March 27, 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
Lauren Alder Reid
Assistant Director
Office of Policy, EOIR
U.S. Department of Justice
Re: 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, 88 Fed. Reg. 11704 (February 23, 2023); DHS Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023
Al Otro Lado submits this comment in response to the proposed rule published in the Federal Register on February 23, 2023, which would prevent vulnerable individuals and families at the southern border from accessing the U.S. asylum system. Al Otro Lado calls on the Department of Homeland Security (“DHS”) and the Executive Office for Immigration Review (“EOIR”) to withdraw this proposed rule in its entirety
The rule, if adopted, would violate both U.S. law and our obligations under international treaties, and would replicate one of our greatest moral failings as a nation. In 1938, the United States government turned away the MS St. Louis from the coast of Florida, refusing to let the ship filled with Jewish refugees find safety ashore. After being turned away by Cuba and Canada, the ship was forced to return to Europe, where one-third of
those passengers died in the Holocaust.1 Their deaths were preventable, and the responsibility for those deaths lies with us, the United States. Today, we experience the tragedy of the MS St. Louis daily at our southern border, where asylum seekers are routinely turned away from the port-of-entry door in border cities and expelled back to danger border wide.
The proposed rule hearkens back to a time where we as a nation did not blink an eye in turning away thousands of individuals and families fleeing certain death, despite the fact that we have often said “never again.” Rather than restoring and strengthening the U.S. asylum system as promised,2 the Biden administration is instead proposing a return to previous unlawful policies including metering, the Trump administration’s asylum transit ban and its attempt to restrict asylum applications to ports of entry. Aside from being illegal on its face, the proposed rule is discriminatory and raises significant due process concerns. It would have a disproportionately negative impact on Black, Brown and Indigenous asylum seekers from countries where no options exist to apply for a visa or parole to enter the United States by air, and who do not speak the languages offered on the CBP One app. It would also have a disparate impact on poor and medically vulnerable asylum seekers.
Al Otro Lado is a binational non-profit organization that provides holistic legal and humanitarian support to asylum seekers in the U.S. and Mexico through a multidisciplinary, client-centered, harm reduction-based practice. We provide direct, free legal services on both sides of the US-Mexico border and beyond, and engage in advocacy and impact litigation to challenge border policies and law enforcement practices that limit or violate the right to seek asylum. Through our work at the southern border, we have witnessed the devastating impacts of restrictive asylum policies like metering and the Trump asylum ban. Most recently, we have worked with hundreds of asylum seekers who have struggled to secure appointments using the CBP One app.
1 Mike Lanchin, SS St Louis: The ship of Jewish refugees nobody wanted, BBC, (May 13, 2014) (“On 13 May 1939, more than 900 Jews fled Germany aboard a luxury cruise liner, the SS St Louis. They hoped to reach Cuba and then travel to the US - but were turned away in Havana and forced to return to Europe, where more than 250 were killed by the Nazis ”), https://www bbc com/news/magazine-27373131
2 Exec Order No 14010, 86 Fed Reg 8267 (Feb 5, 2021) (“[T]he United States will enhance lawful pathways for migration to this country and will 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 ”)
If implemented, this rule will cause significant harm to Al Otro Lado as an organization, as substantial resources will be diverted towards helping those affected by the policy to have a fair chance at exercising their legal right to apply for asylum.
As explained in further detail below, 1) because of new burdens the proposed rule places on asylum seekers, each case will require more resources, which will decrease the total number of cases Al Otro Lado can handle; 2) Al Otro Lado staff will spend significant time helping migrants navigate the CBP One app, time that would otherwise be spent supporting clients with applications for asylum and other forms of immigration relief; 3) many people will have to satisfy a higher standard to pass their credible fear interview (“CFI”), requiring additional time and resources; and 4) Al Otro Lado attorneys will need to file stand-alone requests for family members because the family unity exception is not assured.
We oppose the proposed rule for the following reasons:
I. The proposed rule contradicts the letter and spirit of U.S. and international laws on the right to seek asylum.
Under U.S. asylum law, a person may apply for asylum regardless of manner of entry into the country 3 The proposed rule bars those who enter the U.S. between ports of entry from asylum eligibility, except in very narrow circumstances. Individuals who request asylum after entering the country between ports of entry are often those who find themselves in immediate danger and are most desperate to find safety Shutting them out of the asylum system, with only very narrow exceptions, is cruel and unlawful.
