Behind Biden's asylum halt: Migrants must say if they fear deportation, not wait to be asked

TUCSON, Ariz. (AP) — Posters inside a complex of giant, white tents tell migrants in English, Spanish, Mandarin and Hindi they should tell an officer if they fear being deported and “your claim will be heard.” On a side wall where migrants are seated in a processing area, a video conveys the same message on a loop.

Breaking from a practice in effect since 1997, Border Patrol agents at the holding facility in Tucson, Arizona, and throughout the country no longer ask migrants if they fear deportation. President Joe Biden’s administration temporarily suspended asylum at the border June 5 and, as part of that move, agents do not ask about fears. Migrants must bring it up themselves.

Immigration advocates call it the “shout test” — suggesting migrants must shout their fears — though agents are taught to respond to other signs of distress, such as crying, shaking or a change in tone of voice and to refer migrants for screening if the behavior appears genuine. Anyone not screened can be immediately deported.

It is unclear to what extent the “shout test” is responsible for a decline in border arrests of more than 50% since asylum was halted, a welcome development for Biden as he faces Republican attacks of letting the border spiral out of control.

But administration officials said it is a critical change because migrants are more likely to say they fear deportation if prompted with a question.

Homeland Security Secretary Alejandro Mayorkas said strong guidelines are in place for agents to identify migrants exhibiting any signs of fear. Posters at holding facilities explain the new procedures and videos are shown at larger ones, such as Tucson.

“We train, we refresh the training, we are in constant dialogue with our personnel," Mayorkas said in an interview. “We are abiding by our international and humanitarian obligations.”

If they pass screening at a higher standard, migrants can stay in the U.S. to pursue protections similar to asylum, like those under the United Nations Convention Against Torture. In doing so, the administration argued it is complying with U.S. and international law prohibiting sending people to countries where they face persecution or torture.

Immigration advocates say migrants showing signs of fear can easily be overlooked. The Center for Gender & Refugee Studies, which has sued the administration over the asylum halt, said 51 of the 97 families it interviewed in 2020, when the “shout test” was briefly in effect during the COVID-19 pandemic, said they spoke to agents about fears of deportation and another 21 expressed nonverbal cues but none were screened.

Araceli Martinez, 32, told The Associated Press that she feared returning home with her 14-year-old daughter to a physically abusive husband, but no one asked her at the Tucson facility about why she came and she didn’t know that she had to speak up until it was too late. She was deported to Nogales, Mexico, last month.

Another Mexican, Christian Gutierrez, said he told officials he wanted to claim asylum during three days in custody in San Diego but it was futile.

“They completely ignored me,” Gutierrez, 26, told the AP while sitting on a bench in Tijuana, Mexico, after being deported. “They didn't give me an opportunity.”

Those who consider Biden's policies too soft play down the “shout test” — and the asylum halt broadly — as too little, too late. Robert Law, director for homeland security and immigration at the America First Policy Institute, said the test may have limited impact but not for long.

“Eventually the word will get out to those who are coaching those who are trying to take advantage of the asylum system,” said Law, who dealt with asylum as chief of policy at U.S. Citizenship and Immigration Services during former President Donald Trump's administration.

Even those who get a screening interview face new hurdles. Aside from higher standards, they get four hours to call an attorney from a holding facility, compared to a previous 24-hour window to prepare.

Those who don't have attorneys get a list of free legal service providers. The four-hour windows are from 7 a.m. to 7 p.m. including weekends, when many providers don't answer phones. Even on weekdays, they may be overwhelmed.

On a Saturday morning after asylum was halted, a woman's voicemail began calmly with her name, birth date, email address, booking number and date of arrest for crossing the border illegally with her 6-year-old daughter. After a 20-second pause, she started to cry, “Why? Why? Why? My God, please.” A guard asked if she was finished and she said yes.

RAICES, a group providing free legal advice to migrants in Texas that obtained the voicemail, found the woman in custody days later after she failed the screening but was waiting on an appeal. An immigration judge reversed the decision, saying she should have been interviewed in her native language, not Spanish, and that her fear was justified. She was released to pursue her case in heavily backlogged immigration courts.

A 22-year-old woman from Guatemala with a year-old son told her attorney she didn't understand the video instructing migrants to express any fears of being deported and felt confused and scared. She said she contacted RAICES when the Border Patrol gave her a list of attorneys after failing the screening.

The woman told the attorney in a recorded phone call that she fled to the U.S. to work and escape “those cartels." Fighting tears, she said her son had barely eaten in days.

“He wants to walk, he wants to go out and play games, but they won't let him,” the woman said. An immigration judge denied her appeal and she was deported with her son.

RAICES said it has been able to respond to 74 of 1,215 calls received from people in Border Patrol custody since asylum was suspended June 5. The organization provided recordings from their clients to the AP on the condition that their names and other identifying information not be published due to concerns for their safety.

In Tijuana, the Immigrant Defenders Law Center, which provides free legal advice to migrants detained in San Diego, has been spreading word of the changes. Directing attorney Melissa Shepard said callers seeking help often have only an hour left to prepare for their interview.

“You are the one who has to say I'm afraid,” Shepard said at a migrant shelter last month. The audience appeared to listen closely but didn't ask questions.