Southwest Border: DHS and DOJ Have Implemented Expedited Credible Fear Screening Pilot Programs, but Should Ensure Timely Data Entry
Fast Facts
Noncitizens apprehended by DHS may be removed from the U.S. without an immigration hearing unless they express 1) an intent to apply for asylum, or 2) a fear of persecution or torture. DHS determines whether such "fear claims" are credible; those with positive determinations have immigration hearings. DHS and the Justice Department piloted programs from Oct. 2019 to Mar. 2020 to process these claims faster.
DHS processed 5,290 people under the pilots; most claims were denied. But the agencies couldn't account for the status of immigration hearings for 630 of about 1,210 people with positive determinations. We recommended better case tracking.
69% of "fear claims" from October 2019 through March 2020 were denied (as of August 11, 2020)
Highlights
What GAO Found
From October 2019 to March 2020, the Department of Homeland Security (DHS), in coordination with the Department of Justice's (DOJ) Executive Office for Immigration Review (EOIR), implemented expedited fear screening pilot programs. Under the Prompt Asylum Claim Review (for non-Mexican nationals) and Humanitarian Asylum Review Process (for Mexican nationals), DHS sought to complete the fear screening process for certain individuals within 5 to 7 days of their apprehension. To help expedite the process, these individuals remained in U.S. Customs and Border Protection (CBP) custody during the pendency of their screenings rather than being transferred to U.S. Immigration and Customs Enforcement (ICE). From October through December 2019, DHS implemented the programs in the El Paso, Texas, sector and expanded them to nearly all other southwest border sectors before pausing them in March 2020 due to COVID-19.
DHS data indicate that CBP identified approximately 5,290 individuals who were eligible for screening under the pilot programs. About 20 percent of individuals were in CBP custody for 7 or fewer days; CBP held about 86 percent of individuals for 20 or fewer days. Various factors affect time in CBP custody such as ICE's ability to coordinate removal flights. U.S. Citizenship and Immigration Services (USCIS) data indicate that the majority of individuals (about 3,620) received negative fear determinations from asylum officers (see figure). About 1,220 individuals received positive credible fear determinations placing them into full removal proceedings where they may apply for various forms of protection such as asylum. However, as of October 2020, DHS and EOIR could not account for the status of such proceedings for about 630 of these individuals because EOIR's data system does not indicate that a Notice to Appear—a document indicating someone was placed into full removal proceedings before an immigration judge—has been filed and entered into the system, as required. Specifically, DHS and EOIR officials could not determine whether DHS components had filed the notices for these cases with EOIR, nor could they determine if EOIR staff had received but not yet entered some notices into EOIR's data system, per EOIR policy. Ensuring that DHS components file Notices to Appear with EOIR and that EOIR staff enter them into EOIR's data system in a timely manner, as required, would help ensure that removal proceedings move forward for these individuals.
Outcomes of Screenings Under Expedited Fear Screening Pilot Programs, October 2019 through March 2020 (as of August 11, 2020)
Note: Percentages do not total 100 due to rounding.
Why GAO Did This Study
Individuals apprehended by DHS and placed into expedited removal proceedings are to be removed from the U.S. without a hearing in immigration court unless they indicate a fear of persecution or torture, a fear of return to their country, or express an intent to apply for asylum. Asylum officers conduct such “fear screenings,” and EOIR immigration judges may review negative USCIS determinations. In October 2019, DHS and DOJ initiated two pilot programs to further expedite fear screenings for certain apprehended noncitizens.
GAO was asked to review DHS's and DOJ's management of these pilot programs. This report examines (1) actions DHS and EOIR took to implement and expand the programs along the southwest border, and (2) what the agencies' data indicate about the outcomes of individuals' screenings and any gaps in such data. GAO analyzed CBP, USCIS, EOIR, and ICE data on all individuals processed under the programs from October 2019 to March 2020; interviewed relevant headquarters and field officials; and visited El Paso, Texas—the first pilot location.