The proposed rule also violates Article 31 of the 1951 Refugee Convention, which prohibits contracting states from imposing penalties on refugees based on their
3 8 U S C 1158(a)(1) (“Any alien who is physically present in the United States or who arrives in the United States whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien's status, may apply for asylum ” (emphasis added)
manner of entry into the country 4 It is difficult to imagine a greater penalty than being barred from applying for asylum, which for many people is the only form of relief from deportation to a country where they risk serious harm or death.
The proposed rule further violates the UN Convention on the Rights of the Child, to which the U.S. is a signatory, and the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”) to which the United States is a party.
Article 22 of the Convention on the Rights of the Child provides that a child seeking refugee status or who is considered a refugee shall receive appropriate protection and humanitarian assistance. By limiting asylum eligibility for individuals who entered the United States between ports of entry, including children, the proposed rule fails to provide the protections and assistance required under this provision of the Convention, thus violating the rights of children seeking asylum. This is especially true in light of the fact that children traveling with their families have no choice in how they arrive at the border.
Further, the proposed rule may result in children being separated from their families, in violation of Article 9 of the Convention on the Rights of the Child, which requires that children not be separated from their parents against their will, except when competent authorities subject to judicial review determine, in accordance with applicable law and procedures, that such separation is necessary for the best interests of the child.
The proposed rule essentially presumes that individuals who enter the U.S. between ports of entry are ineligible for asylum, which disproportionately affects refugees who may be forced to irregularly enter the country due to dire circumstances and who come from predominantly non-white countries where few options exist to obtain visas to travel to the U.S. As such, the rule violates the principles of non-discrimination and equal treatment enshrined in the ICERD. The proposed rule violates Article 2, which requires states to condemn racial discrimination and take effective measures to prevent
4 Convention relating to the Status of Refugees (189 U N T S 150, entered into force April 22, 1954) United Nations 1951 (“The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence ”)
and eliminate it; and Article 5, which requires states to ensure the right to equal treatment before tribunals and all other organs administering justice. By limiting asylum eligibility based on the mode of entry into the United States, the proposed rule creates a distinction that disproportionately affects Black, Brown, and Indigenous individuals who may be seeking asylum due to their race, ethnicity, nationality, or membership in a particular social group. This means that these individuals will be denied access to legal remedies and protection, which undermines the right to equal treatment before the courts, as enshrined in Article 5 of the ICERD.
The rule will leave many people who would otherwise qualify for asylum with more limited forms of relief, such as withholding of removal and protection under the Convention Against Torture (“CAT”). Unlike asylum, withholding of removal and CAT protection do not offer a path to permanent residency and do not allow for family reunification. The proposed rule includes a narrow and insufficient exception to promote family unity. In cases where a principal applicant qualifies for withholding of removal and would be granted asylum but for the presumption in the proposed rule, and an accompanying spouse and/or children would not independently qualify for asylum or other relief from removal, the presumption will be rebutted as an “exceptionally compelling circumstance.” This exception applies only to immediate family members who traveled to the U.S. with the principal applicant, and does nothing to help spouses and children who are left in dangerous situations in their home country
Further, the proposed rule imposes a higher “reasonable possibility” standard at the credible fear stage rather than the lower “significant possibility” standard mandated by Congress.
A significant portion of Al Otro Lado’s clients will be directly harmed by this rule. Asylum seekers who are forced to enter the country between ports of entry, usually due to dangerous conditions and lack of resources in Mexico, will find themselves presumptively barred from asylum despite meeting the refugee definition. The attorneys in our San Diego and Los Angeles offices will have the more difficult job of helping clients meet the higher evidentiary standards for withholding of removal and CAT. Organizational resources will be diverted toward creating reasonable fear preparation materials for the detained populations we serve in southern California.
II. Many people with meritorious asylum claims will be shut out of the asylum process despite having no meaningful way to access the lawful pathways5 to the U.S. identified in the proposed rule.
The proposed rule creates an overly burdensome “rebuttable presumption” that an asylum seeker is generally ineligible for asylum unless the person either 1) entered the U.S. through an established parole program; 2) presented at a port of entry at a pre-arranged appointment time scheduled through the CBP One app; or 3) applied for and was denied asylum in another country they traveled through prior to arriving in the U.S. For a large percentage of asylum seekers, meeting any one of these prerequisites is unrealistic, exceedingly difficult without the assistance of an attorney, or downright impossible.
A. Most of the asylum seekers at the southern border are not eligible to enter the U.S. through one of the established humanitarian parole programs.
