-citizens to ask for protection without 

delay if they have any reason to fear being returned home;20 and (2) side B 

(see Appendix B) includes four required questions relating to fear of return.21

20Form I-867 Side A reads as follows: 

 I am an officer of the United States Department of Homeland Security. I am authorized to administer the immigration laws and to take sworn statements. I want to 

take your sworn statement regarding your application for admission to the United 

States. Before I take you statement, I also want to explain your rights, and the purpose and consequences of this interview. 

 You do not appear to be admissible or to have the required legal papers authorizing 

your admission to the United States. This may result in your being denied admission 

and immediately returned to your home country without a hearing. If a decision 

is made to refuse your admission into the United States, you may be immediately 

removed from this country, and if so, you may be barred from reentry for a period 

of 5 years or longer. 

 This may be your only opportunity to present information to me and the Department 

of Homeland Security to make a decision. It is very important that you tell me the 

truth. If you lie or give misinformation, you may be subject to criminal or civil penalties, or barred from receiving immigration benefits or relief now or in the future. 

 Except as I will explain to you, you are not entitled to a hearing or review. 

 U.S. Law provides protection to certain persons who face persecution, harm or 

torture upon return to their home country. If you fear or have a concern about 

being removed from the United States or about being sent home, you should tell 

me so during this interview because you may not have another chance. You will 

have the opportunity to speak privately and confidentially to another officer 

about your fear or concern. That officer will determine if you should remain in 

the United States and not be removed because of that fear. 

 Until a decision is reached in your case, you will remain in the custody of the 

Department of Homeland Security.

 Any statement you make may be used against you in this or any subsequent administrative proceeding.

21The four questions on Form I-867 Side B are: 

 Why did you leave your home country or country of last residence?

 Do you have any fear or concern about being returned to your home country or 

being removed from the United States?

 Would you be harmed if you are returned to your home country or country of last 

residence?

 Do you have any questions or is there anything else you would like to add? 

Why did you leave your 

home country or country of 

last residence?

Do you have any fear 

or concern about being 

returned to your home 

country or being removed 

from the United States?

Would you be harmed if 

you are returned to your 

home country or country of 

last residence?

Do you have any questions 

or is there anything else you 

would like to add?
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 19

At the time of the research for the 2005 Study, Expedited Removal 

applied at OFO ports of entry only. More than two dozen trained researchers 

and several expert supervisors observed more than 400 secondary inspection interviews at seven ports of entry, spending from two to six weeks at 

each site. They also reviewed case files and spoke with interviewees. 

Their findings were alarming. In more than half of the interviews 

observed in the research for the 2005 Study, OFO officers failed to read the 

required information advising the non-citizen to ask for protection without 

delay if s/he feared return. At least one of the four required fear questions 

was asked approximately 95 percent of the time, but in 86.5 percent of the 

cases where a fear question was not asked, the record inaccurately indicated that it had been asked, and answered. And in 72 percent of the cases, 

asylum seekers were not allowed to review and correct the form before 

signing, as required. Thus, USCIRF found that, although they resemble 

verbatim transcripts, the I-867 sworn statements were neither verbatim 

nor reliable, often indicating that information was conveyed when in fact 

it was not and sometimes including answers to questions that never were 

asked. Yet immigration judges often used these unreliable documents 

against asylum seekers when adjudicating their cases.22

Additionally, in nearly 15 percent of the cases observed in the research 

for the 2005 Study, asylum seekers who expressed a fear of return were 

removed without referral to a USCIS asylum officer for a credible fear determination. Moreover, in nearly half of those cases, the files indicated that 

the asylum seeker had not expressed any fear. Some of these non-referrals 

may have been because of problematic language in the CBP Field Manual 

in use at the time stating that an officer may decline referral where the 

fear claimed by the applicant “would clearly not qualify that individual 

for asylum,” but several involved expressions of fear of political, religious, 

or ethnic persecution. Finally, at one port of entry, the researchers found 

a few instances when CBP officers improperly pressured asylum seekers 

to retract their fear claims and withdraw their applications for admission.

To address these interviewing and recordkeeping flaws, USCIRF 

recommended that CBP: (1) videotape all Expedited Removal processing 

interviews for quality assurance review purposes, and use undercover 

“testers” to further verify that correct procedures are being followed; 

(2) revise field guidance to make clear that any expression of fear must 

result in a referral for a credible fear determination; and (3) amend Form 

22As the 2005 Study noted, the records created by CBP during initial interviews or by USCIS 

asylum officers during credible fear interviews are often used by ICE trial attorneys to 

impeach asylum seekers’ credibility and/or cited by immigration judges in denying relief. 

USCIS has since amended the Form I-870, on which it documents credible fear interviews, 

to include a statement that “[t]he following notes are not a verbatim transcript of this interview . . .There may be areas of the individual’s claim that were not explored or documented 

for purposes of this threshold screening.” CBP has not similarly modified the I-867.
20 U.S. Commission on International Religious Freedom

I-867 to include a prominently displayed notation that it is not a verbatim 

transcript and is not intended to document the applicant’s entire asylum 

claim in detail. 

For the current research, one or two USCIRF staff visited five OFO ports 

of entry and four BP stations on a series of trips during 2014 and 2015, touring 

the facilities, meeting with officers, and observing a few in-person interviews.23 At three ports of entry (Los Angeles International Airport, John F. 

Kennedy International Airport, and Otay Mesa Port of Entry) and one BP 

station (McAllen Station), USCIRF observed a total of five partial, in-person 

interviews. During four of these interviews, USCIRF observed the taking of 

the I-867 sworn statement but not the interviewee’s review and signing (see 

Appendix C and Appendix D); for the fifth, the reverse was observed.24 At 

McAllen and El Paso Border Patrol stations, USCIRF observed both sides of 

the virtual processing that is now used for most Expedited Removal cases 

involving border-crossers in the Rio Grande Valley CBP sector. 

Interviewing and Record Keeping Practices 

Despite the small sample of CBP interviews observed, USCIRF found 

several examples of non-compliance with required procedures, including: failure to read back the answers to the interviewee and allow him 

to correct errors before signing, as required;25 interviewing individuals 

together instead of separately and in private; failure to read the required 

script from the I-867A; and failure to record an answer correctly. For 

example, in one case, a BP agent did not read the I-867A script until the 

end of the interview, after he had already asked and filled out answers to 

the four fear questions on the I-867B. In another case, in response to the 

last of the four I-867B questions (“[d]o you have any questions or is there 

anything else you would like to add?”), the interviewee asked how long 

the process would take, and the agent answered that he did not know 

and could not say. On the sworn statement, however, the interviewer 

indicated “no” to question four. 

23The ports of entry were: John F. Kennedy International Airport, Los Angeles International 

Airport, Hidalgo Port of Entry, Otay Mesa Port of Entry, and San Ysidro Port of Entry. The 

Border Patrol sites were: Chula Vista Station, El Paso Station, McAllen Station (twice), and 

Ramey Station. The time spent at each facility ranged from a half-day to two days.

24 The other OFO ports and BP stations were not conducting any Expedited Removal 

interviews when USCIRF was there. All observations were done with the consent of the 

interviewee. The observations were partial because the full interview process took longer 

than the amount of time USCIRF was at the sites.

25Asked why, the OFO officer told USCIRF that he only reads back the contents if the interviewee requests it because it takes too long, and that the interviewee’s initialing each page 

simply indicates that s/he received a copy of that page. A supervisor later confirmed that 

reading back the form is required and initialing signifies approval of the contents, and said 

he would remind all interviewing officers. 

Despite the small sample 

of CBP interviews observed, 

USCIRF found several 

examples of non-compliance 

with required procedures
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 21

The credible fear interviews USCIRF observed at USCIS asylum 

offices26 further raised concerns about CBP’s interviewing and recordkeeping practices. In three of the five observed credible fear interviews, 

asylum seekers’ I-867 forms indicated “no” answers to the fear questions 

in his or her BP interview, but the asylum seeker said that s/he had articulated a fear or was not asked. These individuals were referred for credible 

fear interviews when they raised a fear of return to ICE while detained 

awaiting removal. For example, in one credible fear interview, the asylum 

seeker’s form indicated he did not express a fear of return, but he told the 

asylum officer that the agents had not asked him if he was afraid, they only 

asked for his identifying information. He also said he had a letter from a 

helpful police officer in El Salvador saying he had been threatened by gang 

members, which he said the agent told him he would have to present to 

the asylum officer but then took and kept. In another, a woman’s form also 

showed no expression of fear, but said she was coming to the United States 

to work; however, the asylum seeker stated in the credible fear interview 

that she remembers saying to BP that she was afraid to return to Guatemala and that she did not say she was coming to the United States to seek 

employment. She said “I had a good job in Guatemala but had to leave it 

because I needed protection.” 

Asylum officers reported to USCIRF that this was a common occurrence. They also said that they were seeing many forms with identical 

answers,27 and others with clearly erroneous ones (i.e. the form said that 

the individual was asked, and answered, whether she was pregnant when 

the person is a man).28

While many asylum seekers in ICE detention centers reported that 

CBP officers did ask them about fear of return, others reported that CBP 

officers did not ask them the fear questions, asked them incorrectly, 

recorded “no” when interviewees answered “yes,” inquired into their 

fear claims in detail, and/or dismissed assertions of fear. Some said their 

statement was not read back to them and/or that they were pressured 

to sign documents. For example, a detained asylum seeker from Nepal, 

apprehended at the southern border in Texas, reported that the BP agents 

asked her questions and she gave answers, but they did not write down 

what she said, they wrote down that she was coming to the United States to 

work. Another detained Nepali asylum seeker who crossed the border told 

26USCIRF visited the Los Angeles, Houston, New Jersey, New York, and Miami asylum 

offices. The credible fear interviews were observed at the New Jersey and New York offices. 

27This could be explained by the use of the interviewing templates discussed in the Introduction of Virtual Processing section.

28Similarly, a pro bono attorney with whom USCIRF met on one of our trips told us of a case 

where a 4-year-old child’s file indicated that he said that he came to the United States to work. 
22 U.S. Commission on International Religious Freedom

USCIRF that the BP agents only asked him questions about his identity and 

did not ask him about fear. A detained asylum seeker from Somalia, who 

entered through an OFO port of entry and announced his intent to apply 

for asylum on arrival, said that the interviewing officer asked him the fear 

questions and told him that he would need proof of his story. However, at 

the end of the interview, he was asked to sign his statement and did so, but 

it was not translated back to him before signing. 

Of particular concern are reports of CBP officials denying non-citizens in Expedited Removal the opportunity to claim fear. For example, 

a Guatemalan asylum seeker in ICE custody who had previously been 

deported told USCIRF that on her first apprehension by BP, she “was not 

given the opportunity to talk;” instead, she said that when she tried to 

explain why she had fled to the United States, the agent forced her to sign 

papers instead. One Central American man said he was told “whether you 

sign or not, we are going to deport you.” Others said BP agents told them 

that “it’s better if you just ask to be deported” or “we’re going to throw you 

out.” USCIRF heard an especially troubling account from a detained Bangladeshi asylum seeker. He recounted that he and two other Bangladeshis 

arrived at an OFO land port of entry and immediately asked the first officer 

they encountered for asylum. He said that officer turned them away, telling 

them to seek asylum in Mexico. They returned an hour later and the same 

officer again told them to go back to Mexico. However, he said that this 

time they refused and were taken inside, interviewed by a different officer, 

processed, and sent to ICE detention. 

These reports are consistent with information from USCIS, which 

told USCIRF anecdotally that the majority of their credible fear interview 

referrals come from ICE, not CBP. In the credible fear interviews USCIRF 

observed, the asylum officers proactively asked each asylum seeker during 

the interview if CBP asked him or her about fear of return. Under the circumstances, USCIRF considers this to be a good practice.

In another troubling finding, USCIRF observed fear claims being 

examined beyond the four required questions, such as OFO officers 

and BP agents asking detailed questions about why the individual left 

his or her country or asking what an individual knows about the asylum 

process. When USCIRF asked one interviewing officer how he documents the raising of a fear claim, he responded that he asks “how it all 

started” and then asks about each arrest or incident in order. He further 

explained that he is “looking for the little details,” which he records on 

the I-867. 

Detainees in ICE custody reported similar experiences. For example, 

an ICE detainee from Ethiopia, who came to a port of entry and said he 

stated immediately that he was a refugee, told USCIRF that the interviewing officer asked him about the situation in his country and asked “a lot of 

follow-up questions” about his problems. Another detained Somali, also a 

These reports are 

consistent with information 

from USCIS, which told 

USCIRF anecdotally 

that the majority of their 

credible fear interview 

referrals come from ICE, 

not CBP.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 23

port of entry arrival, said that he was asked twice if he feared returning to 

his country and then was asked in detail about why he could not go back. 

U.S. law requires that CBP simply document that a person in Expedited Removal expressed fear and then notify and send that person’s file 

to USCIS, which is responsible for examining and assessing the fear claim. 

Positively, supervising OFO and BP officers interviewed by USCIRF stated, 

correctly, that interviewing officers are not supposed to ask too many questions regarding the situation that the individual fled and fears. 

Additionally, a conversation with two interviewing BP agents revealed 

both a lack of knowledge of, and non-compliance with, DHS policy on 

withdrawals of fear claims. One agent said that interviewees who claim 

fear often ask what will happen next, and he tells them that the process 

may take a long time and that, in his experience, many people get sent 

back in the end, especially in gang-related cases. He said that after hearing this some people say that they do have a fear of return but do not want 

to wait and ask to be sent home. He felt, and the other agent agreed, that 

this required him to adjust the answers on Form I-867 to reflect that the 

individual does not want to seek asylum and should not be referred for a 

credible fear determination. 

Quality Assurance 

CBP has not implemented USCIRF’s 2005 recommendations to videotape 

interviews for quality assurance purpose and use testers. CBP does subject 

all secondary inspection decisions to two levels of supervisory review, 

but this consists of reviews of the file and conversations with the officer, 

not observing the interview. In addition, beginning four years ago, OFO 

started a quarterly headquarters review of information submitted by its 

field offices on all port of entry Expedited Removal cases, but this also 

does not include interview observations.29 BP does not conduct such a 

headquarters review. 

29As described to USCIRF by OFO, every quarter each field office collects and reports to 

headquarters information on five aspects of such cases: (1) was the question and answer 

sufficient?; (2) was the narrative done correctly?; (3) was there supervisory concurrence?; 

(4) were the fear questions addressed?; and (5) was the correct charge under INA section 212 

used? OFO headquarters reviews the information and reports back to the field offices and 

to the Assistant Commissioner. OFO stated that, in the year between April 2014 and April 

2015, the ports of entry handled around 220,000 adverse actions, of which about 29,000 

were Expedited Removals. Of those 29,000, the headquarters review found errors in only 

15, according to OFO. Most of these were what OFO described as procedural errors, such 

as using the wrong form, failing to use a translator, or interviewing a mother on behalf of 

a child. Only one involved an error where a person who claimed fear was removed; OFO 

stated that they worked with the State Department to bring the individual back to the United 

States for a credible fear interview with USCIS. In addition, OFO officials told USCIRF that 

they recently developed and started offering a new eight-hour refresher course on five core 

categories of adverse actions, including Expedited Removal, based on information learned 

through the headquarters review process. As of October 2015, this training reportedly had 

been provided to supervisors and officers at 10 locations. 

U.S. law requires that CBP 

simply document that a 

person in Expedited Removal 

expressed fear and then 

notify and send that person’s 

file to USCIS, which is 

responsible for examining 

and assessing the fear claim. 
24 U.S. Commission on International Religious Freedom

The Introduction of Virtual Processing 

Since 2013, BP’s central processing facility for non-citizens apprehended 

in the Rio Grande Valley sector, McAllen Station, has used virtual processing for interviews of most first-time apprehensions who speak 

English or Spanish.30 Agents in McAllen do the initial collection and 

checks of identifying information, and then assign the cases to a BP agent 

at the El Paso, Texas, or El Centro, California, stations, who complete 

the Form I-867. The non-citizen sits at a bank of computers in McAllen, 

in front of a monitor and, using a phone handset, is interviewed by an 

El Paso or El Centro BP agent through Skype and an internet-based 

communicator. As with in-person interviews, supervisory review is only 

of the paper files. USCIRF visited the El Paso Station and observed the 

interviewing agents, work in a room that looks like a computer lab, with 

a dozen terminals. Supervisors at McAllen and El Paso stations said the 

virtual processing improves processing efficiencies and allows agents in 

sectors other than the Rio Grande Valley, who otherwise do not do much 

processing, to refresh and maintain their skills. 

BP reports that virtual processing has allowed McAllen Station to 

double its processing output with half the manpower. In February 2015, 

agents in McAllen told USCIRF that 100,000 people had been processed 

this way since virtual processing started in mid-2013.31 Indeed, USCIRF 

observed the efficiencies of virtual processing – as an individual was being 

video interviewed, USCIRF saw McAllen BP agents pulling together that 

individual’s paper file while other agents prepared other individuals for 

their interviews. 

However, USCIRF is concerned that processing efficiency is coming 

at the expense of identifying and protecting asylum seekers. Agents are 

given incentives for speedy processing. BP agents at Mc Allen told USCIRF 

that fewer than 10 percent of the applicants processed there claim fear and 

this low rate had been consistent over the past several years. This seems 

inconsistent with the dramatic increase in fear claims assessed by USCIS, 

especially from individuals apprehended in the Rio Grande Valley sector, 

since FY2013. 

USCIRF is particularly concerned by the use of interviewing “templates” observed during the virtual processing. As they conducted the 

virtual interviews, the El Paso agents relied on Microsoft Word documents 

with standardized questions and responses, from which they copied and 

pasted text into the E3 software that BP uses for processing. In another 

30Virtual processing is not used for unaccompanied minors under the age of 14 or non-citizens who may be referred to prosecution, even if they speak English or Spanish. 

31BP began the virtual processing then because their projections were predicting an increase 

in arrivals, although the surge in 2014 exceeded even those projections.

In February 2015, 

agents in McAllen told 

USCIRF that 100,000 people 

had been processed this 

way since virtual processing 

started in mid-2013. However, 

USCIRF is concerned that 

processing efficiency is 

coming at the expense of 

identifying and protecting 

asylum seekers. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 25

effort to improve efficiency, McAllen Station created the templates, which 

are organized by county and case type (Expedited Removal, family Expedited Removal, etc.) and cover the narrative and sworn statement sections 

of the interview process. USCIRF observed that when a BP agent opened the 

templates to begin the interview, answers were already included and would 

require deletion by the agent. While using a standard list of questions on its 

own could be a good practice, having prepared answers seemed to prompt 

the interviewers to use leading questions in important areas. This risks 

suggesting to the interviewee that what the agent said is the correct answer, 

as opposed to eliciting an independent response. For example, instead 

of asking “why did you come to the United States?,” USCIRF observed an 

interviewer ask “why did you come to the United States – to live and work 

and provide a better life for your children?” USCIRF also observed one 

agent cutting and pasting the answers from the template into the sworn 

statement even before the interviewee had finished giving his answers. 

The impersonal nature of the virtual interviews also is problematic. 

Facial expressions and other non-verbal cues are important ways for BP 

agents to tell if an interviewee is uncomfortable articulating a fear claim 

at the counter and needs a private interview. The director of virtual processing in El Paso recognized this, and admitted that it is harder to read 

these signals in a virtual interview. Furthermore, during USCIRF observations, the interviewing agents rarely looked into the camera to make eye 

contact with the interviewees, focusing instead on their own computer 

screen or keyboard. This makes it even less likely that they would detect 

any non-verbal cues. 

Finally, occasional malfunctioning of technology presents concerns. 

BP agents at both McAllen and El Paso said they feel that the virtual processing generally runs smoothly, technology permitting. Unfortunately, 

USCIRF observed several technical problems that interrupted interviews, 

including Microsoft Word or computers crashing and cameras freezing. 

One interviewer who experienced multiple crashes did not give any explanation to the interviewee for the interruptions. 

Privacy 

At the various OFO and BP facilities USCIRF visited, interviews are conducted in settings that range from private or semi-private offices to large 

rooms where multiple interviews are done simultaneously. All four of the 

partial, in-person interviews USCIRF observed at OFO ports of entry were 

conducted in private rooms, but in one case, a mother was interviewed 

with her young daughter present. Because telephonic interpretation was 

required, the partial, in-person interview observed at a BP station was 

conducted in a semi-private room set up for two officers but being used 

at the time by one. However, three individuals from the same country 

were interviewed together. They had been apprehended as a group and, 

While using a standard list 

of questions on its own could 

be a good practice, having 

prepared answers seemed 

to prompt the interviewers 

to use leading questions in 

important areas.
26 U.S. Commission on International Religious Freedom

according to the supervisor, interviewing them as a group “helps us get 

through the process.” 

At BP facilities, there typically is a counter with around eight agents 

at computers processing different individuals or groups at the same time, 

with other interviewees waiting nearby. At one such facility, USCIRF noted 

that asylum seekers might be afraid to express fear with others around 

them, but the agents said they did not view this as a problem and placed the 

burden on the interviewee to ask for a private room. BP officials said that 

most BP facilities do not have the space to permit private interview spaces. 

