Comment on the Circumvention of Lawful Pathways

Submitted via:

27 March 2023

RE: DHS RIN 1615-AC83/EOIR RIN 1125-AB26 or Docket No. USCIS 2022-0016/A.G. Order No. 5605-2023 Public Comment Opposing Proposed Rule: Circumvention of Lawful Pathways

Dear Acting Director Daniel Delgado and Assistant Director Lauren Alder Reid:

On behalf of the Program on Forced Migration and Health at Columbia University’s Mailman School of Public Health, we respectfully submit this comment in response to the Department of Homeland Security’s (DHS) and the Executive Office for Immigration Review’s (EOIR) proposed rule published in the Federal Register on February 23, 2023 entitled Circumvention of Lawful Pathways. The proposed rule, a reprisal of the previous administration’s asylum ban, denies asylum seekers at the U.S. southern border the ability to seek protection from persecution and harm, in violation of both domestic and international law. This rule represents a repudiation of the values and laws that the United States purports to stand for – and jeopardizes the valuable lifeline that is asylum.

This proposed rule is intended to come into effect with the long-overdue expiration of the Title 42 order – an order first announced on March 20, 2020 - which is widely acknowledged to have misused and subverted public health justifications to advance immigration enforcement objectives. The Program on Forced Migration and Health, alongside numerous public health partners, have written on multiple occasions to DHS, the Department of Health and Human Services (HHS), and the Centers for Disease Control and Prevention (CDC) to express our concerns about the misuse of the Title 42 order and to call for a return to the safe and lawful processing of asylum seekers. Unfortunately, the proposed rule falls far short in this respect.  

Requirements to present at U.S. ports of entry violate domestic and international law by penalizing asylum seekers on grounds of unlawful entry.

The proposed rule asserts individuals must present themselves at U.S. ports of entry in order to seek asylum. This provision is in direct contradiction to U.S. laws and international treaties, which explicitly defend an asylum seeker’s right to seek asylum from persecution regardless of the method of their arrival in the United States. Indeed, this critical provision, which is enshrined in article 31 (1) of the 1951 United Nations Refugee Convention, prohibits penalties on account of illegal entry or presence, and is central to preserving the principle of non-refoulement, which is the cornerstone of the international refugee regime.    There are many circumstances which would lead an individual to enter the country outside of a port of entry in order to seek safety. While the proposed rule offers some narrow exceptions to the ban, such as someone being faced with an “acute medical emergency” at the time they entered the U.S., it simultaneously puts an undue burden on the asylum seeker by requiring them to demonstrate “exceptionally compelling circumstances by a preponderance of the evidence” in order to receive this consideration.

While we encourage the administration to enable and help facilitate asylum seekers to present themselves at ports of entry, those who are unable to do so must not be penalized. The United States has a legal and moral obligation to provide asylum seekers with access to the opportunity to seek asylum, regardless of their manner of entry. The increased number of people seeking protection at the U.S. border – the logistical challenges of which are the stated impetus for the proposed rule – does not negate but rather reinforces this responsibility.

Exclusion from protection based on transit through a “safe third country” risks return to persecution.

Under the proposed rule, asylum seekers who transit through a country other than their country of origin are also presumed ineligible for asylum unless they have attempted to seek asylum in a third country and have received a final denial. This is, again, a departure from acknowledged law and practice. Asylum seekers are not required to seek asylum in the first country of asylum or in countries of transit. There are numerous reasons, including connections such as family ties, that might prompt an asylum seeker to travel to the U.S. in order to seek asylum. This requires an individualized assessment of their case – which is inherently at odds with the presumption of ineligibility that is included in this proposed rule.   

The text of the proposed rule suggests that - as signatories to the 1951 Refugee Convention or the 1967 Refugee Protocol - various countries throughout the Americas are “safe” locations for asylum seekers. Yet many of these countries, including El Salvador, Guatemala and Honduras, have weak to negligible asylum systems in place to ensure the safety of asylum seekers. Moreover, there is no formal agreement with the U.S. to ensure the safety of asylum seekers and to assure them access to meaningful asylum procedures, a requirement of U.S. law when engaging with third countries. Indeed, there is ample evidence to suggest that many asylum seekers are markedly unsafe in the very countries in which they are being forced to remain. In Mexico alone, Human Rights First has documented over 13,400 reports of kidnappings, torture, rape, or other brutal attacks against asylum seekers blocked or expelled to Mexico due to Title 42 between January 20, 2021 and December 15, 2022.

The presumption that a third country is safe, despite evidence to the contrary and without the opportunity to examine the individual circumstances of each case, exacerbates vulnerabilities that particular groups of asylum seekers may face in so-called “safe” transit countries. For example in their 2021 report, The Invisible Wall: Title 42 and its Impacts on Haitian Migrants, Haitian Bridge Alliance described repeated incidents of Haitian migrants being denied medical care while in immigration detention, facing violence at the hands of Mexican police, and being targeted for kidnapping and extortion by cartels along the border. Black and Indigenous people, women, children, LGBTQ+ people, and people with disabilities may all face heightened levels of stigma, discrimination, and targeted violence in the “safe” third countries where they may be forced to remain under the proposed rule.  

There are profound ethical and logistical concerns about conditioning asylum on the use of an app, including prolonged wait times and effects on health.

The rule requires asylum seekers at the southern border to schedule an appointment at an official port of entry using the CBP One app in order to lodge a claim for asylum. This raises particular concerns. Not only is the requirement of an appointment as a precondition for asylum eligibility positively Kafka-esque, but the reliance on an app to make such an appointment is itself fraught with challenges which disproportionately impact exceptionally vulnerable asylum seekers. Individuals who do not have access to a phone or internet, and cannot afford to purchase access, are unable to make appointments via the app. In addition, people with low literacy, and those who speak languages not offered by the app, will be unable to make an appointment without assistance. In these circumstances, the proposed rule has suggested asylum seekers could seek protection without an appointment; however, to be granted this exception, the burden is placed on asylum seekers to demonstrate proof of inability to use the app, which is a challenge – if not impossible – for the many people who face language barriers, illiteracy, or other vulnerabilities.

Asylum seekers who are unable to secure appointments through the CBP One app will be forced to remain indefinitely at the border, facing dangerous conditions with little to no access to safe housing, a stable income, reliable and affordable healthcare, and education for children. Even those who are fortunate enough to obtain an appointment must wait in these uncertain conditions until the day of their appointment arrives. These unsafe conditions can have severe and prolonged negative impacts on the physical and mental health and wellbeing of asylum seekers.

In conclusion, the proposed rule does little to restore the application of the rule of law at the southern border in the aftermath of Title 42. Indeed, the proposed rule magnifies the harms present in the Title 42 order by seeking to ban refugees from asylum based on their manner of entry into the United States or history of transit through other countries, factors which are irrelevant to – and often an indication of – their fear of return to sending or transit countries. Title 42 has already caused untold harm to asylum seekers and migrants, both by blocking them from asylum and confining them in locations that are insecure and unsafe, and by falsely associating migrants entering the southern border with the spread of disease. The proposed rule will not only compound that damage, but by setting an alarming precedent that the rest of the world may follow, it threatens to undo the very foundations of the international refugee protection system as we know it.

We call upon the administration to withdraw this rule in its entirety.


Monette Zard, Director

The Program on Forced Migration & Health

Columbia University Mailman School of Public Health