The Border Patrol and Asylum Exclusion

In this series commissioned by Catherine S. Ramírez and A. Naomi Paik, contributors examine the legacy of the Immigration Act of 1924 and the simultaneous launching of the Border Patrol, which, together, inaugurated the most restrictive era of US immigration history until our own.
Border Patrol has regularly abused its authority and mistreated immigrants and asylum seekers in countless ways. Yet its role as the frontline force in asylum exclusion has only grown.

In September 2021, United States Border Patrol officers on horseback confronted a group of Haitian asylum seekers crossing the Rio Grande. They had been permitted to cross back and forth to Mexico to obtain food and supplies for their families camped in squalid conditions in Del Rio, Texas. Yet, during this encounter, patrol officers attempted to push the Haitians back across the river by shouting obscenities, swinging cords like lassos, and steering their horses into the paths of these asylum seekers.

The Border Patrol’s aggressive tactics drew international condemnation and led Vice President Kamala Harris to compare the unit’s mistreatment of the Haitians to the oppression faced by Indigenous peoples and African American slaves. Meanwhile, critics on the left and the right questioned why the patrol was even involved in asylum processing, given the mismatch between the unit’s mandate to police the border and the nation’s humanitarian obligations under domestic and international refugee laws.

This mismatch, however, was not an oversight on the part of policymakers who created the US refugee and asylum system. Instead, the Border Patrol’s frequent resort to violence in its reception of asylum seekers has been a matter of design. Since the late 20th century, when the Border Patrol became the frontline force in asylum processing, it has been integral to the creation and expansion of asylum exclusion: a set of treaties, laws, policies, practices, and ideas designed to close borders to refugees and asylum seekers.

For those fleeing desperate circumstances, the borders of the United States have long been imagined as sites of refuge. And yet, until recently, the nation’s immigration laws made no distinction between those migrants seeking asylum for humanitarian reasons and immigrants seeking permanent residence and citizenship. In the absence of formal refugee laws and policies, immigration officials largely admitted or excluded these de facto asylum seekers based on the narrow and often xenophobic criteria enumerated by federal immigration laws.

In 1980, with the passage of the Refugee Act, American immigration officials began to make regular distinctions between asylum seekers and immigrants. The law did recognize the right of noncitizens “physically present in the United States or at a land border or port of entry” to apply for asylum. But, at the same time, the Refugee Act also laid the legal foundations for the participation of various federal immigration agencies, including the Border Patrol, in the processing of asylum seekers.

The new law aimed to broaden the nation’s approach to refugee admissions. But from its inception, the Immigration and Naturalization Service (INS) and Border Patrol steered the development of the law in exclusionary ways. Thus, when the INS was tasked to write the federal regulations implementing the Refugee Act, it, according to law professor Denise Gilman, adopted an approach that reflected its “preoccup[ation] with the rejection of asylum claims.” As a result, the new federal regulations “created a presumption against asylum”: placing the burden of proof upon asylum seekers to demonstrate their eligibility for relief. Moreover, rather than focusing on how federal officials at the border might offer asylum, the new regulations highlighted the ways they could deny entry to asylum seekers.

When it came to the actual reception of asylum seekers at the nation’s borders, INS and Border Patrol officers engaged in the widespread physical and legal abuse of Salvadoran and Guatemalan migrants. Their asylum claims, after all, threatened to undermine the Reagan administration’s counterinsurgency campaigns in Central America. Two federal courts enjoined the INS and Border Patrol from a host of infractions, including the failure to notify Salvadoran and Guatemalan refugees of their right to apply for asylum; the use of coercion, lies, and threats to force Salvadoran asylum seekers to accept voluntary departure; the failure to advise these Central American asylum seekers of their right to counsel; and the detention of the asylum seekers in solitary confinement for the purposes of punishment. In short, as the court in Nunez v. Boldin, 537 F. Supp. 578 (S. D. Tex. 1982), concluded, immigration officials had rendered the nation’s asylum laws “virtually non-existent for the majority of persons who might claim their benefits.”

As anti-immigrant sentiment reached new highs in the 1990s, policymakers increasingly conflated asylum seekers with unauthorized immigrants. To deter the entry of both groups, Congress, under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, created “expedited removal.” The new procedure conferred upon the Border Patrol two critical yet contradictory roles, which further entrenched the humanitarian work of asylum processing within a framework of enforcement. In the name of deterrence, expedited removal gave the patrol the authority—once limited to immigration judges—to deport unauthorized migrants. Yet, to protect the right to seek asylum, the 1996 law also required the Border Patrol to identify and refer potential asylum seekers to USCIS asylum officers for formal processing through a credible fear interview.

