Last month, the Biden administration proposed a regulation that would have U.S. officials presume ineligible for asylum those who transited through other countries or crossed the U.S.-Mexico border without authorization. Yesterday, Refugees International Director for the Americas and Europe Yael Schacher submitted to the Federal Register a comment explaining how the proposed regulation violates U.S. and International refugee law and could undermine refugee protection in the hemisphere. Below is a slightly modified version of the comment:
March 27, 2023
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,
Executive Office for Immigration Review, 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.
I submit this comment as an historian of United States asylum law and procedures and as Director for the Americas and Europe at Refugees International, an independent non-governmental organization that advocates for lifesaving assistance, human rights, and protection for displaced people. Over the past five years, I have published several academic articles and research reports on the history of U.S. asylum law and policy, their relationship to international law, and approaches to effectively sharing the responsibility to protect refugees. I have witnessed and monitored access to asylum and protection pathways at the U.S.-Mexico border and, with my colleagues at Refugees International and partner organizations, in other countries in the region, including Colombia, Costa Rica, Guatemala, and Mexico.
In light of the tremendous numbers of forcibly displaced people in the hemisphere and around the world, Refugees International supports the creation of additional legal pathways to the United States as a supplement to—rather than as a substitute for—access to asylum at the U.S.-Mexico border. U.S. and international refugee law require universal access to asylum and uniform procedures for the consideration of asylum claims regardless of nationality and mode of transit or entry, which also do not serve as proxies for the merits of claims. Denying eligibility for asylum to those who transit other countries or enter between ports of entry not only will lead to refoulement but also undermines the ability of other countries to handle the many asylum claims they already have. Indeed, many of the features of the proposed rule undermine the rule’s own stated goals, and reveal that it will do more to undermine overall access to protection in the Americas than bolster it. For these reasons, further elaborated below, Refugees International urges the agencies to withdraw the proposed rule (hereafter referred to as NPRM).
The Proposed Rule violates U.S. law.
The United States acceded to the UN Protocol to the 1951 Convention Relating to the Status of Refugees in 1968 but, for the next dozen years, U.S. law did not comply with the Convention. The United States lacked a clear procedure whereby people could seek asylum during exclusion proceedings and, if a person in deportation proceedings proved they would be persecuted for their political opinions if returned to their home country, the Attorney General could still deport the person as a matter of discretion. The Refugee Act of 1980 changed this. The law was intended not only to ensure that the United States abided by the Convention’s prohibition on non-refoulement. As I have argued elsewhere and as has been recently affirmed in federal court, the Refugee Act of 1980 was also a Congressional mandate to create uniform procedures for the handling of asylum claims whether a person arrived at a land border or airport, whether a person did or did not have documentation, whether a person asked for asylum after crossing a land border without authorization or at a port or entry.1 Congress did this because lack of uniformity in the handling of claims led, in the 1970s, to discrimination based on nationality and race and lack of due process for asylum seekers. This will likewise be the effect of the proposed rule’s barring of access to asylum to those who do not make use of a parole process or the CBP One app to make an appointment at a port of entry. CBP One is not universally accessible—it is only available in a few languages to people with certain types of phones and wifi—and it is unclear how an asylum seeker would prove to an officer that they could not get an appointment using it so as to be eligible for asylum at the border. (It is also unclear how asylum seekers would prove to CBP officers that that they were facing an imminent threat of rape or were a victim of a severe form of trafficking to be excepted from ineligibility). Parole programs are only available to people from certain nationalities who have passports and sponsors in the United States and who have not recently entered unauthorized into Mexico or Panama. This NPRM creates different rules for people at the southern border without documents and for people who arrive in airports with visas, reverting back to the lack of uniformity that existed before 1980. The NPRM insists that, despite establishing a broad presumption of ineligibility that will preclude access to the asylum system for many asylum seekers, it is compliant with the UN Refugee Convention because these asylum seekers would continue to be eligible for withholding of removal. But withholding of removal offers less robust protection and has a more onerous standard of proof than the “well founded fear” standard in the Convention. To comply with the Convention, the United States must have a uniform and fair procedure to determine eligibility for refugee status as defined in Article 1 of the Refugee Convention and incorporated in the 1980 Refugee Act.
