Border Patrol Arrest Reports Are Full of Lies That Can Sabotage Asylum Claims
ON DECEMBER 29, 2017, the night his daughter was born, Augusto left the hospital and rode his motorcycle to his home in Matagalpa, Nicaragua, to pick up a change of clothes for his wife. On his way back, he was stopped at a police checkpoint and taken into custody. Police officers questioned him for hours about his father, a former mayor and member of the opposition party to Nicaraguan President Daniel Ortega. At one point, a police detective pushed Augusto into a windowless room and beat him with a plastic Pepsi bottle loaded with sand. The next morning, caked with blood and bruised to a pulp, Augusto was released without charges.
The beating, along with more threats against his father, inspired Augusto to join in the mass protests against the Ortega government that erupted in April 2018. A month later, a little after midnight on May 29, police broke down Augusto’s door, pulled him barely dressed out of his house, and took him back to the police station to question him again about his father. He was told that his father was accused of plotting a coup against Ortega, a charge Augusto strongly denies. (Augusto, like other asylum-seekers named in this story, is referred to by a pseudonym for his protection.) Scared to return home after his release — “They told me the next time they came, they were going to kill me” — he moved in with his grandfather. A couple months later, someone spray-painted “plomo, plomo, FSLN,” on his front door; “plomo” means “lead” in Spanish, in reference to a bullet, and FSLN is Ortega’s political party, the Sandinista National Liberation Front. To Augusto, it was a clear death threat. In the following days, Augusto, his father, and his sister-in-law decided to flee the country.
After an arduous three-week trip, they made it to the U.S.-Mexico border in Juárez, Mexico. As they approached the port of entry, a man came up to them and told them that they needed to pay $300 each to access the bridge and cross into the United States. Not having the money, they walked a mile along the border until they saw a Border Patrol truck. They climbed the fence, dropped to their knees on American soil, put their hands behind their heads, and told the agent who approached them that they had come to the U.S. to ask for asylum.
When in custody, Augusto had a brief interview with a Border Patrol agent, Daniel Chavira. Augusto explained again why he had come to the U.S., and said that he was seeking asylum and had a USB drive in his backpack full of evidence. Yet Chavira confiscated the USB drive (Augusto would never see it again) and recorded on the arrest report, using capital letters, that Augusto “stated that he DOES NOT fear harm and/or persecution should he be returned to his native country.” Chavira also wrote that Augusto intended to go to Los Angeles, “where he planned to reside and seek unauthorized employment.”
Neither of those statements were true. But Augusto didn’t know at the time what the document claimed he had said, nor that contradictory information on a government document can severely complicate, or even completely derail, an asylum claim. And it would be months before Augusto, with the help of an immigration attorney, was able to stand before a judge to confront the concocted statements.
A Million Lies
When an immigrant seeking to make an asylum claim has a run-in with federal authorities — either at the border or once inside the U.S. — the information recorded by those officials on various government forms can have a tremendous impact on their cases. One such form is the I-213, which Border Patrol or Immigration and Customs Enforcement agents fill out when they take a migrant into custody. Another is the I-867, a record of sworn statement and a standard part of the intake process. The statements written on these forms — whether or not they bear any resemblance to the truth — are incredibly difficult to disprove or override.
The I-213 specifically is akin to a police arrest report, summarizing an individual’s personal history, the circumstances of their arrest, and a narrative portion based on an interview with the migrant; in government parlance, it is a record of alleged “alienage” and “removability.” Border Patrol and ICE agents, who often have only perfunctory knowledge of asylum law, have total control as to what goes onto someone’s I-213. If an immigration officer writes that a migrant stated something that contradicts later testimony in front of a judge or on another government document, the contradiction can lead to an “adverse credibility determination.” That, in turn, can result in prolonged detention, denial of bond, or denial of asylum — then deportation.
