Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR) on Circumvention of Lawful Pathways

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March 23, 2023

Submitted via: https://www.regulations.gov.

Daniel Delgado
Acting Director
Border and Immigration Policy
Office of Strategy, Policy, and Plans
U.S. Department of Homeland Security
telephone (202) 447-3459

Lauren Alder Reid
Assistant Director,
Office of Policy, EOIR
U.S. Department of Justice
telephone (703) 305-0289 

Re: Comment on the Proposed Rule by the Department of Homeland Security (DHS)[1] and the Executive Office for Immigration Review (EOIR)[2] on Circumvention of Lawful Pathways, CIS No. 2736-22; Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023

Dear Mr. Daniel Delgado and Ms. Lauren Alder Reid: 

Human Rights Watch submits this comment in response to the proposed rule of the Department of Homeland Security (DHS) and the Department of Justice (DOJ) published in the Federal Register on February 23, 2023, that would ban many refugees from asylum protection in the United States, subjecting them to refoulement in violation of international human rights, refugee, and US law, and deprive refugees of the ability to reunite with their families and pursue a path to citizenship.[3] The proposed rule is a new version of similar asylum bans promulgated by the Trump administration that were repeatedly struck down by federal courts as unlawful. 

This proposed asylum ban attempts to end access to asylum for many refugees at the US southern border, discriminates against Black, Brown, and Indigenous asylum seekers, and seeks to circumvent US law and US obligations under international human rights and refugee law. Human Rights Watch strongly urges DHS and DOJ to withdraw the proposed rule in its entirety. The Biden administration should instead uphold US and international human rights and refugee law, restore full access to asylum at and between ports of entry, ensure adequate funding for temporary shelters, including by re-allocating funds, ensure fair and humane asylum adjudications, and rescind the Trump administration entry and transit bans in their entirety.

Furthermore, Human Rights Watch strongly urges the Biden administration to abandon the use of CBP One due to due process, privacy, and discrimination concerns. CBP One is an extremely flawed government application to request an appointment at a port of entry with very limited appointment slots such that requiring asylum seekers to use it institutes another version of “metering,” which a US federal judge ruled illegal[4] because it violates due process rights, and which also violates international standards protecting asylum seekers.[5] The application is inaccessible to many asylum seekers due to financial, language, technological, and other barriers, all of which have disproportionately adverse impacts on Black and Indigenous asylum seekers. The app also collects personal and biometric data from individuals, raising human rights concerns with regard to the right to privacy, due process, non-discrimination, and fair and equal treatment before the law.

Human Rights Watch and Its Interest in the Issue 

Human Rights Watch is a nonprofit, non-partisan organization established in 1978 that investigates and reports on violations of fundamental human rights in over 100 countries worldwide with the goal of securing the respect of these rights for all persons. It is the largest international human rights organization based in the United States. By exposing and calling attention to human rights abuses committed by state and non-state actors, Human Rights Watch seeks to bring international public opinion to bear upon offending governments and others and thus bring pressure on them to end abusive practices. Human Rights Watch provides commentary and has filed amicus briefs based on its investigations and reports to various bodies, including many agencies of the Executive Branch of the United States, the US Supreme Court, US Courts of Appeal, and the Inter-American Commission on Human Rights.

As a member of border-wide coalitions and collaborations, we have documented abuses experienced by asylum seekers forced to wait in Mexico under prior policies and practices (abuses which we have raised formally with DHS[6]), just as asylum seekers will be forced to wait under the proposed rule. We have also documented abuses experienced by individuals from Honduras[7] and El Salvador[8] who have been returned by the United States to face danger due to previous administration’s restrictive policies; and we have examined human rights conditions and asylum system failures in countries, such as Guatemala, relevant to the proposed rule.[9] In our multiple investigations at the US-Mexico border, we have also  witnessed the capacity of non-governmental organizations to provide reception services to asylum seekers and migrants including in San Diego, Tucson,  Phoenix, Las Cruces, El Paso, and in the Rio Grande Valley that, if properly resourced, for example through FEMA, would obviate any rationale for the proposed rule as well as for use of the CBP One App.

