Southwest Border: DHS and DOJ Have Implemented Expedited Credible Fear Screening Pilot Programs, but Should Ensure Timely Data Entry

What GAO Found

From October 2019 to March 2020, the Department of Homeland Security (DHS), in coordination with the Department of Justice’s (DOJ) Executive Office for Immigration Review (EOIR), implemented expedited fear screening pilot programs. Under the Prompt Asylum Claim Review (for non-Mexican nationals) and Humanitarian Asylum Review Process (for Mexican nationals), DHS sought to complete the fear screening process for certain individuals within 5 to 7 days of their apprehension. To help expedite the process, these individuals remained in U.S. Customs and Border Protection (CBP) custody during the pendency of their screenings rather than being transferred to U.S. Immigration and Customs Enforcement (ICE). From October through December 2019, DHS implemented the programs in the El Paso, Texas, sector and expanded them to nearly all other southwest border sectors before pausing them in March 2020 due to COVID-19.

DHS data indicate that CBP identified approximately 5,290 individuals who were eligible for screening under the pilot programs. About 20 percent of individuals were in CBP custody for 7 or fewer days; CBP held about 86 percent of individuals for 20 or fewer days. Various factors affect time in CBP custody such as ICE’s ability to coordinate removal flights. U.S. Citizenship and Immigration Services (USCIS) data indicate that the majority of individuals (about 3,620) received negative fear determinations from asylum officers (see figure). About 1,220 individuals received positive credible fear determinations placing them into full removal proceedings where they may apply for various forms of protection such as asylum. However, as of October 2020, DHS and EOIR could not account for the status of such proceedings for about 630 of these individuals because EOIR’s data system does not indicate that a Notice to Appear—a document indicating someone was placed into full removal proceedings before an immigration judge—has been filed and entered into the system, as required. Specifically, DHS and EOIR officials could not determine whether DHS components had filed the notices for these cases with EOIR, nor could they determine if EOIR staff had received but not yet entered some notices into EOIR’s data system, per EOIR policy. Ensuring that DHS components file Notices to Appear with EOIR and that EOIR staff enter them into EOIR’s data system in a timely manner, as required, would help ensure that removal proceedings move forward for these individuals.

Outcomes of Screenings Under Expedited Fear Screening Pilot Programs, October 2019 through March 2020 (as of August 11, 2020)

Note: Percentages do not total 100 due to rounding.

Why GAO Did This Study

Individuals apprehended by DHS and placed into expedited removal proceedings are to be removed from the U.S. without a hearing in immigration court unless they indicate a fear of persecution or torture, a fear of return to their country, or express an intent to apply for asylum. Asylum officers conduct such “fear screenings,” and EOIR immigration judges may review negative USCIS determinations. In October 2019, DHS and DOJ initiated two pilot programs to further expedite fear screenings for certain apprehended noncitizens.

GAO was asked to review DHS’s and DOJ’s management of these pilot programs. This report examines (1) actions DHS and EOIR took to implement and expand the programs along the southwest border, and (2) what the agencies’ data indicate about the outcomes of individuals’ screenings and any gaps in such data. GAO analyzed CBP, USCIS, EOIR, and ICE data on all individuals processed under the programs from October 2019 to March 2020; interviewed relevant headquarters and field officials; and visited El Paso, Texas—the first pilot location.

What GAO Recommends

GAO is making two recommendations, including that DHS ensure components file Notices to Appear with EOIR for all those who received positive determinations under the programs, and that EOIR ensure staff enter all such notices in a timely manner, as required, into EOIR’s case management system. DHS concurred and DOJ did not concur. GAO continues to believe the recommendation is warranted.

For more information, contact at (202) 512-8777 or gamblerr@gao.gov.

