Herrera and Gonzalez hold hands in their yard on Aug. 23, 2021. The couple, along with their three children, fled Mexico and are seeking asylum in the U.S. But their case has dragged on for six years in immigration court. (Beth LaBerge/KQED)
In 2015 a man named Herrera fled to the U.S. with his family after he says he became the target of political violence in his hometown in central Mexico. When they reached the San Francisco Bay Area, he applied for asylum. But security still feels elusive: His case in immigration court has dragged on for six years, and it involves grueling cross-examinations that he says rekindle the terror he experienced.
"I didn’t want to remember the kidnapping or anything else because it’s really ugly," said Herrera, now 50 and a construction worker in San José. "But I have to keep opening up the trunk and pulling out those memories."
He says a ruthless mob attacked his home one night, bashing in doors and windows, and kidnapped him for days over his involvement with a rival political campaign. When authorities told him they couldn’t protect him or his wife and three kids, he said he knew he had to get them to safety. Herrera spoke to KQED on the condition that he only be identified by one of his last names, because of fear that divulging his identity could hurt his asylum case.
With a growing number of asylum seekers at the U.S.-Mexico border, and U.S. immigration courts mired in an epic backlog of nearly 1.4 million cases, the Biden administration has proposed a fundamental change in the way asylum cases are decided. The plan, announced last week, aims to speed up the process and reduce pressure on the courts. It could also make the experience more humane for migrants fleeing persecution, like Herrera.
The trauma is hard to shake
Three hours into his last hearing, Herrera broke down sobbing on the witness stand, recalled his pro bono lawyer, Abby Sullivan Engen, a supervising immigration attorney with Oakland-based Centro Legal de la Raza. She said she asked the judge for a break but was denied.
"[The judge] instead helped him to focus on his breathing and asked that he keep recounting his traumatic story," said Sullivan Engen, who found the experience disturbing. "The prosecutor's sight remained fixed on her computer and desk, never once looking at this man crying profusely on the witness stand."
Just recounting the hostile questioning he experienced in immigration court, and his inability to satisfy the Immigration and Customs Enforcement prosecutor with every detail of the violence he suffered, was agitating for Herrera. In the middle of an interview with KQED over Zoom, he stopped suddenly, wiped his face and walked away, eventually returning with a bottle of cold water to drink.
Herrera’s wife — whom KQED agreed to refer to only by her last name, Gonzalez, so as not to jeopardize the case — remained on the living room couch.
"He’s still really traumatized," she said. "We’ve been through a lot, and each time we have to present it in court, it’s like living through it all over again."
Gonzalez said what’s hardest to see is the anxiety her children suffer each time their parents prepare to go to court. She said they’re still haunted by memories of watching the angry mob kidnap their father and threaten to burn them alive in their house.
"Our children ask, ‘Mami, what’s going to happen if we have to go back there? Are we going to have to go live there again?'" she said.
Different systems for different asylum seekers
Herrera was one of almost 64,000 people who applied for asylum in 2015 after reaching the U.S.-Mexico border. In 2020, the number was close to 200,000. And all of those cases must go through the immigration court system, where overstretched judges are often rushed and hearings are routinely delayed for months or years.
But not every asylum seeker goes through immigration court — only people who seek refuge at the time they are entering the country. The process is different for those who request protection after they’re already in the U.S. — on a student visa or as a tourist, for example. Those applicants are interviewed in an office setting by an asylum officer employed by U.S. Citizenship and Immigration Services.
The proposed rule by the Department of Justice, which oversees the immigration courts, and the Department of Homeland Security, where U.S.C.I.S. is located, was published Aug. 20 in the Federal Register. It would send everyone who claims asylum at the border to the U.S.C.I.S. asylum office as well. One primary objective: Officials say adjudications would move faster than in immigration court, allowing cases to be decided in months, rather than years.
"Individuals who are eligible will receive relief more swiftly, while those who are not eligible will be expeditiously removed," said Homeland Security Secretary Alejandro Mayorkas in a statement. "We are building an immigration system that is designed to ensure due process, respect human dignity, and promote equity."
The plan would help restore credibility to an immigration system that’s "pretty badly broken," says Doris Meissner, a senior fellow at the Migration Policy Institute in Washington, D.C., who has advocated for such a reform for several years.
"The Biden administration’s new rule represents a fundamental retooling of the asylum system that preserves asylum as a bedrock element of the U.S. immigration system while also recognizing that a secure border and deterring unlawful crossings are legitimate and necessary attributes of an effective, credible immigration system," Meissner wrote in a recent commentary.
All asylum seekers must prove they meet the legal definition of a refugee: that they have suffered persecution, or fear that they will suffer persecution, in their home country due to their race, religion, nationality, political opinion or membership in a particular social group.