When Congress amended the asylum statute in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), it reaffirmed its prior explicit authorization of access to asylum for anyone “who is physically present in the United States or who arrives in the United States,” “whether or not” they arrive “at a designated port of arrival.” In 1995, the year before passing IIRIRA, Congress considered and rejected an amendment which would have barred asylum to those who, “before arriving at the United States, passed through another country”—and even then, only if “the Secretary of State ha[d] identified [the transit country] as providing asylum or safe haven to refugees.”2 Instead, in IIRIRA Congress mandated that a person was barred from asylum eligibility when coming from a country with which the United States had a safe third country agreement or when the asylum seeker had been firmly resettled in a third country. 8 U.S.C. §1158(d)(5)(B) provides that the administration may not issue regulations that are inconsistent with these provisions. When the agencies promulgated regulations in 1997 to implement IIRIRA, they included the provision that an individual “asylum application may be denied in the discretion of the Attorney General if the alien can be removed to a third country which has offered resettlement and in which the alien would not face harm or persecution.”3
The NPRM, at 88 Fed. Reg. 11735-11741, nonetheless argues that Congress gave the agencies the authority to presume ineligible for asylum all people who come to the southwest border after transiting through other countries where they have not been rejected for asylum and who ask for asylum after crossing between ports of entry or at a port of entry without a CBP One appointment. The NPRM does this by making a few unconvincing arguments. First it claims that the “text and the structure” of IIRIRA—namely that section 1158 splits asylum applications and eligibility into two subsections—indicate that Congress meant to have whole categories of asylum seekers apply for asylum for no purpose since they could never be granted asylum, i.e, Congress called for the creation of an application process to nowhere and wanted the agencies to spend their time rejecting applications by people ineligible for asylum. This argument not only, in the words of Judge Richard Paez, “borders on absurdity.”4 It also does not seem to be made in good faith given the emphasis throughout the NPRM on the need to improve the efficiency of the asylum system.
Indeed, the agencies also argue that, because they have the discretionary authority to consider transit through third countries and manner of entry in adjudicating individual asylum cases, Congress meant to give them the authority to do this “across a category of similarly situated” asylum seekers in the name of the “overall efficiency of the system” and to “encourage other countries in the region to share in the protection of migrants” (88 FR 11737). In administering the bars on asylum eligibility detailed in the NPRM, the agencies will not assess whether the individual asylum seeker could safely stay in a transit country and effectively secure protection there. This approach to asylum fundamentally clashes with the case-by-case asylum adjudication system delineated by Congress in the Refugee Act of 1980, IIRIRA, and the Real ID Act of 2005. Departure from this approach and authority to handle categories of asylum seekers in a certain way must be explicitly articulated by Congress, as it did in 1996 not only in establishing the one year asylum application filing deadline but also when it mandated that all people forced to abort a pregnancy or to undergo involuntary sterilization, or persecuted for failure or refusal to undergo such a procedure, would be considered to have been persecuted on account of political opinion. The NPRM also violates IIRIRA by fundamentally changing the credible fear screening process. Congress designed it to be a “low screening standard for admission into the usual full asylum process.”5 Instead, under the NPRM, asylum seekers would be required, at the credible fear screening stage, to prove to an asylum officer “by a preponderance of the evidence that exceptionally compelling circumstances exist” exempting them from asylum ineligibility. If they cannot do this, they would have to prove to the asylum officer, at the credible fear stage, that they are worthy of asylum on the merits (i.e., what they shouldn’t have to prove until the later full asylum process).
As discussed below, it is truly questionable whether the NPRM’s utilitarian and foreign policy (rather than human rights) approach to asylum will lead, as is assumed in the NPRM, to increased overall access to protection in the hemisphere, to “increasing the percentage of meritorious claims that are considered” by the agencies, and (in some way not specified) to advancement of the “broader public interest” (88 Fed Reg 11737).
The Proposed Rule does not accurately portray conditions for migrants and access to asylum in other countries in the region.
Refugees International has done extensive recent reporting on the experiences of migrants in the Americas, especially in Peru, moving from Colombia to Panama through the Darien Gap, in Costa Rica, Guatemala, and Mexico. Though these countries have made commitments to humanely manage migration by signing the L.A. Declaration, migrants traveling through them over the past few months have experienced rising insecurity, xenophobia, and human-rights violating migration enforcement measures. Further, as former leaders of Costa Rica and Colombia have written, access to protection in other countries will only be undermined by the proposed rule’s cutting off access to protection in the United States and sending asylum seekers into orbit throughout the hemisphere.6 This proposed rule is shifting responsibility for protection to other countries that may just follow the United States’ lead, leading to chain refoulement rather than increased protection.
