Comment in opposition to the proposed interim final rule, “Securing the Border”

SUMMARY

The Immigration and Nationality Law Committee submitted comments in opposition to an interim final rule, “Securing the Border,” promulgated by the Departments of Homeland Security (DHS) and Justice (DOJ), which was published in the Federal Register on June 7, 2024. The rule would prohibit vulnerable asylum seekers from seeking asylum for indeterminate periods of time triggered by “emergency border circumstances” and categorically preclude asylum seekers from seeking asylum if they enter between ports of entry, other than in very narrow circumstances. Under the new rule, the US government would deny asylum seekers fair and full access to asylum protections as long as the emergency border circumstances are in place. While the City Bar recognizes the importance of maintaining secure borders, we are concerned that the rule does not comport with principles of due process and adherence to US and international legal obligations.  

REPORT

Submitted via https://www.regulations.gov

Mary Cheng
Acting Director
Executive Office for Immigration Review
5107 Leesburg Pike
Falls Church, VA 22041

Honorable Merrick Garland
Attorney General
United States Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530

Ur Mendoza Jaddou
Director
United States Citizenship and Immigration Services
5900 Capital Gateway Dr.
Camp Springs, MD 20588-0009

Honorable Alejandro Mayorkas
Secretary
United States Department of Homeland Security
Washington, DC 20528

RE: Comment On The Biden Administration’s June 2024 Proclamation 10773 And Rule RIN 1615–AC92, “Securing the Border,” Docket No. USCIS–2024–0006

Dear Acting Director Cheng, Attorney General Garland, Director Jaddou, and Secretary Mayorkas:

The Immigration and Nationality Law Committee of the New York City Bar Association (“City Bar”) submits this comment in opposition to the above-referenced proposed interim final rule titled “Securing the Border,” which was published in the Federal Register on June 7, 2024 with a corresponding 30-day allotment for public comments (“the Interim Final Rule”). The Interim Final Rule is the second expansive asylum ban after the May 2023 “Circumvention of Lawful Pathways” rule, and is reminiscent of a string of recent, failed attempts to eviscerate the asylum protections our nation has heralded since its founding.

Founded in 1870, the City Bar is an organization of approximately 23,000 members. The City Bar’s mission is to equip and mobilize a diverse legal profession to practice with excellence, promote law reform, and uphold access to justice. The Immigration and Nationality Law Committee addresses diverse issues pertaining to immigration law and policy. Our members include staff of legal services organizations, private immigration attorneys, pro bono immigration attorneys, staff of local prosecutor’s offices, employees of government immigration agencies, members of the city council, academics, and law students. We submit this comment based on our collective expertise and the experiences of our clients.

INTRODUCTION

On June 3, 2024, President Biden—pursuant to statutory authorities under 8 U.S.C. § 1182(f), 8 U.S.C. § 1185(a), and 3 U.S.C. § 301—signed a proclamation, “Securing the Border,” that imposes a temporary “suspension and limitation on entry” of noncitizens at the southern border, with some exceptions for U.S. citizens, noncitizens with lawful permission to enter (e.g., visa holders), and other noncitizens who meet certain criteria.[1] The suspension on entry went into effect on June 5, 2024. In addition, the Departments of Homeland Security (“DHS”) and Justice (“DOJ”) promulgated the Interim Final Rule that also went into effect on June 5, 2024, restricting asylum eligibility at the southern border.[2] While the City Bar recognizes the importance of maintaining secure borders, we are concerned that the Interim Final Rule does not comport with principles of due process and adherence to U.S. and international legal obligations.

Although the Interim Final Rule’s stated purpose is to ensure efficient processing of noncitizens arriving at the southern border, its framework rests on weakening fundamental due process safeguards for asylum claims while circumventing the Administrative Procedure Act’s (“APA”) mandated notice and comment period and going immediately into effect. Given the increasingly complex and constantly evolving nature of U.S. asylum law and procedures (as laid out in the 63-page Interim Final Rule) and our international human rights obligations, we are troubled by the government’s decision – just like it did for the Circumvention of Lawful Pathways rule – to yet again diminish the standard 60-day public comment period to 30 days. These sweeping changes implicate local, state, and federal administrative agencies, public offices and, most importantly, hundreds of thousands of lives.

As laid out in the Federal Register, the Interim Final Rule would prohibit vulnerable asylum-seekers from seeking asylum for indeterminate periods of time triggered by “emergency border circumstances” and categorically preclude asylum seekers from seeking asylum if they enter between ports of entry, other than in very narrow circumstances. Under the Interim Final Rule, the U.S. government would deny asylum-seekers fair and full access to asylum protections as long as the emergency border circumstances are in place. Such restrictions would flout the U.S.’s international human rights obligations as well as U.S. immigration laws. We are also increasingly worried about the shift in this administration’s rhetoric and support for fear-based restrictions on asylum, instead of proposing measures to overhaul and ameliorate the asylum process across the country.[3]  The Interim Final Rule is sadly a very different stance than what President Biden claimed with respect to asylum just a few years ago: “[y]ou come to the United States, and you make your case, that’s how you seek asylum, based on the following premise: why I deserve it under American law.”[4]  We firmly believe that asylum is a human right protected by law and not a “loophole” for “irregular migration” as the Interim Final Rule suggests throughout.[5]

