A screenshot from a recent U.S. Customs and Border Protection video shows migrants at the temporary holding facility in Otay Mesa.
A screenshot from a recent U.S. Customs and Border Protection video shows migrants at the temporary holding facility in Otay Mesa.

Why This Matters

Individuals in immigration court proceedings are far more likely to succeed if they are represented by an attorney, yet most facing deportation in San Diego courts are not.

A U.S. Border Patrol temporary holding facility in San Diego County is restricting access to legal counsel for what could be hundreds of migrants detained there, attorneys say.

Officials with the federal agency are, in some instances, forcing detainees to choose between calling family, sponsors in the U.S. or legal counsel in the single phone call they are allotted during their first few days in the facility, according to Amanda Bernardo, deputy director of the American Bar Association’s Immigrant Justice Project. 

That reality goes against guidelines set forth by the Biden administration which promised detained migrants in these facilities would have access to legal counsel. 

“It’s very clear to us that (U.S. Customs and Border Protection) is not used to dealing with people who are actively in proceedings who might have counsel or might be looking for counsel,” Bernardo said.

Border Patrol temporary holding facilities do not allow in-person or video visits, meaning detained migrants can only contact an attorney by phone. Credible fear interviews, which determine if an individual has a credible fear of persecution or torture in their home country, also take place over the phone. 

Customs and Border Protection, or CBP, which houses Border Patrol, said individuals detained in Border Patrol custody are provided access to phones and given a list of legal service providers to consult with before credible fear interviews. A spokesperson for the agency declined to comment on the record.  

U.S. Citizenship and Immigration Services, which schedules and conducts credible fear interviews, did not respond to a request for comment Friday. 

The restrictions at the Border Patrol facility have limited the reach of a county program that provides free legal services to immigration detainees, according to Michael Garcia, chief deputy of the Office of Assigned Counsel which oversees the program.

“We’re providing resources for this help, but if they don’t cooperate, why are we spending the money that we do on this program and at this phase of the program if in fact it’s not gonna allow us to have the representation?” Garcia said.

San Diego County’s Immigrant Rights Legal Defense Program allocated $5 million in its pilot year toward providing no-cost legal services to migrants detained in the county facing deportation. 

Individuals in immigration court proceedings have much greater chances of success if they’re represented by a lawyer. San Diego County is one of a growing number of locales around the U.S. that has created a program with the goal of providing universal representation for people in immigration court proceedings. 

The Immigrant Justice Project, or IJP, where Bernardo is the deputy director, is one of the firms providing no-cost legal services through the county program and the only no-cost legal service provider in San Diego County whose contact information is included on a list provided to detainees at the CBP facility. 

Out of about 45 calls from migrants at the facility that IJP received as of late June, only six have happened before their credible fear interviews. 

And in the last week of June, IJP received zero calls from migrants at the facility asking for help. Weeks before, Bernardo said, “our phones were ringing off the hook.”

“It’s very suspicious that like now it’s just been cut off. We can’t say why because CBP is like a black box,” Bernardo said. 

The temporary holding facility, a collection of large white tents near the Border Patrol Brown Field Station in Otay Mesa, was set up in the months leading up to the rollback of Title 42, a pandemic-era health policy that effectively closed off ports of entry to asylum seekers. 

Migrants without proper documents to be in the U.S. who are found by Border Patrol are detained in one of the agency’s eight holding facilities in San Diego County, where some are processed through Biden’s expedited removal program. 

The program, which fast tracks asylum screenings and deportations, was significantly expanded under former president Donald Trump. It drew criticism then in part for obstructing asylum-seekers’ access to attorneys.

Biden relaunched the program earlier this year pledging to change that.

In the credible fear interview, a migrant must convince a U.S. Citizenship and Immigration Services officer of a “significant possibility” that the migrant has faced persecution in their home country, or will face persecution or torture if they are returned. 

Having an attorney during that interview can make a big difference, Bernardo said, but when given only one call, most migrants – some having come from long and dangerous journeys – choose to call family members or sponsors in the U.S. instead of seeking legal counsel. 

That was the case for one asylum-seeker from Colombia who said, on her third or fourth day at the facility, officials told her she had the right to make just one phone call. She called her family. 

“You’re locked up there and you think about the people who are waiting for you, if you arrived, if you passed, if you didn’t arrive, or what is your situation or if you’ve been missing for so long,” said the woman, whom inewsource is not naming because she fears it could affect her asylum claim.

“You make the decision to call a relative or the person who was waiting here in the United States for me.”

After making that call, officials told her she would have her credible fear interview the next day. She told them she wanted to call a lawyer, but was denied since she had already made one call, she said.  

The interview resulted in a negative determination, which means she faced deportation. Only until after the interview and when she told officials that she wanted to appeal the decision to an immigration judge did they allow her another phone call. 

That’s when the woman was finally able to reach Bernardo, who represented her in the review before an immigration judge who vacated the decision of the credible fear interview. 

The National Immigrant Justice Center, a pro bono legal service provider for immigrants, asylum-seekers and refugees, has documented similar access issues at Border Patrol holding facilities. 

In a June report, they noted one case in which an asylum-seeker was told to either proceed with their interview without counsel or spend days longer in the holding facility. 

Video from U.S. Customs and Border Protection of the new tent facility in Otay Mesa.

Type of Content

News: Based on facts, either observed and verified directly by the reporter, or reported and verified from knowledgeable sources.

Sofía Mejías-Pascoe is a border and immigration reporter covering the U.S.-Mexico region and the people who live, work and pass through the area. Mejías-Pascoe was previously a general assignment reporter and intern with inewsource, where she covered the pandemic’s toll inside prisons and detention...