South Florida immigration lawyers concerned about new rules

South Florida immigration lawyers concerned about new rules

A group of people speaking Creole depart the U.S. Customs and Border Protection Dania Beach Border Patrol Station, as families await the arrival of Cuban migrants on Thursday, Jan. 5, 2023.

A group of people today speaking Creole depart the U.S. Customs and Border Safety Dania Beach Border Patrol Station, as people await the arrival of Cuban migrants on Thursday, Jan. 5, 2023.

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A new mobile app from the U.S. Department of Homeland Security that is supposed to make it easier for migrants to apply online for entry into the U.S. is plagued with technological problems, South Florida immigration attorneys and advocates say.

“Even though this program was built to help those in need, on a practical level, it’s not helping those who actually need the help,” private immigration attorney Patricia Elizée said about CBP One, the app that Customs and Border Protection launched in January. “That’s something we would love for the administration to take a second look at, maybe coming up with a different way of applying. Right now, it’s only online but it would help a lot of people to benefit if they can also provide maybe a paper application for this program.”

Customs and Border Protection disputes allegations by lawyers that “thousands” of people are being prevented from taking advantage of the new rules due to app problems. The agency said that last month more than 20,000 people at ports of entry were processed using the app to book appointments to prevent expulsion. Since the inception of the app, more than 40,000 people have scheduled appointments via the CBP One App, with Haitians and Venezuelans topping the group.

“The CBP One app is a transparent and publicly accessible way to schedule appointments for migrants seeking to arrive at a land Port of Entry, which disincentivizes illegal crossing in between ports,” a Department of Homeland Security spokesperson said. “This app cuts out the smugglers, decreasing migrant exploitation, and improving safety and security in addition to making the process more efficient.

“CBP continues to make improvements to the app based on stakeholder feedback, including updates this week that make it easier for family units to secure appointments as a group,” the spokesperson said, disputing claims that some groups are disadvantaged.

The online process was rolled out as part of a series of new rules to control the influx of undocumented migrants gathering at the U.S.-Mexico border. It is also being used as part of a new humanitarian parole program for nationals of Haiti, Cuba, Nicaragua and Venezuela seeking to come to the U.S. who have a financial sponsor. In both instances, DHS issued a warning: To avoid rapid expulsion migrants need to use the app to get travel authorization.

But since the rollout, attorneys have listed a host of problems with the new technology, among them not being able to recognize people with darker complexions and glitches that have prevented migrants from scheduling appointments. Earlier this month the app problems were blamed for a border standoff in El Paso, Texas, between Customs and Border Protection officers and Venezuelan migrants, many of whom claimed they had problems accessing the app and rushed the border after rumors circulated it was open.

Cuban migrants arrive at the U.S. Customs and Border Protection Dania Beach Border Patrol Station in Dania Beach, Florida, on Thursday, Jan. 5, 2023.
Cuban migrants get there at the U.S. Customs and Border Defense Dania Seashore Border Patrol Station in Dania Seaside, Florida, on Thursday, Jan. 5, 2023. Al Diaz [email protected]

On Monday, Elizée was among lawyers and advocates who participated in an immigration law roundtable hosted by the South Florida Chapter of the American Immigration Lawyers Association. In addition to the problems with the app, lawyers and advocates raised a number of concerns with the current immigration policy under the Biden administration, which they say doesn’t look much that different from that of his predecessor, President Donald Trump.

They specifically cited the continued use of Title 42, which was implemented by Trump and criticized by Joe Biden during the 2020 presidential campaign. Title 42, which went into effect in the early days of the COVID-19 pandemic, allows the U.S. to ban entry to migrants for health-related reasons.

Though Title 42 is slated to go away on May 11, the administration has issued a number of new regulations that critics say make it difficult for people in need of asylum to apply. They are especially concerned about a proposed new rule requiring asylum seekers to first apply for asylum in another country before trying to do so at the U.S.-Mexico border. A public commenting period on the proposal ends on March 27.

“Quite simply it will create a lot of barriers for a lot of individuals to actually get to the border and have their cases heard,” said David Claros, representative of Church World Services.

Michelle Marty Rivera, an immigration lawyer, said the Biden administration has had two years to make changes to the country’s immigration system. But now with a new Congress in place, she doesn’t see how that is going to happen.

“I think that both Democratic and Republican administrations just use this topic as a tool to win elections, but once they’re actually there, there’s very little gets done. We just see like a snowball effect,” she said.

Rivera said there has been a disturbing rise en El Paso in the time migrants have to wait for so-called credible-fear interviews, in which migrants make the case they will be persecuted if returned to their home countries.

“Depending on the result of that interview, you’re seeing folks being kept detained in order to see their cases filed while in detention,” she said. “If their credible-fear interview is approved, then you’re seeing different scenarios: People getting paroled or getting released on their own recognizance. People getting bonds, either issued by [Immigration Customs Enforcement] or by an immigration judge. So again, there’s a lot of disparity in what’s going on.”

Another concern is the inconsistent treatment of Cuban migrants, some of whom get released on their own recognizance while others are given expedited orders of removal. Removal orders require migrants to seek the help of an attorney if they want to avoid deportation, Rivera said, and Cubans faced uncertainty about what they’re going to be able to do once they’re here.

“To be fair, it’s an almost unfixable problem; you’re always going to have people wanting to come here and obviously the legislative process in this area is broken. I’m not hopeful,” said immigration attorney Helena Tetzeli, a partner with Kurzban Kurzban Tetzeli & Pratt in Coral Gables. “Whichever administration comes into office has this Band-Aid approach with executive orders, and then there’s litigation, challenging the executive orders, then injunctions, a patchwork of attempted fixes, sometimes with a political motivation.

“The whole system now is almost like a Frankenstein. It’s just all patched together,“ she added. “But I see it getting worse and worse with time.”

Immigration lawyers are keeping a close eye on a lawsuit filed by Florida Gov. Ron DeSantis and the governors of 19 other states, including Texas, challenging the Biden administration’s two-year parole program for nationals of Cuba, Haiti, Nicaragua and Venezuela. The administration has said that 30,000 people will be allowed to enter the U.S. each month under the program, which requires a financial sponsor in the U.S. and background checks. Earlier this month an administration official said that more than 11,300 Haitians have been thoroughly screened and have received authorization to travel to the U.S. and stay for up to two years.

Elizée said she has several Haitian clients who, after entering the United States, are seeking to adjust their status because they already had pre-existing residency applications. But due to immigration backlogs and issues with other existing immigration programs, they opted to take advantage of the new humanitarian parole “because they’re just so sick and tired of waiting” for approval to come to the U.S., she said.

Still, she noted that there are “thousands of people who are not going to be able to use the travel authorization” because they are not able to get through the portal, they are not able to use the email, they are not able to use the app on their own.

This tale was initially published March 21, 2023, 1:05 PM.

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Jacqueline Charles has described on Haiti and the English-speaking Caribbean for the Miami Herald for in excess of a 10 years. A Pulitzer Prize finalist for her coverage of the 2010 Haiti earthquake, she was awarded a 2018 Maria Moors Cabot Prize — the most prestigious award for protection of the Americas.