Comment on the Departments of Justice and Homeland Security’s Final Rule on Securing the Border
This is an adapted version of a comment that Yael Schacher, Director for the Americas and Europe, submitted to the Federal Register on November 6, 2024 urging the Biden administration to rescind bans on asylum at the U.S. border that do not ensure meritorious claimants get access to protection.
Re: Refugees International Comment on the Departments of Justice and Homeland Security’s Final Rule on Securing the Border, USCIS Docket No. USCIS 2024-0006; A.G. Order No. 6053-2024, https://www.federalregister.gov/documents/2024/10/07/2024-22602/securing-the-border
Refugees International is an independent non-profit organization that was founded in 1979 to oppose pushbacks and promote access to refuge for Vietnamese asylum seekers. It has been fighting to prevent refoulement and ensure access to protection pathways and humanitarian assistance for displaced people ever since. This comment draws on recent research conducted by Refugees International in Mexico and at the U.S.-Mexico border. Yael Schacher, an historian of asylum and refugee law, has written several academic articles and policy reports on the history of asylum and submitted comments on regulations related to asylum since 2019, including the Circumvention to Lawful Pathways Regulation and the Securing the Border interim final rule.
Like those other bans, the Securing the Border final rule violates U.S. and international law first and foremost by disparately treating asylum seekers based on their mode of entry.1 The final Securing the Border rule proposes to make eligibility for asylum arbitrary and unrelated to the merits of claims in this sense: eligibility for asylum for a person who crosses between ports of entry will depend on whether less than 1500 other people have crossed the border unauthorized per day for over forty two days. Exemption from ineligibility in “exceptionally compelling circumstances” (for victims of trafficking or for people with acute medical emergencies) are too rarely granted and also unrelated to the merits of asylum claims. The same is true about CBP One appointments, which are available to those who can use the app and who can wait in Mexico – but not those who can’t regardless of the merits of their claim.
The regulation concedes that its “manifestation of fear and reasonable probability standards may increase the risk that some noncitizens with meritorious claims may not be referred for credible fear interviews or may not receive a positive credible fear determination.” (89 FR at 48767. It also explains that there may be costs to noncitizens that result from their removal—indeed, such costs are likely. Id.” Thus the rule concedes that it puts some meritorious claimants at risk of refoulement. The U.S. non-refoulement obligation cannot be part of a cost-benefit analysis, and weighed or “balanced” against other priorities. The U.S. has a legal obligation not to return refugees to persecution. What it doesn’t have a legal obligation to do is use expedited removal to deliver consequences to people who seek asylum after crossing the border without authorization. Using expedited removal is discretionary, whereas non-refoulement is prohibited.
Further, asylum policy should be primarily about ensuring that meritorious claimants get their claims fairly adjudicated. The Rule rightly discusses the need for additional resources to manage asylum seekers. But this does not justify weaponizing the asylum adjudication process in order to ensure that as many people as possible suffer the consequences of crossing without authorization. As Refugees International has witnessed, it does this by: making it more difficult for asylum seekers to get referred for a credible fear screening, limiting the amount of time an asylum seeker can consult with an attorney before the credible fear screening, raising the standard of proof to pass that interview to “reasonable probability” even though the asylum seeker is detained and just recently crossed the border, filling the fear screening interview with questions unrelated to the merits of claims (but to applicability of bans), holding pro forma immigration judge reviews of failed screenings during which the claimant lacks a written record of the screening interview and can only answer yes or no questions. If the claimant passes the screening, all of the questions about the applicability of the bans on eligibility have to be rehashed at the merits hearing before an immigration judge.
This process is certainly not maximally efficient and, despite the decline in unauthorized crossers since July, DHS has not shifted resources to ports of entry to increase processing of asylum seekers and the number of CBP One appointments available there. This makes it seem as if the agencies are not interested in encouraging asylum seeking using “lawful pathways” but only in delivering consequences to unauthorized crossers and limiting access to asylum overall.
The agencies have dismissed reports from organizations (including Refugees International)2 about the actual impact of the Securing the Border rule on asylum seekers and instead insist that the rule effectively changes “the incentives and motivations” for irregular migration to and over the border. The rule does not claim it has reduced the number of asylum seekers coming through Mexico—which the regulation acknowledges is “large and growing” (81165). It is instead premised on misapplied social science literature about how to “nudge” people into making certain choices.3 But to effectively nudge (or incentivize) asylum seekers in Mexico to use legal pathways rather than unauthorized entry, a few things have to be true that are not.
First, CBP One appointments have to be a readily available “option,” but this is not the case—demand for appointments far exceeds supply, the wait is months long in dangerous and precarious conditions, and not everyone knows about or can access the app (81184). Second, asylum seekers in Mexico have to know an emergency proclamation limiting asylum eligibility is in effect and understand how crossing the border between ports of entry would put them at a disadvantage. This is definitely not the case. Refugees International has observed several credible fear interviews under the Securing the Border Interim Final rule and, at each one, when asked by an asylum officer why they did not wait to cross the border when the restriction on eligibility was not in effect, the asylum seekers said they did not know it was in effect and, anyway, could not wait in Mexico. Which brings us to third: the existence of countervailing coercion working at cross purposes to the rule’s incentives — such as a smuggler with a gun insisting that an asylum seeker cross the border or abandoning an asylum seeker who doesn’t speak Spanish on the Mexican side of the border wall in a remote desert area without any food or money.
Relying on the social science of “incentives” is misguided and has been promoted as applicable to the border context by authors opposed to any and all access to asylum and to other legal pathways such as the U.S. Refugees Admissions Program.4 In general the rule’s constant use of the word “disincentive” to describe what it does simply obscures that it is actually penalizing asylum seekers who cross the border without authorization in clear violation of U.S. and international law. The rule generally represents how one seeks asylum as a matter of free choice. Almost all the asylum seekers Refugees International has interviewed have represented their unauthorized crossing of the border as a matter of compulsion.
The Securing the Border Final rule and Circumvention of Lawful Pathways Rule should not be extended (temporally and geographically) and instead be rescinded.
Endnotes
[1] U.S. law says that “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 . . ), irrespective of such alien’s status, may apply for asylum.” INA 208(a)(1), 8 U.S.C. 1158(a)(1). Article 31 of the Refugee Convention says that contracting states shall not impose penalties on refugees on account of their illegal entry or presence. https://www.refworld.org/policy/legalguidance/unhcr/2024/en/148632
[2] “Don’t Tell me About Your Fear,” August 2024, https://humanrightsfirst.org/wp-content/uploads/2024/08/IFR-report_formatted.pdf
[3] Richard Thaler and Cass Sunstein, Nudge: Improving Decisions About Health, Wealth and Happiness (2021).
[4] Jason Richwine, Incentives Matter at the Border, Center for Immigration Studies, June 7, 2024, https://cis.org/Richwine/Incentives-Matter-Border
Phillip Linderman, “PRM: That Obscure State Department Bureau that Fosters Illegal Immigration, Sept. 3, 2024, https://www.theamericanconservative.com/prm-the-obscure-state-department-bureau-that-fosters-global-illegal-migration/