Although the established humanitarian parole pathways for entering the U.S. by plane provide a means for some people fleeing their countries to avoid dangerous journeys across the Darien Gap, Central America, and Mexico, these programs are unfortunately unavailable to most of the population Al Otro Lado serves and to most of the asylum seekers arriving at the U.S.-Mexico border A large percentage of Al Otro Lado’s clients are from Honduras, Guatemala, El Salvador and Mexico,6 and thus do not qualify for the currently available programs. Al Otro Lado also serves asylum seekers from African, Middle Eastern, and South Asian countries, who are also foreclosed from this process.7
In addition, these programs are inaccessible to many asylum seekers from Venezuela, Nicaragua, Haiti and Cuba, including people who cannot obtain passports or sponsors in the U.S. with sufficient funds to provide housing and ongoing support. Others may
5 Presenting at the border is a lawful pathway under 8 U S C § 1158 & 1225, as affirmed by the S D Cal decision in Al Otro Lado v Mayorkas
6 Since 2021, over 36,000 asylum seekers from Mexico and Central America filled out Al Otro Lado’s online survey request for services
7 From 2022 to the present, Al Otro Lado has worked with asylum seekers from Afghanistan, Angola, Bangladesh, Burkina Faso, Cameroon, Côte d’Ivoire, Ethiopia, Ghana, Iran, Iraq, Mali, Nigeria, Syria, Togo, Turkey, and Yemen
be unable to pay for airfare to the U.S. Even people who do have the requisite travel documents, sponsorship, and the economic ability to pay for a flight may be unable to wait long enough in their home countries to be approved. Many of our clients are forced to flee suddenly, often picking up and leaving immediately following a targeted attack.
Sara*8 , a young woman from Nicaragua, was forced to flee after being jailed and beaten for participating in student protests. She was unable to apply for a passport before escaping and eventually making it to the U.S.-Mexico border. Besides not having the time to apply and wait for a passport, refugees fleeing authoritarian regimes are often denied passports for political reasons or are too afraid to apply. In the case of Nicaragua, Al Otro Lado has received multiple reports of people who were denied passports by the Nicaraguan government based on their political opinion. Political dissidents like Sara often fear engaging with members of their government when that government regularly targets and kills people like them. The parole program thus would have been unavailable to Sara, even though she is from one of the approved countries and is likely to ultimately prevail in her asylum case.
A family of seven from Nicaragua was also forced to flee the country’s brutal dictatorship after repeated, targeted attacks. Both parents and one of the adult sons were abducted at different times by paramilitary forces and detained in inhumane conditions because of their political activities. The family members had to escape their country at different times, fearing for their lives and unsure if the others had survived. When the last son, Jonathan* finally made it out of Nicaragua, he had been in political prison for nearly two years. He fled with almost nothing, making his way alone through Central America and Mexico.
In Tijuana, he found a makeshift migrant camp without proper sanitation, surveilled by cartel members, and had no other option but to sleep on the street. There, he met another family from Nicaragua who had recently experienced beatings and a kidnapping in Mexico. Fearing for their lives and with no opportunity to seek asylum because of the Title 42 border closure, they entered the U.S. between ports of entry. An immigration judge has since granted Jonathan asylum, and he now lives with his family in California. Jonathan and his family members could not have waited for their
8 All client names have been changed to retain their privacy, and all names used here are pseudonyms
parole applications to be processed, even if they had had the requisite resources and connections in the U.S. If the proposed rule had been in effect when he entered the U.S., his manner of entry would have given rise to a presumption of ineligibility for asylum despite having a well-founded fear of persecution based on political opinion in Nicaragua.
B. Requiring asylum seekers to use the CBP One app to preserve eligibility for asylum violates U.S. asylum law.
Under the proposed rule, asylum seekers will be required to download the CBP One application on their phones, register themselves and their families, and secure a timeslot when they will be permitted to present at port of entry in order to seek asylum. This requirement is an extension of the illegal metering system that was in place prior to Title 42, in which asylum seekers were forced to put their names on a list and wait for weeks, months, or indefinitely in dangerous border cities for the chance to present themselves to Customs and Border Protection (“CBP”) and seek asylum. As with prior iterations of metering, asylum seekers using the CBP One app are often forced to wait for prolonged periods to secure an appointment. Many are unable to get an appointment at all due to lack of reliable internet, not having a new enough or the correct type of smartphone to meet the application’s system operating requirements, unresolved technical errors within the app, language barriers, lack of literacy, visual disabilities, and certain medical conditions that make it impossible to take the live photo required by the app.
Although the proposed rule affords a nominal exception for people unable to use CBP One, the onus is on the asylum seeker to prove they were unable to access the app. It will be extremely difficult for the asylum seeker to meet this undue burden, especially for those who are illiterate, detained, linguistically isolated, and/or unrepresented by an attorney.