Overview of Proposed Rule

The proposed rule bans refugees from asylum protection based on their manner of entry into the United States and transit through other countries, factors that are irrelevant to their fear of return and that violate US law and international refugee law binding on the United States. Relevant to this comment are obligations of the United States under the International Covenant on Civil and Political Rights (ratified by the US in 1992); the 1967 Protocol on the Status of Refugees[10] (acceded to by the US in 1968); the Convention Against Torture (ratified by the US in 1994); and the 1951 Refugee Convention (the substantive terms of which the US is bound by due to its accession to the 1967 Protocol).

The proposed rule would create a presumption of asylum ineligibility for individuals who (1) did not apply for and receive a formal denial of protection in a transit country and (2) entered between ports of entry at the southern border or entered at a port of entry without a previously scheduled appointment through the CBP One mobile application, subject to extremely limited exceptions. 

The asylum ban contained in this proposed rule violates US law, which ensures access to asylum regardless of manner of entry or transit and prohibits restrictions on asylum that are inconsistent with provisions in the US asylum statute. Members of Congress,[11] human rights advocates,[12] faith-based organizations,[13] and many others urged the administration not to issue the proposed rule and voiced strong opposition to it when the administration announced its intention to publish it. 

President Biden’s February 2021 Executive Order promised to “restore and strengthen our own asylum system, which has been badly damaged by policies enacted over the last 4 years that contravened our values and caused needless human suffering.”[14] As a candidate, President Biden pledged that his administration would not “deny[] asylum to people fleeing persecution and violence” and would end restrictions on asylum for those who transit through other countries to reach safety.[15] The proposed rule goes against these promises and attempts to instead deport refugees to danger based on manner of entry and transit in circumvention of existing refugee law and treaty obligations. 

The proposed rule attempts to establish CBP One as the only mechanism to request asylum at the southern border and effectively seeks to punish those who cannot wait indefinitely in danger while they attempt to schedule an appointment. 

The Asylum Ban Violates US Law and Treaty Obligations 

The proposed rule contravenes US law governing asylum access and prohibitions on the return of refugees to persecution and torture. Congress passed the Refugee Act of 1980 to codify the United States’ obligations under the Refugee Convention and Protocol. 

The United States played a lead role in drafting the Refugee Convention in the wake of World War II. By later acceding to the Refugee Protocol, the United States promised to abide by the Convention’s legal requirements, including non-discriminatory access to asylum, its nonrefoulement prohibition against returning refugees to persecution, and its prohibition against imposing improper penalties on people seeking refugee protection based on manner of entry. The UN Refugee Agency (UNHCR) previously warned, with respect to the Trump administration’s entry and transit bans, that such asylum bans are not consistent with fundamental protections of refugee law, including the right to seek asylum, the principle of non-refoulement, and the prohibition against penalties for irregular entry.[16] By denying asylum where an individual has not used certain limited migration pathways, the proposed rule attempts to unlawfully use the existence of lawful pathways as a justification to deny access to asylum at the border. UNHCR, IOM, and UNICEF recently warned that the provision of safe pathways “cannot come at the expense of the fundamental human right to seek asylum.”[17]

The Refugee Act of 1980 incorporated these principles into US law. Section 1158 of Title 8 of the United States Code provides that people may apply for asylum regardless of manner of entry into the United States. It also delineates limited exceptions where an asylum seeker may be denied asylum based on travel through another country, but these restrictions only apply where an individual was “firmly resettled” in another country (defined to mean the person was eligible for or received permanent legal status in that country) or if the US has a formal “safe third country” agreement with a country where refugees would be safe from persecution and have access to fair asylum procedures. The statute prohibits the administration from issuing restrictions on asylum that are inconsistent with these provisions. 8 U.S.C. § 1231 codified the prohibition against returning refugees to countries where they face persecution. The proposed rule, which conditions access to asylum on manner of entry and transit, would result in the return of refugees to danger and unequivocally contravenes these provisions of US law. 

