Through two new policies—Prompt Asylum Claim Review (PACR) and Humanitarian Asylum Review Process (HARP)—the Trump administration is circumventing normal process in order to speedily deny and deport asylum seekers. Both new policies were secretly piloted in El Paso beginning in October, and now appear to have been expanded to the Rio Grande Valley. PACR is used for non-Mexican asylum seekers, and HARP is used for Mexican nationals seeking asylum.
Under both PACR and HARP, asylum seekers are held in Customs and Border Protection (CBP) custody, with extremely restricted access to telephones. They have no way to contact family members or lawyers. A lawsuit filed by the ACLU challenging PACR and HARP further describes the process:
“8. Under PACR and HARP, an asylum seeker in CBP custody is given only one window of approximately 30 minutes to one hour to call family members or retained counsel, or to call prospective attorneys from a limited list provided by CBP. There is no callback number or other means by which lawyers may attempt to reach clients or prospective clients. The result is that it is functionally impossible for an asylum seeker in one of these programs to contact an attorney.
“9. Even when an asylum seeker does manage to contact an attorney, PACR and HARP ensure that the asylum seeker does not have a meaningful opportunity to consult with that attorney. CBP denies attorneys physical access to its facilities, precluding all in-person meetings. CBP also does not provide for any regular telephonic access and provides no guarantee that the consultation will be confidential.”
These asylum seekers are required to present their cases to Customs and Border Protection (CBP) officers to show that they have a credible fear of returning to their home countries. This is a change from previous procedure, in which they were interviewed by asylum officers. That’s an important difference: asylum officers are trained to evaluate asylum claims and know what the asylum law requires. CBP officers are trained as law enforcement officers, to arrest and detain immigrants. The Washington Post quoted Astrid Dominguez, director of the ACLU’s Border Rights Center:
“This is yet another example of Border Patrol carrying out a pilot project in secret, circumventing Congress and public scrutiny. Border Patrol is fast-tracking deportations while holding migrants at detention facilities . . . and barring oversight to ensure fair and humane treatment. Given Border Patrol’s track record of abuse, the last thing the agency should be allowed to do is shove migrants through a life-or-death decision-making process devoid of basic due-process protections.”
Circumventing the Federal Regulation Process
Before PACR and HARP, asylum seekers were transferred from CBP custody to Immigration and Customs Enforcement (ICE) custody for credible fear proceedings, allowing access to counsel and interviews with trained asylum officers. They were allowed a minimum of 24-48 hours in ICE custody before the credible fear interview. The entire implementation of PACR and HARP is secretive and outside normal legal processes.
When Congress passes legislation and the president signs it, that legislation becomes law. Then federal agencies make rules to carry out the intent and purpose of the law. PACR and HARP were implemented without going through the regulatory process.
“Federal regulation, like taxing and spending, is one of the basic tools of government used to implement public policy. In fact, the development and framing of a rule has been described as ‘the climactic act of the policy making process.’ Another observer described the rulemaking process as ‘a ubiquitous presence in virtually all government programs…. The crucial intermediate process of rulemaking stands between the enactment of a law by Congress and the realization of the goals that both Congress and the people it represents seek to achieve by that law.’ Regulations generally start with an act of Congress, and are one of the means through which statutes are implemented and specific requirements are established. Federal agencies usually issue more than 3,000 final rules each year on topics ranging from the timing of bridge openings to the permissible levels of arsenic and other contaminants in drinking water.” [internal citations omitted]
In implementing PACR and HARP, DHS simply ignored the entire normal system of rulemaking. Failure to promulgate regulations means that the policies remain shrouded in secrecy rather than spelled out in federal regulations. This failure also completely circumvents the requirement for consideration of public comments, though it’s doubtful that DHS pays much attention to public comment anyway.
The regulatory changes promulgated by the current administration frequently violate laws or the Constitution. Ignoring the regulatory process goes one step further toward lawlessness.