Behind Biden’s asylum halt: Migrants must say if they fear deportation, not wait to be asked

TUCSON, Arizona — Posters in a complex of giant white tents tell migrants in English, Spanish, Mandarin and Hindi to tell an officer if they fear deportation and that “their claim will be heard.” On a side wall, where migrants sit in a processing room, a video plays the same message on a loop.

Breaking a practice in place since 1997, Border Patrol agents at the holding facility in Tucson, Arizona, and across the country no longer ask migrants if they fear deportation. President Joe Biden’s administration temporarily suspended asylum at the border on June 5, and as part of that move, officers are not asking about fears. Migrants are having to bring it up themselves.

Immigration advocates call it the “scream test” — suggesting that migrants shout out their fears — though agents are trained to respond to other signs of distress, such as crying, shaking or a change in voice tone, and to refer migrants for screening if the behavior appears genuine. Anyone who fails to pass screening can be immediately deported.

It is unclear to what extent the ‘shout test’ is responsible for a reduction in border arrests of more than 50% since the asylum was shut down, a welcome development for Biden as he faces Republican attacks that the border is getting out of hand.

Administration officials say it is an important change because migrants are more likely to say they fear deportation when asked.

Homeland Security Secretary Alejandro Mayorkas said there are strict guidelines for agents to identify migrants who show signs of distress. Posters at detention facilities explain the new procedures, and videos are being shown at larger facilities, such as Tucson.

“We are training, we are updating training, we are in constant dialogue with our personnel,” Mayorkas said in an interview. “We are adhering to our international and humanitarian obligations.”

If they pass the higher-level screening, migrants could remain in the U.S. to seek protections akin to asylum, such as those under the U.N. Convention Against Torture. Doing so, the administration argued, would comply with U.S. and international law that prohibits sending people to countries where they would face persecution or torture.

Immigration advocates say migrants who show signs of fear can easily be overlooked. The Center for Gender & Refugee studies, which has sued the administration About the asylum freeze, 51 of the 97 families it interviewed in 2020, when the “scream test” was briefly in effect during the COVID-19 pandemic, said they spoke to officers about fears of deportation and another 21 gave nonverbal cues, but none were screened.

Araceli Martinez, 32, told The Associated Press she was afraid to take her 14-year-old daughter home to a physically abusive husband, but no one at the Tucson facility asked her why she was there and she didn’t know she had to speak out until it was too late. She was deported to Nogales, Mexico, last month.

Another Mexican, Christian Gutierrez, said he told authorities he wanted to seek asylum during his three-day detention in San Diego, but that it was futile.

“They completely ignored me,” Gutierrez, 26, told the AP as he sat on a bench in Tijuana, Mexico, after he was deported. “They didn’t give me a chance.”

Those who see Biden’s policies as too soft downplay the “shout test” — and the asylum freeze in general — as too little, too late. Robert Law, director of homeland security and immigration at the America First Policy Institute, said the test may have a limited impact, but not for long.

“Ultimately, the word will spread to those who are coaching those who are trying to abuse the asylum system,” said Law, who worked on asylum as chief policy officer at U.S. Citizenship and Immigration Services during the administration of former President Donald Trump.

Even those who do get a screening interview face new hurdles. In addition to higher standards, they are given four hours to call a lawyer from a detention facility, compared to a previous 24-hour period to prepare.

Those without a lawyer are given a list of free legal services providers. The four-hour windows are from 7 a.m. to 7 p.m., including weekends, when many providers don’t answer the phone. Even on weekdays, they can be overwhelmed.

On a Saturday morning after the shelter was shut down, a woman’s voicemail began quietly with her name, date of birth, email address, booking number, and date of arrest for illegally crossing the border with her 6-year-old daughter. After a 20-second pause, she began to cry: “Why? Why? Why? My God, please.” A guard asked if she was done, and she said yes.

RAICES, a group that provides free legal advice to migrants in Texas who obtained the voicemail, found the woman in custody days later after she failed the screening, but she was awaiting an appeal. An immigration judge reversed the decision, saying she should have been interviewed in her native language, not Spanish, and that her fears were justified. She was released to pursue her case in severely overcrowded immigration courts.

A 22-year-old Guatemalan woman with a year-old son told her attorney she didn’t understand the video asking migrants to express their fear of deportation and that it left her feeling confused and scared. She said she contacted RAICES when Border Patrol gave her a list of attorneys after she failed the screening.

The woman told the lawyer in a recorded phone call that she had fled to the US to work and escape “those cartels”. She fought back tears and said her son had barely eaten in days.

“He wants to walk, he wants to go outside and play games, but they won’t let him,” the woman said. An immigration judge denied her appeal, and she and her son were deported.

RAICES said it has been able to respond to 74 of the 1,215 calls it has received from people in Border Patrol custody since the agency suspended shelters on June 5. The organization provided recordings of its clients to the AP on the condition that their names and other identifying information not be published due to safety concerns.

In Tijuana, the Immigrant Defenders Law Center, which offers free legal advice to migrants detained in San Diego, is spreading the word about the changes. Executive Director Melissa Shepard said callers seeking help often have only an hour to prepare for their interviews.

“You’re the one who has to say I’m scared,” Shepard said last month at a migrant shelter. The audience seemed to listen attentively but asked no questions.