People who arrive at the United States without documentation allowing them to enter the country may be summarily deported, without a hearing, unless they express an intention to apply for asylum or a fear of persecution in their home countries. In that situation, the asylum seeker is interviewed to determine whether her fear of persecution is credible. If so, the person is placed in normal deportation proceedings, where she can apply for asylum. Because Congress did not want potentially valid asylum claims to be rejected at this early stage, the law requires these “credible fear” interviews to be non-adversarial and carried out by trained asylum officers from U.S. Citizenship and Immigration Services (USCIS). But despite those laws, in January 2020, USCIS entered into an agreement with U.S. Customs and Border Protection (CBP), a law enforcement agency, which allows CBP agents to conduct these interviews and make credible-fear determinations.

The plaintiffs in this case are four mothers and their children who are being held in immigration detention in Dilley, Texas. These families all fled violence and persecution in their home countries and indicated an intent to seek asylum. However, rather than being interviewed by trained, non-adversarial USCIS asylum officers, each was interviewed by CBP law enforcement agents, who conducted aggressive interrogations, failed to elicit relevant information, incorrectly wrote down what the asylum seekers said, and committed other errors. In each case, the CBP agent concluded there was no credible fear of persecution, preventing the plaintiffs from applying for asylum.

The families sued Homeland Security officials, including the purported Acting Commissioner of CBP, Mark Morgan, who approved the new policy. CAC, along with co-counsel Tahirih Justice Center, is representing these families.  The lawsuit alleges that this new policy violates the nation’s immigration laws and that Morgan had no authority to approve it because his tenure as Acting Commissioner is unlawful under the Federal Vacancies Reform Act (FVRA).

As the complaint and the briefs explain, Mark Morgan’s service as Acting Commissioner of CBP is unlawful. While the FVRA permits acting officials to temporarily carry out the duties of certain vacant offices that require Senate confirmation—like CBP Commissioner—the Act imposes rigid constraints on who may serve as an acting official and for how long. Morgan’s tenure as Acting Commissioner violates both limitations. He does not satisfy any of the law’s criteria for serving as an acting official, and he has continued serving as Acting Commissioner after the FVRA’s time limits expired. Because Morgan approved the new policy on behalf of CBP without any legal authority to do so, his approval violated the FVRA, and the policy is invalid.

In addition, the terms of the policy itself violate the Homeland Security Act of 2002, which created the Department of Homeland Security and its agencies, as well as the nation’s immigration laws. The policy violates the former because the Act assigns the authority to conduct credible-fear interviews to USCIS and its personnel, not to CBP, and it violates the latter because CBP agents lack the training the law requires of those who conduct credible-fear interviews.

On August 31, 2020, the U.S. District Court for the District of Columbia issued a preliminary injunction ordering the government to stop allowing CBP agents to conduct asylum interviews or make credible-fear determinations, pending resolution of the case. The injunction also prevents our clients from being deported while the case proceeds. The district court concluded that the plaintiffs are likely to succeed on their claim that the policy violates the immigration laws because CBP agents lack the training the law requires for those who conduct credible-fear interviews. Although the government argued that CBP agents are adequately trained, the court disagreed, recognizing that the policy’s training requirements “do not come close” to those required by the law. The court also noted that this lack of training made it “unlikely” that CBP agents would be able “to overcome their adversarial instincts and act as neutral decision-makers.” Because the plaintiffs’ likelihood of success on this claim was sufficient to merit a preliminary injunction, the court did not address the plaintiffs’ other claims.