1. CBP One excludes linguistically isolated asylum seekers
Since the CBP One app became the primary mechanism for asylum seekers to request entry into the U.S. in early 2023, our clients have encountered numerous barriers to
access. The app is currently available only in English, Spanish, and partially in Haitian Kreyol,9 leaving out the many asylum speakers who are not fluent in those languages.
One such asylum seeker is an Ethiopian woman, Adina* who sought Al Otro Lado’s services in Tijuana. She was forced to flee Ethiopia due to the civil war, where most of her family was killed and her village was destroyed. In her journey to try to find safety, she was sexually assaulted. Adina only speaks Amharic, making it impossible for her to use the CBP One app on her own. When she attempted to contact the CBP One help email address, the auto response was in English. When she managed to find assistance translating the app, she still received error messages when she tried to take her live photo on the app, a requirement for registering and scheduling appointments. It is also not possible for her to receive translation/interpretation assistance daily in search of an appointment.
Similarly, an Indigenous Triqui-speaking family from Mexico was unable to use CBP One due to illiteracy and language barriers. When the family approached CBP officers at the San Ysidro port of entry to seek asylum, they were turned away and ridiculed. They are currently staying at a crowded migrant shelter in a dangerous area of Tijuana without viable prospects for securing an appointment on the app.
In addition, Al Otro Lado staff have worked with Arabic, French, Farsi, Russian, Portuguese, Nahuatl, Garifuna, Miskito, Mixteco, Turkish, and Tzotzil speakers who have been unable to use CBP One due to language barriers.
2. Technical glitches cause indefinite delays for asylum seekers stuck in dangerous conditions.
Many of the families and individuals Al Otro Lado works with have been trying unsuccessfully for months to get an appointment through CBP One, instead receiving error messages at each attempt. Monica*, an asylum seeker from Honduras, tried dozens of times to schedule an appointment on CBP One, but received an error message in English saying that she was not in close proximity to the border, despite
9 The CBP One application requires the creation of a Login gov account before being able to request an appointment The Login gov site is not currently translated into Haitian Kreyol
being in Piedras Negras, Mexico, a town that borders Eagle Pass, Texas. Having been the victim of acts of violence at the border, she is especially vulnerable in Mexico.
In late March 2023, dozens of asylum seekers residing in local migrant shelters here in Tijuana reported receiving the same error code, indicating they cannot proceed in the app unless they are close to the border, despite the fact that some of these same migrants are quite literally standing next to the border wall while trying to make their appointments through the CBP One system.
Jean*, a Haitian asylum seeker in his mid-50s has been trying for over one month to secure an appointment for himself and his family through CBP One. He had been working a low-paying job in Tijuana to make ends meet, but quit his job in order to be able to login to the app during the early morning hours each day when new appointment slots are published to the general public. Despite his best efforts, Jean has not been able to get an appointment and does not understand why he has been receiving error messages. A CBP email address purporting to offer support with CBP One exists, but the automated response is completely in English.
Carlos*, an Indigenous Garifuna-speaking asylum seeker from Honduras reported several technical difficulties using CBP One. First, he was locked out of the app after registering because he did not receive a code needed to re-enter When he was finally able to login, the app froze. When he tried again, there were no available appointments. As a Black Indigenous migrant, Carlos has experienced racial discrimination at the border and is in a particularly precarious situation as he awaits an opportunity to apply for asylum in the United States.
An Iranian asylum seeker named Farhad* was unable to use the app after his smart phone was stolen. He was able to get an older used phone as a replacement, but that phone was too old and the operating system insufficient to support the app, even with the most recent updates.
The CBP One app has also caused issues for people who did manage to get appointments, but who were not able to present at the designated time. This problem has affected people who were kidnapped in Mexico or detained by Mexican immigration officials (“INM”), despite having a printout of the CBP One appointment
confirmation. These asylum seekers who missed their appointments due to reasons beyond their control found themselves locked out of the system or unable to obtain a new appointment.
In late March 2023, we also heard several reports of Venezuelans who had appointments confirmed on CBP One, went to the appointments, were interviewed by CBP, and were then returned to Mexico. They were provided with no information about how to appeal that decision, no way to proceed within the app, and no alternate means of requesting asylum.
Some of the most vulnerable asylum seekers, including those without access to smartphones, are at the greatest disadvantage. Among the groups of asylum seekers who do not have access to cell phones are the victims of domestic violence currently in hiding in Tijuana at one of the state’s confidential women’s shelter locations, where cellphones are not permitted in order to protect the security of all the women residents, most of whom are fleeing violent and powerful ex-partners, including members of the police, armed forces, and organized crime. Al Otro Lado has worked with various women at this shelter over the last 12 months, and under the current system of CBP One, the asylum process is completely closed off to them.