The latter responsibility ought to have been simple. For the patrol, the identification of prospective asylum seekers involved only the reading of a script. This prepared text explained the expedited removal process, instructed migrants to express any fear or concerns about being returned home, and asked four questions about their fear of being removed to their home country or place of last residence.

Yet, investigations conducted by the US Commission on International Religious Freedom (USCIRF) in 2005 and 2016 reported that Border Patrol officers often neglected to read the required script and record migrants’ expressions of fear. It also found Border Patrol officers urging migrants to withdraw their asylum claims, referring asylum seekers for criminal prosecution for unauthorized entry, and failing to provide trauma-informed training for those interviewing women and children, who were often reluctant to express fear to male Border Patrol officers in uniform. More recent investigations conducted by Human Rights Watch and the Intercept suggest that little has changed; as the Intercept concluded in 2019, Border Patrol officials “often go to extraordinary lengths to deny the people in their custody the ability to make an asylum claim.”

As the number of women and families seeking asylum increased in the 2010s, the Border Patrol expanded the use of detention as a form of deterrence. Border Patrol detention facilities denied migrants access to basic necessities such as food, water, and medicine; lacked sanitary conditions and hygiene items such as soap, toothbrushes, toilet paper, and diapers; and deprived migrants of warmth, sleep, and physical safety. As one Border Patrol officer testified in 2016, conditions afforded criminal defendants in the Santa Cruz County jail were better than those experienced by migrant families held in Border Patrol detention in Tucson, Arizona. The Border Patrol’s goal, Yael Schacher of Refugees International explains, was to “[make] people want to give up.”

Border Patrol’s frequent resort to violence in its reception of asylum seekers has been a matter of design.

“Expedited removal,” Aaron Reichlin-Melnick of the American Immigration Council observes, “gave the Border Patrol enormous power to determine whether or not to follow the law and refer people for credible fear interviews.” Given the unit’s long history of barring access to asylum, the Trump administration gave it even more power: authorizing Border Patrol officers to conduct credible fear interviews, which had long been the purview of highly trained USCIS asylum officers. A federal court later enjoined CBP from conducting these interviews, dismissing the administration’s claims that CBP officers were as well trained as USCIS asylum officers as “poppycock.”

Meanwhile, the Trump administration’s zero-tolerance policy mandated the criminal prosecution of all unauthorized border crossers—including asylum seekers. Under this policy, migrants—thousands of whom were children separated from their families—were held in Border Patrol facilities, which again exposed them to dangerous conditions and resulted in the deaths of at least seven children.

Upon assuming office, President Biden promised to end the inhumane immigration and asylum policies of the Trump era. The new soft-sided tent facilities constructed along the US-Mexico border, observes Reichlin-Melnick, have provided more humane conditions—freshly prepared food, toilets, showers, and medical care—than CBP detention centers of the recent past.


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At the same time, he and other advocates note that the Biden administration has quietly continued the so-called phone-booth asylum programs initiated under the Trump administration. Prior to the creation of these programs, asylum seekers referred by Border Patrol officials to USCIS for asylum processing would be transferred to ICE detention. Now USCIS asylum officers conduct their credible fear screenings over the phone with asylum seekers who are in Border Patrol custody; if they fail the screening, the Border Patrol can deport them immediately. For one immigration attorney, the rapidity with which asylum seekers are funneled through the asylum process has “created a deportation mill.”

For the past decade, the majority of individuals encountered by the Border Patrol have been people seeking protection. Their unprecedented numbers have created a humanitarian crisis on the US-Mexico border.

But Border Patrol officers, as Schacher notes, are not “humanitarians.” Over the course of its 100-year history, the patrol has become a highly militarized organization that perceives border crossers as national security threats. Moreover, as documented by numerous internal and external investigations, the Border Patrol has regularly abused its authority and mistreated immigrants and asylum seekers in countless ways. Nevertheless, its role as the frontline force in asylum exclusion has only grown, marking the latest chapter in the agency’s troubling history. icon

This article is part of a series commissioned by Catherine S. Ramírez and A. Naomi Paik on the border crisis 100 years after the Immigration Act of 1924.

Featured image: "Cruel Irony on Emancipation Avenue" Photograph by Patrick Feller / Flickr (CC by 2.0 DEED).