Church World Service Comment on the Final Rule by Departments of Justice and Homeland Security on Securing the Border; USCIS Docket No: USCIS-2024-0006; A.G. Order No. 6053-2024
Church World Service (CWS) submits this comment in opposition to the Department of Homeland Security (DHS) and the Department of Justice (DOJ)’s final rule on Securing the Border (“STB Rule”), published on October 7, 2024, and the consideration of expanding and extending the Circumvention of Lawful Pathways rule (“CLP Rule”).
CWS expressed our deep concerns about these rules in previous comments about the Interim Final Rule and the CLP Rule. We have since observed that both rules have a devastating impact on individuals seeking lawful humanitarian protections. The STB Rule turns away and deports asylum seekers to danger and leaves others without a path to stable protection. CWS recognizes asylum processing and other operational priorities at the southwest border demand a coordinated and well-resourced response. Rather than address these challenges, however, these rules generate more chaos and unlawful refoulement of asylum seekers.
CWS continues to call on the administration to rescind the rule and to instead support necessary resources for equitable and timely asylum adjudications, community-based case management, humanitarian reception, robust legal assistance, and strengthened refugee protection and resettlement in the United States and around the world.
Church World Service’s interest in the 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 Final 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 both of the rules and their 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 Departments to rescind the STB and CLP Rules and opposes any efforts to extend or expand restrictions to access to asylum. CWS encourages the Departments to instead dedicate resources toward building a modern, rights-respecting process for people seeking protection in the United States.
The STB Rule abrogates the Refugee Act of 1980 and refoules asylum seekers to danger
The STB Rule contravenes the right to seek 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 border circumstances,” the rule suspends asylum eligibility for individuals encountered 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 for those who enter between official ports of entry and “irrespective of status.”
For the first time in three decades, the rule eliminates the requirement for U.S. immigration officers to affirmatively question and ascertain a migrant’s fear of returning to their home countries. This requirement helped ensure that people with fear are referred for a credible fear interview in compliance with the United States’ statutory obligations not to return people to persecution. Under the rule, bona fide refugees are being denied protection and summarily deported, whether because their manifestations of fear are being outright ignored by immigration officers; immigration officers are telling asylum seekers that there is no more asylum; or families are being separated and one is denied while the other is granted a fear screening, despite their asylum claims being related. Hope Border Institute, Human Rights First, Immigrant Defenders Law Center, Kino Border Initiative, RAICES, and Refugees International published a report in August 2024 that documents numerous examples of asylum seekers “who expressly requested asylum, relayed their past persecution, explained their asylum claims, showed agents their injuries, had anxiety attacks, and visibly sobbed and begged to be heard” and were still deported without a fear screening.
For those barred from asylum, the rule also significantly increases the screening standard to “reasonable probability” for statutory withholding of removal and protection under the Convention Against Torture (CAT), which are lesser forms of protection that are already more difficult to meet. 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 individuals with asylum claims being returned to persecution without the opportunity to have their claim heard.
The right to non-refoulement is the bedrock principle of international refugee law and protected in the Refugee Act of 1980. The rule directly and repeatedly violates this principle.
The STB Rule harms families and unaccompanied children seeking protection
The STB Rule has already resulted in family separations. Family members have been arbitrarily removed from the United States without a fear screening while their accompanying loved ones are referred for a fear screening, including in situations where their asylum cases could have been processed together. The rule has led to situations in which a spouse passes and the other spouse does not, despite having claims based on the same facts, leading to permanent separation of the married couple. In another instance, only one woman of a family of four’s fear manifestation was listened to, so she was given a credible fear interview while being separated from the rest of her family who were deported.
Policies severely restricting access to asylum, like the STB Rule, do not permanently deter arrivals but instead encourage increasing arrivals of unaccompanied children when families are unable to seek or receive protection when entering the United States together. For example, more than 12,000 children who were expelled under Title 42 reentered the United States alone to seek protection. This demonstrates how many parents made the difficult decision to “self-separate” to afford their children safety. The rule fails to consider other evidence of “self-separations” as a result of restrictive policies. For example, when Title 42 was in place and the Mexican state of Tamaulipas refused to accept expelled families with young children, these families were then expelled at lower rates and the share of Central American children coming alone fell from 71 percent in December 2021 to 40 percent in August 2021. However, when the Biden administration decided to transport these families to other parts of Mexico to expel them, the share of Central American children coming alone rose to 83 percent.
The STB Rule includes a limited family unity provision that benefits individuals’ accompanying family members 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. This exception only benefits the few who manage to meet the higher “reasonable probability” standard for withholding of removal and CAT protections.
If the Departments do not rescind the STB Rule, at minimum, family members who arrive with minor children should be kept together. Subjecting the minor child’s family member to the STB Rule may lead to unnecessary and harmful permanent separation. Instead, the accompanying non-parent adult caregiver should be placed in the Trusted Adult Relative Program (“TARP”). This program allows Office of Refugee Resettlement specialists to begin the family reunification process faster and ensure that the caregiver is safe and in the best interest of the child. Expanding TARP to all ports of entry, and transporting family groups apprehended between ports to the nearest port of entry to be placed in TARP, would help prevent permanent separations. A child’s separation from a loving family member or caregiver can have long-term, negative consequences for their physical, mental, and emotional health and well-being. In addition, releasing a child to a trusted family member or caregiver greatly reduces the risk of that child suffering abuse or exploitation.