These are just a handful of examples of the dozens of tech-related complaints Al Otro Lado has received from asylum seekers attempting to navigate CBP One. The requirement that asylum seekers use CBP One puts people with the fewest resources and those without technological know-how at a disadvantage. While people with newer phones, who have good internet connections, and are tech savvy may be able to navigate the app, others are left out of the process entirely, unable to seek asylum and stuck in limbo. The Department of Homeland Security has also not created any type of comprehensive guide to assist users in navigating the app or in understanding how to address the technical errors they might receive.
3. The way spots fill up on CBP One disadvantages larger families and promotes family separation.
Each day the available appointment slots on CBP One are assigned on a first come, first served basis and are filled almost instantly. Because there are limited spots
available each day, families with more members are less likely to complete the process to secure an appointment before all spots are filled. As a result, many family groups have reported being denied an appointment each day simply because all spots have already been taken, despite their repeated attempts to access them in the morning as soon as the appointments go live. One Honduran family of four had been trying for six weeks without success and ultimately decided to try breaking into two groups, with one parent going with one child and the other parent going with the other child. Because getting an appointment through CBP One is so difficult and unpredictable, the family fears they could be separated for a long time if one group gets an appointment long before the other. They decided to separate though, because waiting much longer in such dangerous and resource-poor conditions at the border was untenable.
4. The live photo requirement discriminates against Black asylum seekers and people with disabilities.
Several asylum seekers have reported problems with the live photo requirement of the CBP One process to Al Otro Lado staff. A Cameroonian asylum seeker who fled her country’s civil war tried multiple times to secure an appointment in CBP One for herself and her young daughter The live photo feature of the app would not recognize her face, meaning that she could not continue with the process. A Haitian asylum seeker reported a similar issue for his 4-year-old daughter—the app would not recognize the child’s face despite multiple attempts. This is an issue that Black migrants have been facing border wide.
In addition, the live photo requirement has been a huge barrier for asylum seekers with disabilities. Mayra*, a single mother of two young children from El Salvador, who is also blind and relies on her nine-year-old son to get around, has been unable to navigate the app, even with help from people at a migrant shelter. CBP One will not recognize her face because she is unable to open her eyes all the way, resulting from a chemical burn in her youth. Because of her disability, Mayra has been prevented from securing an appointment through the app and remains shut out of the U.S. asylum system. We have also received reports from the parents of children with autism being unable to sit still long enough to take a live photo that the app can recognize.
Al Otro Lado’s staff have now spent countless hours trying to explain to people how to use CBP One and requesting exemptions for people unable to use the app. This is time that could otherwise be spent assisting clients with applications for work permits, asylum, and other forms of immigration relief. Instead, many of our team members are spending significant time helping people gain access to the U.S. asylum system at the most basic level, a process made unnecessarily difficult and frustrating through the required use of the CBP One app.
C. Applying for asylum in a third country and waiting for a denial is not a safe or realistic option for the vast majority of asylum seekers who ultimately arrive at the southern border.
Under the proposed rule, asylum seekers are exempt from the presumption of asylum eligibility if they can demonstrate that they applied for and were denied asylum in a third country. This portion of the rule hearkens back to the Trump administration’s previous asylum transit ban, which a federal court struck down in 2021. It is unfair and unrealistic to expect asylum seekers to seek refuge in areas that are often dangerous and lack meaningful protections for refugees. The primary countries that migrants pass through before reaching the southern border are almost universally refugee-producing countries themselves. They are rarely safe places for asylum seekers to stay and do not have robust asylum systems.10
Nearly all of Al Otro Lado’s non-Mexican asylum seeking clients spent some time in Mexico or another third country before seeking asylum in the U.S. The majority report being victims of crimes in Mexico and/or other transit countries, most commonly assault, kidnapping, extortion and robbery.
10 See The Center for Justice and International Law and American University, International Human Rights Law Clinic, Asylum In Mesoamerica: Accessing International Protection In Mexico And Guatemala (2021), p. 25: “In practice, refugees instead face rampant discrimination, violations of their rights, and mistreatment, including torture. Even with documentation, refugees are unable to receive the benefits they are entitled to by law. Mexican authorities ignore the documentation and refuse to acknowledge refugees’ rights, both willfully and due to ignorance.” (internal citations omitted).
https://www.wcl.american.edu/academics/experientialedu/clinical/news/ihrlc-and-cejil-publish-report-as ylum-in-mesoamerica/
In Mexico in particular, asylum seekers (both those seeking asylum in Mexico and those intending to seek asylum in the U.S.) face constant discrimination and danger. Al Otro Lado has spoken to dozens if not hundreds of asylum seekers who were denied access to healthcare in Mexico solely on the basis of nationality. It is common for public hospitals throughout Mexico to ask for proof of immigration status before agreeing to provide treatment.