A positive exception was BP’s Ramey Station, which, after a recent renovation, has private interview rooms with acoustic padding to stop sound 

from carrying. The supervisor reported that the renovation “has been a 

big asset,” further stating that “Before, the people would be frightened 

to express fear. The private rooms also help with intelligence gathering 

because people are more forthcoming.” 

The experience of a detained Somali asylum seeker with whom 

USCIRF spoke at an ICE facility underlines the need for private interviews. 

He arrived with a group of Somalis at an OFO port of entry and was interviewed at the windows in the waiting room, where “everyone could hear 

each other.” He said that when asked why he had come to the United States, 

he whispered his answer because he feared the other Somalis would hear 

him answer that he is from a persecuted minority tribe. When the officer 

could not hear what he was saying, he had to write it down. 

An open, counter set-up is used for the virtual interviews at McAllen Station. The agents there stated that they believe virtual processing 

provides more privacy than speaking to an agent in-person at a counter, 

since it is harder to overhear someone who is speaking into a telephone 

handset. One agent said “the subjects open up more over videoconferencing because it’s more confidential.” USCIRF observed groups of people 

clustered together to be interviewed virtually, with one person speaking 

on the phone handset and others crowded around him or her, sitting on 

the same fixed stool or immediately adjacent stools. BP agents said that 

this seating arrangement was to keep the virtual processing moving along, 

since groups that travel together have the same route information, and also 

so that agents “don’t have to wait [between interviews] for the next body 

to be brought out.” Asked what would happen if an interviewee who had 

a fear felt uncomfortable talking about it in front of others, the agents said 

that the interviewer would notice that and would ask the person if s/he 

wanted a private interview. However, as discussed above, such non-verbal 

cues may not be easy to detect in virtual interviews. 

McAllen Station is planning to move its processing to a new facility 

nearby, the Ursula facility. When USCIRF asked if the new facility would 

have partitions between the computer stations to improve privacy, the 

agents said CBP had deemed this impossible for security and staffing 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 27

reasons. However, in an improvement, they did say that at the new facility, 

groups will not have to sit clustered together in front of the screen; rather, 

one person at a time will be at the computer station and the others will wait 

on benches placed farther away from the counter. 

Interpretation 

OFO uses other officers as interpreters whenever possible, rather than 

telephonic interpretation.32 In two of the interviews USCIRF observed 

at ports of entry, the OFO officer who was supposed to be serving as the 

interpreter instead acted as a second interviewer. In one of these cases, the 

interpreting officer questioned the applicant more aggressively than the 

interviewing officer did. In the other, in addition to asking questions, the 

interpreting officer had difficulty translating and a supervisor who spoke 

the language had to step in. 

OFO occasionally uses airline employees as interpreters at airport 

ports of entry. Although supervisors said they do not use state airline 

employees to interpret if they believe the individual is an asylum seeker 

from that country, this still is potentially problematic. Airline employees 

are not professional interpreters, and an airline can be fined if a passenger 

is denied admission to the United States and returned. USCIRF observed 

a preliminary interview, not an I-867 sworn statement interview, where 

the airline employee clearly was answering the officer’s questions herself 

instead of interpreting. Positively, the officer stopped the interview, dismissed the airline employee, and used a different interpreter. 

All BP agents are required to speak Spanish as a condition of their 

employment. They conduct interviews in Spanish themselves, although 

some lawyers and NGOs with whom USCIRF met expressed concerns 

about their ability to do so adequately, particularly for interviewees who 

speak local dialects. For languages other than Spanish, BP agents are 

supposed to use professional telephonic interpretation, but this does not 

always occur. A supervisory BP agent complained about the need to use 

telephonic interpretation, because it slows down processing and the interviewing agent cannot tell if the interpretation is accurate or not. 

USCIRF heard from BP, as well as USCIS, about ongoing difficulties in 

finding telephonic interpreters for Central American indigenous languages. 

BP agents at McAllen said that indigenous language speakers usually speak 

some Spanish, but get to a point in the interview where their Spanish is 

insufficient. The agent then switches from virtual processing to an in-person interview, using another “subject” (meaning another non-citizen being 

processed) to interpret. The agents also reported that sometimes they reach 

32To serve as interpreters, OFO officers must be certified as proficient in the language by the 

State Department and must renew that certification every year. 
28 U.S. Commission on International Religious Freedom

out to the relevant consulate, which they said usually can provide interpreters relatively quickly. Both of these approaches are inappropriate ways to 

secure interpretation for a person who might be an asylum seeker. 

Detainees at ICE facilities interviewed by USCIRF reported instances 

where interpretation was not used for Expedited Removal processing 

interviews. For example, a detained Ethiopian asylum seeker who arrived 

at an OFO port of entry said that he was a Somali speaker but there was no 

Somali interpretation available; instead, another Somali non-citizen in 

custody interpreted. However, he stated that this person did not go over 

with him in detail what was written down on the forms, he just told him 

where to sign. Another detained Somali who arrived at a port of entry said 

that no Somali interpreter was available for his interview so he spoke as 

best he could in English. 

Interviewer Training and Guidance 

The interviewing problems USCIRF observed raise questions about the 

adequacy of CBP’s training and guidance on Expedited Removal processing. In response to USCIRF inquiries on these topics, OFO and BP 

provided some general information about their training, but USCIRF 

was not allowed to review the content and therefore cannot assess its 

substance. The relevant training was described as follows: As part of 

their 89-day basic training course, new OFO officers receive a two-hour 

lecture on Expedited Removal processing and two hours of practical 

exercises. After the academy, new officers are assigned to a port of entry, 

where they observe processing for 11 weeks, then have three more weeks 

of classroom training that includes a module on all adverse actions, 

including Expedited Removal. After this, they begin conducting processing themselves, initially with a more experienced officer observing. 

BP agents’ 19 weeks of basic training includes a two-hour lecture on 

Expedited Removal processing, plus 30 minutes of practical exercises. 

Following this, they are assigned to a station, where they are paired with 

mentors. After about three weeks at a station, the new agents receive a 

one to one-and-a-half hour review lesson on Expedited Removal, which 

reiterates what was covered in basic training. Despite the foregoing, 

neither OFO nor BP agents in the field interviewed by USCIRF said they 

received any specific training on interviewing or on working with victims 

of persecution or torture.

USCIRF was, however, permitted to see the current internal guidance on Expedited Removal fear claims. The OFO guidance accurately 

describes the process, but the BP guidance does not. On a positive note, 

as of 2012, OFO no longer uses the Field Manual with the problematic 

language noted in the 2005 Study that suggested that CBP inspectors 

can assess an applicant’s fear. The current OFO guidance on processing 

The interviewing 

problems USCIRF observed 

raise questions about the 

adequacy of CBP’s training 

and guidance on 

Expedited Removal processing
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 29

Expedited Removal cases, contained in an October 2014 memo/muster,33

is an improvement, and accurately describes the steps OFO officers are 

required to follow to give a non-citizen in Expedited Removal the opportunity to express fear. Unfortunately, it is not clear what guidance was 

used between 2012 and 2014. 

The October 2014 document consists of a one-page cover memo and a 

three-page muster.34 The cover memo cites a 1997 statement of the then-INS 

Commissioner about the importance of protecting the rights of aliens in 

Expedited Removal, particularly those who fear persecution. The muster 

states that when an alien expresses fear, it is against DHS policy to encourage withdrawal, fail to refer to USCIS, improperly remove, or detain in 

inappropriate conditions; that OFO officers should not estimate the time 

the alien will spend in detention; and that if an alien answers yes to a fear 

question or asks for asylum and then asks to be sent home, the OFO officer 

must consult with the USCIS asylum office. If a supervising asylum officer 

cannot be reached, the case must be referred. It reminds OFO officers that 

aliens who express fear cannot be removed until an asylum officer has 

interviewed them to determine if they have credible fear. Finally, it states 

that it is CBP’s responsibility to protect the alien’s identity and not reveal 

to any foreign national or government that the alien might have sought 

refuge in the United States. 

By contrast, the BP guidance erroneously conflates the roles of 

BP agents and USCIS asylum officers. This guidance is contained in a 

“Muster Module about Credible Fear Determination,” (see Appendix E) 

which consists of a one-page cover memo from BP headquarters dated 

November 2014 and two one-page musters dated September 2014.35 Both 

musters are titled “Credible Fear Determination,” with one addressing 

Expedited Removal and the second on unaccompanied non-citizen 

children’s cases. Although the documents correctly state that BP agents 

must ask the four required fear questions and record the responses, they 

conflate this questioning with the credible fear process and instruct BP 

agents on how to determine credible fear. The text provides the legal 

standard for credible fear of persecution twice, and also includes the 

legal standard for credible fear of torture. It includes a text box that 

33According to OFO, memo/musters are sent to each field office, and, when circulated, are 

read and distributed to officers at the muster at the beginning of each of that day’s shifts. 

They also are available in OFO’s electronic library. OFO is working on a replacement to 

the Field Manual, the Officer’s Reference Tool, but it is not yet complete. Chapter 11 was 

made available on the OFO intranet in July 2015; it contains the existing memo/musters 

on admissibility. 

34OFO would not provide the 2014 document but permitted USCIRF to read it at their offices 

and take notes.

35Border Patrol headquarters told USCIRF that the previous guidance was a March 2009 

policy memo, which USCIRF did not review. 

The [OFO] muster states 

that when an alien 

expresses fear, it is against 

DHS policy to encourage 

withdrawal, fail to refer to 

USCIS, improperly remove, 

or detain in inappropriate 

conditions. It reminds 

OFO officers that aliens 

who express fear cannot be 

removed until an asylum 

officer has interviewed them 

to determine if they have 

credible fear. By contrast, 

the BP guidance erroneously 

conflates the roles of 

BP agents and 

USCIS asylum officers.
30 U.S. Commission on International Religious Freedom

reads as follows: “An individual will be found to have a credible fear of 

persecution if he/she establishes that there is a ‘significant possibility’ 

that he/she could establish in a full hearing before an Immigration 

Judge that he/she has been persecuted or has a well-founded fear of 

persecution or harm on account of his/her race, religion, nationality, 

membership in a particular social group, or political opinion if returned 

to his/her country.” Further, the BP muster suggests agents should go 

beyond the four required fear questions to have a “dialogue” with the 

interviewee in order to assess if s/he has credible fear. For example, the 

muster on UAC cases states that “agents are not limited to asking only 

[the four required] questions. . . . The provided questions are intended 

to establish a dialogue with the UAC that may allow agents to gather 

additional information to assist in their determination.” This is not the 

role of BP agents, but rather of USCIS asylum officers. USCIS, however, 

is not mentioned anywhere in the documents. 

Processing of Women and Children 

CBP encounters large numbers of largely Central American women and 

children, many of whom could have protection needs,36 but it does not have 

enough female agents or officers to have women interviewing women and 

children. This is particularly true at BP, which is only 4.5 to five percent 

female, although it has been trying to recruit more women. As a result, the 

officers and agents who interview women and children to identify those 

with fear claims are overwhelmingly men who receive no specific training 

on working with children and families. Asked about their interactions with 

children, BP agents at McAllen Station admitted that many children do not 

want to talk to a male agent in uniform. 

Another concern relates to CBP’s approach to processing family units 

with children under the age of 14. The agency’s policy is to interview children over 14 individually. If a child is under that age, the mother or parent 

answers the questions for the child, and this is indicated on the form. This 

is potentially problematic, as a child could have a fear claim independent 

of his or her parents, or because of them. Asked about these scenarios, BP 

agents responded to USCIRF that they had never seen that come up and 

moreover, that they were confident that, since the child had made it to the 

safety of the United States, s/he would voice any concerns s/he had. 

36See, e.g., UNHCR, Children on the Run (2014) (finding that, of 404 unaccompanied children 

from El Salvador, Guatemala, Honduras, and Mexico who arrived in the United States in or 

after October 2011, no less than 58 percent had actual or potential international protection 

needs); UNHCR, Women on the Run (2015) (finding that, in El Salvador, Guatemala, Honduras, and some parts of Mexico, women face a startling degree of violence in their daily 

lives and receive no protection). 

CBP encounters 

large numbers of largely 

Central American women 

and children, many of 

whom could have protection 

needs,but it does not have 

enough female agents or 

officers to have women 

interviewing women 

and children.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 31

Attitudes toward Asylum 

CBP has two vital roles in Expedited Removal: first, to ensure that inadmissible non-citizens are not permitted to enter the United States and 

second, to ensure that non-citizens who fear persecution or torture have 

the opportunity to seek asylum, even if they otherwise would be inadmissible. These dual roles are not easy to balance, especially in the post-9/11 

era and under the strain of large numbers of arrivals. OFO officers and BP 

agents must be able to alternate between examining non-citizens who 

arrive without proper documents and identifying and providing protection 

to those who need it. Given these requirements, USCIRF was concerned 

by the skepticism some CBP officials openly expressed of asylum claims, 

either generally or from certain nationalities. Moreover, these officers and 

agents appeared to have little recognition of the potential negative implications their skepticism might have for case processing. 

For example, two different OFO officers told USCIRF that migrants, 

especially Mexicans, believe they will be let into the country if they say 

they are afraid or want political asylum, and then try to retract those 

claims when they learn they will be detained. One stated that “political 

asylum is putting the smugglers out of business.” Another OFO officer told 

USCIRF that he believes that many individuals who claim fear on arrival 

are not really afraid, because “those with real fear can apply overseas and 

bring their family.”37 However, he also said that if a person claims fear “I 

would never try to talk anybody out of it.” USCIRF observed this officer 

conduct a confrontational interview, where he and another officer (who 

was supposed to be interpreting but instead acted as a second interviewer) 

aggressively questioned a non-citizen and responded to his answers with 

obvious distrust based on their skepticism of his intentions for entry and 

his supposed fear claim. The individual in fact was not claiming fear of 

return, but the officers assumed that he was going to because another 

citizen of the same country who arrived on the same flight had sought 

asylum earlier that day.38

A BP agent at one station drew a distinction between “legitimate” 

asylum seekers who present themselves at ports of entry, as opposed to 

those apprehended along the border. USCIRF also heard this view from a 

BP headquarters official, who said that asylum seekers show up at ports of 

entry, they do not get apprehended by BP. 

Another BP agent stated that Mexican asylum seekers all tell the same 

stories about fleeing the cartels, which he viewed as indicating coaching, 

37This seems to be a reference to applying for resettlement as a refugee through the U.S. 

Refugee Admissions Program, a different legal process than asylum. A person cannot apply 

for asylum from overseas under U.S. law. 

38USCIRF also observed part of the interview of the asylum seeker from the same country by 

a different officer/interpreter team, and it was conducted respectfully and calmly.

CBP has two vital roles in 

Expedited Removal: 

first, to ensure that 

inadmissible non-citizens 

are not permitted to enter the 

United States and 

second, to ensure that 

non-citizens who fear 

persecution or torture have 

the opportunity to seek 

asylum, even if they otherwise 

would be inadmissible.
32 U.S. Commission on International Religious Freedom

if not fraud. A second agent at the same station said that hearing the same 

stories over and over made the agents “jaded” and that he believed the 

vast majority of those claiming fear did not meet the definition for asylum, 

although he did recognize that this was not BP’s job to determine. 

One BP agent implied that all fear claims made to ICE are invalid, 

stating that they result from individuals talking to other detainees and 

receiving the Know Your Rights orientation.39 He also drew a distinction 

between Central Americans and other asylum seekers, saying that Central Americans almost always have family in the United States, “unlike 

Somalis, for example, who are coming here because they really want to get 

away” from their country. A supervisor at this station expressed skepticism 

about Chinese claims of religious persecution, telling USCIRF that Chinese 

individuals often say they are Christian but cannot even name the church 

they attend; when USCIRF informed him that many Chinese Christians 

worship in homes, not churches, he seemed surprised. 

To be sure, not all claims of fear are credible or warrant asylum under 

U.S. law, and persecution is more common in some countries than others. 

Nevertheless, it is not CBP’s role to assess the credibility or merits of fear 

claims, but rather to ask if a person is afraid of return, record the answer, 

and, if it is yes, refer the person to USCIS. The agency must do so fairly and 

accurately for all individuals it encounters. The comments described above 

may indicate that this may not always be happening, especially when 

considered in light of BP’s flawed internal guidance (discussed above) and 

evidence of discrepancies between CBP’s referrals and USCIS’ credible and 

reasonable fear caseloads for certain populations.40

39See Information Provided in ICE Custody section.

40Human Rights Watch, “You Don’t Have Rights Here:” U.S. Border Screening and Returns of 

Central Americans to Risk of Serious Harm, pg. 21-24 (2014). Human Rights Watch analyzed 

CBP data on apprehensions and dispositions between October 2010 and September 2012, 

and found that only 0.1 of Mexicans, 0.8 percent of Guatemalans 1.9 percent of Hondurans, 

and 5.5 percent of Salvadorans in Expedited Removal or Reinstatement of Removal were 

referred to USCIS for credible or reasonable fear screening, as compared to 21 percent of 

migrants from other countries in the same proceedings in the same years. Id. at 21-22. 

Meanwhile, however, both the number and proportion of the three Central American 

nationalities in USCIS’s caseload increased, with most referrals coming from other agencies, 

like ICE, that are not required to ask systematically about fear. Id. at 24. For example, USCIS’ 

credible and reasonable fear caseload of Hondurans increased from 1,108 individuals in 

2006 to 8,539 in 2013. Id. In 2012, USCIS did 2,405 credible fear interviews of Hondurans, 

but CBP referred only 615 of these. Id. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 33

To CBP 

• As recommended in 2005, amend Form I-867 to include a prominently 

displayed notation that it is not a verbatim transcript of the interview 

and is not intended to document the individual’s entire asylum claim in 

detail.

• As recommended in 2005, videorecord all Expedited Removal processing interviews at all OFO ports of entry and BP stations, including virtual 

processing interviews, and require supervisory and headquarters review 

of the recordings of a sampling of interviews for quality assurance purposes. Until videorecording is established, require supervisors to sit in 

on and observe a sampling of interviews, and use testers to further verify 

that proper interviewing procedures are being followed. 

• Retrain all OFO officers and BP agents on their role in the Expedited 

Removal process, the proper procedures for interviewing non-citizens, 

and the special needs and concerns of asylum seekers and other vulnerable populations. 

• Remove any and all language in internal guidance that suggests that 

OFO officers or BP agents have the authority to reject or assess claims of 

fear or eligibility for asylum. 

• Establish a dedicated corps of specially-trained, non-uniformed 

interviewers to interview women and children to identify fear claims, 

and ensure that female interviewers are included. Until such a corps is 

established, use female OFO officers and BP agents to interview women 

and children whenever possible, and continue to work to increase the 

number of women in these positions. 

• Track the results of interviews conducted by virtual processing against 

those conducted in person, to determine if the two methods are producing materially different outcomes.

• Ensure that all interviewees have access to completely private interviews 

and that parents are not interviewed with their children present. 

• Use only professional interpreters, not officers, agents, or any other 

individual, during the I-867 interviews, and do not use airline employees 

as interpreters at any point in the inspection process.

To USCIS

• Continue the good practice of asking asylum seekers during credible 

fear interviews about discrepancies in their fear claims documented in 

the I-867 forms and fear claims raised with ICE authorities in detention.

• Track whether credible fear interview referrals are coming from CBP or 

ICE to better understand when in the Expedited Removal process most 

fear claims are being raised.

To EOIR

• Retrain immigration judges about the fact that Form I-867 it is not a 

verbatim transcript of the interview and is not intended to document the 

individual’s entire asylum claim in detail, and instruct them that it should 

be weighed accordingly. 

RECOMMENDATIONS
34 U.S. Commission on International Religious Freedom

CREDIBLE FEAR SCREENING

Within DHS, the USCIS Asylum Division is responsible for screening for 

credible fear persons who express to CBP or ICE a fear of persecution or 

torture if returned to their countries of origin. Under IIRIRA, the credible 

fear screening is to determine if the person has “a significant possibility” 

of establishing eligibility for asylum or eligibility for protection under the 

Convention Against Torture through withholding of removal or deferral of 

removal and therefore is entitled to a full hearing before an immigration 

judge. The credible fear screening is not a full adjudication; rather it is an 

initial review meant to quickly identify potentially meritorious claims and 

screen out frivolous ones. 

Credible fear screenings are done by asylum officers, who have 

received training on relevant U.S. and international legal standards and 

non-adversarial interview techniques. Asylum officers are required by 

law to have access to information about the conditions in asylum seekers’ 

countries of origin to make well-informed credible fear determinations.41

The 2005 Study found that USCIS had developed procedures and 

protections to help ensure that bona fide asylum seekers in Expedited 

Removal were not returned to countries erroneously where they could 

face persecution. 

