March 24, 2023
Border and Immigration Policy
Office of Strategy, Policy, and Plans
U.S. Department of Homeland Security
telephone (202) 447-3459
Lauren Alder Reid
Office of Policy, EOIR
U.S. Department of Justice
telephone (703) 305-0289
Re: Comment on the Proposed Rule by the Department of Homeland Security (DHS) and
the Executive Office for Immigration Review (EOIR) on Circumvention of Lawful
Pathways, CIS No. 2736-22; Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023
Dear Acting Director Daniel Delgado and Assistant Director Lauren Alder Reid:
The Kino Border Initiative (KBI) submits this comment to urge the Department of Justice (DOJ) and the Department of Homeland Security (DHS) to withdraw the proposed rule: “Circumvention of Lawful Pathways” in its entirety. These regulations would ban individuals and families fleeing violence and persecution from accessing the protection they desperately need, deserve, and are entitled to under both international (UN 1951 Refugee Convention and 1967 Protocol) and domestic law (Refugee Act of 1980), regardless of how they enter.
To exclusively condition access to asylum at ports of entry on having the means and knowledge to download and operate the CBP One application on a cell phone or tablet device is cruel, inhumane, and completely disconnected from the difficulties endured by people seeking asylum at the southern border. Furthermore, it is unfair to punish individuals and families for the decisions they are forced to make to seek safety when US officials deny them regular access to asylum processing at ports of entry.
The KBI is a binational Catholic organization that provides direct humanitarian assistance, such as food, shelter, clothing, and medical attention, to migrants in Nogales, Mexico. Our faith teaches us to welcome the stranger and protect people from violence, especially those most at risk in our society, like women and children. Our faith also informs our involvement in advocacy, since we believe we have a moral obligation to promote laws and policies that protect life and oppose those that treat some lives as disposable. This proposed regulation violates Catholic teaching in that it blocks certain families from seeking protection, which we know in the past has led to death for some of our most at-risk brother and sister migrants.
In 2022, we provided direct assistance and accompaniment to 4485 migrants who expressed violence as their primary reason for migration. These individuals come from a range of geographic locations: 3,730 from Mexico, 268 from Guatemala, 136 from Honduras, 86 from Venezuela, 69 from El Salvador, 58 from Nicaragua, 49 from the U.S., 39 from Haiti, 23 from Ecuador, 12 from Peru, 8 from Cuba, 6 from Russia, and 1 from Guinea.
This direct assistance provides us with a unique understanding of the on-the-ground realities of the southern border. We also collaborate closely with the Florence Immigrant and Refugee Rights Project to provide legal orientation and basic legal assistance to individuals and families who are currently stranded in Nogales, Mexico and attempting to access safety in the US. Current border policies, such as Title 42, force people fleeing violence and persecution to navigate extremely limited options to access safety, placing them in ongoing danger.
The Proposed Rule Violates US/International Law and Treaty Obligations
In 1980, Congress passed the Refugee Act, codifying the US’ obligations under the 1951 Refugee Convention and Protocol. The Refugee Act of 1980 incorporated into US law non-discriminatory access to asylum, the prohibition against returning refugees to places they would face persecution and the prohibition against improper penalties on asylum seekers based on manner of entry. The proposed rule conditions access to the asylum system on manners of transit and entry, in violation of US and international refugee law. People seeking asylum are fleeing for their lives, which in most cases means their options for when and how they leave their place of origin are extremely limited, as has been recognized since the 1951 Refugee Convention. As we have seen time and again, placing the burden of further restrictions on families in these dire circumstances simply means some will not be able to access safety.
Asylum Seekers Cannot Access to Meaningful Asylum Processes in Transit Countries
The proposed rule would require all asylum seekers to make appointments through the CBP One app or be subject to a presumption of ineligibility, unless they can prove they applied for and were denied asylum in a country through which they traveled through. In reality, the asylum processes in transit countries have numerous shortcomings, which means that they are not a viable alternative to protection in the US. The regulation as proposed overestimates the functionality of other countries’ asylum processes.
