Overview of Visitation

summary deportation of asylum-seekers, unless they are able to pass an interview with the Asylum Office of U.S. Citizenship and Immigration Services (“USCIS”), generally within days after entering DHS custody.19 If the individual does successfully pass the screening interview, they are then subject to 240 removal proceedings. Therefore, expedited removal grants no immigration benefit but merely acts as a screening process to exclude asylum seekers and other migrants from access to a full hearing.

Practically speaking, individuals at Karnes typically have made some attempt to demonstrate a fear of return to their home country to CBP when apprehended at the border or at a port of entry at the southern international land border. It is often the CBP officer who makes the decision to place an asylum seeker in expedited removal rather than section 240 removal proceedings. The individual then arrives at Karnes, and USCIS conducts either a Credible Fear Interview or Reasonable Fear Interview depending on which standard applies to their circumstances. Interviews consist of questions related to a person’s fear of returning to their home country and provide a limited opportunity for legal consultation. At times, an interviewing officer will allow a statement from a legal consultant or representative. At Karnes in 2019, credible and reasonable fear interviews were typically conducted in a small room with an asylum officer physically or telephonically present and a contract interpreter present telephonically. If an individual had an attorney to consult with for the interview, that attorney would also be present by telephone. Within the next week or two following an interview, USCIS would issue their decision. If an asylum seeker receives a positive credible fear decision,

19. Individuals who had previously entered the United States and were ordered removed, then entered again without authorization, are typically placed into reinstatement of removal proceedings, which consists of a similar process as expedited removal but a higher legal burden and more limited form of relief and immigration benefits. 8 CFR § 135.3. (b)Reinstatement and expedited removal proceedings are functionally similar, but those with prior removal orders are held to higher standards in their interviews. The two processes are often jointly referred to as “expedited removal” in terms of policy application because of their truncated processes and the imminent risk of deportation. Unless denoted otherwise, for the purposes of this report, “expedited removal” will refer to the policy choice to swiftly deport recently arrived migrants under both expedited removal and reinstatement of removal proceedings.

Immigrants are screened in a credible fear interview for possible relief in the form of asylum, withholding of removal, or protection under the Convention Against Torture (“CAT”). Those subject to a reinstated removal order are not eligible for asylum and undergo a reasonable fear interview rather than a credible fear interview. In order to successfully pass a credible fear interview, an asylum seeker must meet the legal standard of demonstrating a “significant possibility that he or she could establish in a full hearing before an Immigration Judge that he or she has been persecuted or has a well-founded fear of persecution or harm on account of his or her race, religion, nationality, membership in a particular social group, or political opinion if returned to his or her country.” In reinstatement proceedings, that legal burden of proof is heightened to a “reasonable fear,” or “reasonable possibility” rather than a “credible fear” or “significant possibility.”

USCIS issues a Notice to Appear in immigration court for Section 240 proceedings, and the individual may have the opportunity for release from ICE custody. If USCIS issues a negative interview decision, an individual has an opportunity to request an appearance before an immigration judge, who decides whether they agree with the asylum office’s determination. This is not a typical “appeal” process and is merely a cursory review and adjudication that can last minutes and does not always include an interpreter nor an opportunity for the asylum seeker to provide testimony. At Karnes and many other detention centers in South Texas, the asylum seeker typically “appears” via televideo from detention while the judge sits in court in San Antonio. If the judge vacates the USCIS negative decision, they will issue a Notice to Appear in immigration court for Section 240 proceedings. Before the COVID-19 pandemic, attorneys could be present either in person at the court or with an individual at the detention center, with a very limited opportunity to consult or provide supporting legal arguments, depending mainly on the judge’s preference. If the judge affirms the USCIS negative decision, there is an opportunity to file a Request for Reconsideration (“RFR”) with USCIS, to which USCIS can respond by either granting a new interview, issuing a Notice to Appear in immigration court for Section 240 proceedings, or denying. As will be discussed in further detail, the entire process from expressing fear of return to receiving a positive credible fear determination or a final deportation order can take weeks or months.

The adjudication of expedited removal proceedings is quick, inconsistent, and subject to the whims of rapidly changing and incredibly burdensome immigration policies. Most notably, during the time period covered under this report, the Trump administration’s “Asylum Ban” made it nearly impossible to gain a positive decision in a credible fear screening if someone entered at the southern land border, and policy changes affecting notice requirements for interviews severely limited the opportunity for legal consultation. The first asylum ban was introduced in July 2019, barring refugees who transit through other countries from obtaining asylum even if they have well-founded fears of persecution. As such, anyone who transited through a country other than their home country to reach the U.S. and apply for asylum was ineligible. Consequently, they were often ordered deported unless they could demonstrate that they applied for and were denied asylum in at least one other country through which they traveled.20 Necessarily, this barred anyone from obtaining asylum except those from Mexico, those who knew to apply for asylum elsewhere, or those who simply happened to—as long as they had proof. The Trump administration continued to implement policies that eroded access to asylum and compounded the barriers for those placed in expedited removal in the following years, which are outside the scope of this report. The Biden administration has also maintained expedited removal and, as the proposed asylum rule indicates, an increased reliance on on expedited removal. The proposed asylum rules state that any positive credible fear determination will replace the asylum application itself. 21 Meaning that the inadaquecies of the credible fear interview would reach beyond the interview itself and into indiviual’s merit applications. 22