1. The Interim Final Rule is Contrary to Both International Refugee Law and United States Asylum Law

The Interim Final Rule violates binding international law by severely restricting the right for certain asylum seekers to seek asylum based solely on their manner of entry. It goes against international obligations that the U.S. has entered into, such as the Universal Declaration of Human Rights (the right to asylum in Article 14), the 1951 Refugee Convention (“1951 Convention”) and its 1967 Protocol, as well as the Convention against Torture of 1984. It also violates the crucial principle of non-refoulement set forth in Article 33(1) of the 1951 Convention, which forbids states from returning asylum-seekers to countries where they face certain persecution.[6] While the United Nations High Commissioner for Refugees has explained that state parties may, with adequate safeguards, impose procedural requirements, such as claim-processing rules on asylum applications to manage their borders efficiently, the United States may not use “border management as a means to deter refugees from seeking asylum or to deny protection to whole classes of asylum-seekers.”[7]

Moreover, Congress passed the Refugee Act of 1980 (“Refugee Act”), which amended the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., to bring “United States refugee law into conformance” with the 1967 Protocol. Cardoza v. Fonseca, 480 U.S. at 436. The Refugee Act makes clear that Congress intended “to protect refugees to the fullest extent of [the United States’] international obligations, rendering the scope and meaning of those obligations relevant to any interpretation of the INA’s asylum provisions.” Yusupov v. Attorney Gen., 518 F.3d 185, 203 (3d Cir. 2008) (footnote omitted); accord, e.g., Cardoza-Fonseca, 480 U.S. at 436–38; Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1060–61 (9th Cir. 2017) (en banc).

The legal basis for the Interim Final Rule is found in sections 212(f) and 215(a) of the INA.[8] Yet any authority to restrict asylum protection based on the manner of entry into the United States is contrary to section 208 of the INA, which mandates that any person in the United States can seek asylum regardless of their manner of entry.[9] Section 212(f) has been used in the past to ban or restrict asylum protections, each time prompting federal courts to strike down the measures as unlawful.[10] U.S. law related to asylum unequivocally provides that noncitizens seeking refugee protection may apply for asylum regardless of their manner of entry. Unsurprisingly, just days after the publication of the Interim Final Rule on June 12, 2024, litigation challenging its lawfulness was swiftly brought by immigrant rights groups and advocates in federal court. See Las Americas Immigrant Center v. DHS, Case 1:24-cv-01702 (DC, June 12, 2024).[11] We anticipate that the court will find the Interim Final Rule exceeds the authority that Congress conferred on the Attorney General and the Secretary of Homeland Security to “establish additional limitations and conditions” on asylum that are “consistent with” § 1158.[12]

2. The Interim Final Rule Effectively Prohibits Asylum-Seekers from Seeking Asylum for Undetermined Periods of Time

The Interim Final Rule is triggered by a seven consecutive calendar day average of 2,500 encounters or more between ports of entry, and will not be lifted until 14 calendar days after there is a seven consecutive calendar day average of less than 1,500 encounters.[13] This means that when the trigger has been met—as is currently the case since June 5—no one who arrives at the southern border is permitted to seek asylum unless they meet one of the few exceptions delineated below.

Moreover, the Interim Final Rule effectively eliminates asylum for virtually every noncitizen who crosses into the United States without first obtaining an appointment at a port of entry using the CBP One App, in violation of the INA.[14] Yet recent reports relating to the CBP One App are concerning, including lack of access to smartphones, internet, electricity, and printing required to secure an appointment in the first place.[15] Amnesty International called on the United States just weeks before the June Presidential proclamation to “stop the mandatory use of the CBP One application,” reporting concerns over language access and technological barriers as well as privacy and surveillance.[16] The few asylum-seekers who are able to successfully secure an appointment on the CBP One App report unreasonably lengthy wait times – some as long as seven months – while forced to remain in Mexico where they can are targeted for further violence.[17]

3. The Interim Final Rule Severely Undermines Due Process Protections

 The Interim Final Rule creates a narrow exception to the asylum bar for individuals who enter between ports of entry due to “exceptionally compelling circumstances,” such as acute medical emergency, imminent and extreme threats to life or safety, or severe forms of trafficking in persons at the time of entry into the United States.[18]  However, the current lack of due process protections that accompany these restrictions means that identifying such victims will ultimately be left to border officials and other immigration officers in rushed screenings, effectively penalizing the most vulnerable asylum-seekers instead of protecting them.[19] Under the Interim Final Rule, DHS places the burden during the credible fear interview on the asylum seeker to demonstrate an “exceptionally compelling circumstance[]” by a preponderance of the evidence.[20]  Assessing whether an asylum seeker faced one of the “exceptionally compelling circumstances” is a factually intensive, complex determination and is not appropriate at the credible fear interview stage. It is also concerning that there is no guidance as to how the officers are supposed to make such a finding in practice.[21]