Specifically in Mexico, the authority in charge of receiving refugee applications, COMAR (Mexican Commission for Refugee Assistance), does not have adequate funding to decide cases. In part as a result of funding limitations, officers with the authority to decide refugee cases are not present in most geographical locations. When a COMAR officer is not in a physical location, they rely on the support of the National Institute of Migration for case resolution despite the fact that agency is the authority in charge of surveillance, control, security, and expulsion of migrants. In other words, an applicant who is in a place in Mexico where COMAR does not have a presence is forced to submit their application to the same authority that could deport them. Understandably many applicants out of fear of deportation do not go to the National Institute of Migration to initiate an asylum case.
Even when the case makes it to COMAR either directly or through the National Institute of Migration, the few trained personnel in COMAR are saturated with unresolved applications. Legally, the office must resolve all cases within 45 days but in practice, it takes an average of one year and in the worst case up to two years. In the meantime, applicants must remain in the geographical area where they originally applied, unless granted a transfer by COMAR. If they move, which is frequently necessary for their own safety or economic stability, their case is considered abandoned. Importantly, that abandoned case is not considered a denial under Mexican law and would not meet the regulation’s current threshold of “received a final decision denying that application.” Therefore, they neither have legal status in Mexico, nor do they qualify for full asylum consideration in the US under this proposed regulation.
The aforementioned obstacles are exacerbated by the fact that people in need of protection encounter a void of information and support in the process. COMAR is limited to only receiving refugee applications and does not carry out effective dissemination of people’s rights in the process. Unless an applicant is lucky enough to be in a Mexican entity where they find assistance from civil associations and/or public defenders it is unlikely that they will be aware of how to proceed in their case.
To illustrate the difficulties with arriving at a final case resolution, we share the details of one case the KBI accompanied with representation by our Mexican attorney:
*Mario, a native of Nicaragua, arrived in Mexico asking COMAR for protection due to political persecution in his country. He began his refugee status recognition process in April 2021 in the state of Chiapas, Mexico. A month after he submitted his application, he was persecuted and harassed by members of organized crime in that state and requested support from a nonprofit legal services provider to transfer his proceedings to the state of Sonora. COMAR took a month to agree to the request for a transfer, during which time Mario was terrified, living in hiding and unable to go out to work. When he arrived in the state of Sonora, he had to appear before the National Migration Institute and continue his refugee process. He was afraid to visit that office because of the risk of deportation, and only followed up on his case because KBI provided legal representation through our Mexican attorney. It took a total of 2 years and 1 month for Mario to receive a final resolution of his process, including a year in which he had to work irregularly since the COMAR-issued Visitor Card for Humanitarian Reasons expired after the first year. If it were not for the extraordinary support of civil society groups, especially KBI, Mario would not have been able to finalize his process and may have tried to cross into the US, in which case the proposed regulation would have severely limited his chance at accessing protection.
Asylum Seekers Cannot Find Safety in Transit Countries
Not only do asylum seekers lack access to a meaningful asylum procedure but they also face persecution and insecurity in transit countries. Our first hand experience makes clear that Mexico is not a safe third country for non-Mexican nationals. There have been over 13,000 reported attacks against asylum seekers stranded in Mexico under Title 42 in just the past two years. At KBI, we directly hear stories of extortion, abuse of power, and crimes committed against migrants and asylum seekers stranded in and returned to Mexico, including the following examples.
Wilhelmina* fled Venezuela after her parents were killed. She left with her 2 children and her cousin, who is a transgender woman. In early February, they were all kidnapped in a Mexican border city and her cousin was raped by their captors. Wilhemina escaped with her children, and they turned themselves into Border Patrol. They begged the agents not to send them back to Mexico, as they feared for their lives and safety. Border Patrol took away all their clothing and expelled them back to the same city where they had been kidnapped. Whilhelmina has not heard from her cousin since February 8, 2023.
Reina* fled Venezuela earlier this year to save herself and her son after her husband and brother were killed. In Mexico, the mafia forced them off of the bus they were traveling on and kidnapped them for 15 days until her niece in the US could pay the ransom fee. They have tried twice to cross into the US and CBP expelled them twice, which puts them in danger of the mafia targeting them yet again.
Madeline* is an asylum seeker from Haiti and had been trying to get an appointment in Reynosa, where she had experienced numerous abuses. One night, at 3 am, Mexican police broke down the front door of the house and pointed their guns at all the inhabitants, yelling, “Do you have Venezuelans here? Cubans? Colombians?” After checking all their identifications at gunpoint and finding only Haitians, they left. In other instances, Madeline had been stopped by armed organized crime members to check if she had tattoos and told by organized crime members at gunpoint that it was too late to be outside at 7 pm.
