Church World Service Comment on the Department of Justice and Homeland Security’s Interim Final Rule on Securing the Border; Docket No: USCIS-2024-0006
Church World Service (CWS) submits this comment in response to the Department of Homeland Security (DHS), Executive Office for Immigration Review (EOIR), and the Department of Justice’s (DOJ) interim final rule on Securing the Border (“IFR”), which has already had a devastating effect on individuals seeking lawful humanitarian protections. CWS recognizes the many challenges at the border that demand a coordinated and well-resourced response at the border. Rather than address these challenges, however, the IFR is set to generate more chaos, disorder, and unlawful refoulement of asylum seekers.
Church World Service’s interest in the Interim Final Rule
Church World Service (CWS) is a 78-year old humanitarian organization representing 37 Protestant, Anglican, and Orthodox Communions, as well as refugee resettlement offices, home study and post release services for unaccompanied children, and asylum and border services.
CWS is also a faith-based organization called to help create a world where everyone has food, voice, and a safe place to call home. This perspective informs this comment and the organization’s interest in the Proposed Rule, as does CWS’ policy expertise and extensive programmatic engagement on asylum and border issues. The CWS Asylum and Border Services team assists vulnerable asylum seekers in accessing the support they need, including by working alongside DHS to administer asylum seeker case management services via the Case Management Pilot Program and working closely with shelter partners to provide initial respite and welcome to recent arrivals. The CWS network also provides low cost legal assistance to asylum seekers (and others) across the country, and this comment draws on the perspectives and experiences of these providers when discussing the proposed rule and its likely impact on the asylum system and those seeking asylum protections.
Bringing this expertise and perspective to bear, and for the numerous reasons outlined below, CWS urges the Department of Homeland Security to publish a notice in the Federal Register withdrawing the IFR.
The IFR would abrogate the Refugee Act of 1980 and refoule individuals to danger
The IFR contravenes the right to asylum as enshrined and codified in the Refugee Act of 1980 and undermines our international treaty obligations under the 1967 Convention and Protocol Relating to the Status of Refugees. During “emergency circumstances,” the rule establishes severe limitations on asylum eligibility for individuals who arrive between ports of entry. The Refugee Act of 1980 explicitly enshrines the right for all individuals to apply for asylum or protection from the threat of torture, including between official ports of entry and “irrespective of status.”
The rule further eliminates the requirement for U.S. Border Patrol officers to ask whether arriving migrants fear returning to their home countries, a measure that will prevent many who do have such fear from being able to enter into the asylum process in the first place. The IFR also significantly increases the fear screening standard for other crucial protections such as withholding of removal and those seeking relief under the Convention Against Torture (CAT). With the erosion of due process that has been ongoing for years, instituting a “shout test” and further limiting access to these secondary protections will result in a significant increase in refoulements of individuals into precisely the contexts from which they fled.
The right to non-refoulement is the bedrock principle of international refugee law and protected in the Refugee Act of 1980. The IFR directly and repeatedly violates this principle.
Impact of the rule on families and unaccompanied children
Despite extremely cursory arguments to the contrary, the rule is likely to impose a negative impact on family well-being and result in family separations. Policies severely restricting asylum – including this IFR – do not deter arrivals but instead encourage increasing arrivals of unaccompanied children as families are unable to seek or receive protection by crossing the border together.
The rule argues that it contains an exception that would avoid the separation of families by exempting accompanying spouses and children of individuals who would otherwise have received asylum but for the limitations imposed by the rule and have received a grant of withholding of removal or protection under CAT. However, this argument fails to consider that both withholding of removal and CAT protections have also been severely limited, and fails to consider evidence that points to asylum limitations like those implemented by the IFR force migrant children to come to the border alone without their parents.
Impact of the rule that we have already witnessed
The CWS Asylum and Border Services team and others (including those with Kino Border Initiative, Refugees International, and Human Rights Watch) have already observed significant negative repercussions of the rule in the weeks it has been in place. Migrants removed under the IFR have noted to observers that they have been abused verbally and had their claims of fear ignored. Many individuals have been returned without any paperwork. Family separations have increased significantly.
While in some cases these anecdotes contravene the language and stated intent of the executive order, these and similar events will proliferate until and unless the rule is withdrawn. As discussed above, the rule is unlikely to make the border more efficient, orderly, or humane. The changes contemplated by the rule reduce or eliminate needed safeguards that keep families together, protect individuals from being returned into danger, and encourage an orderly asylum process.