A private attorney in New Jersey, who did not want his name used for fear of retaliation from a judge, told The Intercept that one of his client’s I-213s stated that he had a criminal conviction, while in reality, criminal charges against his client had been dismissed. “Despite being given the actual certified disposition from the criminal court, the judge still was not convinced that the information in the I-213 was inaccurate,” the attorney said. Based on that fictional conviction, the client was deemed ineligible for bond and has remained in detention for two years. “I’ve never seen anything so brazenly absurd,” he said, explaining that judges treat the I-213 as “sacrosanct.”
The Intercept spoke with over a dozen attorneys and immigration experts, all of whom said they regularly encountered incorrect, or sometimes plainly ridiculous, information on their clients’ I-213s. The problem is “super prevalent,” in the words of Andrew Free, an immigration attorney based in Nashville, Tennessee. Kirsten Zittlau, an immigration attorney in San Diego, said she has seen “a million lies” on I-213s. In reviewing dozens of I-213s and cross-checking them with migrants’ own accounts, written testimonies, or attorneys’ explanations, The Intercept confirmed regular instances of erroneous, fabricated, and downright bogus information recorded on these forms. Many of the forms were even internally discrepant — botching or switching names, as well as mangling dates, mistaking gender, and flubbing countries of origin, among other errors.
Border Patrol officers in particular are supposed to ask migrants if they fear returning to their home country, and the answer to that initial question can be key to establishing the basis for an asylum claim. However, research from the U.S. Commission on International Religious Freedom concluded in 2016 that in “86.5 percent of the cases where a fear question was not asked, the record inaccurately indicated that it had been asked, and answered.”
Some of the errors that appear on immigration intake forms would be laughable, if the consequences weren’t so dire. The New Jersey attorney had an ICE agent declare that one of his clients had a sawed-off shotgun in his car, when there was no evidence of any such thing. In a 2015 brief, the American Immigration Lawyers Association highlighted an I-867 where a defendant, identified as Y.F., said that they came to the U.S. “to look for work.” At the time of the interview, Y.F. was only three years old. More than one attorney told The Intercept they’ve seen I-213s for infants as young as a few months old who, according to Border Patrol, claim that they came to the United States to work.
Government documents provided to Human Rights Watch via a Freedom of Information Act request and shared with The Intercept reveal further instances of Border Patrol agents and Customs and Border Protection officers including erroneous information on intake forms, and they also shed light on abuse of asylum-seekers. The documents, internal complaints filed by asylum officers with U.S. Citizenship and Immigration Services, show that front-line border officials often go to extraordinary lengths to deny the people in their custody the ability to make an asylum claim.
Human Rights Watch’s ongoing investigation has turned up numerous cases of Border Patrol pressuring asylum-seekers not to claim fear, or officers simply lying and saying that people did not fear being returned, when in fact they had stated otherwise.
“The evidence we have gathered raises serious concerns that Border Patrol officers consistently deny asylum-seekers the opportunity to make a claim for protection or falsify records in a way that undercut those claims,” said Clara Long, senior researcher in the U.S. program at Human Rights Watch.
Anything to Make the Job Easier
It’s hard to know for sure why a Border Patrol agent might include specious statements on an intake form. Cursory interviews and a reliance on stock answers to fill out forms would certainly be a draw to an overworked and overwhelmed agency. “Anything to make the job easier,” said a former Border Patrol agent I asked about falsifying I-213s. (He came forward last year as a whistleblower about the agency’s anti-immigrant culture.)
Some of these cases do seem like hurried clerical errors made by officers triaging sometimes hundreds of cases a day, said Jodi Ziesemer, director of immigrant protection at New York Legal Assistance Group; it’s as if an immigration officer “clearly put someone’s name and [alien registration number] on the top of someone else’s form.” Genevra Alberti, a private attorney in Kansas City, Missouri, described a client who was picked up by ICE on her way to work while wearing her work uniform. Her I-213, however, said she claimed she was unemployed. “I’m not sure if they were not paying attention, wrote the document a day later, or just winged it,” Alberti hazarded.