Since the release of the 2005 Study, the number of persons in Expedited Removal claiming fear has grown from 9,465 in FY2005 to 51,001 in 

FY2014.42 Wait times for credible fear interviews also increased. In order 

to address increased workloads, USCIS increased its authorized staffing 

levels by 100 asylum officers in FY2014 and began to hire and train new 

officers; redeployed staff to conduct the increased volume of credible fear 

interviews;43 and increased the use of telephonic interviews. 

In addition, as fear claims in Expedited Removal increased, so too 

did the rate of positive credible fear findings. To address what USCIS 

headquarters felt were potentially inflated credible fear determination 

rates, USCIS in 2014 issued a revised credible fear lesson plan for asylum 

officer training to reinforce and remind officers of the legal requirements of the credible fear screening process and updated their quality 

assurance procedures. 

41The use of country of origin information is required in the INA, section 208(b)(1)(B)(iii).

42Referrals to USCIS for credible fear screenings in FY2015 fell to 48,052.

43USCIS’ movement of asylum officers from the affirmative asylum process to address 

credible fear and reasonable fear delays has led to a growing backlog of affirmative asylum 

filings, which have also risen during this time period. As of the end of 2014, USCIS had over 

73,000 affirmative asylum cases pending.

The credible fear screening 

is to determine if the person 

has “a significant possibility” 

of establishing eligibility 

for asylum or eligibility 

for protection under the 

Convention Against Torture 

through withholding of 

removal or deferral of 

removal and therefore is 

entitled to a full hearing 

before an immigration judge.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 35

New Lesson Plan

When the U.S. Congress considered the enactment of Expedited Removal, 

Senator Orrin Hatch of the Senate Judiciary Committee affirmed that “[T]

he (credible fear) standard . . . is intended to be a low screening standard 

for admission into the usual full asylum process.”44

In February 2014, USCIS issued a revised lesson plan to train asylum 

officers on evaluating asylum seekers’ fear (see Appendix F). USCIS headquarters told USCIRF that the purpose of the revised lesson plan was to 

re-emphasize the requirement that asylum seekers must show a nexus 

between their personal fear claims and a protected ground.45 Namely, 

each asylum seeker must demonstrate that s/he personally experienced, 

or if returned would personally experience, persecution as a member of a 

group that is persecuted based on a protected ground; a positive credible 

fear determination cannot be made simply because an asylum seeker 

belongs to such a group. DHS further reported to USCIRF that the change 

in the lesson plan clarified the standard of proof and that the lesson plan 

makes it clear that “[e]ssentially, the asylum officer is applying a threshold 

screening standard . . .”46

Nevertheless, the lesson plan’s language raised concerns among some 

stakeholders that the credible fear standard had been raised to require an 

in-depth assessment more like a full adjudication of asylum claims. For 

example, the new lesson plan eliminated the above statement from Senator 

Hatch about the low screening standard, but bolded language declaring 

that a claim that has no possibility, or only a minimal or mere possibility, of success would not meet the “significant possibility” standard.47

Positively, the revised lesson plan does reiterate that the purpose of the 

credible fear interview is to “quickly identify potentially meritorious claims 

to protection and to resolve frivolous ones with dispatch”48 and to allow 

immigration judges to further examine the former. It also reminds asylum 

officers that asylum seekers are not required to show that the chances of 

success are more likely than not.49

To assist this determination, asylum officers now are required to use 

a standard checklist for the credible fear interview. The checklist initially 

44Senate, “Proceedings and Debates of the 104th Congress, Second Session,” Congressional 

Record, Vol. 142 No. 136, September 27, 1996.

45 International and U.S. refugee law recognize five protected grounds: race, religion, nationality, membership in a particular social group and political opinion.

46U.S. Citizenship and Immigration Services, Lesson Plan Overview, February 28, 2014, pg. 12

47 Id. pg. 14

48 Id., pg. 11.

49 Id., pg. 14.

When the U.S. Congress 

considered the enactment of 

Expedited Removal, 

Senator Orrin Hatch 

of the Senate Judiciary 

Committee affirmed that 

“[T]he (credible fear) 

standard . . . is intended 

to be a low screening 

standard for admission 

into the usual 

full asylum process.”
36 U.S. Commission on International Religious Freedom

was piloted by the Houston Asylum Office in April 2013. USCIS found it 

to be an efficient tool and with the surge of credible fear referrals in 2014, 

began using it nationwide. The checklist replaced the previous format of 

the written analysis for credible fear determinations. At the end of the 

interview, asylum officers continue to be required to write a short summary of relevant facts (see Appendix G).

Asylum officers interviewed by USCIRF provided mixed assessments 

of the revised lesson plan and checklist. They noted that they are helpful to 

increase the specifics and knowledge of an asylum seeker’s claim. At the 

same time, they said the credible fear interview is intended to be a screening but the checklist leads them to develop a fuller analysis and record of 

the claim, bringing it close to the point of a full adjudication on the merits. 

They said interviews under the new lesson plan are more detailed and take 

longer. Asylum officers estimated that most credible fear interviews are 

now around 1 hour and 15 minutes. 

Following the deployment of the new lesson plan, credible fear grant 

rates fell from 81.4 percent in February 2014 to 70.2 percent for FY2015 and 

77.15 percent for FY2016 through February 2016. 

Telephonic Interviews

USCIS also has expanded significantly its reliance on telephonic interviews 

for credible fear screenings. Only two percent of all 5,369 credible fear 

interviews were conducted by phone in 2009. By contrast, 59 percent of the 

51,001 interviews were done that way in FY2014, according to the USCIS 

Ombudsman.50 The greatest use of telephonic interviews is for asylum 

seekers in Expedited Removal who crossed the southern border. This is 

due to the high numbers of that population, the lack of space in detention 

facilities for asylum officers to conduct in-person interviews, and the 

remote locations of the detention facilities. 

The move toward telephonic credible fear interviews has raised concerns. Asylum seekers interviewed by telephone may find it more difficult 

to recount fully to the asylum officer, through an interpreter, the details 

of violent and traumatic events. Some legal service providers reported to 

USCIRF that telephonic credible fear interviews are shorter, less accurate, 

and more confusing than in-person interviews. Additionally, telephonic 

interviews limit asylum officers’ ability to assess asylum seekers’ credibility. Indeed, the USCIS 2014 credible fear lesson plan recognizes this 

limitation, stating that telephonic interviews “further limits the reliability of and ability to evaluate [demeanor, candor, and responsiveness] 

50U.S. Citizenship and Immigration Services Ombudsman, Annual Report 2015, June 29, 

2015, pg. 62.

Following the deployment 

of the new lesson plan, 

credible fear grant rates fell 

from 81.4 percent in 

February 2014 to 70.2 percent 

for FY2015 and 77.15 percent 

for FY2016 through 

February 2016. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 37

RECOMMENDATIONS

in the credible fear context.”51 USCIS told USCIRF it has attempted to 

use videoconferencing for credible fear interviews, but connectivity and 

other technical issues prevented the expansion of this option. Despite 

these concerns, USCIS headquarters reported to USCIRF that positive fear 

determination rates are slightly higher for telephonic interviews than for 

in-person interviews.

When USCIS started using telephonic credible fear interviews, it 

instituted quality assurance mechanisms to take into account some of the 

concerns discussed above. Initially, asylum officers were required to conduct a follow-up interview with persons determined not to have a credible 

fear either in person or by videoconference. However, that requirement 

ended in June 2013; follow-up interviews are now left to the discretion of 

asylum office directors. 

Quality Assurance

In the 2005 Study, USCIRF drew attention to an imbalance in USCIS’ review 

and quality assurance procedure: negative credible fear determinations 

required 100 percent headquarters review and extra documentation, 

whereas positive determinations did not. USCIRF cautioned that this 

discrepancy could create a bias in favor of positive credible fear determinations. In June 2014, USCIS headquarters implemented a new procedure 

to review randomly 10 percent of all pre-decisional positive and negative 

credible fear determinations. This was a return to a quality assurance policy that USCIS first implemented in 2006 following the release of USCIRF’s 

2005 Study, but ceased for unknown reasons. 

51U.S. Citizenship and Immigration Services, Lesson Plan Overview, February 28, 2014, pg. 18.

To USCIS

• Reaffirm in the Asylum Officers’ Lesson Plan that the credible fear standard 

is a screening standard requiring a showing of a “significant possibility” of 

eligibility for asylum, not a full assessment of the merits of the case.

• Continue to track the results of credible fear interviews conducted 

telephonically and those conducted in person to determine if the two 

methods are producing materially different outcomes, and in the meantime reinstate in-person re-interviews, when requested by the non-citizen, 

of negative credible fear findings from telephonic interviews.

• Continue the good practice of headquarters’ review of a statistical 

sampling of both positive and negative credible fear determinations for 

quality assurance purposes, as recommended in 2005.
38 U.S. Commission on International Religious Freedom

DETENTION

As previously discussed, U.S. law requires that all asylum seekers subject to 

Expedited Removal be detained52 (see Appendix H) until a USCIS asylum 

officer makes a credible fear determination.53 ICE’s Office of Enforcement 

and Removal Operations is responsible for the detention of asylum seekers.54 After USCIS determines that an asylum seeker has a credible fear 

of persecution or torture, ICE has the discretion to release or continue to 

detain him or her while the asylum case is pending.55 ICE reports that in 

FY2014, it detained 35,598 credible fear applicants, that the average length 

of their detention was 58 days, and that 89.72 percent of them spent 90 days 

or less in detention. 

The 2005 Study found that asylum seekers were detained inappropriately, under prison-like conditions and in actual jails. The overwhelming 

majority of asylum seekers referred for credible fear were detained, for 

weeks or months and occasionally years, in penal or penitentiary-like facilities. In some of these facilities, asylum seekers slept alongside U.S. citizen 

convicts serving criminal sentences or criminal aliens, even though ICE 

detention standards do not permit non-criminal detainees to be co-mingled with criminals. To address these concerns, USCIRF recommended 

that ICE reform its detention standards so that non-criminal asylum seekers are not detained under penal conditions. 

It was not until 2009 that ICE initiated a process to implement 

USCIRF’s 2005 recommendations. In February 2009, then-DHS Secretary Janet Napolitano appointed Dr. Dora Schriro as Special Advisor on 

Immigration and Customs Enforcement and Detention and Removal, 

and charged her to evaluate the U.S. immigrant detention system. In 

October 2009, Dr. Schriro released a report of her findings, which, like 

USCIRF’s 2005 Study, found that asylum seekers were being held under 

inappropriate conditions. She noted in her report that immigration 

detention serves an administrative, not punitive, purpose, and that the 

52 INA section 236(c). Mandatory detention of asylum seekers in Expedited Removal has two 

administrative purposes: (1) it provides time to verify the identities of asylum seekers who 

have no, faulty, or fraudulently-obtained documents, and (2) it ensures that asylum seekers 

appear for their hearings or removals. 

53These generally occur within an average of nine days, according to USCIS.

54Beginning in FY2012, Congress mandated that ICE maintain 34,000 beds daily. In FY2015, 

the average daily cost for detention was $127.08 per person per day. Asylum seekers and 

other immigrant detainees are held in a variety of facilities: ICE-owned Service Processing Centers; privately-owned immigrant-dedicated Contract Detention Facilities; 

immigrant-dedicated county jail facilities, with which ICE has intergovernmental agency 

service agreements (IGSAs); and shared-use county jails, also through IGSAs. Almost every 

detention facility used by ICE is modeled on penal detention facilities that house criminals. 

55 Jeh Charles Johnson, MEMORANDUM: Policies for the Apprehension, Detention and Removal 

of Undocumented Immigrants, Department of Homeland Security, November 20, 2014

The 2005 Study found 

that asylum seekers were 

detained inappropriately, 

under prison-like conditions 

and in actual jails.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 39

majority of immigrant detainees could be classified as having a low propensity for violence.56 Dr. Schriro reported that ICE relied on correctional 

incarceration standards to detain immigrant populations, including 

asylum seekers, in facilities built and operated as jails or prisons to incarcerate pre-trial and/or sentenced offenders.57 She recommended that ICE: 

develop new standards, assessments, and classification tools to inform 

care, custody restrictions, and services consistent with risk level and 

medical needs; expand access to legal materials and counsel, visitation, 

and religious practices; and develop specific systems to serve women, 

families, and asylum seekers. She also recommended that detention 

facilities housing asylum seekers be located near transportation centers, 

consulates, pro bono counsel, immigration courts, USCIS asylum offices, 

and 24-hour emergency medical care, and be designed to provide specialized care to asylum seekers.58

Based on Dr. Schriro’s report, in October 2009, ICE announced that, 

within three to five years, it planned to: 

• revise its detention standards to reflect conditions appropriate for 

immigration detainees, design facilities located and operated solely 

to detain non-criminal immigrants, and convert the T. Don Hutto 

Family Residential Facility in Texas from a family detention facility 

to a detention center for adult females; 

• review its contracts with detention facilities to ensure that they comply with the new standards; 

• devise a risk assessment and custody classification tool to place 

detainees in appropriate facilities; 

• increase oversight by hiring ICE detention managers at selected 

facilities and by allowing for more frequent routine and random 

inspections to ensure appropriate conditions of custody and compliance with the revised detention standards; and

• improve detainee healthcare by forming two advisory committees 

and hiring experts to independently review complaints and denials 

of medical requests.59

56Dr. Dora Schriro, Immigration Detention Overview and Recommendations, Immigration 

and Customs Enforcement, October 6, 2009, pg. 2.

57 Id., pg. 2.

58 Id., pg. 3.

59U.S. Immigration and Customs Enforcement, Secretary Napolitano and ICE Assistant 

Secretary Morton Announce New Immigration Detention Reform Initiative, October 6, 2009. 

Dr. Schriro reported 

that ICE relied on 

correctional incarceration 

standards to detain 

immigrant populations, 

including asylum seekers, 

in facilities built and 

operated as jails or prisons to 

incarcerate pre-trial and/or 

sentenced offenders.
40 U.S. Commission on International Religious Freedom

Detention Conditions 

Between 2012 and 2015, USCIRF visited 12 adult detention facilities60 (see 

Appendix I) throughout the United States to observe facility conditions, 

meet with officials, and interview asylum seekers. The adult facilities 

ranged from those based on a civil detention model, to those based on a 

penal model, to county jails also housing convicted criminals. USCIRF 

found that asylum seekers continue to be detained under inappropriate 

penal conditions before their credible fear interviews, and in some cases, 

even after being found to have a credible fear.61 Of particular concern is 

ICE’s use of criminal prisons and jails and private immigration detention facilities designed like criminal prisons to hold increasing numbers 

of asylum seekers. ICE holds detainees at approximately 181 facilities 

nationwide, and it reports that approximately 22,948 of ICE’s 32,786 

detention beds are in facilities that ICE views as appropriate to house 

asylum seekers. 

However, USCIRF remains concerned that vast majority of asylum 

seekers in Expedited Removal continue to be detained in immigrant 

detention centers with high degrees of external and internal security, no 

freedom of movement, and no privacy. This contradicts not only USCIRF’s 

2005 recommendations but ICE’s own 2009 policies that asylum seekers 

should be held in civil detention facilities which are externally secure 

but allow for internal freedom of movement, broad-based and accessible 

indoor and outdoor recreation opportunities, contact visits, privacy, and 

the ability to wear non-institutional clothing. 

60USCIRF also inspected three family detention facilities between 2012 and 2015. See the 

Surge section for an analysis of the family detention facilities’ conditions. The adult facilities were: Broward Transitional Center, Delaney Hall Detention Facility, El Centro Service 

Processing Center, Eloy Detention Center, Florence Detention Center, Karnes County Civil 

Detention Center, Krome Service Processing Center, James A. Musick Facility, Mira Loma 

Detention Center, Otay Detention Facility, Pinal County Adult Detention Center, and T. 

Don Hutto Residential Center. The family facilities were: Berks Family Shelter, South Texas 

Family Residential Center, and Karnes County Residential Center. 

61This finding is despite ICE’s 2009 reform plan to house asylum seekers under civil conditions and some positive steps taken to implement those reforms. In 2012, ICE opened two 

civil detention facilities, Delaney Hall Detention Facility in New Jersey and Karnes County 

Civil Detention Center in Texas, the latter of which was specifically designed and built based 

on a civil detention model. Additionally, starting in 2009, ICE moved some asylum seekers to 

Broward Transitional Center in Broward, Florida, and reformed the T. Don Hutto Residential 

Center in Texas. Some of ICE’s inability to further implement its reforms was due to circumstances beyond its control. The agency sought to open another new civil detention facility in 

Illinois, but local objections stopped these plans. In response to the surge of asylum seekers 

(including families) from Central America in 2014, ICE converted the Karnes County Civil 

Detention Center to a family detention center, moving the facility’s male asylum seekers 

and other immigrant detainees to other, more penal institutions. Additionally, ICE ended 

contracts with some of the less restrictive penal-model detention centers, again moving 

male asylum seekers and other immigrant detainees to more penal facilities.

USCIRF found that 

asylum seekers continue 

to be detained under 

inappropriate penal 

conditions before their 

credible fear interviews, 

and in some cases, even 

after being found to have a 

credible fear. Of particular 

concern is ICE’s use of 

criminal prisons and jails 

and private immigration 

detention facilities designed 

like criminal prisons to hold 

increasing numbers of 

asylum seekers.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 41

In the USCIRF-inspected adult detention facilities: 

• 100 percent were secure facilities with hardened perimeters that 

look like prison or jail complexes. Perimeters were secured with 

fencing, razor wire, barbed wire/concertina coils, and multiple 

locked doors. 

• 100 percent had some form of internal security barriers and restrictions on freedom of movement, such as barbed wire fencing, armed 

guards, secured doors, escort requirements, and video and sound 

surveillance. For example, 75 percent of the facilities required armed 

guards to escort detainees within the facility, 92 percent performed 

searches of living quarters, and 75 percent used pat downs on detainees. 100 percent had headcounts or census counts, some as many as 

eight times per day. 

• Most facilities afforded little privacy to asylum seekers. In 75 percent 

of the facilities, asylum seekers slept in open, dorm-style bedrooms 

housing 50 to 100 persons that constantly were surveilled by sound 

and sight, either by guards in the dorms or electronic monitoring, 

with open showers and toilets. 

• Many facilities offered little or no programming or activities and 

detainees spent the majority of time in their housing units. In 58 

percent of the facilities, asylum seekers had limited, set times for 

recreation, meals, or law library visits. In 50 percent, the outdoor recreation space was a concrete slab outside the dorm area 

accessible for one hour per day, regardless of detainees’ risk level. 

In these facilities, other than that one hour and the specific time 

slots allotted for meals, visitation, library visits, and religious 

services, the only recreation options were game tables and TVs 

within the dorms. 

• In 67 percent of the facilities, asylum seekers wore prison-like jumpsuits with colors corresponding to their risk level. 

ICE’s four civil detention facilities – Broward Transitional Center, Delaney Hall Detention Facility, T. Don Hutto Residential Center, and Karnes 

County Civil Detention Center – afford greater freedom of movement and 

privacy than other facilities, while also preserving security. However, these 

facilities house only 17 percent of asylum seekers in ICE detention. At all 

four of these facilities: 

• External security was provided by perimeter fences, razor wire, 

barbed wire, or concertina coils, and locked entry doors. Internal 

security was upheld through the use of video and sound monitoring, guards posted throughout the facilities,62 headcounts or census 

counts, and living quarter searches.

62Guards wear khakis and polo shirts rather than correctional officer uniforms.
42 U.S. Commission on International Religious Freedom

• Asylum seekers were permitted to move, unescorted and relatively 

freely, throughout the facility without having to walk through security fencing or centrally-locked doors or ask a guard’s permission. 

Some limitations remained, however; this freedom of movement 

was limited to daylight hours, some areas were off limits without an 

escort, and all detainees were required to be at specified locations at 

certain times for census or head counts. 

• Except at Hutto, bedrooms and common areas were separate. 

Housing units slept two to eight people. Showers and toilets were 

private, either behind closed doors in the bedrooms or blocked by 

full-length privacy curtains in the common areas. The exception 

to private bathrooms was Delaney Hall, where toilets and showers 

were in a dormitory-style shared bathroom, showers were open, and 

the toilets only have half-length doors. 

• While only the Hutto facility allowed residents to wear street 

clothes, the uniforms at the other civil facilities were t-shirts and 

sweat suits, as opposed to color-coded prison jumpsuits.63

Detention Standards 

Although ICE revised its immigration detention standards twice since 

2005, they continue to be based on penal, not civil, models of detention. 

Both the 2008 standards and 2011 Performance Based National Detention 

Standards (PBNDS) are based on the American Correctional Association’s 

(ACA) jail detention standards for pre-trial felons. The 2011 PBNDS did 

expand access to medical, mental health, legal, and religious services; 

institute an extensive complaint process; and increase visitation and 

recreation opportunities. However, the PBNDS do not require uniform 

implementation; some state and local facilities that hold both criminal and 

immigrant detainees are not required to implement these standards and 

therefore continue to hold asylum seekers under correctional standards. 

These facilities hold 80 percent of ICE’s detention population. 