The NPRM notes that every country in the hemisphere has seen large increases in migration and that countries like Colombia and Peru are hosts to millions of Venezuelans. It also asserts that imposition of Title 42 upon, and the creation of parole programs for, Venezuelans, Cubans, Haitians, and Nicaraguans, effectively reduced encounters at the U.S. border and “changed migratory patterns” (88 Fed. Reg. 11711). But, 50,000 migrants crossed the Darien Gap in January and February of 2023, five times the number in the first two months of 2022, and an increasing percentage of them were Haitians and Ecuadorans.7 The NPRM lauds Ecuador and Peru for providing temporary permits to asylum seekers. But a lack of long-term integration and increasing political instability and insecurity there have made it harder for displaced people to access work and services there and has driven them to migrate, along with Peruvians and Ecuadorans as well.8 None of these individuals, currently traveling through the Darien Gap and northward without visas, will be eligible to apply for parole programs because of their current eligibility restrictions.
The NPRM’s assertion that Mexico “is the third highest recipient of asylum claims in the world” says nothing about how Mexico is handling these claims and whether it is a safe country to which to return asylum seekers (88 Fed. Reg. 11720). As the Refugees International report on the Mexican asylum system cited in the NPRM (footnote 147) points out, Mexico applies the Cartagena standard to some nationalities and not others, particularly Haitians who spent 2021 and 2022 in precarious limbo.9 On several trips to Mexico over the last year, I have spoken to dozens of migrants (from El Salvador, Honduras, Haiti, Nicaragua and Venezuela) who have fallen prey to gang violence in Ciudad Juarez and Reynosa and to dozens of others who have been terribly mistreated by Mexican police and immigration authorities in many different parts of the country – from Tapachula to Coahuila. Xenophobia and anti-immigrant sentiment has only worsened in Mexico since U.S. Homeland Security Secretary Alejandro Mayorkas recognized the “extreme violence and insecurity” experienced by migrants and asylum seekers during the Remain in Mexico program.10 Underfunded and already overwhelmed by asylum applications, the Mexican Commission for Refugee Assistance (COMAR) is worried about the impact of the proposed rule on the Mexican asylum system. Once the new regulation goes into effect, will thousands of asylum seekers put forward weak claims in Mexico in order to be rejected and so eligible for asylum in the United States?11 What kind of documentation will Mexico immigration authorities give all the asylum seekers the United States will deport to Mexico via expedited removal? Will it be possible for them to formally work in Mexico, almost impossible for them to do now? Will Mexico bus these asylum seekers to the south or send them to their home countries as it has done with those expelled under Title 42? The United States making secret agreements with Mexico to accept deported Cubans, Haitians, Nicaraguans, and Venezuelans with no concern about what happens to them after deportation does not comply with the non-refoulement obligation of the UN Refugee Convention.
The NPRM lauds progress that Guatemala has made to improve its asylum system over the last two years. Having visited Guatemala with Refugees International colleagues and spoken to representatives of the UN Refugee Agency (UNHCR) and to migrants there in early 2020 and late 2022, I question the extent of this progress.12 Salvadorans sent from the U.S. border under the previous administration’s “asylum cooperative agreement” and Venezuelan families migrating northward in October 2022 could not find safety in Guatemala and were at risk of refoulement. Indeed, the rule of law situation in Guatemala has deteriorated over the last year, during which Guatemalan migration authorities barred 15,593 Venezuelans from entering from Honduras.13 Meanwhile, there are only 708 refugees and 1,472 asylum claims in Guatemala, where high level officials, including the Vice President, still need to approve every claim.14
The NPRM presents a very partial picture of the situation in Costa Rica, which, since November 2022, has been adopting stricter asylum and migration deterrence policies, pointing to U.S. policies as the reason for doing so.15 The Costa Rican government issued a decree stipulating that, if an asylum seeker transited another country, their claim would be deemed inadmissible unless the asylum seeker had evidence of inability to apply.16 Costa Rica also no longer automatically provides work permits to asylum seekers and requires that people apply for asylum within one month of arriving. These measures limit asylum seekers’ right to work and push them into precarious working situations. According to Refugees International partner organization the Institute on LGBTQI Migration and Refuge for Central America, the decree ignores the different needs and socioeconomic realities of LGBTQI+ refugee applicants and has been accompanied with a resurgence of xenophobic and discriminatory discourse about migrants and asylum seekers.17
The Proposed Rule is premised on assumptions and minimal proof.
