Biden Administration’s ‘Securing the Border’ Regulation Should Be Rescinded
On July 8, Refugees International’s Director for the Americas and Europe Yael Schacher submitted the comment below to the Federal Register regarding the Biden administration’s “Securing the Border” regulation. The regulation, which has been in effect since June 5, renders ineligible for asylum anyone who seeks it by approaching a land border port of entry without an appointment or after crossing between ports of entry while “emergency circumstances” exist at the border, which the administration is defining as more than than 1,500 encounters between the ports of entry each day. The comment criticizes the Biden administration’s handling of asylum seekers under this regulation, especially by neglecting to screen asylum seekers before removing them, as Refugees International observed at the border last month.
Comment
This is a comment on behalf of Refugees International regarding the Securing the Border Interim Final Rule (89 FR 48719 (June 7 2024), DHS Docket No. USCIS-2024-0006, hereafter referred to as the IFR. Refugees International is an independent policy and advocacy organization focused on upholding the rights and needs of forcibly displaced people. The IFR disconnects asylum from the merits of persecution claims by denying access to asylum based on the number of border arrivals. Refugees International has observed first-hand how this undermines the right to seek asylum and the obligation against non-refoulement and recommends that the Departments rescind the rule.
The fact that “the Departments do not have adequate resources to deliver timely consequences to individuals who cross unlawfully and cannot establish a legal basis to remain in the United States” should have no relationship to the treatment of newly arriving asylum seekers whose right to remain has not yet been assessed (89 FR 48713). Why should a person fleeing persecution in Mexico be ineligible for asylum because of an inability of the United States, for diplomatic reasons, to remove Eastern Hemisphere migrants? (89 FR 48722) The IFR describes a “vicious cycle in which the border security and immigration systems cannot deliver timely…consequences to all the people who are encountered at the Southwest border and lack a lawful basis to remain in the United States…which then incentivizes more people to make the dangerous journey north…an increasingly lucrative source of income for dangerous transnational criminal organizations” (89 FR 48714).
But there is another vicious cycle at play as a result of this IFR: access to asylum is less and less about merits of claims and more arbitrary and discriminatory.
The Interim Final Rule is motivated by the Departments’ concern that too many people are seeking asylum, rather than whether individuals are eligible. Far from ensuring access to those with the strongest claims and speeding their adjudication on the merits, the new system allows only those with the means to wait for months for a CBP One appointment access to the asylum system and shifts resources to increasingly complex credible fear screenings.1
There are two ways in which the IFR reduces access to hearings on the merits: it raises the preliminary screening standard and it requires that asylum seekers “manifest fear” to be referred for preliminary screenings. The IFR justifies raising the preliminary screening standard with the claim that “most” people who pass credible fear screenings are denied asylum in immigration courts (89 FR 48728), a claim recently refuted by a report from TRAC showing that “two thirds of court asylum applicants” between 2014 and 2024 have been found legally entitled to remain in the United States (https://trac.syr.edu/reports/742/). The Departments acknowledge that the manifestation of fear requirement “could result in some noncitizens with meritorious claims not being referred to a credible fear interview” and instead being removed, an impermissible violation of U.S. obligations under the Refugee Convention (89 FR 48744).2 Indeed, the Biden administration has evinced less concern than the Carter administration did forty-five years ago, before the passage of the Refugee Act of 1980, when it conducted a study (albeit inadequate) to assess whether deported Haitians faced persecution upon return,3 or even than during the Eisenhower administration seventy years ago—before the U.S. acceded to the Refugee Convention—when deportations to Yugoslavia, for example, were carefully monitored by the State Department. The Biden administration is returning Venezuelans and other third country nationals to Mexico with little concern about what happens to them there, often without their identity documents, and separated from their families.4 Without any monitoring of the consequences of removal, it is unclear if the IFR’s supposed “systemic efficiency” is “in the best interest” of the United States—an interest that includes a commitment to upholding human rights and providing humanitarian aid in the hemisphere (89 FR 48736-7).