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    The former chief of Antigua’s Financial Services Regulatory Commission (FSRC) was sentenced today to 10 years in prison for his role in connection with a $7 billion Ponzi scheme involving the Stanford International Bank (SIB).
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  • Slovenia Travel Advisory
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  • Cayman Islands Travel Advisory
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  • Now is the time: Catch-up to Get Ahead on Childhood Immunizations
    In Human Health, Resources and Services
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  • Servicemember Rights: Mandatory Arbitration Clauses Have Affected Some Employment and Consumer Claims but the Extent of Their Effects is Unknown
    In U.S GAO News
    Mandatory arbitration clauses in civilian employment contracts and consumer agreements have prevented servicemembers from resolving certain claims in court under two laws that offer protections: the Uniformed Services Employment and Reemployment Rights Act of 1994, as amended (USERRA), and the Servicemembers Civil Relief Act, as amended (SCRA) (see figure). Some courts have held that claims involving mandatory arbitration clauses must be resolved with arbitrators in private proceedings rather than in court. Although we reviewed federal court cases that upheld the enforceability of these clauses, Department of Justice (DOJ) officials said mandatory arbitration clauses have not prevented DOJ from initiating lawsuits against employers and other businesses under USERRA or SCRA. However, DOJ officials noted that these clauses could affect their ability to pursue USERRA claims against private employers on behalf of servicemembers. Servicemembers may also seek administrative assistance from federal agencies, and mandatory arbitration clauses have not prevented agencies from providing this assistance. For example, officials from DOJ, as well as the Departments of Defense (DOD) and Labor (DOL), told us they can often informally resolve claims for servicemembers by explaining servicemember rights to employers and businesses. Examples of Employment and Consumer Protections for Servicemembers Note: USERRA generally provides protections for individuals who voluntarily or involuntarily leave civilian employment to perform service in the uniformed services. SCRA generally provides protections for servicemembers on active duty, including reservists and members of the National Guard and Coast Guard called to active duty. Data needed to determine the prevalence of mandatory arbitration clauses and their effect on the outcomes of servicemembers' employment and consumer claims under USERRA and SCRA are insufficient or do not exist. Officials from DOD, DOL, and DOJ told us their data systems are not set up to track these clauses. Further, no data exist for claims settled without litigation or abandoned by servicemembers. Finally, data on arbitrations are limited because they are often private proceedings that the parties involved agree to keep confidential. Servicemembers are among millions of Americans who enter into contracts or agreements with mandatory arbitration clauses. For example, these provisions may be included in the contracts servicemembers sign when they enter the civilian workforce, obtain a car loan, or lease an apartment. These contracts generally require disputes to be resolved in private proceedings with arbitrators rather than in court. Due to concerns these clauses may not afford servicemembers certain employment and consumer rights, Congress included a provision in the National Defense Authorization Act for Fiscal Year 2020 for GAO to study their effects on servicemembers' ability to file claims under USERRA and SCRA. This report examines (1) the effect mandatory arbitration has on servicemembers' ability to file claims and obtain relief for violations of USERRA and SCRA, and (2) the extent to which data are available to determine the prevalence of mandatory arbitration clauses and their effect on servicemember claims. GAO reviewed federal laws, court cases, and regulations, as well as agency documents, academic and industry research, and articles on the claims process. GAO interviewed officials from DOD, DOL, DOJ, and other agencies, academic researchers, and a range of stakeholders representing servicemembers, businesses, attorneys, and arbitration firms. GAO also identified and evaluated potential sources of data on servicemembers' employment and consumer claims collected by federal agencies and the firms that administer arbitrations or maintained in court records. For more information, contact Kris T. Nguyen at (202) 512-7215 or NguyenTT@gao.gov.
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  • Former Construction Executive Sentenced to 38 Months in Prison
    In Crime News
    A former senior New York construction official was sentenced to 38 months in prison today for tax evasion, announced Principal Deputy Assistant Attorney General Richard E. Zuckerman of the Justice Department’s Tax Division.
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  • Former Supervisory Corrections Officer Sentenced for Repeatedly Tasing Restrained Detainee
    In Crime News
    Former supervisory corrections officer Mark Bryant, 42, was sentenced today to 5 years in prison for repeatedly tasing a restrained pretrial detainee inside the Cheatham County Jail in Tennessee. In January 2020, a jury in the Middle District of Tennessee convicted Bryant of two counts of violating Title 18, U.S. Code, Section 242, for using excessive force while acting under color of law. 