The STB Rule leaves the most vulnerable at risk
The CWS Asylum and Border Services team and other immigration and human rights organizations have already observed significant negative repercussions of the rule in the months it has been in place. Asylum seekers removed under the rule have noted to observers and service providers that U.S. immigration officers verbally abused them and/or ignored their claims of fear. Many individuals have been returned to Mexico without any paperwork. Family separations have increased significantly when families are not processed together. The rule limits access to protection such that the most vulnerable asylum seekers – those who are unable to wait in dangerous conditions in Mexico for CBP One appointments – are left without options.
The CWS Asylum and Border Services and Advocacy teams visited south Texas and Reynosa, Tamaulipas, Mexico in October 2024 to monitor how the STB Rule was impacting people seeking asylum. Local faith leaders and humanitarian aid workers have found that since the STB Rule went into effect in June 2024, more vulnerable people have less opportunity to safely seek protection. They estimated only about 25 percent of the local acute medical emergency cases are able to successfully present themselves to the Office of Field Operations (OFO) and enter the United States. In some cases–including some unaccompanied children who should be exempt from the STB Rule–, vulnerable people who cannot wait for a CBP One appointment resort to crossing into the United States along more dangerous routes, risking their lives. Having no meaningful ability to enter at a port of entry without a CBP One appointment under the STB Rule incentivizes entering between ports of entry.
CWS is aware of at least one asylum seeker who died immediately after being denied an acute medical emergency exception under the STB Rule. According to local nonprofit Sidewalk School that accompanied him, a Haitian man presented himself to a port of entry in September 2024 because he had serious, life-threatening medical conditions. He provided OFO a letter from an American doctor confirming that he was experiencing a medical emergency and needed immediate care. Despite this letter and having a local nonprofit advocating alongside him, OFO stated that because of the STB Rule, they are denying his request. Sidewalk School raised that one exception within the STB Rule is for an acute medical emergency, and still OFO denied the request. When Sidewalk School requested that the port’s medical team review his condition, OFO refused, arguing that only asylum seekers who make it inside of the port and past the international boundary line are reviewed. Several hours later, OFO emailed Sidewalk School that he could return to the port of entry, but by that time, he was dying and could not be transported. Within 5 hours of being denied entry, he died in northern Mexico.
On this recent visit to Reynosa, CWS observed that migrants attempting to secure CBP One appointments were psychologically distraught from waiting, often for many months, in insecure conditions. One local faith leader estimated that the longest wait times for Mexican migrants are 10.5 months and 7.5 months for non-Mexican migrants. Especially for Mexican asylum seekers who are trapped in their own country of feared prosecution under the STB Rule–in violation of the Refugee Convention and Protocol–, waiting many months is unfeasible and dangerous.
Asylum seekers who cannot use the CBP One app due to language, illiteracy, disability, having their phone stolen and other barriers, are being denied equal access to seeking protection in the United States. Under the STB Rule, there is no exception for individuals who are unable to use the CBP One app, unlike the CLP Rule. The Departments justify this decision by stating that the STB Rule is only to apply during emergency border circumstances, but the standard for such circumstances is set so low that the ban on asylum eligibility is practically indefinite. As the Departments note, the CBP One app has significantly increased processing capacity of individuals at land ports of entry overall in comparison to the six years preceding the pandemic, but it is critical that the individuals most in need of protection have access to safety regardless of their ability to use a mobile phone application.
While in some cases these examples contravene the language and stated intent of the STB Rule, these and similar events will proliferate until and unless it is rescinded. As discussed above, the rule does not make the border more efficient, orderly, or humane. The Final Rule further cements the Interim Final Rule’s restrictions by requiring that the daily average number of apprehensions falls below 1,500 over a 28-day, rather than a 7-day period, before the restrictions are lifted and by including, for the first time, unaccompanied children into its encounters calculation. CWS strongly opposes these changes. The STB Rule reduces or eliminates needed safeguards that keep families together, protect individuals from being returned into danger, and encourage an orderly asylum process.
The STB Rule does not achieve its stated goals
Several of the goals of the STB Rule are not achieved through its implementation. The rule’s objectives include deterring people from seeking humanitarian protection at the southern border by suspending access to asylum and effectuating more removals; providing adequate protection to those with exceptionally compelling circumstances, those who manifest fear, and those who enter via CBP One; and reducing inefficiencies and 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 but 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 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 substantially improve the Departments’ ability to deliver timely decisions and consequences to noncitizens who lack a lawful basis to remain.” 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 rule 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 Customs and Border Protection (CBP). 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, or spur irregular crossings by migrants who cannot safely wait in Mexico.