In terms of dangers faced in Mexico, asylum seekers are frequent targets of exploitation both by organized criminal groups and by corrupt government officials. Al Otro Lado received reports of asylum seekers in Coahuila being picked up by state police who then threatened to turn them over to immigration officials for deportation if they refused to pay a bribe. Mexican police were found to have participated in a mass killing of 13 Guatemalan migrants in 2021. Last year there were multiple shootings and attacks at migrant shelters in Tijuana, causing migrant families to fear for their lives as they waited for a chance to apply for asylum in the U.S.
The U.S. State Department Travel Advisory for Mexico urges U.S. citizens not to travel to, or to reconsider travel to several Mexican border states due to crime and kidnapping. These warnings advise against travel to the Mexican states of Tamaulipas, Baja California, Chihuahua, and Sonora, where the border cities of Matamoros, Nuevo Laredo, Reynosa, Tijuana, Mexicali, Juarez, and Nogales are located. With this travel advisory in place for U.S. citizens, it is nonsensical to expect asylum seekers from other countries to find safety in Mexico.
The State Department’s 2022 Trafficking in Persons Report identifies persons with mental and physical disabilities, asylum seekers, and LGBTQ+ individuals as among those most vulnerable to trafficking in Mexico. Yet despite these warnings from the State Department, these are the same cities and regions where the Department of Homeland Security would have asylum seekers wait. Many of these asylum seekers are women with children and LGBTQ+ persons—i.e. those who are most at risk of being assaulted, raped, kidnapped, and sold to human traffickers and/or murdered.
Targeted violence is far from limited to Mexico’s border regions. One of Al Otro Lado’s clients, Estefanía*, fled Honduras after being persecuted because of her LGBTQ+ identity. She and her family were subjected to violence soon after arriving in Mexico
when cartel members kidnapped and held them for six days. During that time the family was blindfolded, forced to strip naked, and kept without food or water. Estefanía was the victim of a brutal rape when one of the cartel members found her LGBTQ+ flag and stated that he wanted to “teach her to be straight.” Unfortunately, stories like this are all too common among migrants traveling in Mexico.
Al Otro Lado’s clients have also reported being targeted in other countries before arriving in Mexico. One Nicaraguan asylum seeker initially fled to Honduras where she started a new life and found a partner. She and her partner were forced to flee, however, after witnessing a murder by gang members, and being threatened with death.
Another client from Honduras, Ofelia*, was deported to Guatemala with her young daughters under the Trump administration’s 2019 agreement with Guatemala. Guatemalan immigration officers told the family they had three options: receive assistance to return to Honduras, undergo a two-year process to seek asylum, or leave Guatemala within seventy-two hours. Returning to Honduras was not an option for Ofelia because powerful cartel members were actively pursuing her. She also knew that Guatemala would not provide a safe haven because of its proximity to Honduras and its own drug and gang crisis. Ofelia’s fears about the dangers in Guatemala are well-documented. Human Rights Watch has reported rampant human rights violations in Guatemala, as well as a slow and dysfunctional asylum system. Applying for asylum in Guatemala is simply not a viable option for most migrants in the region.
Our staff hear first-hand accounts of violence inflicted on migrants in Mexico and other transit countries on a daily basis. Given what we know about the reality of the conditions and risks for asylum seekers in these countries, we strongly oppose this proposed revival of the Trump transit ban.
One of Al Otro Lado’s clients remains negatively affected by the Trump asylum ban. Liliana* is a survivor of repeated rape, imprisonment, sexual assault, threats of death and physical assault by gang members and law enforcement. She arrived at the San Ysidro port of entry to seek asylum in April 2019. Liliana was subjected to metering and remained in Mexico while waiting for the opportunity to seek asylum until her number was finally called in August 2019. She was taken into custody and detained at the
Adelanto Detention Center The immigration judge (“IJ”) granted withholding of removal and stated that, had she not been subject to the 8 C.F.R. § 208.13(c)(4) “Third Country Transit Bar,” she would have been granted asylum because she had established past persecution on account of a protected ground and has a well-founded fear of future persecution. Liliana did not, however, apply for asylum in a third country.
She appealed the denial of asylum in her case, which has been pending since December 2019. Without asylee status and its attendant benefits, she has been unable to obtain stable work authorization or a path to lawful permanent residence. The delay has caused her to suffer instability and prevented her from making long-term plans for her life. We fear that the proposed rule will leave many more people with meritorious asylum claims with the lesser protections of withholding of removal and CAT. Still worse, some people with valid asylum claims will be deported because they fail to meet the higher evidentiary standards required to receive a grant of withholding of removal or CAT protection.
