Asylum Rule Faces Immigration Questions On Logic And Legality

The Department of Homeland Security’s proposed asylum rule likely will need to overcome design flaws and legal problems to achieve its goals. The rule may violate U.S. immigration law and relies on policies providing lawful paths of entry that might not be available in the future. As a result, the rule may fail in its objective to reduce illegal entry and could lead to fewer people receiving humanitarian protection. The rule could enable a future administration to end virtually all or most asylum applications at the Southwest border by allowing few or an insufficient number of appointments to be scheduled via the government’s mobile app.

What Does The Asylum Rule Do?

Under current law, to receive asylum, an “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.”

The proposed asylum rule would change the process by introducing a “rebuttable presumption of asylum ineligibility” for individuals who fail to apply for asylum at a port of entry with an appointment or enter the United States via normal immigration channels. Those channels include the recently established parole programs for Ukraine, Venezuela, Cuba, Haiti and Nicaragua.

Under the proposed rule, an individual could apply for asylum under the current standard if he or she:

“(i) Was provided appropriate authorization to travel to the United States to seek parole, pursuant to a DHS-approved parole process;

“(ii) Presented at a port of entry, pursuant to a pre-scheduled time and place, or presented at a port of entry, without a pre-scheduled time and place, if the alien demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.”

Also, the individual could apply if he or she were denied asylum or other protection in a country through which he or she traveled that “is a party to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees.” The Justice Action Center notes that “includes all of Central America and virtually all of South America.”

The proposed rule is subject to a 30-day comment period and would be in effect for 24 months after the date of the final rule. That means the rule would last until the spring or summer of 2025, depending on when it goes into effect. A new rule could replace it that would not be temporary.

What If The Parole Programs Stop?

Those writing the rule argue the DHS secretary is justified in penalizing individuals who don’t use alternatives to crossing the border and asking for asylum. The rule assumes those alternative lawful pathways will exist: “Coupled with an expansion of lawful, safe, and orderly pathways into the United States, the Departments expect the proposed rule to lead to a reduction in the numbers of migrants who seek to cross the SWB [Southwest border] without authorization to enter . . .”

Entering via the parole programs for Ukraine, Venezuela, Cuba, Haiti and Nicaragua is an alternative highlighted several times in the proposed rule. The parole programs have significantly reduced the number of Border Patrol encounters for nationals from those countries. However, only individuals who meet specific criteria are eligible for parole. For example, an individual must have a U.S. sponsor. Human rights advocates argue whether someone needs protection from persecution should not be contingent on having a U.S. sponsor or getting an appointment via a government app.

The proposed asylum rule assumes the parole programs will continue to exist. However, Texas Attorney General Ken Paxton and other Republican attorneys general have filed a motion for a preliminary injunction to stop the parole programs for Venezuela, Cuba, Haiti and Nicaragua, arguing they are unlawful. The U.S. Department of Justice will reply to the motion by March 24, 2023. A decision on the motion could come in April. Even if the parole programs are ultimately found to be lawful, an injunction halting them will nullify a central premise of the proposed asylum rule.

Dree Collopy, managing partner of Benach Collopy and a leading asylum expert, points out the parole programs are not available to many nationalities seeking protection at the southern border, including Salvadorans, Guatemalans and Hondurans.

The rule extends into the first several months of the next administration, one which might not support the parole programs. That new administration could end the parole programs—or the Biden administration could end them—yet the asylum rule would remain in effect. In other words, the existence of the parole programs justifies the rule, but the rule would be implemented even if the parole programs end.

The parole programs for Venezuela, Cuba, Haiti and Nicaragua reserve places for up to 30,000 people a month from those countries.

What If Asylum Appointments Are Not Available?

Another alternative for individuals seeking human rights protection is the CBP One App, which is required for securing an interview at a specific time to apply for asylum at a port of entry. Individuals Individuals are not guaranteed appointments via the mobile app nor is a minimum daily level of appointments established in the rule.