The more nefarious reason for erroneous information appearing on these forms would be deliberate falsification to save time or scuttle asylum claims — something that’s harder to prove. But lawyers say it’s difficult to otherwise explain how completely off-base the information often is. Shunting apprehended migrants into expedited removal — which is only possible if a migrant doesn’t claim that they are afraid to return to their country of origin — saves the agents both time and paperwork. It may also serve an ideological goal of denying more people entry. Indeed, the White House may see Border Patrol’s flippancy with asylum-seekers’ stories as an asset; Trump adviser Stephen Miller reportedlywants Border Patrol to do more asylum screenings because he thinks they will be less credulous of claims.
Agents may also lie on forms to give themselves cover for detaining someone on the basis of racial profiling. Zittlau, the attorney in San Diego, describes this as “reverse-engineering.” ICE or Border Patrol agents stop and search brown-skinned Latinos, Zittlau explains, and when they come across someone who doesn’t have authorization to be in the U.S., they then fabricate a story for why they stopped them. The Intercept cross-referenced some of Zittlau’s client affidavits with their I-213s and found a host of inconsistencies or boilerplate language.
For instance, Zittlau showed me two I-213s prepared by the same Border Patrol agent after two separate traffic stops in Southern California where he questioned Latino drivers on their legal status. The stops, both on Interstate 15, were three months apart, but he wrote down an identical justification: “the driver’s posture appeared to be stiff, rigid, and appeared to be white knuckling the steering wheel from being overly nervous.” In both instances, the agent claimed that the vehicle slowed down “dramatically” from 70 to 60 mph; except for the make and model of the vehicle, the descriptions were verbatim. The false information in cases like these may or may not influence a person’s claim to remain in the U.S., but either way, it underscores the impunity with which officers present a manhandled version of the truth.
Neither the Border Patrol nor ICE responded to questions for this story.
Benefit of the Doubt
The government has the overwhelming balance of credibility in immigration matters, thanks to longstanding legal precedent. A 1988 Board of Immigration Appeals case, Matter of Barcenas, made it such that an immigrant had to “come forward with proof” before immigration officers would need to defend their recorded version of events. How an immigrant might obtain proof of a conversation that took place months or sometimes years previously while they were in custody is unclear. But the court basically ruled that if it’s one person’s word against another, the Border Patrol wins. A 1995 9th U.S. Circuit Court of Appeals case specifically weighed in favor of the I-213, stating “such forms are presumed inherently reliable if authenticated, and are presumed to contain information from the respondent unless the respondent presents evidence to the contrary.”
In practice, attorneys told The Intercept, suppressing evidence presented by Border Patrol or ICE is nearly impossible. Ziesemer said that attorneys have been “trying to chip away at that assumption that [these documents] are reliable.” The idea that the Border Patrol was subjected to oversight was “a farce,” she said. “The court is not properly scrutinizing these documents.”
But that chipping away isn’t easy. In criminal court, a police arrest report is considered hearsay and is not admissible as evidence; in immigration court, such reports are often the only evidence. According to the Department of Justice’s immigration judge “Benchbook,” the rules of evidence applicable to criminal courts do not apply, and “any type of evidence is admissible so long as it is material and relevant to the issues before the hearing.”
This setup, as well as the overall prosecutorial culture of the immigration courts, lends itself to a judge’s giving credence to Border Patrol and ICE. They all — judges, along with frontline Border Patrol agents and ICE officers — belong to the executive branch. Immigration judges’ ultimate boss is the attorney general; they are not part of the independent judicial branch. Molly Molloy, a researcher who has spent years writing about and analyzing the border and immigration, described one case in which an asylum-seeker claimed that information on an I-213 was wrong. The judge responded, “Well, I don’t see why a Border Patrol agent would make something up.”
