Comment on the Final Rule on Securing the Border
November 6, 2024
Submitted via: https://www.regulations.gov.
Daniel Delgado
Acting Deputy Assistant Secretary for Immigration Policy Office of Strategy, Policy, and Plans
U.S. Department of Homeland Security
Telephone (202) 447-3459
Sarah Flinn
Assistant Director, Office of Policy, EOIR U.S. Department of Justice
Re: Comment on the Final Rule by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) on Securing the Border, USCIS Docket No. USCIS 2024-0006; A.G. Order No. 6053-2024
Dear Deputy Assistant Secretary Daniel Delgado and Assistant Director Sarah Flinn:
New Mexico Immigrant Law Center (“NMILC”) submits this comment in opposition to the Department of Homeland Security (DHS) and Department of Justice (DOJ)’s final rule, Securing the Border, published in the Federal Register on October 7, 2024, and the accompanying request for comment on expanding and extending the Circumvention of Lawful Pathways rule (the “May 2023 asylum ban”).
NMILC is a 501(c)(3) non-profit organization that provides free legal assistance and resources for immigrants in New Mexico. Our mission is to advance justice and equity by empowering low-income immigrant communities through collaborative legal services, advocacy, education and community resources. NMILC has nearly a decade of experience in assisting asylum seekers in both affirmative and defensive applications. NMILC has directly represented dozens of asylum seekers in proceedings and hundreds more in monthly pro se asylum clinics.
This final rule expands and entrenches an Interim Final Rule in effect since June 2024 (the “June 2024 asylum ban”), which NMILC opposed but was unable to comment on given the unduly short 30-day comment period. In the final rule, the agencies also solicit comments regarding whether to expand and extend the May 2023 asylum ban, which NMILC also opposed. When the rules were proposed, NMILC was gravely concerned that these rules would turn away people seeking refuge to danger in violation of international and U.S. refugee law, counterproductively create disorder, endanger the lives and safety of people seeking refugee protection, and leave other refugees without a path to citizenship.
As NMILC has witnessed through its work, our concerns about these rules were sadly borne out since they have been in effect. People seeking asylum at the U.S. border are now essentially
denied safe, timely, just and non-discriminatory access to asylum at U.S. ports of entry. If they cannot safely wait months or cannot access CBP One appointments due to language and other barriers, they are punished by the rules. These penalties include being subjected to higher screening standards that increase the risk of wrongful deportation. For those who pass their screenings, they may face penalties under the rule once their case is decided, including denial of asylum; potential deportation; and permanent limbo and denial of a pathway to citizenship for those left only with withholding of removal.
The June 2024 asylum ban has turned away and deported asylum seekers to harm, denied people seeking safety equitable and non-discriminatory access to asylum – including at ports of entry, and forced people to wait indefinitely in danger where they face kidnapping, rape, torture, and other harms. It also denies refugees a pathway to citizenship and permanently separates families. The May 2023 asylum ban has inflicted similar harms.
NMILC strongly opposes this final rule and any attempts to extend or expand the May 2023 asylum ban. Instead, we continue to recommend humane, fair and effective steps to strengthen refugee protection and resettlement in the Americas, fair, non-discriminatory and prompt access to asylum at ports of entry, necessary resources for border and destination community reception, and upgrades to asylum adjudications to ensure they are fair, timely and accurate, including increased funding for immigration courts and the USCIS asylum office as the agencies correctly noted.
U.S. Refugee Law and Treaty Concerns
The rules – and their expansion or extension – blatantly violate U.S. refugee law, which codifies United States’s treaty obligations under the Refugee Convention and Protocol. U.S. law provides that anyone “who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival…), irrespective of such [noncitizen’s] status, may apply for asylum.” Additionally, U.S. law sets forth a statutory screening standard for credible fear screenings (which the rule attempts to improperly circumvent and raise) and prohibits the return of people to countries where they may face persecution or torture. The asylum bans contravene treaty obligations to ensure that people are not returned (refouled) to countries where they face persecution, guarantee non-discriminatory access to asylum, and not impose penalties for irregular entry. The rules also violate the Refugee Convention’s prohibition of penalties relating to irregular entry as they penalize people who enter between ports of entry, or at ports of entry without an appointment, barring them from asylum regardless of the merits of their asylum case.
