Seeking Asylum at the Border from Central America - What to Expect (Liliana Gallelli, Esq.)
Many persons come from Central America seeking asylum at our southern border. The experience can be daunting and dehumanizing and refugees should know what to expect before making the journey to the United States. The following is a general guideline of the process; every case is different.
The First Encounter (Customs and Border Patrol)Persons can ask for asylum from United States immigration officials at a point of entry (e.g. a controlled border place of entry). The first contact will be with the U.S. Customs and Border Protection (CBP). CBP will seek preliminary information such as name, any aliases, any previous immigration history, what ties, if any the foreign national has in the United States and a summary of why the person fears return to his or her home country. The process can take a few days; this author has seen up to 7 days. This is a challenging time because the foreign national has no contact with the family and his or her whereabouts can be unclear. An attorney experienced attorney will have more resources to help locate the foreign national.
Custody by Immigration and Customs Enforcement (ICE)Once the foreign national is registered with the CBP, the foreign national is turned over to ICE custody. The custody is controlled by an ICE department known as Enforcement and Removal Operations (ERO). Every person detained by ICE will have an ERO officer designated. Please note that CBP can send the asylum seeker to ANY STATE within the United States. It depends on many factors such as available space and volume of persons in any given jurisdiction. Thus, persons seeking asylum at San Ysidro, California, could be transferred to Eloy, AZ or York, PA. Once the foreign national is placed in custody and housed at a detention facility, ICE will ask more questions about the refugee's fear claim. If the person says they are afraid to return to their home country, ICE usually refers the detainee to the asylum office to be interviewed. The interview is crucial because it determines whether the person will be allowed to remain in the United States to set forth their asylum application. This interview is known as a "Credible Fear Interview". If the person has a positive determination by the asylum office, then ICE will consider releasing the foreign national to their loved ones. Persons seeking asylum and undergoing the described interview should seek legal counsel before being interviewed. Detainees have the right to speak to an attorney and to have their attorney present (at least by telecommunications) during the interview.
Release from DetentionIf the foreign national "passed" the credible fear interview, then ICE usually will consider releasing the individual. There are many factors that aid ICE in making the decision whether to release the detainee. Some of those are: family ties, flight risk, having a relative who is a legal permanent resident or a U.S. citizen. This evidence should be promptly submitted to the foreign national's ERO officer.
Immigration CourtIf the foreign national is released into the United States, then he or she will likely have to appear in immigration court (EOIR), to set forth the asylum claim. An asylum application must be filed with an immigration judge within one year of having entered the United States. It is important to maintain the address given to ICE current so that the foreign national receives notice of the date, time and place of the first removal hearing (i.e. immigration court hearing). If the foreign national does not appear, he or she risks a removal order in absentia (i.e. an order of deportation in his or her absence).