The NPRM argues it must make migrants arriving at the border ineligible for asylum because most of those who pass credible fear screenings and who cross between ports of entry do not have meritorious claims. No data is provided by the NPRM to prove the latter. The statistics cited in the NPRM (https://www.justice.gov/eoir/page/file/1062976/download) only show that there is a backlog of claims; that of adjudicated claims, the asylum grant rate is higher than the denial rate; and that the rate of people who have failed to apply for asylum after passing credible fear has halved since 2013. There is no system in place to ensure that those who arrive in the United States through the parole programs or through CBP One have credible asylum claims, let alone that they are more likely to be granted asylum on the merits. Simply making people who cross between ports of entry ineligible for asylum will not raise asylum grant rates or even necessarily lessen the work of the immigration courts and asylum office, which, as the NPRM concedes, will still need to spend “significant additional time” assessing whether claimants meet the three exceptions to presumed ineligibility and, if not, the reasonable fear standard (88 Fed. Reg. 11744). A surer way to close the gap between those who pass credible fear and those granted asylum would be to provide asylum seekers access to counsel and to clarify the standard that should be used to adjudicate claims of persecution based upon membership in a particular social group. The best way to reduce the fiscal strain on states and localities receiving asylum seekers is to more promptly authorize asylum seekers to work so that they can support themselves and pay taxes. It is also worth pointing out that the average time it takes to adjudicate asylum claims—4 years—is identical to the average time it takes for the United States to process refugees through the United States Refugee Admissions Program. To make refugee adjudication fairer and faster, the United States must clarify and make uniform the standards it uses to adjudicate claims and invest in increased staffing and other resources for adjudication.
The proposed rule’s primary goal is to address a predicted surge in migrants at the border in the spring of 2023 and to combat reliance on smuggling. The rule assumes that, in the spring of 2023, the existence of legal pathways will keep encounters low. But, as mentioned above, legal pathways are not available to all asylum seekers. The demand for CBP One appointments vastly outstrips supply and, as of February 2023, Refugees International’s discussions with port officers and migrants in El Paso indicated that sending advance information to CBP through the app did not increase processing speed through ports of entry. If the legal pathways could sufficiently and less expensively serve all those who need to seek asylum, there would be no need to bar asylum seeking between ports of entry as no asylum seeker would pay a smuggler for what was so readily accessible and less dangerous. The “stick” of the bar not only penalizes asylum seekers in a way that is contrary to U.S. and international law but also betrays the reality that the legal pathways are not, in fact, true substitutes for access to asylum at the border. It is not hard to see that the best way for the agencies to get more people to use pathways is for them to create additional pathways that more people can use.
Last, the proposed rule claims it will not separate families in the way that the previous administration’s transit ban did. But the NPRM exempts unaccompanied minors and not their families from presumed ineligibility for asylum if they cross between ports of entry. Limiting those fleeing harm to withholding of removal or Convention Against Torture (CAT) protection will result in family separation because neither of these forms of protection provide derivative status. If only one member of a family is granted withholding or CAT, he or she will not be able to extend that protection to family abroad and bring them to the United States.
Overall, the NPRM puts obstacles in the way of those seeking protection at the border and re-orients asylum processing away from a uniform approach of considering claims. The regulation will have a disparate impact on certain nationalities and minorities and does the opposite of leading by humanitarian example in the hemisphere. Refugees International, like many Americans, believes the public interest is best served when the United States adheres to its own and international refugee law and champions human rights. For these reasons, Refugees International recommends that the rule be withdrawn.
 Brief of Amicus Curiae Refugees International and Yael Schacher, Immigration Defenders Law Center et. al. v. Chad Wolf et. al.(District Court for the Central District of California, 2020); Decision by Judge Bernal, Immigration Defenders Law Center et. al. v. Mayorkas et. al., (District Court for the Central District of California, 2023).
 H.R. 2182, 104th Cong. § 1(a) (1995).
