FERM Has Come to Houston

August 14, 2023

– Blog, Legal Updates, Resources

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As of July 28, 2023, U.S. Immigration and Customs Enforcement’s (ICE) Family Expedited Removal Management (FERM) program includes Houston. FERM was originally announced by ICE on May 10, 2023, and started with immigrants heading to the four cities of Baltimore, Newark, Chicago, and Washington, D.C. Denver and St. Paul were added in June and Houston and New Orleans in July. Beginning August 11, 2023, Nashville, Seattle, Philadelphia, San Bernardino, and Portland have been added to FERM and Las Vegas, Marlton (NJ), Sacramento, San Antonio, and Los Angeles will be on the list August 18, 2023.[1]

This blog post will address what FERM is and how it is being used below. However, in light of recent litigation, HILSC felt it might be helpful to discuss first whether the FERM program would be continuing. On July 25, 2023, Judge Tigar in the Northern District of California granted a motion for summary judgment in favor of the plaintiffs: East Bay Sanctuary Covenant (“EBSC”), Central American Resource Center of Los Angeles, Tahirih Justice Center, National Center for Lesbian Rights, Immigrant Defenders Law Center, and American Gateways. The order from Judge Tigar vacated the DHS & DOJ rule known as the “Circumvention of Lawful Pathways” (CLP) rule or the “asylum ban,” and remanded it to the agencies.

Nevertheless, the 9th Circuit has since stayed the lower court’s order vacating the CLP rule pending their decision on the government’s appeal. Regardless of the recent litigation, which continued prior litigation over an “asylum ban” under the Trump administration, the CLP rule solely implemented asylum related regulations under 8 CFR 208.33. The FERM program is considered an “Alternative to Detention” (ATD), which is not part of 8 CFR 208.33.

Although not explicitly mentioned in the INA, ICE began using ATD in 2004, under the “discretion” given to ICE Enforcement and Removal Officers (ERO) in INA 236(a) and 8 CFR 1236.1(c)(8).[2] However, under INA 235(b)(1)(B)(iii)(IV), an individual in expedited removal who expresses a fear of returning to home country is subject to mandatory detention until it is determined that either the fear is credible or the fear is not credible and the person is removed. FERM is explicitly for families in expedited removal and, as discussed below, allows the families to not be detained, which seems to be contrary to the mandatory detention requirement in INA 235.

What is FERM?

Under FERM, family units at the border who express a fear of returning to their home county will be processed by CBP and released if their intended destination is any of the specified cities listed above. For these purposes, family is defined as a noncitizen parent or guardian and their noncitizen child(ren) under age 18.[3] For those familiar with Houston and its large size and sprawl, this may have triggered a question as to what is considered to be “Houston?” A family will be enrolled in FERM if the address of their intended destination is within 75 miles of the ATD site in one of the listed cities.

Once it is determined by CBP (in conjunction with ICE ERO) that the family will be going to a location within FERM’s purview, and that they are from a country with which the U.S. has regularly recurring repatriation flights, the “head of household” will be given a GPS monitoring device (usually an ankle monitor) and instructed to report to ICE in the intended city and to add the Smartlink application to their phone/device.[4] ICE indicates that GPS monitoring devices are not allowed to be given to pregnant people or people with a severe medical condition. Enrollment in the FERM program is also dependent on the capacity of USCIS in the destination city.

Upon arriving at the destination city, the family must go to the ATD office in that location to be further enrolled in the Intensive Supervision Appearance Program (ISAP). While at the ATD office they will get a “Know Your Rights” (KYR) presentation, a list of immigration resources in the area, and instructed on the home curfew they will be expected to comply with.[5] The family will also have an appointment with the USCIS Asylum Office in the location for their credible fear interview (CFI), which was scheduled by CBP prior to releasing the family.

One of the main challenges that has been reported about the FERM program is the timeline under which all of these steps must take place.

On a recent webinar from AI Justice, panelists indicated that the time it could take to get from the border to the CFI in a designated city was frequently more than five days. Taking into account the difficulties of traveling with children and getting them settled into a new location while also looking for childcare and transportation and consulting with a lawyer, most families would have difficulty preparing for the very real possibility of a CFI being scheduled on day 6.

Practitioners that have attempted to work with immigrants in FERM have reported that the intake and screening process are strained due to difficulties getting access to phones, confidential spaces, and childcare in such a short period of time. Not to mention that the lack of time makes working with the client in a trauma-informed manner next to impossible. Other challenges immigrants face in the process can be the distance they have to travel to the asylum office for their CFI, lack of childcare during the interview, and the long duration of the interview—often up to 6.5 hours during which time there is no food for the adults or children.

How do I know if my potential client is in FERM?

As mentioned above, ankle monitors and/or SmartLink phones are a good initial indicator that the family is enrolled in FERM. Although it is not consistent, there are various potential documents the family may have:

With the FERM process starting in Houston July 28, 2023, practitioners in Houston and the other listed cities should be screening carefully to make sure not to miss a FERM family, as their needs and timeline will be significantly different from other clients. With the short timeframe between arrival in Houston to scheduled credible fear interview, the earlier you encounter the family the better. At the end of July, ICE sent an email to current organizations on the EOIR List of Pro Bono Legal Service Providers asking which organizations wanted to be included on information provided to FERM families as potential remote legal service providers. However, ICE has not yet confirmed which organizations are/will be listed, so HILSC would encourage all advocates to keep an eye out for these families.

[1] After the initial announcement of FERM by ICE on May 10, 2023, announcements about expansion cities have been sent to stakeholders via email. The only additional information ICE has released about FERM is “Statement regarding the Family Expedited Removal Management Program.” “US expands curfews for asylum-seeking families to 13 cities as an alternative to detention,” Elliot Spagat, AP News, August 4, 2023.

[2]Immigration: Alternatives to Detention (ATD) Programs,” Audrey Singer, Congressional Research Service, July 8, 2019. “Alternatives to Immigration Detention: An Overview,” American Immigration Council, July 2023.

[3] Information in this section gathered from Americans for Immigrant Justice’s Webinar: “What is the Family Expedited Removal Management (FERM) Process?” on July 25, 2023 and ICE’s FERM Stakeholder meeting on July 28, 2023.

[4] If the head of household does not have a device, one will be given to them.

[5] The ISAP program is run by BI which was acquired by Geo Group and has had many issues, including case managers being assigned up to 300 people at once, which means each immigrant gets very little assistance. Poor tech, opaque rules, exhausted staff: inside the private company surveilling US immigrants , The Guardian, March 7, 2022.

 

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