Biden administration guaranteed attorney access for all migrant screenings. Most don’t have it

As the Biden administration prepared to launch speedy asylum screenings at Border Patrol holding facilities this spring, authorities pledged a key difference from a Trump-era version of the policy: Migrants would be guaranteed access to legal counsel.

Nearly three months and thousands of screenings later, the promise of attorney access appears largely unfulfilled, based on advocacy group reports and interviews with people directly involved, some of whom spoke to The Associated Press on condition of anonymity because they were not authorized to discuss the effort publicly.

A coterie of involved attorneys estimates that perhaps 100 migrants have secured formal representation, and only hundreds more have received informal advice through one-time phone calls ahead of the expedited screenings.

Jones Day, one of the world’s largest law firms, has partnered with the administration to provide free legal advice to migrants. Its phone bank handled 460 informal phone consultations, each one typically lasting about two hours, as of June 21, according to one of the people who spoke to AP on condition of anonymity. Jones Day itself had only two formal clients, the person said.

Four other advocacy groups that offer free advice and whose names are posted on the immigration court system’s website have handled far fewer phone consultations, partly because they started much later, the person said. Representatives from those four groups declined to comment or did not respond to requests from the AP.

That represents a mere fraction of the thousands of expedited screenings since early April, though a precise percentage couldn't be determined. U.S. Citizenship and Immigration Services, whose asylum officers conduct the interviews, didn't answer questions about attorney representation.

U.S. authorities aim to complete screenings in 72 hours — the limit on holding someone under Border Patrol policy. The Homeland Security Department said the accelerated timeline is meant “to provide relief more quickly to those who are eligible and to more quickly remove those who are not.” AP has repeatedly requested to visit a screening facility to better understand the process.

During the screenings, known as “credible fear interviews,” migrants must convince an asylum officer that they have a “significant possibility” of convincing a judge that they face persecution in their home countries on grounds of race, religion, nationality, political opinion or membership in a social group. If they pass, they are typically released in the U.S. while their case winds through the system.

The percentage of people who passed asylum screenings fell to 52% during the second half of May as the fast-track process picked up, down from 77% in the second half of March, just before it began.

The government figures give no explanation and do not say how many expedited screenings occurred in Border Patrol custody without access to legal counsel. Administration officials have attributed lower approval rates in part to a new policy that severely limits asylum for people who travel through another country, like Mexico, to reach the U.S. border.

A lawsuit filed last month in federal court in Washington seeks to end the screenings in Border Patrol custody, noting that applicants get as little as 24 hours to find attorneys after often-harrowing journeys. The lawsuit contends that “leaves virtually no time or ability for noncitizens to consult with anyone or meaningfully prepare for these often life-or-death interviews.

Even migrants who pass are reluctant to discuss their experiences as they continue pursuing asylum cases. U.S. Sen. Alex Padilla, a California Democrat, said in a statement that reports of lacking attorney access at Border Patrol facilities are “troubling and disappointing.”

The administration won't say how many of the screenings it has done at Border Patrol facilities, which prohibit in-person attorney visits, though it is easily thousands. The Homeland Security Department said on June 5 that asylum officers did more than 11,500 screenings on the border in the first three weeks after pandemic-related asylum restrictions ended, though some may have been at U.S. Immigration and Customs Enforcement centers, which do allow attorney visits.

Normally, about three in four migrants pass credible fear interviews, though far fewer eventually win asylum. But the results roughly flipped during the five months of the Trump-era program of expedited screenings: Only 23% passed, while 69% failed and 9% withdrew, according to the Government Accountability Office.

Biden ended Trump's fast-track reviews within a month of Democrats occupying the White House, part of an executive order aimed at “restoring and enhancing asylum processing at the border.” Renewed screenings began in Texas' Rio Grande Valley and expanded the following week to similarly sprawling tent complexes in Laredo and El Paso in Texas; Yuma, Arizona; and San Diego — all temporary Border Patrol detention centers built since 2021 with hundreds of phone booths for interviews.

For about three weeks in April, Jones Day attorneys were able to prepare all migrants who sought informal legal advice by phone but were soon overwhelmed, according to one person with direct knowledge of the effort.

Some legal service providers wrestled with whether to participate in the “Enhanced Expedited Removal” program as the screening process is called. They don't get paid and some worried it might imply approval and lend legitimacy.

Americans for Immigrant Justice joined the Jones Day-led effort because the interviews carry “life-and-death" stakes, said Cindy Woods, national policy counsel.

“It’s a difficult situation to be in, especially because the way that this new iteration has been laid out,” she said.

Calls that come in at night or on weekends are missed, and attorneys say they have no reliable way to respond to messages.

Obtaining formal representation for the screening may require a signature, which requires assistance from agents who may be unavailable. One of Woods' clients was on the phone for five hours while waiting for an agent to print a consent form and fax it back to the attorney with the migrant's signature.

The National Immigrant Justice Center, which takes clients through the Jones Day-led phone bank, said in a report that only six of 23 clients had access to pen and paper to take notes.

Jones Day attorneys occupied the highest ranks of the Trump administration, including White House counsel Don McGahn. Despite ties to the former president, who called asylum “a sham,” the firm built a robust practice representing asylum-seekers for free known as the “Border Project,” operating from an office it opened in 2017 on the banks of the Rio Grande in Laredo.

Jones Day says it has provided legal education to more than 10,000 migrants. More than 1,100 lawyers have spent more than 280,000 hours on their cases — an unrivaled investment among major firms.

The firm has declined to comment publicly on its role in providing legal advice for the expedited screenings.