FOIA Lawsuit Demands Information About CBP Officers’ Role in Credible Fear Interview Process

This Freedom of Information Act (FOIA) lawsuit seeks to uncover information about a troubling program where U.S. Custom and Border Protection (CBP) officers screened asylum seekers. The suit, filed 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 an asylum seeker passes this initial screening, he or she 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 asylum seeker an opportunity to recount details of their feared persecution in their country of origin. Asylum seekers 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.

In the spring of 2019, USCIS and CBP began a pilot program to transfer responsibility for conducting CFIs from USCIS to CBP, a law enforcement agency with a well-documented history of antagonism towards asylum-seekers. The pilot program was marked by secrecy throughout, with the government releasing virtually no information to the public. Though the pilot program was preliminarily enjoined as unlawful, details about CBP’s role in credible fear screenings are still vital. The public has a compelling interest in knowing like how and why immigration authorities designed a program to replace highly trained asylum officers with CBP officers and the effect the program had on the credible fear process, including on asylum seekers subjected to the program.

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. For more information, see the FAQs below.

In response to the suit, Defendants released thousands of pages of government records detailing the program, including USCIS training materials that provide important insight into how the agency conducts screenings and adjudicates claims for asylum. Though the government documents helped reveal information about the credible fear screening process, many documents were redacted and remain hidden from the public.

On June 18, 2021 Plaintiffs filed a brief outlining for the court why Defendants improperly withheld records under FOIA exemptions and Defendants CBP failed to conduct an adequate search. The Council 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 granted, in part, Plaintiffs’ motion for summary judgment. The court ordered the government to disclose the names of the Border Patrol agents who took part in the pilot program, finding that the agents had minimal privacy interest in having their names released and that any privacy interest was outweighed by the public’s interest in knowing how the program operated and who was subjected to it. The court also ordered CBP to conduct a new search for records and found that Defendants did not sufficiently justify their decision to withhold certain documents. The court will review those disputed documents in camera (in secret) and will make a decision about whether Plaintiffs are entitled to see them.

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. For more information, see the FAQs below.