Human Rights First’s Public Comment on the Biden Administration’s Proposed Asylum Ban

Human Rights First Comment on Department of Homeland Security & Department of Justice, “Circumvention of Lawful Pathways,” 88 FR 11704

Human Rights First submits these comments in response to the Department of Homeland Security (DHS) and the Department of Justice (DOJ) (collectively, the “agencies”) request for public comment regarding the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on February 23, 2023.1

Overview of Comment

The agencies propose to implement a new rule (the “asylum ban”) at the southern border that would return to persecution refugees who qualify for asylum under U.S. law and leave others in limbo in the United States without permanent status, a pathway to citizenship, or the ability to reunite with their families. Human Rights First urges the agencies to withdraw the unlawful proposed rule in its entirety, rescind similar Trump administration bans, and take immediate steps to restore access to asylum and comply with U.S. law and treaty obligations.

The agencies request comments on whether the proposed rule would provide “a meaningful and realistic opportunity to seek protection.”2 It would not. The proposed rule would bar refugees from asylum based on their manner of entry into the United States and their transit through third countries, factors that do not relate to their persecution or fear of return. It would apply only to refugees who enter at the southwest border, the vast majority of whom are people of color. If the agencies proceed with this ban, it will illegally punish and ban refugees fleeing political, religious, race-based, gender-based, anti-LGBTQI+, and other persecution, including Black and Indigenous people, LGBTQI+ asylum seekers, women, children, and people with disabilities. The agencies would apply the ban not only in full asylum adjudications but also in preliminary screenings at the border, which would result in mass deportations of refugees without a hearing.

As detailed in this comment, the proposed asylum ban would:

• violate U.S. law and international law, including treaties binding on the United States;
• improperly use safe pathways to deny access to asylum, undermine the Los AngelesDeclaration on Migration and Protection, and subvert refugee law globally whilediscouraging other countries from upholding asylum;
• deny asylum to refugees who qualify for it under U.S. law;
• return refugees to their countries of persecution or to dangers in Mexico and other unsafe transit countries, where refugees are targeted for bias-motivated attacks, torture, kidnappings, and other violence
• circumvent the statutory credible fear standard and unjustly deprive many refugees of an asylum hearing;
• inflict long-term or permanent family separation on refugees denied asylum due to the ban and left only with withholding of removal by depriving them of the ability to bring spouses and children stranded abroad to the United States;
•  deprive refugees of citizenship and other benefits when they are denied asylum and afforded only withholding of removal;
• disproportionately harm Black, Brown, and Indigenous asylum seekers;
• build in nationality-based preferences that are contrary to refugee law by incorporating exceptions based on nationality-based parole policies;
• unlawfully require asylum seekers to request protection in unsafe transit countries where they face persecution and a risk of refoulement, including LGBTQI+ asylum seekers, women, children, and people with disabilities;
• codify DHS’s use of the deficient CBP One app as the only or primary method to seek asylum at the border, which would perpetuate inequities and add restrictions to — rather than maximize — asylum access at port of entry; and
• add to the complexity and length of asylum adjudications (as have other barriers to asylum imposed over the years), exacerbating delays and backlogs.