The Real Impact

Legal challenges, as well as expert opinions, opposing the Biden Administration’s May 11, 2023 border rules are heating up.  The new rules, which primarily target asylum seekers at the U.S. southwest border and limit their eligibility to seek asylum protection in the U.S. without an official appointment, represents the Biden Administration’s attempt to eliminate unlawful border crossings by restricting access to asylum.  The Biden Administration seeks to differentiate the new rules as a fair and humane substitute for the former metering system, or MPP,  a much criticized vehicle of the Trump administration that denied asylum access. Nevertheless, in practice the new rules  continue to frustrate access to asylum contrary to law, and their real impact is to deprive genuine asylum seekers of the protection they seek.

Although MPP expired May 12, 2023, the current formulation substituted by the Biden Administration contains several questionable provisions that are subject to challenge as violative of established U.S. asylum law. See e.g., Jeffrey S. Chase, Biden’s Asylum Bar (July 5, 2023), at https://www.jeffreyschase.com/blog/2023/7/5/bidens-asylum-bar.

Unlawful Presumptions of Ineligibility

The new rules go too far by disqualifying asylum seekers from applying for protection that the U.S. statute provides. In a decision dated July 25, 2023, which was stayed for 14 days to allow the government a chance to appeal, federal  Judge Jon S. Tigar ruled that although “Congress granted the agencies authority to impose additional conditions on asylum eligibility . . . .Two of the conditions imposed by the Rule have been previously found to be inconsistent with Section 1158. . . ” the statute governing access to asylum.

Judge Tigar concluded that “the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry. . .  is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country” when Congress’ intent is clear . . . that such a factor should only limit access to asylum where the transit country actually presents a safe option.”  See East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810-JST, N.D. Cal. (Filed May 11, 2023).

The first factor the Rule relies on for disqualification is improper because  it contradicts the statute, which specifies that persons appearing at a land border or port of entry are eligible to apply for asylum. See section 208(a)(1) of the Immigration and Nationality Act (INA), 8 USC 1158(a)(1)(“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 . . . “).

The second factor disqualifies asylum seekers who enter unlawfully and without inspection if they did not apply for asylum in the countries they passed through on their way to the U.S.  This troublesome part of the new rules is not actually codified in the statute, although the Safe Third Country provision is present on the statute. See 8 USC 1158(a)(2)(A)(“Paragraph (1) shall not apply to an alien if the Attorney General determines . . . [s/he] may be removed. . . [to another country] in which the noncitizen’s life or freedom would not be threatened on account of [the five grounds]. . . , and where the alien would have access to a full and fair procedure for determining a claim to asylum or equivalent temporary protection. . . .”).

Nevertheless, this is not a requirement of the asylum statute, and there is no authority for imposing it to limit access to asylum protection. Furthermore, the imposition of any obligation to seek asylum in the first country reached while in flight from persecution is reasonable only when a realistic and safe option exists to do so, and Mexico, which shares its border with the U.S., does not present such an option for non-Mexicans.

The CBP One App

Moreover, the means used by the U.S. government to make asylum seekers comply with a uniform appointment application system installed at the U.S.-Mexico border is untenable. Known as CBP One, the app created by U.S. Customs and Border Protection simply does not work consistently and unreasonably forecloses an opportunity to apply for asylum.  An alliance of organizations and several individuals whose members are adversely affected, have filed a lawsuit on July 27, 2023 seeking class certification challenging the current appointment scheduling requirements.  See Al Otro Lado, et. al. v. Majorkas, Miller and Sabatino, DHS and CBP, in their official capacities, 3:23CV1367-AGS-BLM  (filed July 27, 2023, seeking declaratory and injunctive relief). See also Al Otro Lado, Inc. v. Mayorkas, 619 F. Supp. 3d 1029, 1049-50 (S.D. Cal. 2022)(“AOL I”)(previously issuing a declaratory judgment finding the turnback policy in violation of the government’s mandatory duties and the Due Process Clause).

As alleged in the present complaint, to participate in this technological nightmare,  asylum seekers  must have an up-to-date smartphone and internet access, be able to navigate the app in English, and be fortunate enough to obtain one of the only 1450 available appointments per day.  As the litigants assert, this system creates a technological barrier to asylum that  is unlawful and unconstitutional, and violates the government’s own promises to keep ports of entry open.

If they are not robbed, kidnapped or otherwise incapacitated while waiting at the Mexico border, asylum seekers must avoid interference by Mexican officials, which could prevent them from attending their coveted CBP One appointment.  The consequences of failure to use the app and appointment system successfully are harsh and often beyond an asylum seeker’s control: if a person doesn’t have an appointment, the U.S. government turns them back and denies them any access to the asylum process.

Conclusion

Although it remains to be seen whether the courts will  ban the new rules entirely, a remedy of some kind is critical. These aspects of the Biden Administration’s May 11th rules limiting eligibility of those people apprehended at the border to apply for asylum are inconsistent with the statute and should not be enforced.


by Lory Rosenberg,
Alexandre Law Firm, Of Counsel

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