As the agencies prepared to issue this final rule, the United Nations High Commissioner for Refugees (UNHCR) warned that the rule “severely curtails access to protection for people
fleeing conflict, persecution, and violence,” which is “a violation of international refugee law and the humanitarian principles to which the United States has long been a leader.” UNHCR opposed both the May 2023 and June 2024 asylum ban rules. UNHCR’s legal guidance on the Refugee Convention’s prohibition of penalties on asylum seekers for irregular entry, issued in September 2024, is additional confirmation that these policies are inconsistent with U.S. legal obligations. These rules, and their extensions or expansions, set a terrible example for other countries around the world and counterproductively encourage them to create their own bans on refugee protection, thwarting the very objectives of the Refugee Convention and the international refugee protection system.
Opposition to/Concerns about the June 2024 asylum ban
NMILC was also opposed to the June 2024 asylum ban. In addition, the June 2024 asylum ban rule was widely opposed by a diverse array of faith-based, civil rights, LGBTQ+ and human rights organizations, UNHCR, the asylum officers’ union, and Members of Congress.
Since the rule went into effect in June, concerns about the dire consequences of the ban have been confirmed. Our organization has represented people impacted by the rule. NMILC has joined dozens of other organizations who have also documented the terrible consequences of the ban on people seeking safety, including that people are:
required to wait in Mexico for several months for a limited CBP One appointment where they are targeted for harm or even death,
denied equitable access to asylum due to language and other barriers,
rushed through deportation proceedings that violate U.S. and international law,
and summarily deported to countries of feared persecution without a screening on their asylum claim or as a result of a deficient screening under the ban.
Rather than taking into account the widespread opposition to the June asylum ban and the well-documented harms resulting from its implementation, the agencies have disturbingly taken steps to prolong this policy. The final rule expands and entrenches the ban by finalizing the June interim final rule and incorporating changes that make it more difficult for the agencies to lift this ban. These changes include lowering the threshold of irregular border crossing numbers that would trigger suspension of the ban and changing the calculation of border crossing numbers to include all unaccompanied children (though they remain not subject to the ban).
The agencies conclude in their final rule that the ban is “working as intended,” a misguided conclusion as it defines success primarily as a reduction in border crossings as opposed to upholding U.S. law and treaty commitments, while largely disregarding evidence of the rule’s widespread harms. These harms include: summary deportations to countries of feared persecution; kidnappings, torture, sexual assault, and other human rights abuses of asylum seekers forced to wait in Mexico; and due process violations. The agencies tout fewer encounters of people crossing between ports of entry, increased deportations of adults and families with children, a drastic reduction in referrals for credible fear interviews, and increased rate of its use of expedited removal. We object to the government’s metrics for concluding that the ban is “working,” as they appear to rely on the denial of access to asylum and asylum hearings in violation of U.S. and international law. Additionally, in painting the rule as the reason for reduced crossings, the agencies repeatedly ignore or downplay the major impacts of Mexico’s escalation of interception actions since January 2024. As both media and human rights reports have documented, Mexico has escalated its interception actions, often in ways that violate human rights law and further prevent people from reaching the U.S. border, contributing to the decreased border crossings that the government cites.
We now share our strong opposition to the June 2024 asylum ban and oppose its expansion through this final rule. NMILC is also concerned, based on our experience and observations since implementation of the rule, that the changes included in the final rule will lead to the continuation and expansion of harms, including:
Adults and children stranded in Mexico at risk of torture, sexual assault, kidnappings, and other targeted harm while waiting up to eight or nine months for a CBP One port of entry appointment. CBP One appointments have remained stagnant at 1,450 daily since June 2023 while demand for an appointment will now further increase under these additional punitive restrictions on access to asylum.
Black, Indigenous, LGBTQI+, and other people seeking asylum who cannot use the CBP One app due to language, illiteracy, disability and other barriers are being denied equal access to asylum. The CBP One app continues to only be available in English, Spanish, and Haitian Creole at this time. The June 2024 asylum ban eliminated the exception for those unable to use the CBP One app due to significant obstacles.
Families and adults suffering urgent safety and medical needs and those unable to use the CBP One app face even more restrictions on access at ports of entry since the June asylum ban. At-risk asylum seekers, including people who have survived widespread kidnapping, rape, and torture, and others with urgent medical conditions face significant restrictions on access to ports of entry as the June 2024 Proclamation accompanying the IFR generally suspended processing at ports of entry for most asylum seekers without appointments.