By contrast, the American Bar Association (ABA) has developed civil 

immigration detention standards that are similar to some of the better 

practices USCIRF observed during its inspections of ICE’s less restrictive 

facilities. These standards call for security measures to be directly related 

to the security or safety concerns of facility detainees. The ABA recommends that for non-dangerous immigrant populations, including asylum 

seekers, ICE normalize living conditions at detention facilities to make 

them more like “secure” nursing homes, residential treatment facilities, 

domestic violence shelters, or in-patient psychiatric treatment facilities, 

rather than jails or jail-like settings. The ABA standards recommend ample 

63At the time of USCIRF’s initial Study, Broward allowed detainees to wear street clothes, 

but this is no longer the facility’s policy. 

Although ICE revised 

its immigration detention 

standards twice since 2005, 

they continue to be 

based on penal, not civil, 

models of detention. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 43

common space, freedom of movement, allowing detainees to wear their 

own clothes, expanded access to legal information and services, expanded 

medical care, and extended access to indoor and outdoor recreation.64

Risk Classification Assessment 

Since 2013, ICE has used a Risk Classification Assessment (RCA) tool to 

guide ICE officers’ decisions on detention, release, and level of supervision 

for each individual who comes into ICE’s custody, including asylum seekers in Expedited Removal, except those subject to mandatory detention 

who will be removed within 5 days. RCA decisions are made on intake, 

through a scoring system with as many as 178 questions. The RCA considers several factors related to an immigrant detainee’s risks to public 

safety and of flight (i.e., criminal history, gang affiliation, prior removal, 

community ties). It also is meant to help ICE identify medical needs, and 

requires officers to “determine whether there is any special vulnerability 

that may impact custody and classification determinations,” such as past 

experience of trauma or torture. 

The RCA places all immigrants detained in ICE custody, including 

asylum seekers, into one of three custody oversight levels – low, moderate, 

or high custody – corresponding to their security risks and criminal histories. Low-level detainees have no criminal history or only minor offenses, 

whereas high-level detainees have serious criminal charges. The vast 

majority of asylum seekers are classified for low-level custody, according 

to ICE officials, and under ICE regulations may not interact or be housed 

with high-level detainees. 

This system should allow ICE to identify asylum seekers and give 

them priority for housing in civil detention facilities, but USCIRF’s monitoring suggested that this was not always the case. For instance, USCIRF 

interviewed asylum seekers held in penal detention facilities when less 

jail-like and more appropriate facilities were nearby. USCIRF also met with 

asylum seekers housed in the same facility as violent criminal immigrant 

detainees (but in different “pods”), resulting in more restrictive conditions 

than necessary. 

Victims of Torture 

Asylum seekers detained under Expedited Removal can include individuals who were victims of torture before arriving in the United States.65

USCIRF has long expressed concern that penal detention conditions risk 

64See American Bar Association, ABA Civil Immigration Detention Standards, August 2014.

65According to Detention Watch Network, ICE detained more than 6,000 victims of torture 

between October 2010 and February 2013 as they sought asylum and 10,319 survivors of 

torture were granted asylum in the United States in fiscal year 2012. 

USCIRF has long expressed 

concern that penal 

detention conditions risk retraumatizing asylum seekers 

who experienced or fear 

persecution or torture and 

can lead them to prematurely 

terminate their asylum 

applications and return 

to their counties of origin, 

simply to get out of detention. 
44 U.S. Commission on International Religious Freedom

re-traumatizing asylum seekers who experienced or fear persecution or 

torture and can lead them to prematurely terminate their asylum applications and return to their counties of origin, simply to get out of detention. 

Research also has shown that prolonged detention of torture victims can 

cause severe chronic emotional distress, including chronic anxiety and 

dread, dangerous and physically damaging levels of stress, depression and 

suicide, and post-traumatic stress disorder (PTSD).66

Ideally, asylum seekers who were victims of torture with special medical needs would be identified through the RCA or the medical screening 

done by ICE on intake. Unfortunately, DHS’ Office of Inspector General 

reported that ICE officers lack the necessary medical training to identify 

victims of torture, in addition to failing to provide privacy when asking 

the RCA special vulnerability questions.67 Physicians for Human Rights 

has found that many asylum seekers and survivors of torture are overlooked, ignored, or inadequately treated because of ICE medical staff’s 

high caseloads and because these detainees are generally unable or afraid 

to advocate for themselves. 

USCIRF recommended in 2005 that ICE train detention center personnel to work with non-criminal, psychologically vulnerable asylum-seekers. 

In 2007, ICE and the DHS Office of Civil Rights and Civil Liberties jointly 

released a training module for detention officers on cultural awareness 

and concerns particular to asylum seekers. As part of the 2009 detention 

reforms, ICE now provides more specialized training to on-site detention 

monitors, including curricula on At Risk Detainees in Detention and on 

assistance on interacting with culturally- and religiously-diverse populations and victimized populations. 

Unfortunately, USCIRF’s detention center visits reinforced the concerns 

about detention staff’s insufficient awareness of, or training on, the special 

needs and concerns of asylum seekers and/or torture victims. Cultural 

awareness training is mandatory only at ICE facilities, not at other facilities 

used by the agency. At only two detention centers did officers indicate to 

USCIRF that they had received what they viewed as specific training on 

identifying and interacting with victims of torture, but further questioning 

determined that this training only addressed cultural sensitivity issues. This 

continued lack of training and sensitivity is especially disappointing given 

ICE’s other efforts to raise detention staff’s awareness of other vulnerabilities, including a campaign to identify, treat, and raise awareness of victims 

of trafficking and sexual and gender-based violence while in ICE custody.

66Physicians for Human Rights, a non-governmental organization, reported in a 2003 study 

that among 70 detained asylum seekers interviewed, 77 percent reported clinically significant levels of anxiety, 85 percent depression, and 50 percent PTSD.

67Department of Homeland Security Office of the Inspector General, U.S. Immigration and 

Customs Enforcement’s Alternatives to Detention (Revised), February 4, 2015, pg. 12.

USCIRF’s detention center 

visits reinforced the 

concerns about detention 

staff’s insufficient 

awareness of, 

or training on, 

the special needs and 

concerns of asylum seekers 

and/or torture victims.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 45

Even more worrisome was the opinion expressed to USCIRF by several officers at immigrant detention facilities that “real” asylum seekers 

would not mind the conditions or length of detention, reflecting a lack of 

awareness of the psychological trauma that long-term detention can cause 

to vulnerable individuals. 

Release of Asylum Seekers 

As noted above, asylum seekers in Expedited Removal are subject to mandatory detention until an asylum officer determines that they have a credible 

fear of persecution. After that determination, asylum seekers who demonstrate that they are neither flight nor security risks may be released while 

their cases continue.68 ICE has the legal authority and discretion to release 

such asylum seekers, and the release policies it applies depend on where the 

person entered the United States. Those who enter the United States at a port 

of entry are eligible for release under a 2009 parole guidance memo; those 

who enter between the ports of entry or are apprehended within 100 miles 

of the border can be released through bond, order of recognizance, notice to 

appear, order of supervision, or Alternatives to Detention (ATD)69 programs. 

In 2011, then-ICE Assistant Secretary John Morton issued multiple 

memoranda to all field office directors urging them to exercise prosecutorial discretion in immigration enforcement, including detention 

(see Appendix J). Because ICE does not have the bed space to detain all 

immigrants in removal proceedings, Morton’s March 2011 memorandum 

directed field offices to prioritize detention bed space for: aliens subject 

to mandatory detention or aliens who met other enforcement priorities; 

those who posed a risk to national security or public safety; recent illegal 

entrants; and fugitives. It also provided that ICE field office directors 

should not expend detention resources on individuals known to be suffering from serious physical or mental illness; who are disabled, elderly 

pregnant, or nursing; who demonstrate that they are primary caretakers 

of children or an infirm person; or whose detention was otherwise not in 

the public interest.70 In June 2011, Morton clarified that victims of serious 

crimes or individuals likely to be granted relief from removal, including 

asylum seekers, should be positively reviewed in favor of release.71

68 INA section 235.

69See Alternatives to Detention section

70 John Morton, U.S. Immigration and Customs Enforcement, MEMORANDUM: Civil 

Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, 

March 2, 2011.

71 John Morton, U.S. Immigration and Customs Enforcement, MEMORANDUM: Exercising 

Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the 

Agency for the Apprehension, Detention, and Removal of Aliens, June 17, 2011.
46 U.S. Commission on International Religious Freedom

On November 20, 2014, DHS Secretary Jeh Johnson issued a new memorandum to all agencies responsible for Expedited Removal regarding 

prioritizing the removal and detention of undocumented immigrants, 

rescinding and overriding the 2011 Morton memorandum72 (see Appendix 

K). The memorandum urges the use of prosecutorial discretion to prioritize 

national security, border security, and public safety at all stages, including 

the earliest, of Expedited Removal and other civil immigration enforcement processes.73 Listed under the Priority 1 category for apprehension, 

detention, and removal are: “aliens apprehended at the border or ports of 

entry while attempting to unlawfully enter the United States.”74 However, 

Secretary Johnson further noted that those apprehended under Expedited Removal who “qualify for asylum or another form of relief under our 

laws . . . should not therefore be an enforcement priority.”75

Parole

The 2005 Study found that ICE was not applying consistently nationwide its 

criteria for the parole of asylum seekers in Expedited Removal with positive 

credible fear determinations. For example, New Orleans released only 0.5 

percent of asylum seekers, New Jersey released less than four percent, and 

New York, eight percent. Yet San Antonio released 94 percent of asylum 

seekers, Harlingen 98 percent, and Chicago 81 percent. To address this 

concern, USCIRF recommended that ICE codify its parole criteria into regulations and ensure consistent and correct parole decisions by developing 

standardized forms and national review procedures.

Instead, ICE issued a new parole directive in November 2007 (see 

Appendix L) that, in addition to the previous requirements of credible fear, 

community ties, and no security risk, required asylum seekers to apply for 

parole affirmatively and to prove that their release would have an undefined “public benefit.”76 In December 2009, however, ICE again issued new 

parole guidelines for asylum seekers in Expedited Removal (see Appendix 

M). USCIRF welcomed the 2009 directive, noting that it was in line with the 

2005 Study’s recommendations in favor of release and again urged that it 

be codified into regulations.

Under the 2009 directive, asylum seekers who enter the United States 

at ports of entry are automatically reviewed by ICE for parole eligibility 

72 Jeh Charles Johnson, Department of Homeland Security, MEMORANDUM: Policies for the 

Apprehension, Detention and Removal of Undocumented Immigrants, November 20, 2014.

73 Id. 

74 Id.

75 Id.

76 ICE Policy Directive No. 7-1.0, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’ 

of Persecution or Torture,” November 6, 2007.

Secretary Johnson 

further noted that those 

apprehended under 

Expedited Removal who 

“qualify for asylum or 

another form of relief under 

our laws . . . should not 

therefore be an 

enforcement priority.”
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 47

after USCIS determines they have a credible fear of persecution or torture. 

ICE deportation officers affirmatively instruct asylum seekers found to 

have a credible fear that they will be interviewed for parole and that they 

have two weeks to submit supporting materials to establish identity and 

community ties (see Appendix N). ICE then must notify asylum seekers of 

parole decisions no more than seven days after the interview. The directive 

also requires that parole determinations are documented on a Record of 

Determination/Parole Determination Worksheet (see Appendix O), which 

are reviewed for quality assurance purposes, and that field offices maintain national and local parole determination statistics.77

Deportation officers grant parole after verifying that the asylum 

seeker has established credible fear, identity, community ties, and that 

s/he is not a security risk.78 If these four requirements are met, the officer 

must find “exceptional overriding factors” to deny parole. Parole denials 

require an explanation and must be signed by a field office director or 

deputy director, and can be appealed based upon changed circumstances 

or additional evidence.79

ICE reports that, under the new guidelines, 1,786 credible fear applicants were released on parole in FY 2014. Some asylum seekers approved 

for parole remain in detention because they could not meet other requirements for release, such as a bond payment. 

Positive parole determinations are routinely accompanied by a 

requirement to pay a bond prior to release to guarantee asylum seekers’ 

court appearances. ICE reports that the RCA provides recommended 

bond amounts based on the detainee’s answers to standardized questions, 

among other factors, and that an ICE officer may impose a greater or lesser 

amount. However, during USCIRF monitoring visits at ICE detention centers and in meetings with ICE officials and legal service providers, the RCA 

was not mentioned when questions were raised about how bond amounts 

were determined and there did not appear to be a uniform mechanism to 

determine such amounts. For instance, USCIRF heard of bond amounts 

ranging from $1,500 minimum to $7,000. When ICE officials were asked 

how a bond rate was determined, one detention supervisor said they give 

a blanket $2,000 bond rate because “that is a number we are comfortable 

with from the INS days.” An ICE official at headquarters said bond rates 

are determined in different areas based on bed space – rates are lower 

77 ICE Policy Directive No. 11002.1, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’ 

of Persecution or Torture” December 8, 2009.

78 ICE conducts security and criminal background checks utilizing biographical and biometric information, including fingerprint checks and biographical questioning that is checked 

against multiple databases.

79 ICE Policy Directive No. 11002.1, “Parole of Arriving Aliens Found to Have a ‘Credible Fear’ 

of Persecution or Torture” December 8, 2009.

Deportation officers grant 

parole after verifying that the 

asylum seeker has established 

credible fear, identity, 

community ties, and that 

s/he is not a security risk. 

If these four requirements 

are met, the officer must 

find “exceptional overriding 

factors” to deny parole.
48 U.S. Commission on International Religious Freedom

when there are fewer beds available since there is nowhere to detain the 

individual and vice versa.

Alternatives to Detention

As noted, the parole directive discussed above applies only to asylum seekers who arrive at a port of entry, a minority of the asylum seekers placed 

into Expedited Removal. Asylum seekers who do not arrive at a port of 

entry can be released through a bond,80 order of recognizance,81 Notice to 

Appear (see Appendix P), order of supervision, or ATD programs.82

In 2008, Congress directed ICE to develop a plan to implement ATD 

programs nationally. By the end of 2009, ATD programs operated in all 24 

field offices. ATD programs include electronic monitoring, telephonic or 

in-person reporting requirements, and/or case management support and 

supervision services to ensure court appearances. ATDs have been proven to 

have high rates of compliance and are cost effective. In FY2016 through February 29, 2016, ATD programs yielded a 99.45 percent appearance rate and 

as of January 31, 2016, cost only $4.45 per person, per day, according to ICE. 

ICE’s primary ATD program is the Intensive Supervision Appearance 

Program (ISAP) II, which involves either electronic monitoring only or 

electronic monitoring plus case management. The electronic monitoring 

component uses ankle bracelets enabled with Global Positioning Systems 

or voice recognition software for telephonic reporting. Case management 

services are provided by the contractor and include: encouraging participants to comply with immigration proceedings, obtaining travel documents, 

and planning for return to their country of origin; providing information on 

transportation, medical care, religious services, legal resources, and other 

community resources; scheduling unannounced visits to the participant’s 

work and/or living address; scheduling participant visits to the contractor’s 

office; and reporting to ICE any instances of program noncompliance. 

When reviewing asylum seekers for possible placement in an ATD 

program or release after a positive credible fear determination, ICE officers are to consider their security and flight risks. However, it appears that 

electronic monitoring is being used extensively without full individualized 

assessments of whether an asylum seeker is a non-appearance risk. ICE’s 

ATD electronic monitoring programs that require asylum seekers to wear 

ankle bracelets stigmatize asylum seekers as criminals. 

80According to ICE’s most recent report on detained asylum seekers required by section 

903 of the Haitian Refugee Immigration Fairness Act of 1998 (HRIFA), 17,021 credible fear 

applicants were released on bond in FY2015.

81According to the most recent HRIFA report, 1,971 credible fear applicants were released 

on orders of recognizance in FY2014.

82At the time of USCIRF’s 2005 Study, Expedited Removal was limited to ports of entry. As 

such, the 2005 report did not examine ICE’s Alternatives to Detention programs.

ATD programs include 

electronic monitoring, 

telephonic or in-person 

reporting requirements, and/

or case management support 

and supervision services to 

ensure court appearances. 

ATDs have been proven to 

have high rates of compliance 

and are cost effective.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 49

In contrast to electronic monitoring, ICE also contracts with Lutheran 

Immigration and Refugee Services (LIRS) and Catholic Charities to operate 

small community-based supervision programs. These programs offer case 

management, legal, and social services to help asylum seekers better understand the ongoing legal requirements of their cases and prepare them to be 

contributing members of society. These programs also have high compliance 

rates, with 99.4 percent of participants appearing before court or removal 

proceedings, according to ICE. 

To ICE

• As recommended in 2005, detain all adult asylum seekers who must be 

detained, whether before or after a credible fear determination, in civil 

facilities only.

• As recommended in 2005, ensure that staff at any facility where asylum 

seekers are detained are specially trained in dealing with vulnerable 

populations such as victims of persecution or torture.

• Require an individualized re-assessment of the need for custody for all 

detainees with a positive credible fear finding, not just for arriving aliens 

eligible for parole under the 2009 parole directive, and apply a presumption of bond for detainees found to have credible fear who do not 

fall under the parole directive.

• Codify the 2009 parole directive into regulations, and continue to document and monitor parole decisions to ensure that the directive’s criteria 

are being properly applied.

• Create a national standardized bond calculation and worksheet to make 

individualized bond determinations. 

• Increase the use of Alternatives to Detention, such as monitored release, 

for asylum seekers, beyond bond and parole opportunities.

RECOMMENDATIONS
50 U.S. Commission on International Religious Freedom

ACCESS TO INFORMATION AND COUNSEL

One overriding impression from USCIRF’s interviews of detained asylum 

seekers is their insufficient understanding of what is happening to them 

in the Expedited Removal process, and the fear, stress and uncertainty 

that this causes. 

Information Provided in CBP Custody 

Non-citizens in CBP custody are provided little information about Expedited 

Removal and their rights within it. As previously discussed, CBP is required 

to read to all non-citizens in their custody a brief script from Form I-867A 

informing them of their right to raise a fear of return during their intake 

interview. Additionally, at the end of the interview, CBP is required to give to 

those who express a fear of return a Form M-44483 (see Appendix Q), which 

explains the credible fear process,84 and a list of pro bono legal providers.85

However, these forms are not written in layperson’s terms and sometimes are not provided in the non-citizen’s native language. For example, 

at one port of entry USCIRF observed, Form M-444 was only available 

in English and Spanish; a French-speaking asylum seeker was given the 

English version and the OFO officer who was interpreting the interview 

read it to him in French. A detained asylum seeker from India USCIRF met 

at an ICE facility reported that the BP agents who interviewed him “did not 

explain the process and they did not give [him] any papers in Bengali.” 

USCIRF met with many detained asylum seekers who similarly reported 

that despite having been given forms, they did not understand what was 

going to happen to them when they left CBP custody. In fact, some still did 

not understand the process, even after having had credible fear interviews 

and, in some cases, immigration court appearances. 

Information Provided in ICE Custody 

Once asylum seekers are in ICE custody, they can attend Know Your 

Rights presentations and, at some facilities, participate in a Legal Orientation Program (LOP).86 The Know Your Rights program includes a 

video that is shown on televisions in ICE facilities, including in the intake 

area, NGO-conducted orientation sessions, and an information packet, 

83The M-444 is provided in one of 12 languages and also may be translated verbally by the 

interpreter. The M-444 explains the credible fear process and that the asylum seeker has 

the right to consult with someone before the interview and/or have a consultant present at 

the interview. 

84At Otay Mesa Port of Entry, USCIRF was told that they show a video that explains the M-444 

form, although USCIRF did not see the video. This seems to be a unique practice. 

85 In addition, Salvadorans receive a court-ordered Orantes form that also advises them of 

the right to apply for asylum and asks about fear.

86See Legal Orientation Program section.

One overriding impression 

from USCIRF’s interviews 

of detained asylum 

seekers is their insufficient 

understanding of what is 

happening to them in the 

Expedited Removal process, 

and the fear, stress and 

uncertainty that this causes. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 51

which are available in multiple languages. Even so, some asylum seekers 

with whom USCIRF met did not recall seeing the video or attending NGO 

sessions. In a positive practice, Broward Transitional Center and T. Don 

Hutto Residential Center hold regular town-hall meetings with detainees 

to highlight detainee rights and facility rules. ICE officials also told USCIRF 

that they are working with the ABA on a written guide to the Know Your 

Rights video that would help reinforce its information.

A particular concern is that released asylum seekers lack a real 

understanding of their responsibilities and the next steps in their asylum 

cases. As USCIRF observed, upon release asylum seekers receive a large 

packet of documents in English explaining the immigration process 

and the terms of their release. However, most asylum seekers do not 

understand the contents of these documents because of language or 

education barriers. As one pro bono attorney explained to USCIRF, an 

outgoing orientation is needed because without it the system “sets [asylum seekers] up for failure.” 