The proposed rule also violates Article 31 of the Refugee Convention, which prohibits improper penalties on asylum seekers based on their irregular entry into the country of refuge. The agencies explicitly note that the asylum ban would inflict “consequences” on people seeking asylum – a blatant attempt to punish people based on their manner of entry into the United States. These consequences could include the denial of access to asylum, deportation to harm, family separation, and deprivation of a path to naturalization. With respect to the Trump administration’s entry ban, UNHCR has stated that “[n]either the 1951 Convention nor the 1967 Protocol permits parties to condition access to asylum procedures on regular entry.”[18]

The proposed asylum ban violates these key provisions of US law and treaty obligations. Indeed, similar Trump administration asylum bans targeting refugees at the border based on manner of entry and transit were vacated or enjoined by federal courts for violating these provisions of US law, as discussed below. In 2021, when the Biden administration first considered adopting an asylum ban, legal counsel for the White House warned that it could be struck down as illegal for the same reason that federal courts struck down the Trump administration bans. Nonetheless, the agencies have decided to proceed with this patently illegal policy.[19] 

Resurrecting Illegal Policies Used by the Previous Administration to Ban Asylum Seekers

The proposed rule is a new iteration of similar asylum bans the Trump administration attempted to advance. Those bans, which similarly barred refugees from asylum protection based on manner of entry and transit, were repeatedly struck down by federal courts as unlawful.[20] The Trump administration’s transit ban, which was in effect for a year before it was vacated, inflicted enormous damage including deportation of refugees to harm, separation of families, and prolonged detention.[21] This proposed rule would similarly be wielded to deny refugees asylum and block and rapidly deport refugees without access to asylum hearings through expedited removal, resulting in the same horrific harms. 

When then-President Trump issued unlawful asylum bans, Human Rights Watch documented resulting abuses and advocated for the rights of asylum seekers. For instance, Human Rights Watch identified many cases of Cameroonians returned to harm in their home country, some of whom faced due process failures under the Trump asylum ban.[22] An in-depth report documented the dangerous conditions LGBTQ asylum seekers faced in Mexico as the result of US policies that forced them to wait to enter the United States to have their asylum claims heard.[23] Another Human Rights Watch report detailed the experiences of Venezuelans forced to wait in those same dangerous conditions.[24] And  another Human Rights Watch report documented how, at the request of the US government, Mexican officials intercepted people at its southern border to prevent them from arriving at the US-Mexico border.[25]

Asylum Ban Would Disparately Harm Black, Brown, and Indigenous Asylum Seekers

This rule discriminates against asylum seekers based on manner of entry and transit and will have a racially disparate impact on asylum seekers from Africa, the Caribbean, and Latin America. The asylum ban contained in the proposed rule, which applies only to people who seek protection at the southern border, will disproportionately harm people of color who do not have the resources or ability to arrive in the United States by plane.  

The United States and other countries employ visa regimes to prevent people from reaching their countries’ territories to seek asylum while often allowing access to people from wealthier and predominantly white nations.[26] Imposing a ban on refugees seeking safety at the southwest border will, like the Trump administration’s third-country transit ban, disproportionately harm people of color who must undertake an often difficult and dangerous journey to arrive in the United States by way of the southern border. During the period that the transit ban was implemented, immigration court asylum denial rates skyrocketed for many Black, Brown, and Indigenous asylum seekers requesting safety at the southern border.[27] For instance, asylum grant rates declined by 45 percent for Cameroonian asylum applicants, 32.4 percent for Cubans, 29.9 percent for Venezuelans, 17 percent for Eritreans, 12.9 percent for Hondurans, 12 percent for Congolese (DRC), and 7.7 percent for Guatemalans from December 2019 to March 2020, compared to the year before the third-country transit asylum ban began to affect refugee claims, according to data analyzed by Syracuse University’s Transactional Records Access Clearinghouse.