The June ban traps Mexican asylum seekers in their own country of feared persecution, in violation of the Refugee Convention and Protocol. The June asylum ban, unlike the May 2023 asylum ban, does not exempt Mexican nationals. Under the rule, Mexican families and adults fleeing persecution are denied asylum processing at ports of entry, tantamount to refoulement as a refusal of entry at a border. They are forced to wait for a CBP One appointment trapped in northern Mexico, often while facing continued threat of persecution, including by organized crime groups that exercise control over territory and often work with the complicity or acquiescence of Mexican authorities.
People seeking asylum are being summarily deported to danger and denied statutorily required fear screenings or asylum hearings by U.S. border officers. The rule eliminated a safeguard that had been in place for nearly 30 years, which required immigration officers to ask people arriving in the United States about their fear of return to comply with U.S. statutory obligations to refer people who fear return for fear screenings. Elimination of this safeguard has led to systematic violations of U.S. and international law, as detailed in a joint report issued by human rights organizations. These violations included:
Immigration officers are removing people from the United States without a fear screening even though they expressed fear of return, including survivors of gender-based violence, people whose family members were assassinated, LGBTQ people, individuals with visible marks and bruises from attacks, and people fleeing death threats and other harms with young children.
Many people are not given an opportunity to express their fear of return and are summarily deported without a fear screening, with immigration officers routinely telling them that they are not allowed to speak, that there is no more asylum, and that they are being deported.
Elimination of the safeguard is fueling family separation, where family members are arbitrarily removed from the United States without a fear screening while their loved ones are referred for a fear screening, including where their asylum cases could have been processed together.
The rule improperly raised the legal standard during preliminary fear screenings to bar and summarily deport many asylum seekers who could qualify for protection under U.S. law.
When Congress enacted the expedited removal process into U.S. law, it made clear that it intended preliminary fear screenings (referred to as “credible fear interviews”) to ensure that people with bona fide claims for protection would have an opportunity to apply for asylum. Whereas the statute provides that asylum seekers need to establish a “significant possibility” of eligibility for asylum in order to pass their fear screenings and apply for asylum, the May 2023 asylum ban essentially attempts to circumvent the statue in order to unduly raise the legal screening standard and the June 2024 asylum ban raised it even further. Those barred under the June asylum ban must now demonstrate “reasonable probability” of eligibility for other, lesser forms of protection that are more difficult to obtain. This higher standard is unprecedented and will result in summary deportations of countless people with refugee claims without an opportunity for a full asylum hearing.
Opposition to Extending or Expanding May 2023 asylum ban (Circumvention of Lawful Pathways rule)
We also oppose any attempts to extend or expand the May 2023 asylum ban. In the final rule, the agencies indicate that they are contemplating extending it indefinitely to bar people who enter the United States. At the time they initiated this rule, the agencies repeatedly told the public that it was a temporary rule and provided in the rule that it would not apply to people who enter after May 11, 2025. The agencies are also considering expanding the rule to punish and deny asylum to people who enter at southern coastal borders (whereas the rule currently applies to people who enter at the southwest land border or adjacent coastal borders) as well as to apply the rule to people who enter by sea regardless of whether they traveled through a third country. This change would mean that the rule would also apply, for example, to people who flee by sea without passing through another country. Making the rule permanent, expanding it to block and deport more people seeking safety, and any action short of rescinding the unlawful rule will add to the mounting human rights violations, wrongful deportations, and other abuses and harms inflicted on people seeking safety.
Additionally, a notably diverse array of administration allies, nonpartisan groups, legal experts, civil society groups, refugee and immigrant rights advocates, faith-based groups, 80 Members of Congress, UNHCR, the asylum officers’ union, major unions, and the Round Table of more than 50 former Immigration Judges and Board of Immigration Appeals members submitted comments condemning the rule.
Like the June 2024 asylum ban, the May 2023 asylum ban violates U.S. law and international law and treaties binding on the United States, as outlined above. In the past year and a half, it has inflicted terrible harms on people seeking refugee protection, led to the return of refugees to persecution and torture, and caused disorder and dysfunction. The rule, like other policies that improperly block or turn away people seeking asylum from ports of entry, pushed irregular crossings, as human rights monitors have documented. Since the rule went into effect in May 2023, our organization has heard from and represented people impacted by the rule, including:
One man who was kidnapped and robbed twice in Mexico and continuously afraid did not meet any exceptions to the CLP. The second time he was kidnapped was by police who demanded a $2,500 ransom for his release. He was only released by the kidnappers when the officers were convinced that he had no one in the U.S. who could pay the ransom.
