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A US border patrol agent escorts men being detained after entering the United States by crossing the Rio Grande river from Mexico, in Roma, Texas, U.S., May 11, 2017. © 2017 Reuters

(San Francisco) – Human Rights Watch has filed suit against the US Department of Homeland Security for its failure to respond adequately to a Freedom of Information request about human rights abuses by border agents.

Though heavily redacted, the records Human Rights Watch has received thus far demonstrate that asylum officers within the US Citizenship and Immigration Services (USCIS) have repeatedly provided internal reports on Customs and Border Protection’s (CBP) problematic practices. The documents provide details about multiple cases of intimidation, verbal, and even physical abuse by CBP officers. One email from an asylum officer indicated that an asylum seeker was intimidated by CBP into withdrawing his case: “What is especially disturbing about this is that … the record indicates that he has been subjected to harassment, intimidation, and physical mistreatment by CBP upon his recent entry into the US, and [ ] this mistreatment. . . affected his decision to dissolve his case.”

“The Trump administration, and the Obama administration before it, have repeatedly run roughshod over asylum seekers’ rights at the border,” said Clara Long, senior US researcher at Human Rights Watch. “This lawsuit is simply seeking the government’s own records. Denying people in the United States the opportunity to seek asylum here is illegal under US and international law.”

Attorneys in Nixon Peabody’s San Francisco office are representing Human Rights Watch in this lawsuit.

The documents describe more than 100 individual instances of alleged CBP abuses and failures to adequately identify asylum seekers. They include instances recorded by asylum officers in which CBP officers are said to have refused to record an asylum seeker’s fear: “I told them I was very fearful and please not to be deported, they started laughing,” as well as instances in which CBP officers allegedly fabricated the response to a question that it never asked: “Q: when border protection asked you if you were afraid to go back to El Salvador, you said no; why did you say no? A: I did not say no, those questions were not asked from me.”

The lawsuit is based on a Human Rights Watch and American Immigration Council request for internal agency information produced by asylum officers working with Citizenship and Immigration Services who have repeatedly detailed failures by their partner agency – CBP – to follow US law and procedure when apprehending asylum seekers at the border. CBP and USCIS are both sub-agencies of the Department of Homeland Security.

US law requires that when an individual apprehended at the border or near a point of entry expresses a fear of returning to their country of origin, CBP must refer that individual to USCIS asylum officers for a “credible fear interview” – which determines whether the individual might qualify for asylum or other protection. The FOIA documents will add to a growing body of evidence of CBP misconduct.

“Providing a fair hearing to people fleeing persecution and refraining from abuse is not something CBP can choose to do when it feels like it – US law requires it,” Long said. “Human Rights Watch brought this suit because the public deserves to know when its own federal agencies are failing to follow the law, and especially to know about evidence collected by one federal agency on the misdeeds of another.”

We believe the undisclosed records will show not only that CBP has engaged in abusive and illegal actions, but that its parent agency – DHS – has known about these abuses for some time
Clara Long

senior US researcher
Human Rights Watch has received a small number of responsive records, but the lawsuit is necessary to compel the government to fully comply with federal law and turn over all responsive records. Among other reasons, the lawsuit alleges that the documents received so far are inadequate because they are over-redacted and because the original FOIA request sought documents from October 1, 2006 through December 13, 2016, but the government failed to provide any records dated between 2006 and 2012.

The records received so far detail reports made to USCIS supervisors, the Department of Homeland Security’s Office for Civil Rights and Civil Liberties (CRCL), and the Office of the Inspector General (OIG), by asylum officers of due process violations or misconduct by CBP, including records of internal communications by asylum officers and supervisors, as well as copies of complaints filed by asylum officers with CRCL regarding allegations of CBP abuse. These records and the others expected under the lawsuit indicate that not only is CBP violating asylum seekers’ rights – but that asylum offices across the country know that this is happening.

Human Rights Watch has previously reported on CBP’s failure to adequately identify and refer asylum seekers to USCIS. The report noted that though Customs and Border Patrol is the only agency with the responsibility to proactively inquire whether immigrants fear return, the majority of credible fear referrals do not come from its agents. In 2016, the US Commission on International Religious Freedom updated its 2005 report on the treatment of asylum seekers at the border, and found “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.”

In November 2014, a civil rights complaint was filed with the Office of Civil Rights and Civil Liberties raising concerns about CBP’s failure to properly screen asylum seekers by a group of organizations including the American Immigration Lawyers Association (AILA), the Center for Gender & Refugee Studies, Human Rights First, and the Lawyers’ Committee for Civil Rights.

“We believe the undisclosed records will show not only that CBP has engaged in abusive and illegal actions, but that its parent agency – DHS – has known about these abuses for some time,” Long said.

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