Information Provided by USCIS

USCIS asylum offices also provide information about the credible fear process to asylum seekers during the interview as required by regulations and 

procedures. At the interview, the asylum officer asks if the asylum seeker 

received the M-444 and list of legal service providers and understands 

the credible fear process. If the asylum seeker does not understand the 

process, the asylum officer explains it to him or her. If the asylum seeker 

has not received the M-444 or legal service provider list, it is provided at 

that time. At the interview, the asylum officer also determines whether the 

asylum seeker has a consultant whom he or she wishes to have present. 

During the interview, the asylum officer reads two standard paragraphs 

explaining the purpose and importance of the interview and what will 

happen after the interview. 

The Legal Orientation Program 

To help increase detainees’ access to legal information and representation, 

EOIR administers the LOP, which is carried out in partnership with NGOs. 

At the time of the 2005 Study, the LOP operated in only seven detention 

facilities, and one of the Study’s recommendations was to expand it. The 

LOP program is now at 26 sites and its materials are available in all facilities. Nevertheless, the full program still does not reach all of ICE’s facilities 

and detainees. 

The LOP includes a comprehensive presentation about immigration 

court procedures and basic legal information. Presentations are done in 

group settings and in some programs are followed up with one-on-one 

sessions about individual cases and referrals for pro bono representation. 

Asylum seekers receive formal notice of the program only after they have 

One pro bono attorney 

explained to USCIRF, 

an outgoing orientation is 

needed because without it the 

system “sets [asylum seekers] 

up for failure.”
52 U.S. Commission on International Religious Freedom

passed their credible fear interview and their case has been referred to an 

immigration judge. Many USCIRF interlocutors, including USCIS asylum 

officers, favored expanding the LOP program so that detainees could 

participate before their credible fear interviews. Some detention facilities 

provide the LOP-operating NGOs a list of new arrivals, in addition to the 

normal LOP practice of compiling lists from the immigration court docket. 

This is a good practice that increases the likelihood of an asylum seeker 

receiving at least some legal information before his or her credible fear 

interview. USCIRF found during its detention center visits that a number 

of detained asylum seekers were unfamiliar with the LOP, including ones 

who had passed their credible fear interviews. 

LOP presentations and individual sessions have proven effective in helping detainees make more informed decisions, increasing their likelihood of 

representation, clearing the immigration court docket of meritless cases, and 

speeding case adjudications, resulting in fewer court hearings and shorter 

detentions. A 2012 DOJ internal review of the LOP found that between fiscal 

years 2009-2011, the immigration proceedings for ICE detainees who participated in the LOP were completed an average of 12 days faster than those 

who did not participate, and ICE saved on average roughly $677 in detention 

costs for each LOP participant.87 The review also found that LOP participants 

receive fewer in absentia removal orders, and that ICE detention center 

staff reported that providing access to legal information through the LOP 

improves detention conditions and reduces behavior problems.

ICE officials told USCIRF that, in addition to the self-help legal materials currently available at facilities, the agency is looking to increase access 

to Lexis/Nexis and other legal services, and that they would welcome 

expanded availability of the LOP and other legal rights presentations. 

Access to Counsel

In the 2005 Study, USCIRF found that one in four asylum seekers represented by pro bono attorneys were granted asylum, compared to only 

one in 40 unrepresented asylum seekers. In 2008, the U.S. Government 

Accountability Office also found that having an attorney more than doubled an asylum seeker’s chance of being granted asylum.88

Representation rates often are linked to detention facility locations, with 

asylum seekers detained in or near metropolitan areas having higher rates of 

legal representation than those detained in rural areas. The rural locations of 

many of the facilities where asylum seekers are detained continue to make 

87U.S. Department of Justice, Cost Savings Analysis - The EOIR Legal Orientation Program, 

April 4, 2012, pg. 2-3.

88U.S. Asylum System Significant Variation Existed in Asylum Outcomes across Immigration 

Courts and Judges, Government Accountability Office, September 2008, pg. 30.

The rural locations of 

many of the facilities where 

asylum seekers are detained 

continue to make it very 

difficult, as a practical 

matter, for individuals 

to obtain legal advice. 

Lack of counsel not only 

disadvantages detainees but 

also burdens the system, 

since unrepresented cases 

are more difficult and time 

consuming for adjudicators 

to decide. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 53

RECOMMENDATIONS

it very difficult, as a practical matter, for individuals to obtain legal advice. 

Of the detention facilities USCIRF visited, most were in remote areas, with 

the exception of Broward Transitional Center and Delaney Hall Detention 

Facility, which are close to Miami and Newark/New York City, respectively. 

Very few of the detained asylum seekers with whom USCIRF met when 

visiting facilities were represented by counsel, and many complained that 

they did not understand the complex immigration law and process. Lack 

of counsel not only disadvantages detainees but also burdens the system, 

since unrepresented cases are more difficult and time consuming for 

adjudicators to decide. 

Access to counsel extends beyond asylum seekers hiring counsel; 

asylum seekers and their attorneys must be able to communicate. USCIRF 

and others have observed that this may be difficult while asylum seekers 

are in ICE custody. Immigration attorneys reported to USCIRF that ICE or 

detention center personnel restricted lawyers’ access, failed to provide any 

information regarding an attorney’s detained client unless the attorney 

had an original signed Form G-28 on file, changed the rules regarding 

access, and imposed restrictions on office supplies that could be brought 

into the detention facilities. They also said that some ICE officers discouraged detainees from seeking legal representation. 

To CBP

• In consultation with stakeholders, develop a document, drawing from 

the resources of the Know Your Rights and LOP programs, that briefly 

and clearly explains the Expedited Removal process, its consequences, 

the right to seek protection for those who fear return, and the right to 

request a private interview, and provide this document to all individuals, 

in a language they understand, as soon as possible when they come into 

OFO or BP custody. 

To ICE

• Expand the Know Your Rights presentations to all facilities that house 

asylum seekers.

• Ensure that all detainees receive a Know Your Rights presentation in person as soon as possible after their arrival at the facility and, in the case of 

those in the credible fear process, before their credible fear interviews.

To EOIR

• Expand the LOP to all detention facilities housing asylum seekers, and 

provide it to detainees before their credible fear interviews.

To Congress

• Increase funding to EOIR to expand the LOP to all facilities housing asylum seekers and to enable legal orientation to be provided to detained 

asylum seekers before their credible fear interviews. 
54 U.S. Commission on International Religious Freedom

ADJUDICATION OF ASYLUM CLAIMS

After USCIS asylum officers find a credible fear of persecution or torture, 

asylum seekers in Expedited Removal file for asylum and present the merits of their cases to EOIR immigration judges. Hearings are conducted in 

an adversarial setting against a DHS trial attorney. In 2005, USCIRF found 

that whether or not an asylum seeker is granted asylum depends largely on 

chance, namely, the immigration judge who is assigned to hear the case 

and if the asylum seeker has counsel. 

Like the other agencies responsible for Expedited Removal, EOIR has 

had difficulty keeping up with the expansion of Expedited Removal and 

increased number of persons claiming fear. Between fiscal years 2009 and 

2013, EOIR’s total caseload pending adjudication grew by 56 percent, from 

229,000 to 358,000. By the end of August 2014, that number had grown to 

450,000. To address this backlog, EOIR in 2015 requested an additional 

$22.6 million in new resources to, among other things, hire an additional 

35 immigration judges and expand the LOP.89

The remote locations of most detention facilities and a shortage of 

immigration judges has increased EOIR’s use of video teleconference 

(VTC) for hearings, including merits hearings. The Justice Department 

reports that as of October 2011, 58 of the 59 immigration courts had at least 

one VTC unit.90 VTC use raises fair-hearing and effective-representation 

concerns. With the judge and lawyers in one place and the asylum seeker 

in another, translation accuracy, credibility assessments and lawyer-client 

consultations are made more difficult. VTC proponents, however, argue 

that it can increase legal representation and speed case adjudications.

One solution to reduce the immigration courts’ caseload and backlog is to allow asylum officers to adjudicate defensive asylum claims, as 

USCIRF recommended in the 2005 Study. Asylum officers have the legal 

background and training to adjudicate asylum claims, and do so for affirmative asylum cases. Further, having an asylum officer review a credible 

fear claim and then having an immigration judge review an asylum claim 

creates significant redundancy without necessarily adding value. 

DHS’ 2007 official response to the 2005 Study said that allowing asylum officers to grant asylum after the credible fear interview could deprive 

applicants of the time and resources to develop a well-documented asylum 

claim or obtain legal counsel to assist them. DHS also said it would have 

to hire additional asylum officers to conduct asylum adjudications, and 

applicants would have to be detained longer while the identity and security 

89 U.S. Department of Justice, U.S. Department of Justice FY 2015 Budget Request Fact Sheet, 

August 3, 2014.

90Lenni B. Benson & Russell R. Wheeler, Administrative Conference of the United States: 

Enhancing Quality and Timeliness of Immigration Removal Adjudication, July 7, 2012, pg. 

89-90.

One solution to reduce the 

immigration courts’ caseload 

and backlog is to allow 

asylum officers to adjudicate 

defensive asylum claims, as 

USCIRF recommended 

in the 2005 Study.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 55

RECOMMENDATIONS

check requirements were completed. During interviews in 2014 and 2015 

some asylum officers noted that the credible fear interview is intended to 

be a screening and that their role is not to dig in deeply. They also said that 

many asylum seekers do not have sufficient documentation at the credible 

fear interview stage to support a grant of asylum. 

However, applicants could still be released upon a finding of credible 

fear, even if the asylum officer had to defer some aspects of the adjudication for later completion. Moreover, as with the affirmative asylum 

system, decisions in cases that the asylum officer cannot grant due to 

complications relating to the asylum claim itself should be referred to an 

immigration judge. 

To USCIS

• As recommended in 2005, allow asylum officers to convert and adjudicate appropriate Expedited Removal cases in which credible fear is 

found as affirmative asylum cases, in order to ease the burden on the 

immigration courts and speed the adjudication of strong cases.

To Congress

• Increase funding for the adjudicatory aspects of Expedited Removal, 

which has not kept pace with the funding for enforcement and detention, to enable USCIS and EOIR to address backlogs, conduct timely 

adjudications, and provide due process. 
56 U.S. Commission on International Religious Freedom

PROSECUTION OF ASYLUM SEEKERS

Among its enforcement options, BP has the authority to refer apprehended 

non-citizens to DOJ for criminal prosecution for illegal entry or illegal 

re-entry. The DHS OIG recently found that BP’s practices on criminal 

referrals for individuals who express a fear of return are inconsistent and, 

in some cases, problematic. In some locations, individuals who claim fear 

are routinely referred for prosecution, and do not undergo the USCIS credible or reasonable fear determination process until after they have been 

prosecuted and, if convicted, serve their time.91 As the OIG report noted, 

“refer[ring for prosecution] aliens expressing fear of persecution, prior to 

determining their refugee status, may violate U.S. obligations under the 

1967 United Nations Protocol Relating to the Status of Refugees, which the 

United States ratified in 1968.”92

Officials at BP headquarters told USCIRF that the agency was working 

on internal guidance on this issue, as recommended in the OIG report.93

Nonetheless, they insisted on the importance of retaining the ability to 

prosecute fear claimants, saying “if we were to forego prosecuting those 

who claim credible fear, that would spread like wildfire.” They stated 

that the intent is to impose a consequence so that people do not illegally 

return to the United States, not to prosecute asylum seekers. Finally, BP 

headquarters officials noted that criminal prosecutions are subject to a 

Federal Rule of Criminal Procedure requirement to present the case to a 

magistrate judge within 48 hours of a decision to prosecute, which does 

not allow enough time for a USCIS credible fear interview. 

91BP supervisors at McAllen Station acknowledged to USCIRF that this is the process they 

practice.

92DHS Office of Inspector General, Streamline: Measuring its Effect on Illegal Border Crossing

(2015), p. 16.

93The OIG recommended that BP develop and implement in all sectors consistent guidance 

on this question. In response, BP concurred in this recommendation, stating that it recognized “that detainees need to have the appropriate avenue to make claims pertaining to 

credible fear” and noting that the BP Chief recently had “sent a guidance memorandum 

and muster modules to the field to emphasize and further address credible fear determinations in expedited removal cases.” Id., pg. 17. These, however, are the problematic musters 

discussed in the Interviewer Training and Guidance section.

To DHS and DOJ

• CBP, USCIS, and DOJ should work together to develop procedures to 

allow USCIS to conduct credible fear assessments for non-citizens being 

referred for prosecution who express fear before DOJ pursues their 

criminal cases. 

RECOMMENDATION

The DHS OIG recently 

found that BP’s practices 

on criminal referrals for 

individuals who express a 

fear of return are inconsistent 

and, in some cases, 

problematic. As the OIG 

report noted, 

“refer[ring for prosecution] 

aliens expressing fear 

of persecution, prior to 

determining their refugee 

status, may violate U.S. 

obligations under the 1967 

United Nations Protocol 

Relating to the Status of 

Refugees, which the United 

States ratified in 1968.”
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 57

THE 2014 SURGE 

In the spring and summer of 2014, a surge of Central Americans, many 

of whom were female-headed households, illegally entered the United 

States (referred to as the Surge). Adults and family units were placed in the 

Expedited Removal process. In FY2014, CBP apprehended 68,684 family 

units, a 356 percent increase over FY2013 numbers.94 DHS responded 

aggressively to this spike, and by September the number of unaccompanied children and family units crossing into South Texas were at their 

lowest levels in almost two years. Of all of CBP’s apprehensions in FY2014, 

66,638 were from El Salvador, 81,116 were from Guatemala, and 91,475 

were from Honduras.95

In response to the 2014 Surge, the Obama Administration increased 

the use of detention as a deterrent.96 In June 2014, the President declared 

the Surge a “humanitarian situation” and announced a series of U.S. government responses, including deterrence actions, enforcement initiatives, 

foreign cooperation, and increased capacity to detain, care for and transport unaccompanied children. Key among the deterrence actions was 

“increased detainment and removal of adults with children and increased 

immigration court capacity to speed cases.”97 In July 2014, DHS Secretary 

Jeh Johnson stated, “DHS is looking to increase our capacity to hold and 

expedite the removal of the increasing number of adults with children 

illegally crossing the Southwest border. Doing so will help ensure more 

timely and effective removals, and deter others from taking the dangerous 

journey and illegally crossing into the United States.”98

In the summer of 2015, the Administration discontinued using general 

deterrence of illegal immigration as a factor in custody determinations 

for families and reformed its detention policy in response to a series of 

lawsuits and complaints about the detention conditions of women and 

their children.

DHS agencies involved in Expedited Removal also surged their staff 

and increased their use of technology to process fear claims more quickly. 

For example, in FY2014, USCIS hired an additional 100 asylum officers in 

the spring and summer, used former asylum officers working elsewhere 

94Department of Homeland Security, CBP Border Security Report Fiscal Year 2014, December 

19, 2014, pg. 1

95 Id.

96The White House, FACT SHEET: Emergency Supplemental Request to Address Increase 

in Child and Adult Migration from Central America in the Rio Grande Valley Areas of the 

Southwest Border, July 8, 2014. 

97 Id.

98Department of Homeland Security, Statement by Secretary Jeh Johnson Before the House 

Committee on Homeland Security, June 24, 2014. 

In June 2014, 

the President declared the 

Surge a “humanitarian 

situation” and announced 

a series of U.S. government 

responses, including 

deterrence actions, 

enforcement initiatives, 

foreign cooperation, and 

increased capacity to detain, 

care for and transport 

unaccompanied children.
58 U.S. Commission on International Religious Freedom

at DHS on a temporary duty basis to assist with credible fear screenings, 

and redirected the work of asylum officers nationwide. In the summer 

and fall of 2014, USCIRF met with USCIS staff at the Los Angeles, New 

York, Newark, and Houston asylum offices, all of which were conducting 

credible fear interviews of asylum seekers who entered the United States 

in the Rio Grande Valley sector. 

Conditions in CBP Custody 

The 2014 Surge strained the capacity of CBP facilities, particularly in Texas’ 

Rio Grande Valley, the area where most Central Americans arrived. McAllen Station agents reported that during the summer of 2014 it was receiving 

300-350 family units and 400-450 unaccompanied children per day. The 

children and families received the most media attention, but the numbers 

of single adults also surpassed previous years. 

Ports of entry and border patrol stations are too small and are not 

designed or equipped to house large numbers of people for long periods, 

but had to do so in 2014 when the numbers of families and children overwhelmed the detention capacities of ICE and the Department of Health 

and Service’s Office of Refugee Resettlement (ORR).99 As a result, CBP had 

to adapt by keeping increased supplies on hand (such as snacks, drinks, 

blankets, diapers, clothing, and toiletries) and contracting for food service. 

Officers and agents themselves generously contributed toys and other 

supplies for children, such as car seats. 

McAllen BP Station’s capacity to house women and children for longer 

timeframes improved when they opened a new facility nearby, called the 

Ursula facility, which can hold up to 1,000 people. BP also now has medical contractors on site at both McAllen Station and the Ursula facility. 

However, while the Ursula facility is larger than a BP station and provides 

showers and hot meals, it is not equivalent to a long-term detention facility, 

nor is it meant to be. The caged “pods,” which can hold 250 people each, 

are made of chain-link fence and have benches, mats, and televisions. 

The toilets are porta-potties. The lights stay on 24 hours a day. McAllen BP 

agents told USCIRF in February 2015 that most detainees spend about 24 

hours at Ursula, but in the summer of 2014 some children were there for 

up to 20 days because ORR was unable to take them. 

Adult detainees USCIRF interviewed at ICE facilities who were apprehended in the Rio Grande Valley during the 2014 Surge spoke of being 

held for up to nine days in cold, overcrowded BP facilities, which they 

often referred to as “ice boxes.” They had to sleep on the floor, the food was 

poor, and they were unable to bathe or clean themselves. Many said they 

99ORR is the U.S. government agency responsible for the care and custody of unaccompanied 

non-citizen children.

McAllen Station agents 

reported that during the 

summer of 2014 it was 

receiving 300-350 family units 

and 400-450 unaccompanied 

children per day. The children 

and families received the 

most media attention, but the 

numbers of single adults also 

surpassed previous years. 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 59

were poorly treated, including some saying they were “treated like dogs.” 

Others said that when they complained about the cold temperatures, BP 

agents would make it even colder. Others said that BP agents kicked people 

sleeping on the floor to wake them up. 

Detention as a Deterrent

In keeping with the Administration’s detention policy discussed above, 

Central American asylum seekers determined to have a credible fear were 

either denied the opportunity to be released through a bond or an ATD, 

or were offered prohibitively high bond rates. USCIRF heard from several 

NGOs and legal service providers of bond rates as high at $7,500, much 

higher than the statutory minimum of $1,500. ICE officials at Broward 

Transitional Center, which detains many Central American asylum seekers, told USCIRF that they received “instructions from headquarters that 

all persons who illegally entered the United States in the Rio Grande Valley 

sector were not to be released.” 

The use of detention as a deterrent is counter to both international refugee law and the administrative purposes of immigration detention. DHS 

Special Advisor on Immigration and Customs Enforcement and Detention 

and Removal Dr. Schriro reaffirmed those administrative purposes in her 

2009 report. 

Detention of Women and Children 

Prior to the 2014 Surge, ICE operated only one detention center to house 

families,100 Berks Family Shelter in Bucks County, Pennsylvania, with a 

maximum of 100 beds.101 The Surge of asylum-seeking families in 2014 

left ICE without the bed space to house the thousands of new detainees 

subject to Expedited Removal, many of whom claimed fear of return. In 

response, ICE pursued two strategies: (1) it opened new family detention 

facilities, increasing its capacity to detain women and children from 100 

beds to currently almost 3,100 beds; and (2) if its family detention center 

beds were full, it released the women and children under a Notice to 

Appear to check in with an ICE field office and present their case before 

an immigration judge. 

In June 2014, ICE started detaining women and children at the Federal 

Law Enforcement Training Center in Artesia, New Mexico. On August 1, 

2014, it transitioned the Karnes County Civil Detention Center in Karnes, 

Texas to a family detention facility (renamed the Karnes County Residential 

100 ICE defines a family as an adult parent or legal guardian accompanied by a person under 

18 years of age.

101 In 2009, ICE closed its other family detention center, T. Don Hutto Residential Center, in 

response to complaints that it was not an acceptable facility to house children. 

The Surge of asylum-seeking 

families in 2014 left ICE 

without the bed space to 

house the thousands of new 

detainees subject to 

Expedited Removal, 

many of whom claimed fear 

of return. In response,

 ICE pursued two strategies: 

(1) it opened new family 

detention facilities, 

increasing its capacity to 

detain women and children 

from 100 beds to currently 

almost 3,100 beds; and 

(2) if its family detention 

center beds were full, it 

released the women and 

children under a 

Notice to Appear.
60 U.S. Commission on International Religious Freedom

Center). Previously, Artesia was a CBP training facility and Karnes was an 

all-male immigrant civil detention facility. In November 2014, ICE closed 

Artesia. One month later, the agency opened a brand new facility, the South 

Texas Family Residential Center, in Dilley, Texas. Altogether, ICE now has 

almost 3,100 dedicated family detention beds. The South Texas Family 

Residential Center is ICE’s largest detention center, with 2,400 beds on a 

55-acre site. 

