American Immigration Council v. U.S. Customs and Border Protection et. al.

American Immigration Council v. U.S. Customs and Border Protection et. al., No. 1:19-cv-02965 (D.D.C filed Oct. 2, 2019)

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of e

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about the government’s troubling new practice of employing U.S. Custom and Border Protection (CBP) officers to screen asylum seekers. The suit, filed on October 2, 2019, on behalf of the American Immigration Council and Tahirih Justice Center, challenges the government’s failure to respond to multiple FOIA requests for records relating to the U.S. Department of Homeland Security’s (DHS) decision to train and utilize CBP officers to conduct asylum screenings known as credible fear interviews (CFIs).

Congress intended that CFIs serve as a safeguard from summary removal. If a person seeking asylum passes this initial screening, they must be given the opportunity to file an asylum claim before an immigration judge. As threshold screenings, these interviews are not intended to be adversarial, but rather function to provide the person seeking asylum an opportunity to recount details of their feared persecution in their country of origin. People seeking asylum often describe instances of physical and sexual violence and other trauma to explain why they seek protection in the United States during a CFI. For decades, these interviews have been conducted by a corps of asylum officers employed by U.S. Citizenship and Immigration Services (USCIS) trained specifically to adjudicate asylum claims, including the handling of sensitive matters.

According to reports, DHS has begun to replace trained USCIS asylum officer with officers from CBP—a law enforcement agency with a history of abuse of and misconduct towards people seeking asylum—in the credible fear screening process. Despite the significance of this change, there are no publicly available records documenting this shift in functions.

In response to this lawsuit, CBP produced a single document. DHS has produced hundreds of pages of entirely redacted records. USCIS produced thousands of pages, largely consisting of training materials. On June 18, 2021, Plaintiffs filed a brief outlining for the court why Defendants improperly withheld records under FOIA exemptions and why Defendant CBP failed to conduct an adequate search. Plaintiffs requested that the court order Defendants to produce the disputed records and order CBP to conduct an adequate search.

On March 11, 2022, the court partially granted and partially denied motions for summary judgment by both sides. The court ordered CBP to conduct a new, adequate search. The court further held that DHS and USCIS failed to meet their burden to show that a FOIA exemption applied to the withheld documents Plaintiffs challenged. The court ordered DHS and USCIS to produce all challenged documents for in camera inspection. The court will then determine whether the documents should be redacted partially, in full, or not at all. Additionally, the court ordered USCIS to produce an unredacted email that includes the names of the CBP officers who performed the CFIs. In ordering that release, the court found that the public’s interest in learning the full scope of the pilot program and the interest of individuals potentially subjected to the pilot program in learning whether they were subjected to the program outweighed any privacy interest of the officers.

On June 21, 2022, Defendants filed a motion for reconsideration of the order requiring production of the unredacted email containing CBP officer names. On February 16, 2023, the parties executed an agreement to resolve Defendants’ outstanding motion to reconsider and in lieu of production of the CBP officers names. Pursuant to the agreement, Defendants agreed to provide Plaintiffs with the dates and locations where the pilot program operated. Plaintiffs will provide Defendants with up to 1,000 names, along with Department of Homeland Security Form G-639 releases, for individuals who received credible fear interviews at those locations during the relevant period. Defendants will provide confirmation as to whether the individuals were interviewed by U.S. Border Patrol agents. Plaintiffs agreed to provide the names within six months of execution of the agreement, or by August 16, 2023.

Counsel: Emma Winger, American Immigration Council

Contact: Emma Winger, American Immigration Council | 617-505-5375 |