Advocates for migrants have been urging human rights groups to demand the Biden administration to end "Title 42," a public health directive that allows the government to expel migrants due to the COVID-19 pandemic.
Under Title 42, asylum seekers get expelled rapidly from the U.S. without access to an interview by an asylum officer or to an immigration judge.
While the White House claims asylum seekers are being screened before being expelled, reports are coming out disputing that, and immigration lawyers say most asylum seekers don't get past the first step, the so-called "credible fear interview" by an asylum officer.
Who are the asylum officers?
“An asylum officer would essentially be a gatekeeper to protect our immigration judges from being overrun with asylum cases; that's what this process was at least designed to do. Officers for the asylum office are trained in asylum law, but they're not judges,” explained immigration lawyer, Hillary Walsh.
Once a migrant passes to an asylum officer, the migrant must go through questioning about the reasons to claim asylum in the U.S., which is called a “credible fear interview.”
At this step, the officer can determine if the migrant qualifies to see an immigration judge.
Seeking asylum based on sexual violence
Walsh represents Amarjeet Kaur, a woman from India who was held inside an Eloy detention center from April to October 2021.
Kaur crossed the border to seek asylum near Yuma in April, where she was processed by the U.S. Border Patrol then sent to Eloy, Arizona, where an asylum officer determined she didn't qualify for protection.
Kaur is about to get deported despite asking for protection as a victim of rape.
“She was told that she couldn't get asylum here; she couldn't even actually apply for it because she didn't qualify as her rapist liked her, which isn’t a basis for seeking asylum in the United States,” stated Walsh.
“They told me that we like you...”
In her statement to the asylum officer, Kaur said the attacker told her "he liked her" while raping her.
“Those exact words that she said were used against her," stated Walsh.
On the official documents provided to ABC15, the asylum officer in charge of Kaur’s credible fear interview wrote:
"Applicant testified that she was raped but for no apparent reason. Applicant stated that at the time the applicant was raped, the attacker told her that he liked her. This indicates that the applicant was harmed because of personal reasons and not on account of a protected ground."
“They found that, because her rapist said to her that he liked her, that's why he raped her and that that's not a basis for seeking asylum in the U.S.,” stated Walsh.
Legally, there's not much that can be done to stop Kaur’s deportation because she was ordered expedited removal. Under this process, asylum officers can rapidly remove asylum-seeking migrants with meritless claims to protect immigration judges from being overwhelmed with cases.
How many asylum seekers get to stay versus those who are turned away?
“Last year no rate was over 70% of asylum cases were ultimately denied which was significantly higher than the Obama administration when the denial rate was around 50% which was already higher than it had been in past years,” stated the legal director at the Center for Gender and Refugee Studies, Blaine Bokey.
Bokey said it's impossible to know how many of those denials were victims of sexual violence.
“The government doesn't keep statistics on the type of cases that are presented, and it doesn't even always track the sex of the asylum applicant,” according to Bokey.
“The whole system is broken, and we don't have to scrap it. But we can go back in and say what's working and what's not. Where do we value placing our resources,” said Walsh.
Currently, there’s a backlog of over 1.3 million cases in immigration courts. Almost 400,000 of those are asylum seekers with pending applications living in limbo for years.
“I have a client who initially applied for asylum at the JFK airport when he arrived, and he's had his asylum application pending for, I think it's 12 years now it might be closer to 15 since he first hired me. And we've been unable to get him even an interview in the United States,” stated Walsh.
But there are also those unreported cases, those who get deported before applying.
The journey to seek asylum for a victim of rape in the U.S.
“I'm better off in the detention center because India is not safe,” stated Amarjeet Kaur through a Punjabi interpreter.
Kaur couldn’t meet in person, but was able to speak to ABC15 over the phone.
Kaur expresses she is having panic attacks and is scared she'll catch COVID-19 while detained.
But she says the detention center is still a safer place than being in India where, according to her, the police refused to protect her.
“The police were not helping nor was the government,” said Kaur.
She knows she will be deported.
“What's going through her mind is the idea that she's going to be subjected to this again; I can't imagine what it would be like for that flight home to know that your rapist is waiting for you again, and no one's going to do anything about it,” said Walsh.
So, what’s the message to victims of rape seeking asylum in the U.S.?
“You were raped, and we get that, but you weren't raped for the right reason,” said Walsh.
"What are the right reasons to get raped under a U.S. asylum law? That's the million-dollar question."
Walsh knows her client will be deported at any moment, but says she hopes her case can raise awareness about the need for oversight of the expedited removal process.
“We're asking for her to be able to see an immigration judge, for them to consider that she was raped because she is a woman, and being a woman is a particular social group that's protected by asylum law,” stated Walsh.
ABC15 reached out to the U.S. Immigration and Customs Enforcement (ICE) about this case. A spokesperson responded the following:
“Amarjeet Kaur, 41, is an unlawfully present Indian national in the custody of U.S. Immigration and Customs Enforcement (ICE). Kaur was previously encountered by the U.S. Border Patrol on April 14. On April 18, Kaur was turned over to ICE. She currently remains in ICE custody.”
Meanwhile, Walsh said there are too many cases like Kaur’s. She says if migrants in her same situation get approved to see a judge, there's no guarantee they will win and if they do win, the Department of Homeland Security (DHS) can always appeal the decision which means more time held in detention centers.
In Kaur's case, Walsh said she has a family in Houston who could sponsor her while she waited to see an immigration judge.
“It's not keeping the United States safer by keeping her detained, it costs over $130 to keep a person detained every day to the American taxpayer.” stated Walsh.
ICE wouldn’t confirm her deportation date, but Kaur’s lawyers believe she was deported today. ABC15 will continue following this case and will update this news article once that information is available to us.