ICE detains only female-headed households at Dilley and Karnes; 

husbands are detained separately at a different ICE detention facility. 

Male-headed households may be detained at Berks or released under a 

Notice to Appear.

Detention Conditions

USCIRF inspected the Berks, Dilley, and Karnes family detention centers 

(see Appendix R). All three facilities have some of the best practices of 

adult civil detention centers, including freedom of movement, the wearing 

of street or non-institutional clothes, private housing units holding only a 

few families at one time, private toilets and showers, and extended recreation time. USCIRF observed classrooms, daycare areas, and playgrounds 

at Dilley and Karnes that seek to address the educational and recreational 

needs of children detained at the facilities.

Nevertheless, despite the positive application of adult civil detention 

standards at Dilley and Karnes, USCIRF’s position is that both present an 

institutional and jail-like setting inappropriate for children and counter to 

the U.S. government’s own standards for child detention as defined in a 1997 

legal settlement known as the Flores Agreement.102 Both are secure facilities 

that look like prison or jail complexes, with hardened perimeters secured 

with fencing, razor wire, and/or barbed wire/concertina coils, and multiple 

locked external doors. Internally, the women’s and children’s freedom of 

movement is restricted by locked doors and prohibitions on accessing some 

areas, as well as set schedules. Headcounts are another measure of internal 

security. In USCIRF’s view, these conditions create a prison-like environment contrary to the Flores Agreement, which requires ICE and DHS to 

hold children in their custody in the least restrictive setting, in non-secure 

facilities licensed to care for dependent, not delinquent, minors.

The conditions at Dilley and Karnes differ significantly from those 

observed at the Berks County Residential Center, a nursing home facility 

that was transitioned into an ICE family detention center. The Berks facility 

does not have a hardened perimeter fence, and residents are permitted to 

walk the grounds outside of the facility and to go on field trips. Residents 

102DHS’s position is that the Flores Agreement does not extend to accompanied minors, 

and that even assuming that Flores does extend to accompanied children, DHS’s detention 

conditions are consistent with its legal obligations. 

Despite the positive 

application of 

adult civil detention 

standards at Dilley and 

Karnes, USCIRF’s position 

is that both present an 

institutional and jail-like 

setting inappropriate for 

children and counter to 

the U.S. government’s own 

standards for child detention 

as defined in a 1997 legal 

settlement known as the 

Flores Agreement. The Flores 

Agreement requires 

ICE and DHS to hold 

children in their custody in 

the least restrictive setting, 

in non-secure facilities 

licensed to care 

for dependent, 

not delinquent, minors.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 61

also have full freedom of movement within the facility and self-scheduling 

during daylight hours. 

Court Orders to End Family Detention

In February 2015, DHS was sued for violating the terms of the 1997 Flores 

Agreement. On July 24, 2015, the U.S. District Court for the Central District 

of California ruled that the current detention of immigrant children and 

their mothers violated that agreement. In her ruling, Judge Dolly Gee said 

ICE’s policy of blanket detention of all families with children in the current 

family detention centers does not comply with Flores’ prohibition on holding a child (except in rare, dangerous cases) in a secure facility (meaning 

a facility from which they are not free to leave), or in a facility that is not 

licensed for the care of dependent children.103 Judge Gee ordered the U.S. 

government to release children with their parent unless the parent poses 

a significant flight risk or public safety threat that cannot be mitigated by 

alternatives to detention, including bond and orders of supervision.104

In a subsequent August 21, 2015 order, Judge Gee clarified her ruling to 

provide that, in the case of an “influx of minors into the United States,” 

the Flores Agreement provides DHS with “some flexibility” on the timing 

for release, “so long as the minor is placed with an authorized adult or in a 

non-secure licensed facility . . . ‘as expeditiously as possible.’” At the time 

of this writing, the U.S. government has appealed the decisions to the U.S. 

Court of Appeals for the Ninth Circuit. 

Similarly, on February 20, 2015 the U.S. District Court for the District 

of Columbia in another case, RILR v. Johnson, issued a preliminary injunction that put an immediate halt to the government’s policy of detaining 

families solely for deterrence purposes.105 The injunction was subsequently 

dissolved, but the court can reinstate it. 

Detention Conditions’ Impact on Mothers and Children

Of particular concern is the impact of detention on mothers’ and children’s 

mental and physical health. Detaining women and children can cause or 

exacerbate trauma. During USCIRF’s inspections of the Dilley and Karnes 

family detention centers, service providers reported that some children 

experienced depression, post-traumatic stress disorder, bed wetting, loss 

of appetite, weight loss, developmental regressions, anxiety, and social 

withdrawal. Family detention also negatively impacts mothers’ mental 

health, many of whom are reported to suffer from post-traumatic stress 

103 U.S. District Court Central District of California, Jenny L. Flores, et al v. Jeh Johnson, et 

al, July 24, 2015.

104 Id.

105U.S. District Court for the District of Columbia, RIRL v. Johnson, February 20, 2015.

Judge Dolly Gee said ICE’s 

policy of blanket detention of 

all families with children in 

the current family detention 

centers does not comply 

with Flores.
62 U.S. Commission on International Religious Freedom

disorder resulting from the trauma they experienced in their home countries and/or along the journey to the United States. Detention also restricts 

mothers’ ability to parent, make decisions for, and provide routines for 

their children. 

In June 2015, the American Immigration Lawyers Association, Women’s Refugee Commission, and American Immigration Council filed a 

complaint with DHS’ Office of Civil Rights and Civil Liberties detailing 

the detrimental impact of detention on detained women and children and 

asking the Office to investigate the psychological and physiological impact 

of family detention on children and mothers. At the time of this writing, 

the investigation is ongoing. 

Release of Women and Children

As noted above, ICE has released many asylum-seeking Central American women and children under Notices to Appear solely due to lack of 

bed space, not on individualized custody and supervision assessments. 

USCIRF observed this practice in McAllen, Texas. The McAllen Border 

Patrol station keeps an updated list of bed space at all three ICE family 

detention facilities. If there are no family beds available, BP releases the 

women and children with bus tickets and Notices to Appear, telling them 

to check in at an ICE office and initiate their cases before an immigration 

judge at their final destination. Release orders and instructions are in 

English and presented to the women without a full explanation. 

USCIRF met with volunteers of the McAllen, Texas Catholic Charities 

who support the released women and children after they are discharged 

and before they leave McAllen. Catholic Charities started working with 

the women and children in June 2014, after learning that they were being 

dropped off at the bus station and left to wait there for their buses. Under 

the current procedure, the women and children are taken to a Catholic Charities facility, where they are provided with showers, meals, and 

changes of clothes and then taken to the bus station closer to their departure times. During the summer of 2014, Catholic Charities provided these 

services for up to 2,400 women and children daily; at the time of USCIRF’s 

visit in February 2015, it was 300 per day. The volunteers said that the 

released mothers were scared and did not understand the process. To 

attempt to address this, volunteer lawyers come to the charity to explain 

to as many women as possible the release orders and instructions and 

answer their questions. 

2015 Reforms

In May 2015, in response to criticism of family detention, ICE Director 

Sarah Saldaña announced a series of reforms, stating that DHS would: 

(1) implement a review process for cases of families detained more than 

90 days to determine the necessity of continued custody; (2) end the 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 63

invocation of general deterrence as a factor in custody determinations 

in all cases involving families; (3) appoint an expert Federal Advisory 

Committee to advise ICE on family detention centers; (4) designate a 

senior ICE official to coordinate and review family detention facility 

policies and engage with stakeholders; and (5) increase efforts to monitor 

the conditions at these centers and to ensure that detained families have 

access to counsel, social workers, educational services, and comprehensive medical care.106

A month later, Secretary Johnson announced additional reforms, stating that DHS would: (1) offer release through a bond or other mechanism 

to asylum-seeking families determined by USCIS to have credible fear; (2) 

use newly-established criteria to offer bond “at a level that is reasonable 

and realistic, taking into account ability to pay, while also encompassing 

risk of flight and public safety,” and (3) have asylum officers conduct credible fear and reasonable fear interviews within a reasonable timeframe.107

USCIRF’s visits to Dilley and Karnes followed the announced reforms. 

USCIRF was told that women and children were being released pursuant 

to the new policy, but that release decisions were not transparent or organized. However, USCIRF also was told by legal assistance providers at the 

detention facilities that more women and children were being detained 

at the facilities. USCIRF also was told that the women who were being 

released by ICE typically were being put in an electronic monitoring ATD 

program rather than receiving a bond, and then successfully appealing 

ICE’s release decision to immigration judges, who ruled that they should 

be released through a bond. 

Problems Adjudicating Fear Claims of Mothers 

and Children

Adjudicating fear claims of mothers and children from Central America 

present unique problems. Asylum officers told USCIRF that these claims 

usually were related to gang violence, extortion, and domestic violence, 

and that many of the mothers are found to have a credible fear of persecution or torture. 

However, legal assistance providers and other NGOs also told USCIRF 

that, in their view, some Central American mothers have been erroneously 

found not to have a credible fear of persecution or torture. They argue that 

when asylum officers have had to interview mothers with their child or 

children present, the women may have withheld information about their 

106U.S. Immigration and Customs Enforcement, ICE Announces Enhanced Oversight for 

Family Residential Centers, May 13, 2015

107Department of Homeland Security, Statement by Secretary Jeh C. Johnson on Family 

Residential Centers, June 24, 2015

Adjudicating fear claims of 

mothers and children from 

Central America present 

unique problems.
64 U.S. Commission on International Religious Freedom

fear claim because they were uncomfortable giving details in front of their 

children or feared upsetting them. To address this problem, USCIS told 

USCIRF that sometimes one asylum officer would watch the children as 

another asylum officer conducted the credible fear interview, and/or the 

asylum officer would ask a mother prior to the start of the credible fear interview if she would like to be interviewed in front of her children or separately. 

Another complication is that children may have a separate fear claim 

from that of the parent. The First, Second, Sixth, Seventh, and Ninth Circuits have recognized that children’s asylum claims should be treated 

differently from adult claims. These circuits have held that (1) a reduced 

threshold for persecution applies to children’s cases, (2) objective evidence 

can establish a child’s well-founded fear of persecution, and (3) persecution of a child’s family member must be considered in evaluating whether 

the child suffered persecution. Positively, current USCIS practice is that if 

the mother does not establish credible fear of persecution or torture, the 

asylum officer will, with the mother’s permission, interview her children 

to assess whether there may be other claims. All USCIS asylum officers are 

trained to interview children. 

The Honduran and Guatemalan Pilot Initiatives

Another DHS response to the Surge is a CBP/ICE effort known as “HPI” and 

“GPI,” for the Honduran and Guatemalan Pilot Initiatives, which USCIRF 

learned about on a visit to McAllen, Texas. After being processed at McAllen Station, Hondurans and Guatemalans who do not claim fear are not 

immediately turned over to ICE for detention. Instead, they are taken to 

BP’s Harlingen Station for “staging” and interviews by representatives of 

their consulates. They remain in BP custody for four or five days and are 

then are turned over to ICE for a day and removed, as compared to otherwise being in ICE custody for around 30 days. USCIRF was told that HPI 

and GPI are being used in the Rio Grande Valley, Laredo, and El Paso BP 

sectors, and being considered by Tucson. BP agents at McAllen with whom 

USCIRF met explained that the approach helps combat overcrowding and 

also “addresses the issue of coaching” since the individuals do not have 

contact with other ICE detainees and do not receive the Know Your Rights 

program. Although the agents stated that these individuals can still claim 

fear at any time up to removal, and, if one did so, s/he would be turned over 

to ICE and then USCIS, an effect of preventing individuals from learning 

about the right to seek asylum is troubling. DHS headquarters, however, 

disputed the BP agents’ characterization and described the pilots as a tool 

to efficiently effectuate removals and reduce time in custody. 

BP agents at McAllen with 

whom USCIRF 

met explained that the 

approach helps combat 

overcrowding and also 

“addresses the issue 

of coaching” since the 

individuals do not have 

contact with other 

ICE detainees and 

do not receive the 

Know Your Rights program.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 65

RECOMMENDATIONS

To ICE:

• If families are placed in Expedited Removal, detain them only in facilities that meet the standards of the Flores Agreement and individually 

re-assess the need for custody after credible fear has been found, with a 

presumption of release. 

• Ensure that programs that detain nationals of particular countries separately do not have the effect of preventing them from accessing Know 

Your Rights presentations and the LOP. 

To USCIS:

• Continue the good practices of interviewing parents and children separately and assessing the child’s/children’s potential claims if the parent 

does not have a credible fear.
66 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 67

GLOSSARY OF TERMS

Asylum – The legal protective status accorded within the United States 

to non-citizens who meet the refugee definition found in section 101(a)(42) 

of the Immigration and Nationality Act (INA). (See “Refugee Definition”).

 Affirmative Asylum is the process in which non-citizens in the 

United States may voluntarily present themselves to ask for asylum through a non-adversarial interview with an asylum officer. 

An applicant who does not convince an asylum officer that s/he 

meets the refugee definition is referred to an immigration judge. 

The immigration judge then decides the asylum claim de novo but, 

if the claim is denied and no other relief is available, will enter a 

removal order against the alien. All proceedings before an immigration judge are adversarial, meaning the asylum seeker will face 

a Department of Homeland Security (DHS) trial attorney who 

usually opposes the grant of asylum, but the asylum seeker may 

also be represented by counsel (at no expense to the government).

 Defensive Asylum is the process by which a non-citizen who is in 

removal proceedings (also commonly referred to as deportation 

proceedings) may seek asylum in an adversarial hearing before an 

immigration judge. Under the regulations, non-citizens in Expedited Removal only have access to the defensive asylum process.

Arriving Alien – A non-citizen coming or attempting to come into the 

United States at a port of entry, seeking transit through the United States 

at a port of entry, or interdicted in international or U.S. waters and brought 

into the United States by any means, whether or not to a designated port of 

entry, and regardless of the means of transport. 8 CFR 1.1(q).

Asylum Officer – A U.S. Citizenship and Immigration Services (USCIS) 

employee who determines whether non-citizens placed in Expedited 

Removal have a credible fear of persecution or torture. A finding of credible fear entitles the non-citizen to see an immigration judge to prove that 

s/he is entitled to a full grant of asylum. Asylum officers are specialists with 

training on relevant U.S. and international legal standards and non-adversarial interview techniques and are required by law to have access to 

information about the conditions in asylum seekers’ countries of origin 

to make well-informed credible fear determinations. Asylum officers also 

review affirmative asylum cases.

ATD (Alternatives to Detention) – A program operated by the U.S. 

Immigration and Customs Enforcement (ICE) agency that provides 

non-citizens whose detention is not required by statute an appropriate 

level of supervision during removal proceedings to ensure compliance. 

ATD programs include electronic monitoring, telephonic or in-person 

reporting requirements, and/or case management support and supervision services to ensure court appearances. 
68 U.S. Commission on International Religious Freedom

BIA (Board of Immigration Appeals) – This is the administrative body, 

part of the Executive Office for Immigration Review (EOIR), which decides 

appeals from decisions by immigration judges. EOIR and the BIA are in 

the Department of Justice (DOJ).

Bond – The amount paid by a non-citizen released by the Immigration 

and Customs Enforcement agency under parole or an Alternatives to Detention (ATD) program during removal proceedings to ensure compliance.

BP (Border Patrol) – The Border Patrol guards the flow of legal immigration and goods to stem the illegal entry of non-citizens and contraband 

into the United States across the Mexican and Canadian international 

land borders, as well as through the coastal waters surrounding the 

Florida Peninsula and the island of Puerto Rico. BP agents interview 

non-citizens who unlawfully crossed the border and are apprehended 

within the United States.

CBP (Customs and Border Protection) – CBP, established on March 

1, 2003, is an arm of the Department of Homeland Security. It contains 

the Office of Field Operations (OFO) and Border Patrol (BP). OFO and BP 

officials initiate Expedited Removal proceedings, and have unreviewable 

authority to decide whether the non-citizen may see an asylum officer for 

a credible fear determination before being removed.

Credible Fear – A legal standard implemented as part of Expedited 

Removal Proceedings in March 1997 under the Illegal Immigration Reform 

and Immigrant Responsibility Act of 1996 (IIRIRA). Once an arriving alien 

is placed in Expedited Removal, s/he can only see an immigration judge 

to make an application for asylum or protection under the Convention 

Against Torture if an Office of Field Operations (OFO) or Border Patrol 

(BP) official refers him or her for a credible fear interview, and if the U.S. 

Citizenship and Immigration Services (USCIS) asylum officer conducting 

the interview decides the applicant has a credible fear of persecution or 

torture in the country of origin. As implemented, credible fear is a low 

threshold to establish. The term “credible fear of persecution” means that 

there is “a significant possibility, taking into account the credibility of the 

statements made by the alien in support of the alien’s claim and such other 

facts as are known to the officer, that the alien could establish eligibility for 

asylum. . . ” Immigration and Nationality Act (INA) section 235(b)(1)(B)(v).

DHS (Department of Homeland Security) – Created by an act of Congress on March 1, 2003, DHS absorbed more than 20 agencies, including 

the former Immigration and Naturalization Service (INS), and dispersed 

INS’s immigration responsibilities into various bureaus. The bureaus of 

U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs 

Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS) 

are responsible for executing Expedited Removal Proceedings. 

EOIR (Executive Office for Immigration Review) – EOIR is within the 

Department of Justice (DOJ) and houses immigration judges as well as the 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 69

Board of Immigration Appeals (BIA). While EOIR is a quasi-judicial institution, it is not independent, but is subject to review by the Attorney General.

Expedited Removal – Expedited Removal was added to the Immigration and Nationality Act (INA) by the 1996 Illegal Immigration Reform 

and Immigrant Responsibility Act (IIRIRA). Expedited Removal allows 

Department of Homeland Security (DHS) officials to return non-citizens 

arriving in the United States without proper authorization to their countries 

of origin without delay and without an immigration judge hearing. To ensure 

the protection of bona fide asylum seekers, a non-citizen who expresses a 

fear of returning home is referred to a DHS asylum officer for a credible fear 

determination and must be detained until that determination, with very 

limited exceptions. If the asylum officer finds credible fear, an immigration 

judge determines whether the applicant qualifies for asylum, withholding of 

removal, or protection under the Convention Against Torture. If the asylum 

officer does not find credible fear, the asylum seeker may ask an immigration 

judge to make a de novo determination of credible fear. If that too is denied, 

the individual is ordered removed and removed promptly.

Form I-867 – Form I-867 is the sworn statement of interviews of non-citizens taken by U.S. Customs and Border Protection officials. The form is 

designed to ensure that those who fear return are identified and not erroneously returned to countries where they may face persecution. The form 

has two parts: (1) side A includes a required script explaining the Expedited 

Removal process and its consequences and advising non-citizens to ask for 

protection without delay if they have any reason to fear being returned home; 

and (2) side B includes four required questions relating to fear of return. 

Honduran and Guatemalan Pilot Initiatives – A process used in the 

Rio Grande Valley, Laredo, and El Paso Border Patrol (BP) sectors whereby 

Hondurans and Guatemalans in Expedited Removal who do not claim 

fear are not immediately turned over to U.S. Immigration and Customs 

Enforcement (ICE) for detention. Instead, they are taken to BP’s Harlingen 

Station for staging and interviews by representatives of their consulates. 

They remain in BP custody for four or five days and are then are turned 

over to ICE for a day and deported, as compared to otherwise being in ICE 

custody for around 30 days. 

ICE (U.S. Immigration and Customs Enforcement) – Together with 

some customs enforcement functions, the ICE office of Enforcement and 

Removal Operations (ERO) is responsible for the detention and removal of 

aliens, including those in Expedited Removal. It also houses the government trial attorneys who represent the Department of Homeland Security 

(DHS) in immigration court, including in proceedings stemming from 

Expedited Removal cases.

IIRAIRA (The Illegal Immigration Reform and Immigrant Responsibility Act of 1996) – The most comprehensive immigration reform in 

decades, IIRAIRA established the Expedited Removal process.
70 U.S. Commission on International Religious Freedom

Immigration Judge – Working for the Executive Office for Immigration 

Review (EOIR) within the Department of Justice (DOJ), immigration judges 

decide whether non-citizens brought before them by the Department 

of Homeland Security should be removed or should be accorded some 

form of relief, including asylum or Convention Against Torture relief for 

non-citizens subject to Expedited Removal who are referred to them after 

a credible fear determination.

INA (Immigration and Nationality Act) – The Immigration and 

Nationality Act (INA) of 1952, Public Law No. 82-414, collected and codified 

many existing provisions and reorganized the structure of immigration 

law. The Act has been amended many times over the years, but is still the 

basic body of U.S. immigration law.

Know Your Rights – The Know Your Rights programs are operated in 

U.S. Immigration and Customs Enforcement (ICE) detention centers. They 

include a video that is shown on televisions in ICE facilities, including in 

the intake area, NGO-conducted orientation sessions, and an information 

packet, and are available in multiple languages. 