Unlike in criminal court, where an attorney could cross-examine a witness or question the evidence, in immigration court they’re not given that opportunity. “It’s legally, absolutely wrongheaded,” said the New Jersey attorney. “I have no way to challenge” dubious evidence or false accusations.
Subpoenaing the agents who filled out the forms — a means by which an attorney could potentially contest a fabricated statement — is nearly an impossible task. Not only do judges frequently deny attorneys’ requests to issue a subpoena, as multiple attorneys attested, but it is unrealistic to think that a Border Patrol agent would remember one interview, among potentially hundreds, which took place months or even years earlier. Nancy Oretskin, Augusto’s attorney, explained that she tried to subpoena the officer in his case, but that the judge denied her request because she had not exhausted all other modes of trying to locate the officer and ask him to come into court. Despite multiple calls to the Border Patrol station, she never reached the officer.
“They Were So Rude. They Were Racist.”
As the Border Patrol policy manual details, during an intake interview, the examining immigration officer “must be absolutely certain” that “the alien has understood the proceedings against him or her.” The manual explicitly exhorts the agent to “have the alien read the [sworn] statement, or have it read to him or her in a language the alien understands” before signing and initialing. But in reality, migrants frequently report that they feel pressured and confused during the intake, and the conditions under which immigration officers interview migrants also factor into the veracity of the documents they produce.
The records released to Human Rights Watch include the account of an asylum-seeker who, just before his intake interview, saw Border Patrol officers use a Taser to electrocute two of the men in line before him. When asked if he feared being returned to his country, the man said, “I said no, because I was afraid.”
Mackenzie Levy, staff member on the Dilley Pro Bono Project, which provides legal services to women and children locked up in the South Texas Family Residential Center in Dilley, Texas, described an I-213 in which it was recorded that one client, Eliza, said she was not afraid to return to her country. Eliza reported to Levy that her intake interview went as follows:
CBP Officer: Are you afraid to return?
Eliza: We are all afraid.
CBP: Are you afraid or not? Do you renounce your country?
Eliza: I am afraid, but I love my land.
CBP: So you aren’t afraid [marks no]. If you ask for asylum, you can never return. Do you want asylum?
In fact, two of Eliza’s brothers had been killed and, as she later told The Intercept, she was terrified of returning to her home country and had come to the U.S. to ask for asylum.
I spoke to another woman, Dorina, who described the conditions in which CBP officers pushed her to give up her asylum claim earlier this year. “It was so hard,” she told me. “They were so rude. They were racist. … They want you to sign deportation papers. They push and push and push and push you into signing. They try to confuse you. They try to trick you into signing.”
Dorina emphasized how disoriented she was during the interview: “I was six days in the hielera and two days in the perrera,” she said, using terms that describe the Border Patrol’s short-term custody centers — “hielera,” or icebox — and the processing centers where people are held in cages of metal fencing — “perrera,” or dog kennel.
“They took my son away for two days,” she continued. “It was the worst experience of my life. I couldn’t sleep. I didn’t bathe. I couldn’t eat the food. The AC was so, so, so, so cold. There were 35 people in there. It’s so, so bad. They move you from one hielera to another to another, and you don’t even know where you are.” Amid that confusion, the separation from her child, as well as the cold and the hunger and the filth, an armed Border Patrol officer interrogated her and asked her if she was scared to return to her own country. She said that she was, but when her asylum officer interviewed her later, she was told that her I-213 was blank. Her case is ongoing.
Deported and Then Tortured
John, who is 30, and, like Augusto, from Nicaragua, also took part in the popular mass protests against the Ortega regime. His involvement, as he explained it to The Intercept, mostly entailed using his car to transport injured students and protesters to the hospital, but he also participated in a few marches and rallies. He shared photos of himself marching with a surgeon’s mask to protect against tear gas. At one march the police arrested him, took him to a station, and tortured him. After he was released, John continued with his activism, and the government kept stalking him. They “had a kill order on me,” he said. After seeing his friends killed or jailed, scared for his life and for the safety of his wife and two young children, he went into hiding and started sleeping under a bridge, trying to figure out his next move. Soon, he said, “I reached my limit.” And so he fled — north.