The IFR would not achieve its stated goals
In practice, several of the goals of the IFR – which are in some cases mutually contradictory – are not likely to be achieved through its implementation. The rule’s objectives include deterring people from seeking humanitarian protection by raising the credible fear standard and effectuating more removals, providing adequate protection to those with exceptionally compelling circumstances and those who manifest fear, and reducing case backlogs. The rule claims that implementing a higher standard to establish fear and swiftly removing individuals who are less likely to establish eligibility for protection will create a “deterrent effect [that] could lead to lower encounter levels.” However, decades of policies attempting to establish “prevention through deterrence” have repeatedly proven that punitive policies do not reduce irregular migration – they only increase chaos, confusion, and human suffering. As the rule rightly notes, global migration is at levels not seen since World War II, and “migration and displacement in the Western Hemisphere will continue to increase as a result of violence, persecution, poverty, human rights abuses, the impacts of climate change, and other factors.” Undermining due process and increasing the speed of removals will do little to decrease the number of people who are driven from their homes by conflict and persecution and find themselves with no other option but to seek refuge in the United States.
The rule attempts to establish the possibility of protection for individuals facing certain “exceptionally compelling circumstances” and enacts a “manifestation of fear” standard that it says “is intended to help immigration officers process noncitizens more expeditiously, while still affording opportunities for those seeking protection to do so.” However, DHS acknowledges that the new standard “could result in some noncitizens with meritorious claims not being referred to a credible fear interview.” Relying on the discretion of agents and officers to use their “skills and experiences to identify any manifestations of fear” has previously proven woefully insufficient to protect people at risk. When the standard – colloquially known as the “shout test” – was in place during Title 42, in many cases, individuals who affirmatively manifested their fear were not able to access asylum screenings and were ultimately expelled. Establishing a barrier to beginning the process of seeking asylum that is both extremely subjective and difficult to surmount will make accessing protection all-but-impossible for many people – including in cases that would have otherwise ultimately received a positive determination. The inevitable refoulement of individuals and families to contexts of persecution, danger, and death – in an era the rule acknowledges is marked by “heightened levels of migration and forced displacement” runs in stark contrast to its stated intention of preserving protection for particularly vulnerable populations.
The stated purpose of the rule is “to allow the United States Government to deliver consequences more swiftly, and with a reduced resource burden.” However, in practice, it will likely lead to less effective asylum processing and result in even greater inefficiencies. The rapid and haphazard rollout of the IFR has already led to significant problems in its implementation, as many individuals have already faced return without receiving any written record of their encounter with CBP. Additionally, expediting processing and rapidly removing individuals who would have otherwise been able to successfully make claims for protection can lead to an increase in lengthy and expensive appeals processes that often cannot be resolved without numerous court dates. Additionally, as access to asylum becomes increasingly restricted, those who would have otherwise sought protection through asylum may seek instead to access more limited protections, such as withholding of removal, a more tenuous status that requires further resources to adjudicate.
The IFR does not consider significant possible alternatives
The rule fails to consider significant possible alternatives to restricting access to protection and potentially refouling vulnerable people to dangerous conditions. If the goal is to create more orderly, effective border processes that recognize the Department’s capacity constraints, the Department must think more creatively about working with partners to build an infrastructure of welcome.
Rather than attempting to deter those fleeing danger from entering the U.S., CWS urges the Department to consider alternative and more effective solutions that would improve operational flexibility and address the challenges it purports to resolve. The Department should increase capacity at ports of entry to process arriving asylum seekers. It should also coordinate more closely with NGOs and nonprofits that provide initial respite and support to arriving asylum seekers at the border and in the interior, including by working with Congress to invest in the Shelter and Services Program.
Additionally, DHS should work to provide and connect arriving migrants with services that might support their housing, health, workforce development, and legal services needs. It should work with Congress to designate more resources to these efforts, and further prioritize and expand efforts like the Case Management Pilot Program (CMPP), which provides community-based case-management services for asylum seekers across the country. When compared with immigration detention and surveillance-based alternatives, programs like CMPP result in more efficient asylum adjudication processes, and more effectively promotes asylum seekers’ attendance in court and meaningful participation in legal obligations. Meaningful investments in newcomers and the communities across the country that welcome them will do far more to address the challenges at the border and create a more orderly, humane, and efficient asylum process than the restrictions imposed by the IFR.
Conclusion
The IFR is a dramatic expansion of the Circumvention of Lawful Pathways rule implemented in 2023. Like that rule, this IFR understates Americans’ capacity to welcome and overstates the efficacy and wisdom of substituting access to asylum at the border for efforts to “expand access to, and increase lawful pathways.” It contravenes statute and international treaty and contributes to disorder and danger for the most vulnerable arriving at our shores. CWS urges the agencies to withdraw this rule in its entirety.