The IFR notes an increase in fear claims by Mexicans but, as it does throughout the IFR, refuses to consider whether the increase may be attributable to a documented rise in insecurity.5 Mexicans asylum seekers that Refugees International interviewed after they had been removed to Nogales, Sonora under the IFR described fleeing specific, targeted violence. A woman who fled Guerrero with her seven year old daughter described crying while in CBP custody and saying that she feared return. Rather than referring her to a credible fear interview, a CBP officer told her to seek asylum in Mexico, that she was barred from the United States for five years (though not given a copy of her removal order), and warned not to try to re-enter the country unauthorized lest she be separated from her daughter. Another Mexican who was not referred for a credible fear interview fled extreme gender based violence (that led to a miscarriage) and waited as long as she could for a CBP One appointment—but crossed the border to seek asylum when she no longer felt safe doing so. A third Mexican woman – who fled death threats – said that when she told a CBP officer that she wanted to seek asylum, he responded “that’s what everyone says” and that the new regulation made that impossible. She told Refugees International she was considering sending her daughter to the port of entry on her own and then trying to cross in a remote area of the desert – with the help of a smuggler – to evade detection. This is the perverse result of the IFR.
A better way to reduce encounters and combat the transnational criminal organizations the IFR condemns is to expand asylum seeker access at (additional) ports of entry and expand the availability of CBP One appointments. A better way to provide “timely relief or protection for those who warrant it” would be to establish “general rules or guidelines in lieu of case by case assessments” (89 FR 48738) that would allow officers to quickly approve certain cases – as was suggested by USCIS’s own ombudsman.6 These were not alternatives considered alongside restrictions on access to asylum based on a numerical quota and inconsistent with the explicit language of the Refugee Act of 1980 (allowing for access to asylum regardless of status) and Congressional intent in establishing the credible fear process in 1996 (with a low-screening standard7). For these reasons, the IFR should be withdrawn.
Endnotes
[1] The flawed metric the IFR uses to measure efficiency (see, for example, 89 FR 48739) is the time period between encounter and referral to CFI and between negative CFI and removal, rather than any assessment of the length of the CFI interview itself. Thus improved efficiency has nothing to do with actual asylum adjudication. It simply reflects more limited time accorded to asylum seekers to access counsel while in custody.
[2] The IFR justifies eliminating questions about fear by citing the behavioral science concept of “acquiescence” (89 FR 48743), ignoring a significant amount of research showing how CBP officers intimidate traumatized people into obedience and submission to the process of removal, regardless of their well-founded fear of return. See for example, https://cmsny.org/wp-content/uploads/2019/06/Why-Border-Patrol-Agents-and-CBP-Officers-Should-Not-Serve-as-Asylum-Officers.pdf. In general, the IFR shockingly approaches the absolute restriction on returning any human being to persecution as if it were a cost-benefit matter fulfillable through probabilistic accounting. “The benefits of this rule, which is consistent with all statutory and regulatory requirements and the United States’ international law obligations, outweigh any potential marginal increase in the likelihood that a meritorious case would fail under the raised screening standard” (89 FR 48746).
[3] For a description of the State Department’s 1979 study in Haiti, see Haitian Refugee Center v. Civiletti, https://casetext.com/case/haitian-refugee-ctr-v-civiletti
[4] IMUMI, Factsheet: Removal and Return of Non Mexican Nationals from the United States to Mexico. https://imumi.org/attachments/2024/Removal_an_Return_of_Non_Mexican_Nationals_from_the_US_to_Mx.pdf
[5] For reports on Mexicans fleeing such insecurity, see:
https://amp.cnn.com/cnn/2024/06/12/americas/us-migrants-mexico-election-intl-latam
https://inewsource.org/2023/11/02/mexican-families-crossing-the-border-fleeing-violence
https://www.wola.org/wp-content/uploads/2023/09/Militarized-Transformation_-.pdf
[6] 2023 Report from the CIS Ombusdman, https://www.dhs.gov/sites/default/files/2023-07/2023%20Annual%20Report%20to%20Congress_0.pdf, page 22.
[7] 142 Cong. Rec. 136, S11491 (Sept. 27, 1996).