Jovani* fled Ecuador due to discrimination based on his sexual orientation. He was detained by Mexican Immigration in Southern Mexico, and when the agents found out he was HIV positive, they said so in front of everyone in the detention center. They detained him in a separate cell, where sick people were, and each time they detained an additional person there, they told them that Jovani had HIV.
Juan* a young man from Venezuela fled due to political persecution and violence. He trekked through the Darien Gap, one of the most treacherous migration routes in the world. Juan recounted seeing people dead along the way and he feared that he would not make it. But he did. And he continued his journey through Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and lastly, Mexico. In Mexico, Juan was extorted numerous times by Mexican authorities, and he was kidnapped three times. He explained that during one of these kidnappings,Mexican Immigration authorities with their faces covered kidnapped him in collusion with organized crime. By the grace of God, he survived and managed to make it to the southern border where he now battles to secure an appointment to seek asylum through the CBP One application. When asked if he tried to seek asylum in another country before seeking asylum in the United States, he said, “My journey through Mexico was worse than anything that I experienced in the Darien Gap. Why would I ever seek asylum in a country that has nearly killed me several times? I cannot stay here. I am not safe here.”
The Proposed Rule Would Force More Asylum Seekers to Cross in Dangerous Ways
Obstacles to the asylum process, such as Title 42 and the proposed rule, ignore the lived experience of asylum seekers and force families and individuals to seek protection in whatever way they can. Since mid-May of 2018, there has been some type of policy blocking regular, timely access to the asylum system at ports of entry, beginning with the border-wide policy of so-called metering, which forced families to wait weeks or months in Mexico before accessing a process at a port of entry. Families forced to wait in Mexico have faced discrimination as they attempt to piece together the resources to survive, from hospitals that deny them services in life-threatening situations to schools and daycare centers that refuse to admit students for fear that the violence they are fleeing will follow them. Due to this widespread discrimination, and despite the efforts of the KBI and others, civil society organizations in northern Mexico cannot fill the gap created when families are forced to wait in uncertainty in a region plagued by organized crime and ill-equipped to support families for months while they attempt to access a process that is increasingly designed to exist beyond their reach. For families and individuals in a desperate humanitarian situation, or who fear for their lives in northern Mexico, restrictions on access to the port of entry may make crossing between ports the only viable option. In fact, the DHS Office of the Inspector General concluded that limiting the numbers processed at ports does lead asylum seekers who would have otherwise presented legally to cross the border between ports of entry.
The asylum ban does not advance the national security objectives of the federal government. Most asylum seekers do not wish to evade detection but instead to present themselves to CBP to start the asylum process. In the event that people seeking safety who are not able to get an appointment through CBPOne are blocked from access to asylum, smuggling operations and organized crime in Mexico will only gain more power, take individuals on more treacherous routes to evade detection, and Border Patrol will have to invest more resources to detain individuals. In Nogales, we already see the strong control that organized crime exercises over vulnerable individuals. Migrants report that they are forced to pay from $1,000 USD to $15,000 USD to cross into the US to access safety when they would prefer to cross through legal channels. Researchers have documented the way obstacles to asylum strengthen organized crime groups at the border, and this ban will only contribute to the problem, rather than promoting safety and security.
The Proposed Rule Would Disproportionately Harm Vulnerable Asylum Seekers
The proposed rule also disproportionately harms the most vulnerable asylum seekers. The rule would discriminate against people seeking safety based on their manner of transit and entry, disproportionately impacting people who do not have the resources to enter the US by plane and who must present themselves at the Southern border. What distinguishes a person who presents at the port of entry and a person who crosses between ports is not their desire to follow the law, but rather the resources they have access to: whether or not they can get a visa to travel to the US based on their country of origin, whether they can financially afford to travel by plane, what kind of access to legal information they have, and whether they can afford passport processing fees, among other factors. The ban on access to asylum for individuals who cross between ports is an unjust approach and punishes people based on lack of access to resources.
For example, Brenda* and her 2 children are fleeing violence in Southern Mexico. They spent 4 months in Matamoros, Tamaulipas, Mexico waiting for a chance to seek asylum and tried for 6 weeks to schedule an appointment through CBPOne. They felt very unsafe in Matamoros and almost never went outside. Finally, they decided to try to cross through the desert, out of their desperation to access safety in the US.