Recommendations
GAO is making two recommendations, including that DHS ensure components file Notices to Appear with EOIR for all those who received positive determinations under the programs, and that EOIR ensure staff enter all such notices in a timely manner, as required, into EOIR's case management system. DHS concurred and DOJ did not concur. GAO continues to believe the recommendation is warranted.
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Department of Homeland Security | The Secretary of Homeland Security, in consultation with the Director of EOIR, should ensure that DHS components have filed Notices to Appear with EOIR for all individuals who received positive determinations under the expedited fear screening programs, as required. (Recommendation 1) |
Closed – Implemented
In October 2019, the Departments of Homeland Security (DHS) and Justice (DOJ) initiated two pilot programs to expedite credible fear screenings for certain apprehended noncitizens. We found that approximately 5,290 individuals were eligible for screening under the pilot programs from October 2019 to March 2020. Of those, we found that about 1,220 individuals received positive credible fear determinations from DHS's U.S. Citizenship and Immigration Services (USCIS), placing them into full removal proceedings where they can apply for various forms of protection such as asylum. However, as of October 2020, we found that DHS and DOJ's Executive Office for Immigration Review (EOIR) could not account for the status of such proceedings for about 630 of these individuals. Specifically, we found that EOIR's data system did not indicate that DHS had filed a Notice to Appear with EOIR-a document indicating someone was placed into full removal proceedings before an immigration judge-and that EOIR had entered receipt of such notices in its system, as required. Therefore, we recommended that DHS, in consultation with EOIR, ensure that DHS components filed Notices to Appear with EOIR for all individuals who received positive determinations under the expedited fear screening programs, as required. According to USCIS documentation, as of April 2021, all Asylum Offices confirmed that they filed the notices with EOIR, as appropriate. In addition, as of February 2023, documentation from DHS's U.S. Immigration and Customs Enforcement (ICE) indicates that ICE identified the remaining cases and filed Notices to Appear with EOIR, as appropriate. Ensuring that DHS components file Notices to Appear with EOIR, as required, should help ensure that removal proceedings move forward for these individuals.
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| Executive Office for Immigration Review | The Director of EOIR should ensure immigration court staff have entered into EOIR's case management system all Notices to Appear received from DHS, in a timely manner, as required, for individuals who received positive determinations under the expedited fear screening programs. (Recommendation 2) |
Closed – Implemented
In October 2019, the Departments of Homeland Security (DHS) and Justice (DOJ) initiated two pilot programs to expedite credible fear screenings for certain apprehended noncitizens. We found that approximately 5,290 individuals were eligible for screening under the pilot programs from October 2019 to March 2020. Of those, we found that about 1,220 individuals received positive credible fear determinations from DHS's U.S. Citizenship and Immigration Services (USCIS), placing them into full removal proceedings where they can apply for various forms of protection such as asylum. However, as of October 2020, we found that DHS and DOJ's Executive Office for Immigration Review (EOIR) could not account for the status of such proceedings for about 630 of these individuals. Specifically, we found that EOIR's data system did not indicate that DHS had filed a Notice to Appear with EOIR--a document indicating someone was placed into full removal proceedings before an immigration judge-and that EOIR had entered receipt of such notices in its system, as required. Therefore, we recommended that EOIR ensure immigration court staff have entered into EOIR's case management system all Notices to Appear received from DHS, in a timely manner, as required, for individuals who received positive determinations under the expedited fear screening programs. In its comments on a draft of our report, EOIR stated that it confirmed with the relevant immigration courts in July and October 2020 that all Notices to Appear received from DHS for those in the expedited asylum screening pilot programs had been entered into the system. However, EOIR provided no documentation of its communication with the relevant immigration courts in July or October 2020. Following our report, USCIS provided us with documentation as of April 2021 confirming that all Asylum Offices had filed the notices with EOIR, as appropriate. In addition, as of February 2023, documentation from DHS's U.S. Immigration and Customs Enforcement (ICE) indicates that ICE identified the remaining cases and filed Notices to Appear with EOIR, as appropriate.
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