Following thousands of his compatriots and tens of thousands of other Central Americans, he passed through Mexico and made his way to the U.S. border, where he told a Border Patrol agent that he wanted to ask for asylum. After they handcuffed him and threw him into a hielera, he asked to speak to a lawyer, but his request was denied. Finally, after a few days, a Border Patrol agent interviewed him. He told the agent, again, that he wanted to ask for asylum. He laid out his whole story, explaining why his life was in danger in his home country. The officer “seemed to be typing notes,” he said. On the I-213, the agent recorded that John “did not indicate any claim fear of persecution if returned to their native country of Nicaragua.”
When I read that statement to him via WhatsApp, John let out a plosive guffaw. “No, that’s false,” he said. I asked him if he made it clear to the agent that he feared returning to his country. He told me that he had. After he was transferred to an ICE detention center, he represented himself in court to make his asylum claim, but it was denied. The judge told him that he wasn’t being granted asylum because he wasn’t believable, because Nicaragua wasn’t as dangerous as he contended, and because he had told a Border Patrol agent, as recorded on his I-213, that he wasn’t afraid of being returned to his country.
John tried to appeal, staged a hunger strike, and submitted paperwork to the Board of Immigration Appeals, but somehow the appeal didn’t go through, and he was deported. Back in Nicaragua, before he even left the airport, he was arrested. Police officers took him to a back room and kept him there for 26 hours. “It felt like an eternity,” he told me. He suffered “hours of torture — psychological, physical, and verbal.” Ever since, he’s been anxious, has trouble sleeping, and has been repeatedly targeted. Police officers recently confiscated his driver’s license. In May, they took him back into custody and tortured him again. “They fractured my hand, hurt my leg, my eye was so swollen I couldn’t get out of bed,” John said. He struggled to explain the treatment he had endured. “If you go through the fire,” he said, “only then can you understand.”
Unlike John, Augusto was able to secure an attorney, Oretskin, who fought against the false statement on his I-213 and presented evidence of his persecution. Though she wasn’t able to convince the judge to subpoena the agent who wrote the error-ridden I-213 to come to court, Oretskin preempted the government attorney using the fabricated statement as a means to question his credibility and asked Augusto to explain what he actually said on the stand. It worked: The judge granted him asylum. “Let me be clear,” Oretskin told The Intercept, “he won because he had a good asylum claim, because he was persecuted because of his political opinion.” Augusto’s father, meanwhile, who had been falsely accused of plotting a coup against Ortega, and who fled along with his son, also has an I-213 that says he “DOES NOT fear harm and/or persecution would he be returned to his native country.” His case has not yet been decided.
Asylum-seekers aren’t only fleeing danger, traveling sometimes thousands of miles, and struggling against an administration determined to restrict their access to protection. They are also struggling against front-line agents rewriting their stories.
One asylum-seeker interviewed by Human Rights Watch said that the CBP agent who interviewed her never asked her about fearing return. “He just looked me up and down and said, ‘You’re here to work, I’m writing that you’re here to work. I don’t want to hear anything about you saying you’re afraid.’” In any context, the rewriting of another person’s story is a violation. For asylum-seekers, their story may be their only key to survival.
John Washington writes about immigration and border politics, as well as criminal justice and literature. He is writing a book (forthcoming from Verso) about asylum seekers. He is also a translator, having translated, most recently, A Massacre in Mexico, by Anabel Hernandez and Blood Barrios, by Alberto Arce, which won a PEN Translates Award. He is a frequent contributor to The Nation. Find more of his work at www.jblackburnwashington.com.