CBP Banned from Making ‘Credible Fear’ Determinations

Senior U.S. District Judge Richard Leon of the U.S. District Court for the District of Columbia recently granted an injunction preventing U.S. Customs and Border Protection (CBP) officers from making asylum determinations based on “credible fear interviews.”

The plaintiffs in the case are four mothers and their seven children from Honduras, Ecuador, and Mexico who seek asylum in the United States based on fears of kidnapping, rape, torture, and murder by individuals connected to politicians or drug cartels in their home countries.

CBP has the authority to make “credible fear” determinations about asylum seekers who are trying to enter the US. CBP decides if the threat is dangerous enough to warrant asylum, and the decision is then finalized. In this case, immigration judges initially upheld the decision made by border patrol agents that asylum would not be granted. Thus, plaintiffs faced immediate removal by the U.S. and would be sent back to their respective countries. They then sought a temporary restraining order barring them from removal. A temporary injunctive relief then barred them from being subject to more “credible fear” interviews by CBP agents.

The plaintiffs made a number of claims as to why their case had merit, but Honorable Judge Leon ruled that only one needed to be addressed- whether or not CBP officers had the appropriate trainings for conducting these interviews. Judge Leon found that CBP officers who conducted these credible fear interviews received less training than Citizenship and Immigration Services (CIS) asylum officers, and this lack of training ultimately violates the Immigration and Nationality Act.

In an opinion memorandum, Judge Leon wrote, “Plaintiffs have shown a likelihood of success on the merits of their claim that using CBP agents to conduct asylum interviews violates the Immigration and Nationality Act, which requires asylum officers to receive certain levels of training and conduct interviews in a non-adversarial manner.”

Essentially, the court ruled that CBP officers do not receive sufficient training to conduct asylum interviews and thus do not qualify to serve as asylum offers. Usually, CIS asylum officers conduct such interviews but due to a lack of funding and a growing backlog, this responsibility was delegated to CBP agents in a White House Memorandum last year.