Earlier this month, Arizona Democratic Senator Kyrsten Sinema announced her support of a program along the U.S.-Mexico border that would fast-track the asylum screening process — allowing the Department of Homeland Security to deport migrant families within 15 days of their arrival.
But members of organizations that work directly with asylum-seekers who make it to the United States have serious concerns about the program’s efficacy — and believe it violates due process rights.
"Despite its ambitious name, Operation Safe Return risks sending asylum-seekers back to dangerous and even life-threatening situations," said Sean Piazza, spokesperson for the International Rescue Committee (IRC), a nonprofit that assists refugees and asylees in greater Phoenix.
Sinema, along with a bipartisan group of eight other senators, sent a letter on July 17 to acting DHS Secretary Kevin McAleenan outlining their plan, dubbed “Operation Safe Return.” The pilot program would "use existing law authorities to rapidly, accurately, and fairly determine and process credible fear claims,” the letter states. “This is the first bipartisan step in trying to address the current crisis at our southern border.”
Currently, credible-fear claims are evaluated by asylum officers working for U.S. Citizenship and Immigration Services (USCIS), who conduct individual interviews to determine if family members have a fear of returning to their home country. These interviews must be scheduled within 45 days after a family claiming asylum at a port of entry files an application, and the government must make a decision within 180 days after the application date. But due to the recent surge in asylum claims, there's a backlog — of some 320,000 pending asylum cases. A process that's meant to take a total of a few months can now take closer to two to five years.
As one of the main architects of the proposed program, Sinema says she originally got the idea for Operation Safe Return after a meeting with Trump administration officials who were focused on solving current problems by changing asylum laws and challenging court decisions like the Flores Settlement (which forbids long-term detention of children and family separation).
“I just felt those weren’t the right answers,” Sinema told the Arizona Republic on July 18. “We wanted to solve the problem. We wanted to protect the asylum process for valid applicants ... and we want to respect the Flores decision.”
But critics say Operation Safe Return creates new problems. Particularly troublesome to local asylum-seeker aid groups is the program's planned partnership with U.S. Border Patrol.
Under Safe Return, Border Patrol agents would conduct their own asylum interviews within three days of a family’s arrival at the border. Families who do not claim fear would be subject to immediate deportation; unless they're from Mexico, they're usually flown back to their home countries.
Families who do claim credible fear would then be passed to USCIS asylum officers, who will have nine days to conduct a second round of asylum interviews. Homeland Security and the Department of Justice will then have six days to review the claims. The result of this rapid-fire process? In just over two weeks, asylum-seeking families at the border who are deemed to lack credible fear of persecution would be gone. The senators argue that the plan would help with overcrowding at Border Patrol facilities, by using already-available law enforcement to expedite the asylum-seeking review process.
“Our clients frequently tell us that they are afraid of CBP officers. They’ve said officers have used insulting words to talk to them, thrown food at them, and they’ve reported physical and verbal abuse,” said Laura Belous, advocacy attorney at The Florence Immigrant and Refugee Rights Project, which provides legal services to adults and unaccompanied children in immigration custody in Arizona.
She stated that people with legitimate claims of fear might be "sent back to very unsafe situations, because they're afraid to disclose that to officers."
Qualifying for a credible fear claim means that family members are deemed to have a well-founded fear of persecution in their home countries on the basis of religion, nationality, or membership in a particular social group or political opinion. The interviews to determine these claims often require migrants to recount some of the most brutal memories of their lives, in detail, over the course of about an hour.
Under Safe Return, the initial Border Patrol interview is a prescreening — a first round of vetting before the traditional credible-fear screening conducted by asylum officials. If migrant families do not sufficiently disclose their claim of fear to Border Patrol agents, they're sent home before ever interacting with an asylum official.
“There’s a reason why asylum officers are given very specific training in working with vulnerable folks that have experienced trauma, or in interviewing unaccompanied children,” Belous said. “Because it does require a very specific knowledge and skill set.”
Belous also mentioned a second piece of concern: The new plan would only screen heads of household.
“We see very frequently that a child has a very different basis for asylum than a parent does,” Belous said. “For example, if that child is gay and hasn’t come out to his parent, or the parent knows but doesn’t want to disclose it to an officer, or if that child suffered abuse, those could be conditions for asylum. But unless you’re screening everyone, there is a high likelihood that you could miss children with very valid claims, and then send those children back to very unsafe situations.”
The IRC also condemned Operation Safe Return in a press statement, stating that it violated families’ due process rights.
“People fleeing persecution typically arrive in the U.S. exhausted after often harrowing journeys and are in need of time to recover and prepare their cases for asylum,” Piazza said. “Rather than experimenting with risky new procedures, the U.S. should strengthen the existing asylum process, including by sending more legal and medical experts trained in working with children and adults who have experienced trauma.”
Piazza said the proposal, which was also sent to President Trump’s office, is part of a larger siege on asylum-seekers.
“The Trump administration has systematically eliminated safe and legal pathways to protection for Central Americans facing persecution,” Piazza said. “As long as persecution and violence continues in the Northern Triangle, people will continue to undertake the dangerous journey to the U.S. in search of safety for themselves and their families. The U.S should be increasing its support to address these root causes of displacement.”
“The letter does not call on DHS to shortcut or limit due process,” a representative from Sinema's office told Phoenix New Times. “The letter focuses on existing authorities that fall within the law, rather than changes to the credible-fear process that could prove to be unlawful. We are focused on examining how the existing credible-fear process could be improved, not on changing standards.”
The responses to the plan come as a larger coalition of 65 immigrant-rights organizations, including the American Civil Liberties Union, addressed a letter last week to Sinema and the other authors of Operation Safe Return.
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“Operation Safe Return, contrary to the letter’s claim, cannot be implemented without serving as a fast-track system for implementation of the Trump Administration’s latest asylum ban, which plainly violates U.S. law and international treaty obligations by subjecting refugees with a well-founded fear of persecution to potential deportation merely because they sought asylum at the southern U.S. border,” it states. “Both the asylum ban and Operation Safe Return undermine the credible-fear interview process, and this program simply forces asylum officers to apply the new asylum ban on an accelerated and reckless basis. There is simply no way for this program to be applied without exposing asylum-seekers to an inhumane and illegal policy.”
Over 390,000 migrant families have been apprehended at the southwestern border so far this year, according to Customers and Border Protection data.
In addition to Kyrsten Sinema, two other Democrat senators signed the letter: Joe Manchin of West Virginia and Doug Jones of Alabama. The Republicans who signed were James Landford of Oklahoma, Ron Johnson of Wisconsin, Rob Portman of Ohio, John Barrasso and Mike Enzi of Wyoming, and John Cornyn of Texas.