III. The presumption of asylum ineligibility can be rebutted only in narrow and extreme circumstances.
The proposed rule outlines three extreme situations that would allow an asylum applicant to rebut the presumption of asylum ineligibility First, the presumption can be rebutted if the applicant or an immediate family member experienced an acute medical emergency Second, the applicant can overcome the presumption if they can show that they were the victim of a severe form of human trafficking. Third, if the applicant can prove there was imminent risk to life or safety at the border, they may also rebut the presumption. Finally, there is a carveout for other “exceptionally compelling circumstances.” These overly narrow and vague provisions are woefully insufficient to provide a fair opportunity to seek asylum in the United States for those who were unable to meet one of the exceptions to the proposed rule.
The burden is on the asylum seeker to show by a “preponderance of the evidence” that one of these circumstances applies, a very difficult feat, especially for someone in immigration detention and/or a pro se applicant. People who have medical emergencies may not be able to obtain medical records or may have those records lost or stolen. Victims of trafficking may lack corroborating evidence to the satisfaction of
an IJ or asylum officer (“AO”). Even if medical records are available, IJs and AOs are not medical professionals and cannot be expected to decide what constitutes an acute medical emergency.
Over the last two years, Al Otro Lado has worked with hundreds of asylum seekers border wide who applied for Title 42 exemptions based on urgent medical conditions and imminent risk in Mexico. CBP denied many of these requests without explanation. Among those denied were an HIV+ Haitian man living in a tent camp, a child with severe cerebral palsy and developmental delays, a ten-year-old boy whose leg was amputated following a motor vehicle accident, and a family that was being actively and publicly pursued by cartel members. All had extensive documentation of their conditions, including hospital records, photos, and letters from trained medical professionals. In these cases and many, many others, DHS officers determined that the circumstances were not exigent enough to warrant an exemption to Title 42 and an opportunity to seek asylum. We are very concerned that, should the proposed rule go into effect, asylum will be foreclosed to individuals who are forced to cross the border between ports of entry for similar reasons and without other viable options.
In March 2023, Al Otro Lado submitted a request to CBP for a sick child with severe autism who was experiencing seizures and persistent vomiting to have a Title 42 exemption appointment outside of the CBP One process. The child’s mother has been unable to secure an appointment through CBP One. Originally from Honduras, the family does not qualify for any of the established parole programs. They are unhoused and getting more and more desperate to find safety and access to medical care. If a family like this, having exhausted other options, enters the U.S. between ports of entry, they may be found ineligible for asylum despite their desperate need for protection.
IV. The rule will result in prolonged and permanent family separation.
With many victims of persecution suddenly ineligible for asylum because of the proposed rule, there will likely be an increase in people granted withholding of removal, who otherwise would have qualified for asylum. People with withholding of removal are not permitted to petition for immediate relatives abroad. This lack of options for family reunification means that spouses and children will be left in dangerous conditions in their countries of origin, as the family unity exception to the proposed rule does not
apply to family members outside the United States. A parent who is forced to flee alone and ultimately finds safety in the U.S. may be permanently separated from their children and spouse in their home country simply because they have withholding of removal rather than asylum.
A Cameroonian man named Peter* was granted withholding of removal at a Louisiana detention center in 2019 but was denied asylum because he did not apply for asylum in any of the countries he passed through before arriving in the U.S. As a result, he has been unable to bring his wife and young son to join him. This expanded withholding/CAT-only posture will lead to more families being separated indefinitely.
V. The rule will strip away critical due process protections for asylum seekers.
Under the proposed rule, the administration seeks to eliminate two important safeguards during the credible fear process: 1) automatic IJ review of negative credible fear determinations and 2) an asylum seeker’s right to submit a request for reconsideration (“RFR”) with the asylum office after an IJ has affirmed a negative credible fear determination. If the rule goes into effect, asylum seekers will have to affirmatively request IJ review and will no longer have the opportunity to ask for review from USCIS. Removing these safeguards will inevitably result in an increase in deportations to countries where asylum seekers have a credible fear of return.