Having your case heard by a U.S.C.I.S. asylum officer doesn’t mean you’re more likely to be granted asylum, though. The annual approval rate from 2012 to 2020 in immigration court ranged from 26% to 53%. At U.S.C.I.S., it ranged from 27% to 48%.
But asylum officers have more specialized training on asylum law and country conditions around the world, according to Meissner. And supervision in the U.S.C.I.S. asylum division leads to greater consistency in asylum decisions compared to immigration courts, where the approval rates of individual judges can vary from 0.9% of all cases to 96.7%, she said.
The proposed rule would only affect future cases, not those currently in immigration court. But Sullivan Engen says if Herrera could have made his case to an asylum officer, rather than before a judge and a prosecutor, it would have been much less harrowing for him.
"I won't say that it's completely non-adversarial because sometimes the officers do ask questions in a manner that’s a little bit more like a prosecutor. But as a general rule, the asylum officer’s task is to elicit the story," she said. "The applicant doesn’t feel like they’re being grilled in the same way. A lot of the officers have training in trauma-informed approaches to interviewing ... It's just night and day."
Diego Aranda-Teixeira is a supervising attorney with Al Otro Lado, a cross-border legal services agency with offices in San Diego, Los Angeles and Tijuana. He says another important aspect of the Biden plan is that it would also allow the government to release some asylum seekers who’d otherwise be locked up while their cases proceed. The rule doesn’t require releasing detainees, but it gives officials leeway to decide that "detention is unavailable or impracticable."
"People are actively harmed by detention," said Aranda-Teixeira. "It's bad for their mental health and really bad for their immigration case, because if you're new to the country and you're detained, who are you going to call? There are no public defenders for immigration ... When people get released, that really improves the chances they will get some kind of help."
Questions of due process
But not all immigrant advocates are convinced the new system would be an improvement.
Dulce Garcia, a San Diego immigration attorney and executive director of the advocacy group Border Angels, has seen the work of U.S.C.I.S. asylum officers up close when they perform another of their functions: conducting initial screenings, called "credible fear interviews," of people who ask for asylum at the border. She said she often finds problems with those screenings, and that makes her skeptical about expanding the role of asylum officers further.
"We've seen on the ground, those of us that work at the border, when you give so much power to someone in an arbitrary system, things usually go wrong and they don't favor migrants," she said. "If we're going to rework the system, I think there are better ways to do so."
Garcia said she would rather see a broader overhaul to make the immigration courts independent of the Department of Justice and to build in greater due process protections. That’s a plan that has been endorsed by the American Bar Association and others, but would require Congress to act.
Human Rights First, a U.S.-based international human rights nonprofit, has also raised concerns. The group said it welcomed the proposal to allow asylum seekers to present their claims in the "less traumatizing, non-adversarial setting" of the U.S.C.I.S. asylum office. However, it criticized the government’s plan to continue to subject unauthorized migrants at the border to a fast-track deportation process known as "expedited removal," unless they pass their initial asylum screening.
"The proposed rule could be used and abused to rush asylum seekers through adjudications without sufficient time to secure legal representation, gather evidence or prepare their cases, leading U.S. agencies to return to persecution people who actually do qualify for asylum," said Eleanor Acer, the group’s senior director for refugee protection, in a statement.
A provision that allows people to request an administrative review — but not a full appeal in immigration court — if their claim is denied by U.S.C.I.S. also raised a red flag.
"The proposal’s restriction on access to immigration court hearings ... could limit their ability to present crucial evidence," Acer said.
Criticism also came from groups that favor further restrictions on immigration. The Center for Immigration Studies in Washington, D.C., argued that the proposed rule would give asylum seekers too much of a right to appeal and found fault with the rule for expanding discretion to release asylum seekers from detention.
Members of the public have until Oct. 19 to submit comments on the proposed rule.
New funding for asylum officers needed
If the new plan goes into effect, the job of the nation’s nearly 800 asylum officers would expand by perhaps 150,000 claims per year, according to U.S.C.I.S. The agency currently has 350,000 pending cases, and the only way to actually speed up asylum adjudications under the new system would be to hire more staff. U.S.C.I.S. has announced plans to add 1,000 more asylum officers and 1,000 support staff to meet the workload. But that will depend on new funding, something Biden has requested of Congress.
U.S.C.I.S. asylum offices are located in San Francisco, Los Angeles and nine other major cities. Asylum officers also travel to perform interviews at additional U.S.C.I.S. field offices around the country.
As the Biden proposal makes its way through the federal rulemaking process, those currently seeking asylum through the overtaxed immigration courts must continue to wait. For Herrera, the six long years have been hard to bear.
"It’s difficult," he said. "For me personally, I wish that whatever’s going to happen, would just happen."