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  • Southwest Border Security: Actions Are Needed to Address the Cost and Readiness Implications of Continued DOD Support to U.S. Customs and Border Protection
    In U.S GAO News
    Since April 2018, the Department of Homeland Security (DHS) has submitted 33 requests for assistance (RFA) to the Department of Defense (DOD) for support to U.S. Customs and Border Protection's (CBP) mission at the southwest border. DOD established six criteria for evaluating RFAs, which it documents in decision packages. When reviewing four selected decision packages, GAO found that DOD fully evaluated four of these six criteria. GAO found that DOD developed rough cost estimates that were not reliable. In addition, DOD did not fully evaluate the effect on military readiness of providing support at the time the Secretary of Defense considered DHS's requests. Without reliable cost estimates and a timely readiness analysis, DOD is limited in its ability to evaluate the effect of supporting DHS on its budget and readiness rebuilding efforts. DOD's Detection and Monitoring Support Mission DOD has not provided Congress with timely information on the full costs it has incurred since 2018 in supporting DHS. Specifically, during this review, DOD did not submit its statutory report to Congress for fiscal year 2019, which was due March 31, 2020. Additionally, GAO found that DOD's internal tracking of obligations excludes potentially significant costs of border support activities, such as installation support costs and the cost of benefits retroactively provided to members of the National Guard. By providing more timely and complete information to Congress, DOD would enhance Congress's ability to conduct oversight and make funding decisions for DOD and DHS. DOD and DHS employed several key interagency collaboration practices for DOD's support on the southwest border, but they have not agreed on a common outcome for DOD's support in fiscal year 2021 and beyond. DHS anticipates needing at least the current amount of DOD support for the next 3 to 5 years, possibly more, and officials stated that the desired outcome is for DOD to provide the capabilities requested in the RFAs. This differs from DOD's desired outcome, which is to provide temporary assistance until DHS can independently execute its border security mission. Defining and articulating a common outcome for DOD's support could enable DOD to more effectively plan for the resources it will need to support DHS and enable DHS to plan to manage its border security mission more effectively with its own assets. This is a public version of a sensitive report that GAO issued in February 2021. Information on force protection that DOD deemed sensitive has been omitted. For decades, the U.S. southwest border has been vulnerable to cross-border illegal activity such as illegal entries, smuggling of drugs and contraband, and terrorist activities. Since 2002, DOD has supported DHS's mission to secure the nation's borders and episodically supported its efforts to manage surges in foreign nationals without valid travel documents who are seeking entry—most recently since April 2018, when the President directed the Secretary of Defense to support DHS in securing the southwest border. GAO was asked to examine this support. This report assesses the extent to which (1) DOD has evaluated DHS's RFAs, (2) DOD has reported to Congress the full costs of its support, and (3) DOD and DHS have collaborated on border security operations. GAO reviewed RFAs that DHS submitted to DOD between April 2018 and March 2020 and a non-generalizable sample of decision packages that DOD prepared in response, and conducted four site visits to border locations where military personnel were stationed. GAO makes seven recommendations, five to DOD to improve its analysis and reporting of cost and unit-level readiness impacts of supporting southwest border operations and one each to DOD and DHS to define a common outcome for DOD's future support. DOD agreed with one recommendation and disagreed with five. GAO continues to believe the recommendations are warranted as discussed in the report. DHS agreed with the recommendation to it. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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  • U.S. Government Collects $7 Million in Iranian Assets for Victims of Terrorism Fund
    In Crime News
    The Justice Department announced the United States has collected $7 million of Iranian funds that will be allocated to provide compensation to American victims of international state-sponsored terrorism.
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  • Prepared Remarks of Deputy Attorney General Jeffrey A. Rosen at U.S. Department of State Conference on “Ancient Hatred, Modern Medium: A Conference on Internet Anti-Semitism”
    In Crime News
    I want to first thank Secretary Pompeo and Special Envoy Carr for hosting this conference and for inviting me to participate. As we have heard, the Internet is just the latest outlet for the “oldest hatred.” The litany of attacks on the Jewish people has gone on through every era of history. We should not be surprised then--even though it saddens us--that it is part of our modern world. And, since that world depends on the Internet for communication, commerce, and daily life, anti-Semites can use it for their purposes as much as anyone else can use it for legitimate causes.
    [Read More…]