CBPOne Denies Access to Asylum and Inflicts Harm
Further, this rule requires asylum seekers at the southern border to use the CBPOne application to access the asylum system, despite the well-documented reality that CBPOne is impossible for many asylum seekers to use or access. The application requires that asylum seekers own a smartphone, can pay for internet and phone data to use the application, are literate in one of the 3 languages in which the application is offered, have the technological literacy to navigate an application, and the resources to spend months trying to schedule an appointment on an application full of technological glitches and offering an extremely limited number of slots.
This requirement bans the most vulnerable asylum seekers from seeking asylum, such as Black and Brown asylum seekers who encounter racialized facial recognition bias in the application, people who speak indigenous languages or other languages not offered in the application, people with literacy challenges or learning disabilities, and those with scarce financial resources. This month, 35 Members of Congress expressed their opposition to the proposed rule and its requirement that asylum seekers use the CBPOne application due to the grave harm it has already caused. For instance, after a family from Cuba had been trying for weeks to get an appointment and finally scheduled one for February 3, 2023 , their 17-year old son was murdered in Monterrey, Mexico before that day ever came. At KBI, we have also received reports about the dangers that families and individuals face while waiting for their appointments.
Jaime,* his wife and his son fled Venezuela and arrived in Piedras Negras, Coahuila. There, they were able to schedule an appointment through CBP One, but the only available appointment was in San Ysidro, Baja California, over 1200 miles away. While traveling to San Ysidro by bus, the entire family was kidnapped, tortured, and extorted by a criminal group. The people who boarded the bus identified themselves as Mexican immigration agents, and after asking Jaime and his family where they were from, told them they needed to get off the bus so they could check their documents. These supposed immigration agents brought them to a house, where they were held for 20 days, extorted, and tortured. One night at 3:00 a.m., they were blindfolded, put in a truck and taken to the border wall. They said they had to walk and cross and if they tried to come back, their captors would kill them. Once they crossed, they called 911 and explained what happened. Border Patrol arrived and they explained that they had been kidnapped, had missed their CBP One appointment while being held hostage, and were forced to cross. The agent responded that they were the criminals, as they had crossed illegally. A few hours later, Border Patrol expelled them to Nogales, Mexico.
The CBPOne application also separates families. The extremely limited number of appointments available means every morning that new appointments are released, they are gone in a matter of seconds. Average-sized families of 3 or 4 people have found it nearly impossible to get an appointment for all members of their family. This means that families are forced to separate when they can only secure appointments for 1 or 2 family members at a time.
KBI has been advocating for 17 families who faced family separation/rejection at the POE in February 2023. Out of these families, 5 are from Haiti. These families reported that they had been attempting to schedule an appointment for all their family members for weeks, but were not able to. Some of them missed the larger batch of appointments that were originally made available on January 12, 2023 because at that time, CBPOne was not available in Haitian Kreyol. All of the Haitian families have a child/children 5 years or younger, were only able to schedule CBPOne appointments for one parent, and therefore, faced family separation and/or rejection at the Nogales POE.
These families reported that even though none of them were allowed to enter as a complete family unit, they saw other families who were able to do so, despite not having all family members on their appointment. Some of these families were made to form a line at the POE with other families whose children lacked appointments and saw 8-9 families before them be allowed to enter, only to be denied the same opportunity because CBP officers told them they had already let in enough families. When the families began to speak out against this injustice, CBP officers began to threaten to call the Mexican police if they didn’t leave and started yelling loudly: “GO! GO AWAY!”
In the case of 3 families, CBP refused to allow their young child[ren] to enter with the parent who had the appointment because the children’s names were not on the appointment. This resulted in family separations that have greatly affected these children. These families report that their young children who have been separated from their mothers or fathers cry nonstop, have difficulty sleeping, refuse to eat, or fear being out of sight of the parent they remain with for even a moment.