The Departments now contend that requiring an affirmative request for IJ review provides sufficient fairness for migrants subject to the rule, a striking reversal of the administration’s previous position. In May 2022, the Biden administration rescinded a similar Trump-era regulation requiring asylum seekers to affirmatively request IJ review, noting that: “treating any refusal or failure to elect review as a request for IJ review, rather than as a declination of such review, is fairer and better accounts for the range of explanations for a noncitizen's failure to seek review.” The administration’s conclusion last year demonstrates a better understanding of the realities facing asylum seekers in the complicated and confusing credible fear process. The return to the Trump-era approach will harm some of the most vulnerable asylum seekers, including those who are illiterate, linguistically isolated, or suffering the ongoing effects of trauma.
Al Otro Lado staff have advised hundreds of detained individuals about their rights during the credible fear process. From this experience, we have seen firsthand how difficult it can be for detained individuals to understand their rights. In one case, Manuela* an Indigenous asylum seeker from Guatemala believed she had received a positive credible fear determination when the asylum officer had in fact given her a negative one. The result had been explained to her in Spanish, not her first or preferred language. Because Manuela mistakenly believed that she had a positive credible fear determination, she would have not known to request IJ review. An IJ later vacated the asylum officer’s decision, giving Manuela the opportunity to apply for asylum. Without automatic IJ review, this linguistically isolated asylum seeker almost certainly would have been deported.
In addition to IJ review, RFRs are an important due process protection to prevent wrongful deportation in cases where an asylum officer and an IJ erroneously make a negative credible fear determination. According to data provided in the proposed rule, RFRs resulted in 569 reversals of negative credible fear determinations between FY 2019 and FY 2021. Although the administration contends that this is a small number in relation to the total number of RFRs submitted to USCIS, it is highly significant. Five-hundred-sixty-nine people were saved from deportation to a country where there is a significant possibility they would face serious harm or death. For those individuals and their families, the RFR process provided a necessary lifeline against refoulement
Al Otro Lado attorneys have submitted RFRs for clients facing deportation to countries governed by oppressive regimes including Iran, Cuba and gang-controlled Honduras. Tania*, an asylum seeker from Honduras was made partially deaf in a terrorist bombing and had difficulty hearing the judge and translator during IJ review. The IJ affirmed a negative credible fear determination despite evidence that she had been persecuted in Honduras because of her work for a political party. USCIS found her to have a credible fear of return to Honduras when the agency reconsidered her case. Without the RFR process, Tania would have been wrongfully deported to a country where she faced persecution.
VI. Temporary work visas are not a substitute for asylum.
In outlining justifications for the proposed rule, DHS and EOIR reiterate the Biden administration’s goal of creating more legal pathways for migrants to arrive in the U.S. without making dangerous journeys across land borders. One means of achieving that goal is an increase in H-2 temporary work visas for Central Americans. Although the guest worker program can offer benefits to workers and their families, it is no substitute for asylum.
Asylum seekers are often forced to flee at a moment’s notice, in direct response to a violent event, or to a credible threat of violence. An asylum seeker in immediate danger may not realistically be able to wait for a visa to be approved in their home country. The guest worker visa process is slow, often taking several months, precious time that an asylum seeker in immediate danger does not have.
Further, the temporary work visas are only available to able-bodied individuals who have the strength and stamina to work long hours, often in grueling conditions. They offer no relief to people with disabilities or certain medical conditions, but who are nevertheless in need of protection from harm in their home countries. Protection from persecution should not hinge on the physical strength of the applicant, and indeed it is often those with the least strength and physical ability to protect themselves who are in the most need of protection from persecution.
Moreover, asylum offers a permanent, rather than a temporary solution. An asylum grantee can apply for work authorization and family reunification, and has an immediate path to permanent residency Given the protracted nature of the violence that often leads to displacement from Central America, asylees may not be able to safely return to their home countries for years, if ever. Guest workers, in contrast, may only stay in the U.S. temporarily and have no option to apply for permanent residency or bring family members. Thus, while creating additional lawful pathways for Central Americans to come to the U.S. is laudable, the expansion of the guest worker program is not an excuse for taking a hatchet to the asylum system.
VII. Conclusion
If implemented, the proposed rule will result in death—that is what happens when you deport tens of thousands of refugees back to the countries from which they fled,
places where they faced daily persecution and lived under constant threat. This rule will also leave thousands of refugees in the U.S. without stable protections. It unfairly discriminates against Black, Brown and Indigenous asylum seekers and disadvantages some of the poorest and most medically vulnerable migrants. Moreover, the proposed rule is merely an attempt to circumvent the government’s legal obligation to process asylum seekers at a port of entry. The government’s bad faith attempts to evade accountability have once again created a situation where civil society organizations, such as Al Otro Lado, must divert finite resources to ensure that asylum seekers have some semblance of access to the US asylum system. For these reasons, Al Otro Lado strongly opposes the proposed rule and urges the Departments to fully withdraw it.