The changes governing expedited removal in the Interim Final Rule also create significant hurdles to obtaining two other forms of protection that theoretically are still available to those who enter the United States but who may be barred from seeking asylum: withholding of removal and protection under the Convention Against Torture (“CAT”).  First, to seek either form of protection, noncitizens must “manifest[] a fear of return, express[] an intention to apply for asylum or protection, or express[] a fear of persecution [for withholding of removal protection] or torture [for protection under CAT].”[22]  However, under the Interim Final Rule, Border Patrol agents and other immigration officers will no longer “provide individualized advisals on asylum or ask the noncitizen questions related to whether they have a fear of return.”[23]

Even where noncitizens are able to manifest fear and are given a credible fear interview, they must meet a new heightened “reasonable probability of persecution” standard to pass screening for withholding of removal or CAT protection, both of which carry higher burdens to establish than asylum yet offer no long term pathway to residency and citizenship.[24]  This new screening standard is higher than the existing statutory standard for demonstrating a credible fear of persecution, which is “a significant possibility, taking into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen’s] claim and such other facts as are known to the officer, that the [noncitizen] could establish eligibility for [relief] under [8 U.S.C.] section 1158.”[25]  The heightened “reasonable probability” standard introduced by the Interim Final Rule is therefore inconsistent with the statute and inappropriate for an initial screening by border officials.[26] Reports from the border already show that officials are not even abiding by the measures imposed by the Interim Final Rule and are not scheduling credible fear interviews even for those who manifest a fear of return.[27]

Finally, and particularly troubling, the Interim Final Rule reduces the time for an asylum-seeker to consult with an attorney before the initial credible fear screening from 24 hours to just four hours. Particular challenges include when the time frame for seeking legal advice falls on a weekend when many immigrant aid organizations and legal offices are closed.[28] This change severely limits asylum seekers’ ability to receive proper legal advice in seeking life-saving protections.

4. There is no justification for bypassing the notice and comment rulemaking procedures mandated by the Administrative Procedure Act

The Interim Final Rule was published in the Federal Register on June 7, 2024 and bypassed the normal notice and comment process for rulemaking by going into immediate effect at 12:01 am EDT on June 5, 2024.  The justification to forego the typical notice and comment period and delay the effective date fails to convince: “an advance announcement of this rule would seriously undermine a key goal of the policy: [i[t would incentivize even more irregular migration by those seeking to enter the United States before the rule would take effect.”[29]

The Biden administration has provided only 30 days for the public to comment on the Interim Final Rule. Generally, under the Administrative Procedure Act, agencies should provide 60 days for comment.[30] The shortened period – particularly in the face of such major changes to the rules as applied to asylum seekers at the southern border, which will affect hundreds of thousands of people in often dire circumstances – denies the public the right to meaningfully comment on the Interim Final Rule, an outcome proscribed by the APA under its notice and comment rulemaking procedures.

CONCLUSION

While we agree with the Presidential Proclamation that the “statutory framework put in place by the Congress is outdated,” “the current laws make it impossible to quickly grant protection to those who require it,” and “our asylum system remains backlogged and cannot deliver timely decisions,” we cannot agree to target and strip the very protections that exist for the most vulnerable in violation of U.S. and international laws. Insofar as it prohibits vulnerable asylum seekers from seeking asylum and strips them of due process protections in the limited instances that they are allowed to do so, the City Bar opposes the Interim Final Rule and instead calls for measures to appropriately address the backlog of asylum cases through appropriate legislation, including provisions to increase the number of immigration judges and court staff, border agents, asylum interviewers, interpreters, and others needed to process the backlog and address the influx of new cases.

The Interim Final Rule, like other enforcement-only policies and policies that push people across the border, will not effectively restore order at the border.[31] Instead such policies have been shown “to incentivize organized criminal networks and place asylum-seekers in grave harm while waiting for an elusive opportunity to seek safety.”[32] In addition, the proposal violates U.S. obligations under both international law and U.S. immigration law.

Policy solutions exist to address these challenges in a humane, orderly and rights-respecting manner,[33] and communities stand ready to work with the administration to begin to adopt them. [34]  Should the Interim Final Rule not be revoked, we encourage this administration to (1) prioritize reducing wait times for CBP One appointments and increase accessibility for the CBP One App; (2) broaden the range of exceptions to include more categories of vulnerable individuals; (3) enhance communication and legal support for asylum seekers; (4) uphold due process protections for asylum seekers, and (5) allocate additional resources and staff to manage the asylum process more efficiently and effectively.

The City Bar’s Immigration and Nationality Law Committee remains committed to supporting policies that uphold the rule of law and protect human rights. We believe that with thoughtful revisions, the Interim Final Rule can better balance security concerns with our nation’s humanitarian values. We look forward to engaging in further dialogue with the administration to ensure that our immigration policies are both effective and just.

Respectfully submitted,

Immigration and Nationality Law Committee
Dorian E. Rojas and Ludivine Van Der Heyden, Co-Chairs