LOP (Legal Orientation Program) – The LOP includes a comprehensive presentation to U.S. Immigration and Customs Enforcement 

(ICE) detainees about immigration court procedures and basic legal 

information. Presentations are done in group settings and in some 

programs are followed up with one-on-one sessions about individual 

cases and referrals for pro bono representation. Asylum seekers receive 

formal notice of the program only after they have passed their credible 

fear interview and their case has been referred to an immigration judge. 

The LOP program is now at 26 detention sites and its materials are available in all facilities. 

Mandatory Detention – Until a non-citizen subject to Expedited 

Removal is found to have a credible fear of persecution, the Immigration 

and Nationality Act (INA) requires that s/he remain in Department of 

Homeland Security (DHS) custody. After a positive credible fear determination, DHS policies (though no applicable regulations have been 

promulgated) allow the asylum seeker to be released (under parole, bond, 

order of recognizance, notice to appear, order of supervision, or Alternatives to Detention (ATD) programs) while waiting for his or her asylum 

hearing if s/he is not a flight risk, has some ties to the community, and has 

established identity.

Muster – Musters are directives sent to each U.S. Customs and 

Border Protection (CBP) field office. When circulated, they are read 

and distributed to officers at the muster at the beginning of each of that 

day’s shifts. 

OFO (Office of Field Operations) – Office of Field Operations (OFO) is 

the largest U.S. Customs and Border Protection agency and is responsible 

for border security and facilitating the lawful trade and travel at U.S. ports 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 71

of entry. Individuals seeking entry into the United States are inspected at 

Ports of Entry by OFO officers who determine their admissibility.

Parole – Parole refers to discretionary authority of the Department of 

Homeland Security (DHS) to allow a non-citizen to enter the United States 

for humanitarian reasons (or the public interest), even though s/he does 

not have a valid visa or immigration status. It also refers to releasing an 

“arriving alien” from detention. While not in the regulations, field guidance endorses considering parole for asylum seekers who have received a 

positive credible fear determination, if an ICE detention officer determines 

that the applicant is not a flight risk nor a danger, has ties to the community, 

and has established identity.

Performance Based National Detention Standards – The hundreds 

of pages of standards to which DHS holds itself and its private contractors 

accountable concerning the treatment of non-citizens in detention. The 

standards, however, are not binding on federal, state, and local jails that 

lease detention bed space to ICE. The 2011 Performance Based National 

Detention Standards (PBNDS) are based on the American Correctional 

Association’s (ACA) jail detention standards for pre-trial felons, although 

they did expand access to medical, mental health, legal, and religious 

services; institute an extensive complaint process; and increase visitation 

and recreation opportunities. 

Port of Entry – Specific air, sea, and land entries into the United States. 

U.S. Customs and Border Protection secures 328 ports of entry throughout 

the country. 

Refugee Definition – Any person who is outside any country of such 

person’s nationality or, in the case of a person having no nationality, is 

outside any country in which such person last habitually resided, and 

who is unable or unwilling to return to, and is unable or unwilling to avail 

himself or herself of the protection of, that country because of persecution 

or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 

101(a)(42)(A) of the Immigration and Nationality Act.

RCA (Risk Classification Assessment) – The U.S. Immigration and 

Customs Enforcement (ICE) agency uses the Risk Classification Assessment (RCA) tool to guide ICE officers’ decisions on detention, release, 

and level of supervision for each individual who comes into ICE’s custody, including asylum seekers in Expedited Removal, except those 

subject to mandatory detention who will be removed within 5 days. RCA 

decisions are made on intake, through a scoring system with as many 

as 178 questions. 

Rio Grande Valley Sector – One of nine Border Patrol Sectors located 

along the United States southwest border. The Rio Grande Valley Sector 

covers more than 34,000 square miles of Southeast Texas, including 316 

river miles along the Rio Grande and 317 miles of coast along the Gulf of 
72 U.S. Commission on International Religious Freedom

Mexico, and has nine stations, two checkpoints, air and marine operations 

and an intelligence office. 

USCIS (U.S. Citizenship and Immigration Services) – The bureau in 

the Department of Homeland Security (DHS) which administers benefits 

under the Immigration and Nationality Act (INA), such as refugee status, 

asylum, lawful permanent residence, temporary worker and visitor classifications, and naturalization.
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 73

APPENDICES

A. Form I-867A

B. Form I-867 B

C. Form I-877

D. Form I-860

E. U.S. Customs and Border Protection, Michael Fisher, Memorandum: 

Muster Module about Credible Fear Determination, November 26, 2014. 

F. John Lafferty, U.S. Citizenship and Immigration Services, Memorandum: Release of Updated Asylum Division Officer Training Course 

(ADOTC) Lesson Plan, “Credible Fear of Persecution and Torture 

Determinations,” February 28, 2014.

G. Form I-870

H. Form I-286

I. ICE Detention Facility Site Visit Comparison Chart

J. John Morton, U.S. Immigration and Customs Enforcement, Memorandum: Exercising Prosecutorial Discretion Consistent with the Civil 

Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens, June 17, 2011.

K. Jeh Charles Johnson, Department of Homeland Security, Memorandum: Policies for the Apprehension, Detention and Removal of 

Undocumented Immigrants, November 20, 2014

L. U.S. Immgration and Customs Enforcement, ICE Directive No. 7-1.0: 

Parole of Arriving Aliens Found to Have a “Credible Fear” of Persecution or Torture, November 6, 2007

M. U.S. Immigration and Customs Enforcement, ICE Directive No. 

11002.1: Parole of Arriving Aliens Found to Have a Credible Fear of 

Persecution or Torture, December 8, 2009

N. ICE Form 71-012

O. ICE Form 71-013

P. Form I-862

Q. Form M-444

R. ICE Family Detention Facility Site Visit Comparison Chart
74 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 75

APPENDIX A 
76 U.S. Commission on International Religious Freedom

APPENDIX B 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 77

APPENDIX C 
78 U.S. Commission on International Religious Freedom

APPENDIX D 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 79

APPENDIX E 
80 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 81
82 U.S. Commission on International Religious Freedom

APPENDIX F 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 83
84 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 85

Department of Homeland Security 

U.S. Citizenship and Immigration Services Record of Determination/Credible Fear Worksheet

___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ ___ _________________________

District Office Code Asylum Office Code Alien’s File Number Alien’s Last/ Family Name

______________________ ________________ _____________________________________ Asylum Officer’s Last Name Asylum Officer’s First 

Name

Alien’s Nationality

Form I-870 (Rev. 11/21/03) N Page 1 

All statements in italics must be read to the applicant 

SECTION I: INTERVIEW PREPARATION

1.1 ___ ___/___ ___/___ ___ 1.2 _______________________________________________ 

Date of arrival [MM/DD/YY] Port of arrival 

1.3 ___ ___/___ ___/___ ___ 1.4 _______________________________________________ 

Date of detention [MM/DD/YY] Place of detention 

1.5 ___ ___/___ ___/___ ___ 1.6 _______________________________________________ 

Date of AO orientation [MM/DD/YY] If orientation more than one week from date of detention, explain delay 

1.7 ___ ___ / ___ ___ / ___ ___ 1.8 ____________________________________________________________ 

Date of interview [MM/DD/YY] Interview site 

1.9 Applicant received and signed Form M-444 and relevant pro bono list on ___ ___ / ___ ___ / ___ ___ 

Date signed [MM/DD/YY] 

1.10 Does applicant have consultant(s)? Yes No 

1.11 If yes, consultant(s) name, address, telephone number and relationship to applicant 

___________________________________________________________________________________________ 

___________________________________________________________________________________________ 

1.12 Persons present at the interview (check which apply) 

1.13 Consultant(s) 

1.14 Other(s), list: ______________________________________________________________________ 

1.15 No one other than applicant and asylum officer 

1.16 Language used by applicant in interview: _________________________________________________________ 

1.17 _____________________________________ Yes No ______________ ______________ 

Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 

1.18 _____________________________________ Yes No ______________ ______________ 

Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 

1.19 _____________________________________ Yes No ______________ ______________ 

Interpreter Service, Interpreter ID Number. Interpreter Has Forms Time Started Time Ended 

1.20 Interpreter was not changed during the interview 

1.21 Interpreter was changed during the interview for the following reason(s): 

1.22 Applicant requested a female interpreter replace a male interpreter, or vice versa

1.23 Applicant found interpreter was not competent 1.24 Applicant found interpreter was not neutral 

1.25 Officer found interpreter was not competent 1.26 Officer found interpreter was not neutral 

1.27 Bad telephone connection 

1.28 Asylum officer read the following paragraph to the applicant at the beginning of the interview: 

APPENDIX G
86 U.S. Commission on International Religious Freedom

Alien’s File Number:

 

Form I-870 (Rev. 11/21/03) N Page 2

The purpose of this interview is to determine whether you may be eligible for asylum or protection from removal to a country where 

you fear persecution or torture. I am going to ask you questions about why you fear returning to your country or any other country 

you may be removed to. It is very important that you tell the truth during the interview and that you respond to all of my questions. 

This may be your only opportunity to give such information. Please feel comfortable telling me why you fear harm. U.S. law has 

strict rules to prevent the disclosure of what you tell me today about the reasons why you fear harm. The information you tell me 

about the reasons for your fear will not be disclosed to your government, except in exceptional circumstances. The statements you 

make today may be used in deciding your claim and in any future immigration proceedings. It is important that we understand each 

other. If at any time I make a statement you do not understand, please stop me and tell me you do not understand so that I can

explain it to you. If at any time you tell me something I do not understand, I will ask you to explain.

SECTION II: BIOGRAPHIC INFORMATION

2.1 ________________________________________________________________________________________________ 

Last Name/ Family Name [ALL CAPS] 

2.2 _________________________________________ 2.3 _______________________________________________ 

First Name Middle Name 

2.4 ___ ___/___ ___/___ ___ 2.5 Gender Male Female 

Date of birth [MM/DD/YY] 

2.6 _________________________________________________________________________________________________ 

Other names and dates of birth used 

2.7 _________________________________________ 2.8 _______________________________________________ 

Country of birth Country (countries) of citizenship (list all) 

2.9 _________________________________________________________________________________________________ 

Address prior to coming to the U.S. (List Address, City/Town, Province, State, Department and Country). 

2.10 _______________________ 2.11 _____________________ 2.12 ________________________________________ 

Applicant’s race or ethnicity Applicant’s religion All languages spoken by applicant 

2.13 Marital status: Single Married Legally separated Divorced Widowed 

2.14 Did spouse arrive with applicant? Yes No 

2.15 Is spouse included in applicant's claim? Yes No 

2.16 If currently married (including common law marriage) list spouse’s name, citizenship, and present location (if with applicant, 

provide A-Number): 

__________________________________________________________________________________________ 

_________________________________________________________________________________________ 

2.17 Children: Yes No 

2.18 List any children (Use the continuation section to list any additional children): 

Date of birth 

(MM/DD/YY) 

Name Citizenship Present location (if w/PA, 

list A-Numbers) 

 

Did child 

arrive with 

PA? 

Is child 

included in 

PA’s claim? 

___________ _______________________ __________________ ____________________ Yes No Yes No 

___________ _______________________ __________________ ____________________ Yes No 

 

Yes No

___________ _______________________ __________________ ____________________ Yes No Yes No
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 87

Alien’s File Number:

 

Form I-870 (Rev. 11/21/03) N Page 3

___________ _______________________ __________________ ____________________ Yes No Yes No

___________ _______________________ __________________ ____________________ Yes No Yes No

___________ _______________________ __________________ ____________________ Yes No Yes No
88 U.S. Commission on International Religious Freedom

Alien’s File Number:

 

Form I-870 (Rev. 11/21/03) N Page 4

2.19 Does applicant claim to have a medical condition (physical or mental), or has the officer observed any indication(s) that a 

medical condition exists? If YES, answer questions 2.20 and 2.21 and explain below. Yes No 

__________________________________________________________________________________________ 

2.20 Has applicant notified the facility of medical condition? Yes No 

2.21 Does applicant claim that the medical condition relates to torture? Yes No 

2.22 Does the applicant have a relative, sponsor or other community ties, including spouse 

or child already listed above? 

 Yes No 

2.23 If YES, provide information on relative or sponsor (use continuation section, if necessary): 

_____________________________________________________ ________________________________ 

Name Relationship 

_____________________________________________________ ________________________________ 

Address Telephone Number 

Citizen Legal Permanent Resident Other 

SECTION III: CREDIBLE FEAR INTERVIEW 

The following notes are not a verbatim transcript of this interview. 

These notes are recorded to assist the individual officer in making a credible fear determination 

and the supervisory asylum officer in reviewing the determination. 

There may be areas of the individual’s claim that were not explored or documented for purposes of this threshold screening. 

The asylum officer must elicit sufficient information related to both credible fear of persecution and credible fear of torture to determine whether the 

applicant meets the threshold screening. Even if the asylum officer determines in the course of the interview that the applicant has a credible fear of 

persecution, the asylum officer must still elicit any additional information relevant to a fear of torture. Asylum officers are to ask the following 

questions and may use the continuation sheet if additional space is required. If the applicant replies YES to any question, the asylum officer must 

ask follow-up questions to elicit sufficient details about the claim in order to make a credible fear determination. 

3.1 a. Have you or any member of your family ever been mistreated or threatened by anyone in any country to which you may be returned?

Yes No _____________________________________________________________________________________ 

__________________________________________________________________________________________________ 

__________________________________________________________________________________________________ 

__________________________________________________________________________________________________ 

__________________________________________________________________________________________________ 

__________________________________________________________________________________________________ 

b. Do you have any reason to fear harm from anyone in any country to which you may be returned?

Yes No 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

c. If YES to questions a and/or b, was it or is it because of any of the following reasons? (Check each of the following boxes that apply). 

Race Religion Nationality Membership in a particular social group Political Opinion 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 89

Alien’s File Number:

 

Form I-870 (Rev. 11/21/03) N Page 5

3.2 At the conclusion of the interview, the asylum officer must read the following to applicant: 

If the Department of Homeland Security determines you have a credible fear of persecution or torture, your case will be 

referred to an immigration court, where you will be allowed to seek asylum or withholding of removal based on fear of 

persecution or withholding of removal under the Convention Against Torture. The Field Office Director in charge of this 

detention facility will also consider whether you may be released from detention while you are preparing for your hearing. 

If the asylum officer determines that you do not have a credible fear of persecution or torture, you may ask an 

Immigration Judge to review the decision. If you are found not to have a credible fear of persecution or torture and you 

do not request review, you may be removed from the United States as soon as travel arrangements can be made. Do you 

have any questions?

_________________________________________________________________________________________________ 

_________________________________________________________________________________________________ 

3.3 At the conclusion of the interview, the asylum officer must read a summary of the claim, consisting of the responses to Questions 

3.1 a-c and information recorded in the Additional Information/Continuation section, to applicant. 

****Typed Question and Answer (Q&A) interview notes and a summary and analysis of the claim must be attached to this form for all negative 

credible fear decisions. These Q&A notes must reflect that the applicant was asked to explain any inconsistencies or lack of detail on material issues 

and that the applicant was given every opportunity to establish a credible fear. 

SECTION IV: CREDIBLE FEAR FINDINGS

A. Credible Fear Determination: 

Credibility

4.1 There is a significant possibility that the assertions underlying the applicant’s claim could be found credible in a full asylum or 

withholding of removal hearing. 

4.2 Applicant found not credible because (check boxes 4.3-4.5, which apply): 

 4.3 Testimony was internally inconsistent on material issues. 

 4.4 Testimony lacked sufficient detail on material issues. 

 4.5 Testimony was not consistent with country conditions on material issues. 

 

Nexus 

4.6 Race 4.7 Religion 4.8 Nationality 4.9 Membership in a Particular Social Group 

 (Define the social group): _________________________________________________________________________ 

4.10 Political Opinion 4.11 Coercive Family Planning [CFP] 4.12 No Nexus 

 

Credible Fear Finding

4.13 Credible fear of persecution established. 

OR 

4.14 Credible fear of torture established. 

OR 

4.15 Credible fear of persecution NOT established and there is not a significant possibility that the applicant could establish eligibility for 

withholding of removal or deferral of removal under the Convention against Torture. 

B. Possible Bars: 

4.16 Applicant could be subject to a bar(s) to asylum or withholding of removal (check the box(es) that applies and explain on the 

continuation sheet): 

4.17 Particularly Serious Crime 4.18 Security Risk 4.19 Aggravated Felon 

4.20 Persecutor 4.21 Terrorist 4.22 Firmly Resettled 

4.23 Serious Non-Political Crime Outside the United States 

4.24 Applicant does not appear to be subject to a bar(s) to asylum or withholding of removal. 
90 U.S. Commission on International Religious Freedom

Alien’s File Number:

 

Form I-870 (Rev. 11/21/03) N Page 6

C. Identity: 

4.25 Applicant’s identity was determined with a reasonable degree of certainty (check the box(es) that applies): 

4.26 Applicant's own credible statements. (If testimony is credible overall, this will suffice to establish the applicant’s identity with a 

reasonable degree of certainty). 

4.27 Passport which appears to be authentic. 

4.28 Other evidence presented by applicant or in applicant’s file (List): _______________________________________________ 

 __________________________________________________________________________________________ 

4.29 Applicant’s identity was not determined with a reasonable degree of certainty. (Explain on the continuation sheet.) 

SECTION V: ASYLUM OFFICER / SUPERVISOR NAMES AND SIGNATURES 

5.1 ________________________________ 5.2 ____________________________ 5.3 ___ ___/___ ___/___ ___ 

Asylum officer name and ID CODE (print) Asylum officer’s signature Decision date 

5.4 ________________________________ 5.5 ____________________________ 5.6 ___ ___/___ ___/___ ___ 

Supervisory asylum officer name Supervisor’s signature Date supervisor approved 

decision 

ADDITIONAL INFORMATION/CONTINUATION 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 91

APPENDIX H 
92 U.S. Commission on International Religious Freedom

APPENDIX I 

SITE COMPARISON CHART OF USCIRF-VISITED ICE ADULT DETENTION FACILITIES

Detention 

Facility 

Name

Types of 

Detainees 

Security Procedures Freedom of 

Movement

Privacy Uniforms Services, 

Recreation and 

Programming 

Opportunities

Broward 

Transitional 

Center

non-citizen 

men and 

women 

w/out criminal 

convictions

entry to facility is locked; 

fixed guards outside of 

living areas; cameras 

and 24-hour lighting in 

common areas; random 

searches of living areas; 

headcounts every 8 hours

freedom of 

movement 

during lights-on 

hours; can 

access 

non-housing 

units during 

open hours; 

escorts required 

only to reach 

asylum offices

6 beds per room 

with private toilets and showers 

in rooms; detainees can be alone 

in room

men in 

orange; 

women in 

gray

recreation time 

during lights on; 

extended outdoor 

time; extended 

programmatic 

activities

Delany Hall 

Detention 

Facility

non-citizen 

men and 

women 

w/out criminal 

convictions

locked doors throughout 

facility; pat downs after 

visits and random after 

recreation; fixed guards 

outside of living areas; 

constant sight and surveillance of living areas; 

cameras and 24- hour 

lighting in common areas; 

random searches of living 

areas; headcounts 8 times 

a day

freedom of 

movement 

during lights-on 

hours; can 

access 

non-housing 

units during 

open hours; 

escorts required 

to reach cafeteria and visitation 

rooms

10 beds per 

room; toilets 

have half doors 

and showers are 

open in bathroom; detainees 

can be alone in 

room

maroon 

shirts and 

gray pants

recreation time 

during lights on; 

extended outdoor 

time; access to 

email

El Centro 

Service 

Processing 

Center1

non-citizen 

men and 

women 

w/out criminal 

convictions 

and criminal 

non-citizen 

men

locked doors throughout facility; pat downs 

after working and meals; 

fixed guards outside of 

living areas; constant 

sight and surveillance of 

living areas; cameras and 

24-hour lighting throughout facility; random 

searches of living areas; 

headcounts 4 times a day

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

large open 

dorm rooms 

with dozens of 

other detainees; toilets and 

showers are 

open; detainees 

cannot be alone 

in room

blue for 

low level 

detainees; 

orange for 

medium 

level 

detainees; 

red for 

high level 

detainees

1 hour outdoor/

recreation time; 

no programmatic 

activities offered

Eloy 

Detention 

Center

non-citizen 

men with and 

w/out criminal 

convictions

locked doors throughout 

facility; pat downs after 

rec and visitation; fixed 

guards outside of living 

areas; constant sight 

and surveillance of living 

areas; cameras and 24- 

hour lighting throughout 

facility; random searches 

of living areas; headcounts every 4 hours

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

pods with 2-men 

cells; toilets 

open in cell; 

shower rooms

green for 

level low 

detainees; tan 

for level 

medium 

detainees; 

blue for 

level high 

detainees

1 hour outdoor/

recreation 

time; extended 

programmatic 

activities offered
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 93

SITE COMPARISON CHART OF USCIRF-VISITED ICE ADULT DETENTION FACILITIES

Detention 

Facility 

Name

Types of 

Detainees 

Security Procedures Freedom of 

Movement

Privacy Uniforms Services, 

Recreation and 

Programming 

Opportunities

Florence 

Service 

Processing 

Center

non-citizen 

men w/out 

criminal 

convictions

locked doors throughout 

facility; pat downs after 

rec and visitation; fixed 

guards outside of living 

areas; constant sight 

and surveillance of living 

areas; cameras and 24- 

hour lighting throughout 

facility; random searches 

of living areas; headcounts every 4 hours

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

large open dorm 

rooms with 

dozens of other 

detainees; toilets and showers 

are open but in 

a separate room 

from the dorm; 

detainees can 

be alone in room

blue for 

low level 

detainees; 

orange for 

medium 

level 

detainees

extended outdoor 

time

Karnes 

County 

Civil 

Detention 

Center2

non-citizen 

men w/out 

criminal 

convictions

entry to facility is locked; 

fixed guards outside of 

living areas; cameras 

and 24-hour lighting in 

common areas; searches 

of living areas on if items 

missing; no headcounts 

but electronic check-in 5 

times a day

24/7 freedom 

of movement; 

detainees 

can access 

non-housing 

units freely; 

no escorts are 

required

8 beds per room 

with private toilets and showers 

in rooms; detainees can be alone 

in room

blue pants 

and gray 

shirts

24 hour outdoor/recreation 

time; extended 

programmatic 

activities; 100 

pre-approved 

Public Advocate 

internet sites

Krome 

Service 

Processing 

Center

criminal 

non-citizen 

men

locked doors throughout facility; pat downs 

after working and meals; 

fixed guards outside of 

living areas; constant 

sight and surveillance of 

living areas; cameras and 

24-hour lighting throughout facility; random 

searches of living areas

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

large open 

dorm rooms 

with dozens of 

other detainees; toilets and 

showers are 

open; detainees 

cannot be alone 

in room

blue for 

low level 

detainees; 

orange for 

medium 

level 

detainees; 

red for 

high level 

detainees

1 hour outdoor/

recreation time; 

no programmatic 

activities offered
94 U.S. Commission on International Religious Freedom

SITE COMPARISON CHART OF USCIRF-VISITED ICE ADULT DETENTION FACILITIES

Detention 

Facility 

Name

Types of 

Detainees 

Security Procedures Freedom of 

Movement

Privacy Uniforms Services, 

Recreation and 

Programming 

Opportunities

James A. 