To illustrate this pattern, here are the details of one of these instances:
In mid-February 2023, Jesús*, Rosa* and their 2 kids approached the port of entry with a CBPOne appointment. The application would only allow the family to list Jesús and Rosa and would not permit them to add their 2 children, ages 4 and 6, to the same appointment. The CBP agent at the Nogales POE said the children could not be admitted because they were not registered, and if Jesús and Rosa wanted to keep their appointment, they would have to cross and leave their children behind. Jesús asked if he and his son could cross together instead, so that Rosa would only have to try to secure an appointment for 2 people, rather than 4 if they all stayed. The official aggressively responded that he could not. As they tried to figure out what to do, CBP officials said if they didn’t vacate the premises they were going to call the Mexican police to remove them. Jesús finally decided he would cross alone, so that he could find a way to support his family, figuring it would be slightly easier for Rosa to secure 3 appointments. After informing the officer of his decision, the officer asked Jesús, “Are you really going to leave your family all alone?” As a result of these obstacles to seeking asylum as a family unit, Jesús and his family decided he would cross alone.
Inadequate Safeguards for Rogue Officer Behavior: Case of CBPOne Rejections
In Nogales, the Port of Entry processes 40 CBPOne appointments daily: 20 at 7 am and 20 at 12 pm. On March 18, 2023, KBI received 13 reports of people who presented at the POE with CBPOne appointments and were rejected. They reported this happened to at least 15 people out of the 20 who had appointments at 12 pm. The port rejected a similar number the following day and on March 21, 2023, while arriving in Mexico at the POE, I personally ran into a group of 15 people who all had CBPOne appointments at 12 pm and had been rejected. That same day, I met a family from Haiti who told me they had an appointment scheduled for March 23 and had decided to camp out at the POE to try to understand this sudden change, fearing they would also be turned away on the day of their appointment.
KBI has spoken with 30 people who have arrived at our migrant aid center and reported a POE rejection. The experiences and circumstances of the rejections were inconsistent, causing confusion for migrant people. However, nearly all of the cases KBI has received involve people from countries other than Mexico. In some cases, CBP officers asked individuals and families fear screening questions, such as “Why did you leave your country of origin?”; “Have you been threatened in Mexico?”. In some cases, people told Kino they expressed fear of persecution in their home country and were still rejected. CBP officers asked some people other questions, such as those directed toward Venezuelans and Haitians: “If you crossed through 8 countries, why didn’t you seek asylum in one of those countries? Why the US?”
In some cases, CBP officers did not ask any questions and simply told people they were rejected, told them to leave and to try again to get another appointment through CBPOne. In other cases, CBP officers rejected people for only having a photocopy of their identification, even though these people explained they had lost their original in the Darien Gap.
On March 19, 2023, Ariel* arrived for his appointment at the Nogales POE. He fled Venezuela and after trying for months to schedule an appointment from Ciudad Juarez, finally got one in Nogales, Sonora. At the appointment, the CBP officers asked him when and why he had left Venezuela and he explained he faced government persecution due to the job he had there. They asked how many countries he had traveled through and why he didn’t stay in one of those countries or in Mexico. He waited for a while in the CBP station and saw other people and families receiving Notices to Appear with court dates. Then, an agent called Ariel and 3 others, opened the door and told them to leave, saying that they were not accepted and that they try to get another appointment. A woman who was rejected alongside Ariel asked the agent why she had been rejected while another person she was traveling with had been accepted and the agent responded, “Do you want me to reject him too?”
On the same day, Javier* of El Salvador presented at the POE for his appointment. He is a gay man fleeing persecution in his home country. The agents did a DNA swab on him and rejected him with no explanation along with about 15 other people. For Jonathon* of Venezuela, CBP officers asked him, “Why didn’t you stay in Colombia, Costa Rica, Panama or Mexico?” and rejected him in the group of 15 people.
After advocacy and case documentation by KBI, CBP OFO provided a pathway to remedy for those affected individuals and families that remained in Nogales, Sonora. However, this situation is a troubling case study and relevant to the rationale for our rejection of this proposed rule. The rule relies on impeccable port of entry processing of asylum seekers, including CBP officers consistently acting in good faith and in compliance with all relevant law, policy, and protocol. In practice, CBP is an agency with a track record of abuse of power and impunity. Asylum seekers risk encountering arbitrary and abusive decisions by officers at the port, which can drive them to seeking asylum between ports of entry. Vulnerable individuals and families should not have to pay the consequences of government failure.
Given the legal, moral, and practical issues with this rule, we at the KBI oppose this regulation banning access to asylum for those who enter between ports. We urge the government to withdraw this rule and to develop solutions that humanely and fairly process asylum seekers who arrive at the Southern Border.
Kino Border Initiative
*Names changed to protect privacy.