Analysts have identified accessibility issues with the app for asylum seekers. These include slow internet, literacy in one of the app’s languages and the need for a mobile phone. “However, the most pressing issue is the insufficient number of appointments compared to the number of waiting individuals,” according to the Strauss Center for International Security and Law at the University of Texas at Austin. “Each day, many asylum seekers try to obtain an appointment but are unable to secure a spot. This can be a bigger challenge for larger families, particularly in cities with few appointment slots. In an attempt to improve their odds, some families have made decisions to separate themselves into smaller family groups or have sent their children to the United States as unaccompanied minors.”

“Overall, the reliance on this app denies the most vulnerable populations,” said Collopy. “This includes families, especially those traveling with children and babies, people who are not literate, people who do not speak English, Spanish or Haitian Creole, people with disabilities, people without smartphones, people without access to reliable Wi-Fi and people with dark complexions due to facial recognition technology problems.”

If the parole programs are eliminated or halted via a preliminary injunction, the number of people seeking appointments for asylum at ports of entry will increase significantly. That could make gaining appointments less likely.

Waiting for asylum appointments in Mexico has been dangerous for migrants. Human Rights First reported asylum seekers ordered to wait for interviews under the Trump administration’s Remain in Mexico policy experienced over 400 kidnappings and 1,000 violent attacks, including many where “Mexican officials were responsible for, or complicit.”

The Rule Might Be Unlawful

The proposed asylum rule must overcome a significant legal hurdle. Under the law, “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 and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum . . .”

Attorneys say the proposed rule is unlawful because the law allows “any alien . . . whether or not at a designated port of arrival” to apply for asylum.

The Department of Homeland Security states that notwithstanding that part of the statute, the proposed rule is valid because the law also allows asylum “in accordance with the requirements and procedures established by the Secretary of Homeland Security or the Attorney General . . . ”

“The rule is not only unlawful because it violates the statutory language, but also because it is discriminatory, denies meaningful access to asylum and violates the requirement under the Refugee Convention and Protocol that accuracy be favored over expediency,” according to Collopy.

The Tyranny Of Numbers

A recent National Foundation for American Policy (NFAP) report noted the Biden administration largely fell into the trap of allowing the number of Border Patrol encounters with migrants to decide policy rather than framing the issue as a historic refugee crisis that required people be treated humanely.

When President Biden announced the expanded parole programs in January 2023, he shifted more of the administration’s rhetoric to the refugee crisis. More than 7 million people have left Venezuela since 2014, and conditions have grown dire for many in Cuba, Haiti and Nicaragua. However, with the proposed asylum rule, the Biden administration has returned to addressing the issue on its critics’ terms—focusing on numbers.

A recent Los Angeles Times analysis quotes an administration official whose language mirrors the critique in the NFAP report. “But the biggest problem, a fifth Biden official argued, was the focus by the news media and the government on the number of border crossings—which are up all over the world as migration surges everywhere—rather than on how the U.S. treats migrants. The fundamental problem is that the entire focus and the entire concept of controlling the border means reducing numbers. If you think that’s what it means, it is a losing battle,” the official said. “The public measurement [of success] is how to lower numbers, so policies get written to lower numbers. That’s what everyone is looking for.”

The Future

If the proposed asylum rule goes into effect, access to asylum could be shut off or severely limited, particularly if the parole programs stop or appointments are scarce. Under the rule, the government’s failure to allow a sufficient number of appointments for asylum seekers does not appear to be a valid reason for coming to a port of entry without an appointment. The rule mentions a “significant technical failure, or other ongoing and serious obstacle” but the Biden administration or a future president could argue resources dictate the number of appointments allowed.

“Biden’s proposal would make it very difficult for migrants to win asylum here if they travel through a third country and cross the border into the U.S. without permission,” writes Hamed Aleaziz of the Los Angeles Times. “The policy would roll back America’s longstanding commitments to people seeking asylum, placing strict limits on where and how those who flee persecution can apply for protection.”

“Overall,” said Dree Collopy, “expediency and resource management do not justify a departure from our domestic and international legal obligations to provide meaningful access to asylum for those fleeing persecution.”