Musick 

Facility

non-citizen 

men and 

women w/out 

criminal convictions and 

criminal men 

and women

locked doors throughout facility; random pat 

downs; fixed guards 

inside of living areas; 

constant sight and surveillance of living areas; 

cameras and 24- hour 

lighting throughout facility; random searches of 

living areas; headcounts 5 

times a day

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; male 

detainees can 

access outside 

recreation area 

during lights-on, 

but women 

only when 

female criminal 

prisoners are 

not outside; 

no escorts are 

required, but 

detainees’ 

movements are 

watched

large open 

dorm rooms 

with dozens of 

other detainees; 

doors on toilets 

but showers are 

open in bathroom; detainees 

cannot be alone 

in room

lime green 

uniforms

at least 4.5 hours 

recreation/outdoor 

time; no programmatic activities 

offered

Mira Loma 

Detention 

Center3

non-citizen 

men w/out 

criminal 

convictions 

and criminal 

non-citizen 

men

locked doors throughout facility; pat downs; 

fixed guards outside of 

living areas; constant 

sight and surveillance of 

living areas; cameras and 

24-hour lighting throughout facility; random 

searches of living areas; 

headcounts 5 times a day

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; no escorts 

are required if 

detainee has a 

pass, but detainees’ movements 

are watched

large open 

dorm rooms 

with dozens of 

other detainees; toilets and 

showers have 

doors; detainees 

cannot be alone 

in room

blue for 

low level 

detainees; 

orange for 

medium 

level 

detainees; 

red for 

high level 

detainees

1 hour outdoor/

recreation time in 

main yards but can 

access dorm yards 

during lights-on; 

extended 

programmatic 

activities

Otay 

Detention 

Facility

non-citizen 

men and 

women 

w/out criminal 

convictions 

and criminal 

non-citizen 

men

locked doors throughout 

facility; pat downs; fixed 

guards outside of living 

areas; constant sight 

and surveillance of living 

areas; cameras and 24- 

hour lighting throughout 

facility; random searches 

of living areas

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

large open 

dorm rooms 

with dozens of 

other detainees; toilets and 

showers are 

open; detainees 

cannot be alone 

in room

blue for 

low level 

detainees; 

orange for 

medium 

level 

detainees; 

red for 

high level 

detainees

1-1.5 hours outdoor/recreation 

time; no programmatic activities 

offered
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 95

SITE COMPARISON CHART OF USCIRF-VISITED ICE ADULT DETENTION FACILITIES

Detention 

Facility 

Name

Types of 

Detainees 

Security Procedures Freedom of 

Movement

Privacy Uniforms Services, 

Recreation and 

Programming 

Opportunities

Pinal 

County Jail

non-citizen 

men with and 

w/out criminal 

convictions

locked doors throughout facility; pat downs 

after working and meals; 

fixed guards outside of 

living areas; constant 

sight and surveillance of 

living areas; cameras and 

24-hour lighting throughout facility; random 

searches of living areas; 

headcounts 6 times a day

freedom of 

movement 

is restricted; 

detainees 

can access 

non-housing 

units only during 

scheduled 

times; escorts 

are required at 

all times

pods with 6-10 

men cells; toilets 

open in cell; 4 

open showers in 

shower rooms

Blue arm 

bands 

describe 

level of 

custody

can access dorm 

yards during 

lights-on; no 

programmatic 

activities offered

T. Don 

Hutto 

Residential 

Center

non-citizen 

women w/out 

criminal 

convictions

entry to facility is locked; 

fixed guard in housing 

unit; constant sight and 

surveillance in housing 

unit; 24-hour lighting; 

cameras in hallways 

and cafeteria; random 

searches of living areas; 

no headcounts but 

detainees check into 

dorm three times a day

freedom of 

movement 

during lights 

on hours; 

can access 

non-housing 

units during 

open hours; no 

escorts required 

for movement

2 beds per 

rooms; toilets in 

rooms behind 

privacy curtains; 

showers in 

common areas 

behind privacy 

curtains; detainees can be alone 

in rooms

no 

uniforms; 

detainees 

cannot 

wear 

revealing 

or tight 

clothing

recreation time 

during lights-on; 

extended outdoor 

time; extended 

programmatic 

activities; 30 minutes Internet daily

1 ICE closed El Centro Service Processing Center in 2014 2 ICE converted the Karnes County Civil Detention Center into the Karnes County Residential Center, to hold families, in 2014 3 ICE ended its contract with Mira Loma Detention Center in 2012
96 U.S. Commission on International Religious Freedom

APPENDIX J 
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 97
98 U.S. Commission on International Religious Freedom
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100 U.S. Commission on International Religious Freedom
Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 101
102 U.S. Commission on International Religious Freedom

Secretary

U.S. Department of Homeland Security

Washington, DC 20528

Homeland

Security

November 20, 2014

MEMORANDUM FOR: ThomasS. Winkowski

Acting Director

U.S. Immigration and Customs Enforcement

R. Gil Kerlikowske

Commissioner

U.S. Customs and Border Protection

Leon Rodriguez

Director

U.S. Citizenship and Immigration Services

Alan D. Bersin

Acting Assistant Secretary for Policy

FROM: Jeh Charles Johnson

Secretary

SUBJECT: Policies for the Apprehension, Detention and

Removal of Undocumented Immigrants

This memorandum reflects new policies for the apprehension, detention, and

removal of aliens in this country. This memorandum should be considered

Department-wide guidance, applicable to the activities of U.S. Immigration and Customs

Enforcement (ICE), U.S. Customs and Border Protection (CBP), and U.S. Citizenship

and Immigration Services (USCIS). This memorandum should inform enforcement and

removal activity, detention decisions, budget requests and execution, and strategic

planning.

In general, our enforcement and removal policies should continue to prioritize

threats to national security, public safety, and border security. The intent of this new

policy is to provide clearer and more effective guidance in the pursuit of those priorities.

To promote public confidence in our enforcement activities, I am also directing herein

greater transparency in the annual reporting of our removal statistics, to include data that

tracks the priorities outlined below.

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The Department of Homeland Security (DHS) and its immigration componentsCBP, ICE, and USCIS-are responsible for enforcing the nation's immigration laws.

Due to limited resources, DHS and its Components cannot respond to all immigration

violations or remove all persons illegally in the United States. As is true of virtually

every other law enforcement agency, DHS must exercise prosecutorial discretion in the

enforcement of the law. And, in the exercise of that discretion,DHS can and should 

develop smart enforcement priorities, and ensure that use of its limited resources is

devoted to the pursuit of those priorities. DHS's enforcement priorities are, have been,

and will continue to be national security, border security, and public safety. DHS

personnel are directed to prioritize the use of enforcement personnel , detention space, and

removal assets accordingly.

In the immigration context, prosecutorial discretion should apply not only to the

decision to issue, serve, file, or cancel a Notice to Appear, but also to a broad range of

other discretionary enforcement decisions, including deciding: whom to stop, question,

and arrest; whom to detain or release; whether to settle, dismiss, appeal, or join in a

motion on a case; and whether to grant deferred action, parole, or a stay of removal 

instead of pursuing removal in a case. While DHS may exercise prosecutorial discretion

at any stage of an enforcement proceeding, it is generally preferable to exercise such 

discretion as early in the case or proceeding as possible in order to preserve government 

resources that would otherwise be expended in pursuing enforcement and removal of

higher priority cases. Thus, DHS personnel are expected to exercise discretion and

pursue these priorities at all stages of the enforcement process-from the earliest

investigative stage to enforcing final orders of removal-subject to their chains of

command and to the particular responsibilities and authorities applicable to their specific

position.

Except as noted below, the following memoranda are hereby rescinded and 

superseded: John Morton, Civil Immigration Enforcement: Priorities for the 

Apprehension , Detention, and Removal of Aliens, March 2, 2011; John Morton, 

Exercising Prosecutorial Discretion Consistent with the Civil Enforcement Priorities of

the Agency for the Apprehension , Detention and Removal of Aliens, June 17, 20 11; Peter

Vincent, Case-by-Case Review of Incoming and Certain Pending Cases, November 17,

2011; Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal,

State, Local, and Tribal Criminal Justice Systems, December 21, 2012; National Fugitive

Operations Program: Priorities, Goals, and Expectations, December 8, 2009.

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A. Civil Immigration Enforcement Priorities

The following shall constitute the Department's civil immigration enforcement

priorities:

Priority 1 (threats to national security, border security, and public safety)

Aliens described in this priority represent the highest priority to which

enforcement resources should be directed:

(a) aliens engaged in or suspected of terrorism or espionage, or who

otherwise pose a danger to national security;

(b) aliens apprehended at the border or ports of entry while attempting to

unlawfully enter the United States;

(c) aliens convicted of an offense for which an element was active

participation in a criminal street gang, as defined in 18 U.S.C. § 52 l(a), or

aliens not younger than 16 years of age who intentionally participated in

an organized criminal gang to further the illegal activity of the gang;

(d) aliens convicted of an offense classified as a felony in the convicting 

jurisdiction, other than a state or local offense for which an essential 

element was the alien's immigration status; and

(e) aliens convicted of an "aggravated felony," as that term is defined in

section 101(a)(43) of the Immigration and Nationality Act at the time of

theconviction.

The removal of these aliens must be prioritized unless they qualify for asylum or

another form of relief under our laws, or unless, in the judgment of an ICE Field Office

Director, CBP Sector Chief or CBP Director of Field Operations, there are compelling 

and exceptional factors that clearly indicate the alien is not a threat to national security,

border security, or public safety and should not therefore be an enforcement priority.

Priority 2 (misdemeanants and new immigration violators)

Aliens described in this priority , who are also not described in Priority 1, represent

the second-highest priority for apprehension and removal. Resources should be dedicated

accordingly to the removal of the following:

(a) aliens convicted of three or more misdemeanor offenses, other than minor

traffic offenses or state or local offenses for which an essential element

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was the alien's immigration status, provided the offenses arise out of

three separate incidents;

(b) aliens convicted of a "significant misdemeanor," which for these purposes

is an offense of domestic violence ;

1

sexual abuse or exploitation;

burglary; un lawful possession or use of a firearm; drug distribution or 

trafficking; or driving under the influence; or if not an offense listed

above, one for which the individual was sentenced to time in custody of

90 days or more (the sentence must involve time to be served in custody,

and does not include a suspended sentence);

(c) aliens apprehended anywhere in the United States after unlawfully 

entering or re-entering the United States and who cannot establish to the

satisfaction of an immigration officer that they have been physically

present in the United States continuously since January 1, 2014; and

(d) aliens who, in the judgment of an ICE Field Office Director, USCIS

District Director, or USCIS Service Center Director, have significantly

abused the visa orvisa waiver programs.

These aliens should be removed unless they qualify for asylum or another form of

relief under our laws or, unless, in the judgment of an ICE Field Office Director, CBP

Sector Chief, CBP Director of Field Operations, USCIS District Director, or users

Service Center Director, there are factors indicating the alien is not a threat to national 

security, border security, or public safety, and should not therefore be an enforcement

priority.

Priority 3 (other immigration violations)

Priority 3 aliens are those who have been issued a final order of removal2 

on or

after January 1, 2014. Aliens described in this priority, who are not also described in

Priority 1 or 2, represent the third and lowest priority for apprehension and removal.

Resources should be dedicated accordingly to aliens in this priority. Priority 3 aliens

should generally be removed unless they qualify for asylum or another form of relief

under our laws or, unless, in the judgment of an immigration officer, the alien is not a

threat to the integrity of the immigration system or there are factors suggesting the alien

should not be an enforcement priority.

1 ln evaluating whether the offense is a significant misdemeanor involving ..domestic violence," careful

consideration should be given to whether the convicted alien was also the victim of domestic violence; if so, this

should be a mitigating factor. See generally, John Morton, Prosecutorial Discretion: Certain Victims, Witnesses,

and Plaintiffs,June 17,201 1. 2 For present purposes, "final order" is defined as it isin 8 C.F.R. § 124l.1.

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B. Apprehension, Deten tion, and Removal ofOther Aliens Unlawfully in

the United States

Nothing in this memorandum should be construed to prohibit or discourage the 

apprehension, detention, or removal of aliens unlawfully in the United States who are not

identified as priorities herein. However, resources should be dedicated, to the greatest

degree possible, to the removal of aliens described in the priorities set forth above, 

commensurate with the level of prioritization identified. Immigration officers and

attorneys may pursue removal of an alien not identified as a priority herein, provided, in

the judgment of an ICE Field Office Director, removing such an alien would serve an

important federal interest.

C. Detention

As a general rule, DHS detention resources should be used to support the

enforcement priorities noted above or for aliens subject to mandatory detention by

law. Absent extraordinary circumstances or the requirement of mandatory detention,

field office directors should not expend detention resources on aliens who are known

to be suffering from serious physical or mental illness, who are disabled, elderly,

pregnant, or nursing, who demonstrate that they are primary caretakers of children

or an infirm person, or whose detention is otherwise not in the public interest. To

detain aliens in those categories who are not subject to mandatory detention, DHS

officers or special agents must obtain approval from the ICE Field Office Director.

If an alien falls within the above categories and is subject to mandatory detention, 

field office directors are encouraged to contact their local Office of Chief Counsel 

for guidance.

D. Exercising Prosecutorial Discretion

Section A, above, requires DHS personnel to exercise discretion based on

individual circumstances. As noted above, aliens in Priority l must be prioritized for

removal unless they qualify for asylum or other form of relief under our laws, or unl ess,

in the judgment of an ICE Field Office Director, CBP Sector Chief, or CBP Director of

Field Operations, there are compelling and exceptional factors that clearly indicate the 

alien is not a threat to national security, border security, or public safety and should not

therefore be an enforcement priority. Likewise, aliens in Priority 2 should be removed 

unless they qualify for asylum or other forms of relief under our laws, or unless, in the

judgment of an ICE Field Office Director, CBP Sector Chief, CBP Director of Field

Operations, USCIS District Director, or USCIS Service Center Director, there are factors

indicating the alien is not a threat to national security, border security, or public safety

and should not therefore be an enforcement priority . Similarly, aliens in Priority 3 should

generally be removed unless they qualify for asylum or another form of relief under our 

laws or, unless, in the judgment of an immigration officer, the alien is not a threat to the

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Barriers To Protection | The Treatment Of Asylum Seekers In Expedited Removal 107

integrity of the immigration system or there are factors suggesting the alien should not be

an enforcement priority.

In making suchjudgment s, DHS personnel should consider factorssuch as:

extenuating circumstances involving the offense of conviction; extended length of time

since the offense of conviction; length of time in the United States; military service;

family or community ties in the United States;status as a victim, witness or plaintiff in

civil or criminal proceedings; or compelling humanitarian factors such as poor health,

age, pregnancy, a young child, or a seriously ill relative. These factors are not intended

to be dispositive nor is this list intended to be exhaustive. Decisions should be based on 

the totality of the circumstances.

E. Implementation

The revised guidance shall be effective on January 5, 2015. Implementing training

and guidance will be provided to the workforce prior to the effective date. The revised

guidance in this memorandum applies only to aliens encountered or apprehended on or

after the effective date, and aliens detained, in removal proceedings, or subject to removal

orders who have not been removed from the United States as of the effective date.

Nothing in this guidance is intended to modify USCIS Notice to Appear policies, which

remain in force and effect to the extent they are not inconsistent with this memorandum.

F. Data

By this memorandum I am directing the Office of Immigration Statistics to create

the capability to collect, maintain, and report to the Secretary data reflecting the numbers

of those apprehended, removed, returned, or otherwise repatriated by any component of

DHS and to report that data in accordance with the priorities set forth above. I direct

CBP, ICE, and USCIS to cooperate in this effort. I intend for this data to be part of the

package of data released by DHS to the public annually.

G. NoPrivate Right Statement

These guidelines and priorities are not intended to, do not, and may not be relied

upon to create any right or benefit, substantive or procedural, enforceable at law by any

party inany administrative, civil, or criminal matter.

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APPENDIX M
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APPENDIX N
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APPENDIX O
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APPENDIX P
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APPENDIX Q 
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APPENDIX R:

SITE COMPARISON CHART OF USCIRF-VISITED ICE | FAMILY DETENTION FACILITIES

Detention 

Facility

Name

Types of 

Detainees 

Security 

Procedures 

Freedom of 

Movement

Privacy Uniforms Services, 

Recreation and 

Programming 

Opportunities

Berks 

Family 

Shelter

non-citizen 

male- and 

femaleheaded 

families 

w/out 

criminal 

convictions

entry to facility is locked; 

cameras and 24- hour 

lighting in common 

areas; searches of living 

areas if items missing; no 

headcounts

24/7 freedom 

of movement; 

detainees 

can access 

non-housing 

units freely; 

no escorts are 

required

large rooms 

with changing 

numbers of 

other detainees 

depending on 

family sizes; toilets have doors 

and showers 

have curtains; 

detainees can 

be alone in room

no uniforms extended outdoor/

recreation time; 

no programmatic 

activities offered; 

field trips offered

Karnes 

County 

Residential 

Center

non-citizen 

femaleheaded 

families 

w/out 

criminal 

convictions

entry to facility is locked; 

cameras and 24- hour 

lighting in common areas; 

searches of living areas if 

items missing; 

24/7 freedom 

of movement 

during daylight 

hours; detainees can access 

non-housing 

units freely; 

no escorts are 

required

8 beds per 

room; private 

toilet and 

shower in room

no uniforms extended 

recreation and 

programmatic 

activities offered; 

limited internet; 

school classes 

and daycare for 

children

South 

Texas 

Family 

Residential 

Center

non-citizen 

femaleheaded 

families 

w/out 

criminal 

convictions

entry to facility is locked; 

cameras and 24- hour 

lighting in common areas; 

searches of living areas 

if items missing; 3 headcounts per day

Set schedules 

for meals, 

services, 

recreation and 

programming 

opportunities; 

24/7 freedom 

of movement 

within “neighbor-hoods” 

and no escort 

required for 

movement 

between the 

neighbor-hoods, 

as well as common buildings 

Up to 12 people 

or 2 families per 

“apart-ment” 

with bunks 

and dayrooms; 

curtains in room 

for privacy; separate areas with 

private showers 

and toilets

Color-coded 

street 

clothes 

to match 

residential 

“neighborhood” 

extended 

recreation and 

programmatic 

activities offered; 

limited internet; 

school classes 

and daycare for 

children
136 U.S. Commission on International Religious Freedom

UNITED STATES COMMISSION ON 

INTERNATIONAL RELIGIOUS FREEDOM

732 North Capitol Street, N.W., Suite A714

Washington, D.C. 20401

www.uscirf.gov

Telephone: (202) 523–3240, Fax: (202) 523–5020

email: media@uscirf.gov