Ecuadorian national who tried to wait for a CBP One appointment in Mexico but was kidnapped by cartel and told to leave Mexico in 24 hours. The AO who conducted his interview asked why he didn't try to get an appointment until he was in Juarez and he explained that he wanted to do it all correctly and hire an attorney once he arrived at the border. He was captured by cartel on a bus after the bus was stopped by the police en route to Juarez. He was taken to a house and held for 7 days, 2 of the other people who were captured were killed in front of them. He paid $4,000 to be released — all of the money he had. He was not found to have rebutted the presumption of ineligibility.
Dozens of people who were robbed at gunpoint and threatened with death while waiting for a CBP One appointment in northern Mexico.
Another Ecuadorian national tried to use the CBP One app to make an appointment but every time he opened the app, it would say there was something wrong and freeze. He was not able to access the app. He was also threatened by a group in Mex that told him they were looking for Ecuadorians to recruit; he lied to the group about his identity because he was told that if he revealed that he was Ecuadorian, they would hurt him or his family. He also did not rebut the presumption of ineligibility under the CLP rule.
Extending the rule would also be counterproductive to effective migration policy, as the rule spurs irregular crossings by at-risk people who cannot safely wait in Mexico. Since the rule went into effect, human rights researchers have interviewed many asylum seekers who have recounted that they crossed the border, or were contemplating doing so, due to their inability to seek asylum at a port of entry and the risks they face while waiting.
The exceptions to the rule are extremely narrow and fail to protect countless refugees who qualify for asylum under U.S. law. Extensive research by human rights researchers confirms that many refugees are unjustly harmed by the rule in violation of U.S. law and treaty obligations. While we strongly urge that the agencies rescind the rule in full as the rule is illegal regardless of the exceptions to the ban, to the extent it remains in effect it should additionally exempt people who:
did not have knowledge of the ban;
could not use the CBP One app due to language, illiteracy, financial, technological and other barriers and entered between ports of entry;
did not have asylum or other durable status in a transit country;
were not firmly resettled in a transit country;
did not reasonably believe they would be protected from refoulement, violence, persecution, and other harms in a transit country;
transited through a country that did not have full, fair, and efficient asylum procedures;
had medical, safety, or other protection needs including non-life-threatening medical needs or non-medical needs;
reasonably believed that their life or safety was at risk prior to entry;
could not safely or reasonably travel to or access asylum at a port of entry;
could show good cause for entering the United States; or
did not have family or other ties in countries they transited
The harms inflicted by the rule will continue to multiply as the immigration courts adjudicate cases involving the May 2023 asylum ban, thwarting the integration of many refugees denied asylum under the ban and left only with withholding of removal. Refugees who receive withholding of removal due to the ban are deprived of stable and permanent status and a path to citizenship. While we strongly urge the agencies to rescind the ban, it should at a minimum not be applied at the full asylum adjudication stage as it leads to these inhumane and counterproductive results.
Opposition to the Proposed Final Rule as it Would Create an Ethical Issue for Legal Representatives
One exception that has proven particularly difficult for asylum seekers and advocates is the family unity exception. It states that if a noncitizen can prove that they would be eligible for asylum but-for CLP, and if they have derivatives who would NOT qualify for asylum independently, the noncitizen may qualify for asylum. Under this provision, the noncitizen must show their derivatives' ineligibility for asylum - essentially undermining their asylum claims, creating a unique ethical issue.
The proposed final rule would create many conflicts of interests for NMILC and other organizations that represent and assist many families in their asylum applications. Moreover, it unjust to make families have to throw each other under the bus to try to get around the asylum ban.
Conclusion
NMILC strongly urges the agencies to rescind these asylum bans and focus on humane and effective solutions. The agencies should instead provide equitable access to asylum at ports of entry without delays, ensure fair, timely, and humane asylum adjudications, and stop pursuing asylum bans that violate U.S. and international law.
Respectfully submitted,
Casey Mangan
EJW Fellow and Staff Attorney New Mexico Immigrant Law Center
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