In addition, as discussed below, requiring asylum seekers to use CBP One to seek asylum at the border disparately harms Black asylum seekers due to racial bias in its facial recognition technology[28] and is inaccessible to many Indigenous, African, and other asylum seekers due to language barriers. This proposed asylum ban will significantly thwart the Biden administration’s stated commitment to racial justice and equity.[29] 

The ban also builds in nationality-based discrimination in access to asylum, as it largely bans asylum for people who do not enter the United States via limited parole initiatives that discriminate based on wealth or previously scheduled appointments at ports of entry while also limiting access to wealth-based parole initiatives for certain nationalities.[30] For instance, while there are currently limited parole initiatives for some nationalities, there are no similar parole initiatives for people from Guatemala, Honduras, and El Salvador.[31]

Requiring Refugees at the Southern Border to Use CBP One Constitutes Illegal “Metering” Denies Asylum Access to the Most Vulnerable Refugees

The rule requires asylum seekers at the southern border to schedule appointments through the CBP One app and would generally deny asylum to refugees who arrive at a border port of entry without a previously scheduled appointment and who were not denied protection in a transit country. Requiring refugees to use CBP One at the southern border appears to constitute illegal metering (based not on wait time but on luck, technology skills, or resources to secure an appointment — turning asylum access in effect into a lottery).[32] Use of CBP One may result in other violations of human rights to privacy, due process, and fair and equal treatment before the law. CBP One is an impossible tool for many asylum seekers to access or use, including those who do not have the resources to obtain a smartphone or ability to navigate the app.[33] The app is not accessible to illiterate or non-literate people, it is not available in most languages–including Indigenous languages–and all error messages are in English, effectively meaning that many asylum seekers will not be able to use the app.  It also disparately harms Black asylum seekers due to racial bias in its facial recognition technology,[34] which has prevented many from obtaining an appointment. Asylum seekers who can access and navigate the app are still often unable to schedule appointments due to extremely limited slots and are forced to remain in danger indefinitely.[35]

The use of CBP One to implement an illegal metering system has already resulted in horrific violence and death, including the murder of a 17-year-old Cuban boy in Mexico who was required to wait weeks for an appointment.[36] A Venezuelan family unable to secure an appointment at a port of entry near them in Piedras Negras and forced to travel over 1200 miles to another port of entry for an appointment was kidnapped, tortured, and extorted by a criminal group while traveling to their appointment.[37] After 20 days, their abductors blindfolded them and brought them to the US-Mexico border, threatening to murder them if they did not cross. After crossing, the family tried to explain to Border Patrol that they had been kidnapped and forced to cross, but agents told them they were criminals for crossing illegally and expelled them back to Mexico. 

By requiring people at the southern border to use CBP One, the proposed rule would leave many vulnerable asylum seekers in grave danger. Survivors of gender-based violence, for example, often face pursuit by their abusers, including up to the border. LGBT+ asylum seekers frequently confront sexual and other violence, extortion, and other serious abuse on their journey through Mexico, particularly at the border. Women regularly face sexual violence and are at risk of trafficking and other exploitation, among other serious harms, and these risks increase in border towns. Asylum seekers who are Indigenous, disabled, not Spanish speakers, or unaccompanied children are also among those who are particularly vulnerable to these and other serious harms, the risks of which increase substantially the longer they must remain in border areas.  Asylum seekers unable to secure appointments through the CBP One app will be forced to remain indefinitely at the border in dangerous conditions, often with no access to safe housing or stable income as they continue to try to make an appointment. These conditions increase the likelihood that they will be targeted for violence by cartels, traffickers, and the abusers from which they initially fled.[38]  Many LGBT+ asylum seekers and families and other vulnerable populations have already been unable to secure appointments through CBP One, leaving them in extreme danger.

The limited availability of appointments via the CBP One app has the foreseeable consequence of causing families to separate. In fact, the administration’s use of the CBP One app and denial of access to asylum for people who cannot schedule appointments through the app has already forced families to separate.[39] Families unable to secure CBP One app appointments together as a family unit have made the impossible choice to send their children across the border alone to protect them from harm in Mexican border regions. Like the Title 42 policy and other policies that block, ban, and deny asylum to refugees, this proposed rule would fuel family separations at the border. 