The Departments state that the STB Rule is “working as intended,” and primarily bases this conclusion on the reduction in apprehensions at the southwest border and their ability to increase use of expedited removal and increase deportations of adults and families since June 2024. The Departments do not accurately weigh the evidence demonstrated by numerous human rights and immigration services organizations and the media that have documented serious harms that violate U.S. law and treaty commitments, including summary deportations to countries of feared persecution; mass kidnappings, torture, sexual assault, and other human rights abuses of asylum seekers forced to wait in Mexico; and due process violations. The Departments also fail to acknowledge Mexico’s massive escalation of its own immigration enforcement since December 2023. Mexico is routinely intercepting migrants on their way to the US-Mexico border and either detains them or transports them back to southern Mexico. Mexico’s crackdown on migrants has grown from 179,000 encounters in 2021 to more than 726,000 in 2023. Despite the country’s unprecedented apprehensions in 2024, Mexico has simultaneously slowed its immigration and asylum processing, including by closing ten of its refugee offices and overseeing a 97 percent drop in issuance of humanitarian visitor cards that allow asylum seekers to safely travel in the country.
The Final Rule does not consider significant possible alternatives
The rule fails to consider significant possible alternatives to restricting access to protection and returning vulnerable people to dangerous conditions and/or persecution. If the goal is to create more orderly, effective border processes that recognize the Departments’ capacity constraints, the Departments must think more creatively about working with nongovernmental organizations and local governments to build an infrastructure of welcome.
Rather than attempting to deter those fleeing danger from entering the United States, CWS urges the Departments to consider more effective solutions that would improve operational flexibility and address the challenges it purports to resolve. The Departments should restructure and prioritize increasing capacity at ports of entry to process arriving asylum seekers. It should also coordinate more closely with nongovernmental organizations and local governments 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 CBP/Federal Emergency Management Agency (FEMA) Shelter and Services Program.
Additionally, DHS should support connecting 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 DHS Civil Rights and Civil Liberties (CRCL) 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. 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 STB Rule.
Expansion or extension of CLP Rule would continue to punish asylum seekers
Church World Service reaffirms our opposition to the Circumvention of Lawful Pathways Rule and reattaches our comment on the proposed rule. The CLP Rule was implemented as a temporary measure in anticipation of a potential surge in migration following the lifting of Title 42. Indefinitely extending it beyond May 11, 2025 goes beyond its intended purpose and would instead indefinitely bar people entering the United States if they had not been denied asylum in a country through which they transited or had not availed themselves of other lawful pathways to the United States, such as use of the CBP One application.
Despite its exceptions to its presumption of asylum ineligibility and the exceptionally compelling circumstances included to rebut the presumption, the CLP Rule has restricted access to refugee protection and led to the return of asylum seekers to persecution and torture. We fundamentally disagree with placing conditions on asylum eligibility. By doing so based on manner of entry or travel through third countries, the CLP Rule contravenes the right to seek asylum as enshrined and codified in the Refugee Act of 1980 and undermines our treaty obligations under the 1967 Convention and Protocol Relating to the Status of Refugees. CWS therefore opposes the agencies’ consideration to expand the rule to people who enter at southern coastal borders and to apply the rule to people entering regardless of whether they traveled through a third country. These actions only extend the restrictions to additional asylum seekers.
14 Senators, 68 House members, the union representing more than 14,000 U.S. Citizenship and Immigration Services (USCIS) employees including Asylum Officers, more than 50 former Immigration Judges and Board of Immigration Appeals members, the former presidents of Costa Rica and Colombia, the UN Refugee Agency (UNHCR), Black-led organizations, LGBTQ+ organizations, Indigenous organizations, children’s rights organizations, numerous faith-based organizations and faith leaders, Holocaust survivors and their family members, medical and public health organizations, human rights organizations, and tens of thousands of individuals raised concerns about and/or strongly opposed the CLP Rule.
The rule has limited exceptions to its presumption of asylum ineligibility, including for unaccompanied children; those who can demonstrate they were unable to access an appointment via the CBP One app for certain reasons; and those who can prove an immediate or clear threat to safety, are suffering a medical emergency, or are victims of severe human trafficking. These exceptions have failed to protect numerous individuals who qualify for asylum under our laws. CWS urges the agencies to rescind the rule, but if it remains, additional exceptions must be made for people who:
- did not have knowledge of the ban;
- could not use the CBP One app due to language, illiteracy, financial, technological and other barriers and entered between ports of entry;
- did not have asylum or other durable status in a transit country;
- were not firmly resettled in a transit country;
- did not reasonably believe they would be protected from refoulement, violence, persecution, and other harms in a transit country;
- transited through a country that did not have full, fair, and efficient asylum procedures;
- had medical, safety, or other protection needs including non-life-threatening medical needs or non-medical needs;
- reasonably believed that their life or safety was at risk prior to entry;
- could not safely or reasonably travel to or access asylum at a port of entry;
- could show good cause for entering the United States; or
- did not have family or other ties in countries they transited.
Conclusion
The STB and CLP Rules understate Americans’ capacity to welcome and overstate the efficacy and wisdom of substituting access to asylum at the border for efforts to increase other lawful pathways. They contravene statute and international treaty and contribute to disorder and danger for the most vulnerable arriving at our borders. Church World Service urges the Departments to withdraw these rules in their entirety.