 62 Fed. Reg. 10342.
 “Explicitly authorizing a refugee to file an asylum application because he arrived between ports of entry and then summarily denying the application for the same reason borders on absurdity. The consequences of denial at the application or eligibility stage are, to a refugee, the same. Had Congress intended to allow DOJ and DHS to override this provision, it could have said so in…the statutory provisions governing asylum applications. And Congress signaled its desire that any eligibility limitations be consistent with application requirements; limitations promulgated under the eligibility subsection of the statute must be consistent with this section—meaning the entirety of section 1158—not just consistent with this subsection.” (East Bay Sanctuary Covenant et. al. v. Biden et.al., 993 F.3d 640 (9thCircuit, 2021) 43-44.)
 42 Cong. Rec. S11491 (daily ed. Sept. 27, 1996) (statement of Sen. Orrin Hatch: “The [credible fear] standard adopted in the conference report is intended to be a low screening standard for admission into the usual full asylum process.”) (emphasis added).
 Juan Manuel Santos, “Time for the Americas tp step up (again) on migration” El Pais, March 6, 2023, https://english.elpais.com/opinion/2023-03-06/time-for-the-americas-to-step-up-again-on-migration.html
Carlos Alvarado Quesada, “What Biden’s deeply troubling asylum limit means for the economy,” The Hill, March 8, 2023,https://thehill.com/opinion/immigration/3889578-what-bidens-deeply-troubling-asylum-limit-means-for-the-economy/
 Evan Dyer, “Migrant numbers at jungle crossing point to a record-breaking year for irregular migration in North America,” CBC, March 19, 2023, https://www.cbc.ca/news/politics/migrants-panama-darien-gap-haiti-1.6783199
 Yael Schacher and Rachel Schmidtke, “Pushed into the Shadows: Mexico’s Reception of Haitian Migrants,” Refugees International, April 28, 2022, https://www.refugeesinternational.org/reports/2022/4/25/pushed-into-the-shadows-mexicos-reception-of-haitian-migrants
 Termination of the Migrant Protection Protocols, October 29, 2021, https://www.dhs.gov/sites/default/files/2022-01/21_1029_mpp-termination-memo.pdf
 Rosa Flores, “Mexico Rethinks asylum initiative after controversial U.S. announcement,” CNN, Feb. 24, 2023, https://www.cnn.com/2023/02/24/americas/mexico-asylum-policy-intl-latam/index.html; see also: https://twitter.com/giolepri/status/1629874741204127745?s=48&t=bnPnoVLl6sJblKyIuK3Pgg
 Ariana Sawyer, Yael Schacher, and Rachel Schmidtke, “Deportation with a Layover: Failure of Protection under the U.S.-Guatemala Asylum Cooperative Agreement,” May 19, 2020, https://www.refugeesinternational.org/reports/2020/5/8/deportation-with-a-layover-failure-of-protection-under-the-us-guatemala-asylum-cooperative-agreement
Rachel Schmitdke, “ Pushbacks of Venezuelans on the Guatemalan Border,” October 31, 2022, Refugees International, https://www.refugeesinternational.org/reports/2022/10/31/refugees-international-eyewitness-pushbacks-of-venezuelans-on-the-guatemalan-border
 Roman Gressier, “Guatemala, Crossroads of the Venezuelan Exodus, El Faro, Feb. 27, 2023, https://elfaro.net/en/202302/centroamerica/26709/Guatemala-Crossroads-of-the-Venezuelan-Exodus.htm
 Alonso Martinez, “Rodrigo Chaves: Costa Rica cambiará reglas para pedir asilo político por falta de ayuda internacional” [Rodrigo Chaves: Costa Rica to change rules for requesting political asylum due to lack of international aid], Delfino, November 16, 2022, https://delfino.cr/2022/11/rodrigo-chaves-costa-rica-cambiara-reglas-para-pedir-asilo-politico-por-falta-de-ayuda-internacional
 Statement From IRCA CASABIERTA and Refugees International Regarding the Recent Executive Decrees 43809-Mgp/43810-Mgp, December 28, 2022, https://www.refugeesinternational.org/reports/2022/12/28/statement-from-irca-casabierta-and-refugees-international-regarding-the-recent-executive-decrees-43809-mgp43810-mgp
Cover Photo: Asylum seekers bundle up against the cold after spending the night outside the U.S.-Mexico border fence in December 2022. Photo by John Moore/Getty Images.