Deportation of Refugees to Danger

If implemented, the asylum ban would lead to the deportation of refugees to countries where they are at risk of persecution and torture. The rule largely bans asylum for refugees based on their manner of entry into the US and travel through other countries–factors that are irrelevant to their fears of return and will lead to denials of asylum for refugees. Refugees who are otherwise eligible for asylum but banned by the rule would likely be deported to danger. Such deportations, even if to countries that an individual passed through while attempting to reach the United States, will risk violating US obligations under international human rights and refugee law because individuals experience human rights abuses in countries like Guatemala,[40] Honduras,[41] Nicaragua,[42] El Salvador,[43] and Mexico[44] and because the asylum systems in these countries are unable to consistently provide effective protection against onward returns to persecution in an individual’s country of origin – a process known as “chain refoulement.” The UN Refugee Agency has observed that “chain refoulement” violates the obligations of any state party (in this case the United States) to the 1951 Refugee Convention and its 1967 Related Protocol.[45]

While the Trump administration’s transit ban was in effect, asylum seekers were denied all relief and ordered deported due to the ban, including a Venezuelan opposition journalist and her one-year-old child; a Cuban asylum seeker who was beaten and subjected to forced labor due to his political activity; a Nicaraguan student activist who had been shot at during a protest against the government, had his home vandalized, and was pursued by the police; a gay Honduran asylum seeker who was threatened and assaulted for his sexual orientation; and a gay Nicaraguan asylum seeker living with HIV who experienced severe abuse and death threats on account of his sexual orientation, HIV status, and political opinion.[46]

Many asylum seekers were summarily ordered deported through expedited removal without an asylum hearing due to the transit ban, including Indigenous asylum seekers fleeing gender-based and other persecution in Guatemala and a Congolese woman who had been beaten by police in her country when she sought information about her husband, who had been jailed and tortured due to his political activity.[47]

Asylum Seekers are Unsafe in Transit Countries, Without Access to Meaningful Protection 

The proposed rule attempts to require many refugees to seek asylum in transit countries that have no formal agreement with the United States and where refugees would not be safe or have access to meaningful asylum procedures, thereby circumventing US law requirements for safe third countries. In Mexico, which would be a transit country for non-Mexican asylum seekers at the southern border, refugees face life-threatening harms. There have been over 13,000 attacks[48] reported against asylum seekers and migrants stranded in Mexico under the Title 42 policy over the past two years in addition to the many attacks suffered under the Trump administration’s Remain in Mexico policy.[49] Refugees do not have access to fair asylum procedures in Mexico, where many are at risk of deportation to persecution in their home countries.[50] Black asylum seekers and migrants face pervasive anti-Black violence, harassment, and discrimination, including widespread abuse by Mexican authorities and non-state actors.[51]

El Salvador,[52] Honduras,[53] and Guatemala[54] do not have functional asylum systems that can protect large numbers of refugees, and many transiting through these countries face extreme dangers including gender-based violence, anti-LGBT+ attacks, race-based violence, and other persecution.[55] In fact, Human Rights Watch has reported on the complete failure of the Guatemalan asylum system to protect refugees from return to harm after they were sent there by the United States under a previous Trump administration policy.[56]

The proposed rule will have a devastating impact on women and LGBT+ people who are particularly vulnerable to gender-based violence (GBV) and other persecution.  It is well-documented that countries of transit that survivors of GBV pass through while trying to reach the southern US border provide very little if any true protection even when they are granted asylum there.[57] Women and LGBT+ asylum seekers face enormous dangers in many countries of transit, including Mexico and Central American countries, and would be at risk of persecution on the basis of the same immutable characteristics that led them to flee their home countries. Applying and waiting for review of their asylum claims in these countries prolongs survivors’ perilous journeys in search of safety.

Conclusion

The proposed rule is illegal, inhumane, and discriminatory. Like the Trump administration’s entry and transit bans, this asylum ban will deport refugees to persecution and torture and will separate families. The proposed rule also requires asylum seekers at the border to use a discriminatory and deficient mobile app that is contingent on resources, language skills, and an ability to wait indefinitely often in dangerous conditions in Mexico for an appointment slot, cutting off asylum access for many of the most vulnerable asylum seekers.

Human Rights Watch calls on the Biden administration to withdraw this rule in its entirety, stop punishing migrants arriving at the US southern border, and instead allocate resources toward humane asylum processing and fair adjudications.