Legal visitation at Karnes is permitted from 8AM until 8 PM, though sometimes these hours are limited by GEO or ICE on the ground. In 2019 the RAICES Family Detention Services team typically visited women detained at Karnes at least five days a week, from Monday to Friday typically 9:00 AM - 8:00 PM. Each day, a different team of attorneys, legal assistants, and occasionally volunteers would meet with prospective and current clients.

20. https://www.humanrightsfirst.org/sites/default/files/Third-Country-Transit-Ban.pdf. 21. N/A, Fact Sheet: Implementation of the Credible Fear and Asylum Processing Interim Final Rule, Department of Homeland Security, May 26, 2022, https://www.dhs.gov/news/2022/05/26/fact-sheet-implementation-credible-fear-and-asylum-processing-interim-final-rule 22. Id.

The visitation room is a large open rectangular room filled with tables and chairs where detained people may meet with their legal service provider and with any family members in the U.S. who have means and legal status to visit them. The graphic below provides an illustration of the visitation room. There are five small private rooms along the far side of the visitation room where private legal visits can take place. Four of these rooms have access to landlines which RAICES generally uses to dial in interpreters. As the only phones to access interpretation services are located inside private rooms, non-Spanish speaking clients can face added barriers in meeting with attorneys due to the limited number of rooms and space in legal visitation. On the one side of the visitation room is a desk where a GEO employee sits and manages the logistics of visitation. Behind the desk is a waiting room for detained persons and a door to a courtyard of the prison.

In typical operations, the RAICES Family Detention Program conducts a variety of client meetings, including: initial intake, Credible/Reasonable Fear Interview (“CFI/RFI”) preparation, a status check (to follow up on case processing as there is rarely notice given to attorneys about outcomes in expedited removal), a know your rights presentation to prepare clients for the legal process following release, and meetings regarding a clients’ negative CFI decision. An initial intake meeting (“intake”) is typically the first contact with a potential new client, and they are often completed in groups. At times, significant information regarding urgent matters including client’s medical needs, mistreatment by government officers in detention, separation from their family, or severe persecution is discussed in the initial meeting and requires additional, individual follow-up.

The Family Detention Services program intentionally operates in a shared work model in order to minimize burnout and maximize legal services. In this model, cases are not assigned to individual attorneys. Instead, legal assistants and attorneys work together and specific tasks are assigned daily which are divided amongst the team on the ground at Karnes on a given day. Though client work may be scheduled by urgency, emergencies often arise with no notice—such as court hearings—and the team must triage priorities throughout the day.

The restrictive environment of an immigration prison inherently limits the provision of legal services therefore rendering it impossible for every detained person’s legal needs to be met, even under the most

BREAK R OOM VISIT A TION

G EO GU ARD PRI VA TE ROOM BA THROOM L OCKED DOOR WA ITIN G AREA 1 2 5

4

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optimal of circumstances. The RAICES Family Detention team offered a robust team of staff at Karnes for over ten hours, five days a week, and utilized all available visitation space, even then, it was impossible for there was no way that the team could offer meaningful representation to every adult woman detained. This became more challenging as the summer wore on and ICE and GEO began to implement significant rule changes. This report will cover more details on issues regarding access to counsel in a later section and will illustrate that even with changes to improve access to legal services, the inherently restrictive nature of detention cannot be resolved.

VOLUNTEER MANAGEMENT

Legal Assistants and Attorneys must supervise volunteers, assign client work, and provide any additional training as needed throughout

INTAKE Staff/volunteers meet with new clients to collect biographical information, basic case information, and to provide an overview of the asylum process. COORDINATING WITH ICE &

GEO RAICES must coordina with ICE and GEO t issues regarding clients cases, prison policies, e

8AM Staff carpools from San Antonio to Karnes, prepping for client work on the way. COMMUNICATIONS WITH SPONSORS RAICES often coordinates with Sponsors to avoid client’s paying for costly phone calls.

9AM Arrival at Karnes Family Immigration Prison. Staff goes through metal detector and signs in at front desk.

7:30AM Staff meets at the o ce to pack up supplies. COMMUNICATING WITH INTERPRETERS RAICES must coordinate calls with interpreters throughout the day to accommodate client needs. DEPORT ADVISALS RAICES informs all clients of the consequences of their case outcome and their rights in the deportation process.

PROVIDING COMFORT Given the context and isolation of detention, it is impossible to provide quality legal services without emotional trauma which clients are subjected to. RFR If a client’s negativ a rmed at their hearing, the a Request for Reconsideration in which an attorney typically submits a n legal declaration