A judge for the US District Court for the District of Columbia filed an order Monday granting a preliminary injunction barring Customs and Border Patrol (CBP) agents from conducting credible fear interviews ordinarily conducted by Citizenship and Immigration Services (CIS) asylum officers. The government claims that CBP agents tasked with conducting asylum interviews “receive ‘training consistent with [CIS’s] prior training history and experience’ and therefore meet the statutory criteria,” which Judge Richard Leon called “Poppycock!”

Under the Immigration and Nationality Act (INA), asylum seekers are referred for an interview with an asylum officer to determine if they have “a credible fear of persecution.” The INA also requires an asylum officer to have “professional training in country conditions, asylum law, and interview techniques comparable to that provided to full-time adjudicators” of asylum applications. A January 30 Memorandum of Agreement (MOA) signed by CIS Deputy Director Mark Koumans and Acting CBP Commissioner Morgan assigned CBP law enforcement officers to replace CIS asylum officers in conducting asylum interviews and making credible fear determinations.

CIS asylum officers receive at least nine weeks of formal training, or 110 hours of distance learning and 208 hours of residential learning. Officers with heavy credible fear caseloads receive an additional three to four weeks of credible fear training. This training covers “working with survivors of torture, intercultural communication, interviewing children, and interviewing applicants who have experienced trauma.” CPB agents authorized under the January MOA received “approximately 80 hours of distance training and up to 120 hours of face-to-face training.” In addition to inadequate training, the January MOA limits CBP agents to 180 days of conducting these interviews, meaning “CBP agents cannot gain the experience necessary to appropriately apply the complex asylum laws and regulations.” For these reasons, the plaintiffs are likely to succeed on their claim that using CBP agents to conduct asylum interviews violates the INA.

The plaintiffs are four mothers and seven children from Central America, all of whom received negative credible fear determinations that were later affirmed by an immigration judge. Absent the preliminary injunction, the plaintiffs would be subject to immediate removal from the United States.