March 27, 2023

Submitted via: https://www.regulations.gov.

Daniel Delgado
Acting Director
Border and Immigration Policy
Office of Strategy, Policy, and Plans
U.S. Department of Homeland Security
telephone (202) 447-3459 

Lauren Alder Reid
Assistant Director,
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 Black Alliance for Just Immigration (BAJI) submits this comment in response to the Department of Homeland Security (DHS) and Department of Justice (DOJ)’s proposed rule published in the Federal Register on February 23, 2023, that would ban many refugees from asylum protection in the United States and deprive refugees of the ability to reunite with their families and pursue a path to citizenship. The proposed rule is a new version of similar asylum bans promulgated by the Trump administration that were repeatedly struck down by federal courts as unlawful. 

Black Alliance for Just Immigration (BAJI) and its Interest in the Issue

Founded in 2006, BAJI is a Black US-based national organization that fights for the rights of Black migrants and African Americans through organizing, legal advocacy, research, policy, and narrative building to improve the conditions of Black communities by advancing racial justice and migrant rights. 

BAJI has been advocating for Black asylum-seekers at the US/Mexico border since 2007. Our work in support of Black migrants seeking asylum in the US through the US/Mexico border includes direct legal representation and legal workshops for asylum seekers in Mexico; policymaker education and advocacy with the Administration, Congress, and international entities such as the United Nations and the Inter-American Commission on Human Rights; nationwide organizing of Black migrants, partners, and allies in support of the protection of Black migrants; and the sharing of stories and impacts of border policies on Black asylum-seekers. BAJI has also published reports and statements focused on Black migrants seeking refuge in the US at the border that have been shared with this Administration and Congress. 

BAJI urges world leaders, including the Biden administration, to respond humanely to migration and not criminalize migrants. BAJI highlights the violence perpetrated by the US through policies like Remain in Mexico, metering, Title 42, and other ‘invisible walls’ created by US border policies.  BAJI continues to articulate a critique of US policies that have contributed to over 25,000 expulsions of Black migrants in the last year – policies that have been exported and imposed in Mexico, the Northern Triangle, and South America. These US policies trap Black migrants in countries where they are subjected to anti-Black violence and discrimination and are denied fundamental human rights such as food, housing, and healthcare.

BAJI Recommends the Withdrawal of the Proposed Rule

This proposed rule is yet another iteration of this Administration’s “Don’t come, stay where you are” directive in praxis. It unlawfully and inhumanely denies people seeking refuge their legal right to seek asylum directly in the United States. In practice, the rule will function as an asylum ban that cuts off access to asylum for many refugees coming to the US through the southern border. The proposed rule discriminates against Black, Brown, and Indigenous asylum seekers who are being required to take additional burdensome steps that have not been required of white Ukrainian refugees coming through the same border. Most importantly, the proposed rule appears to be yet another effort to circumvent U.S. law and treaty obligations to migrants seeking refuge in the US. BAJI strongly urges this Administration to withdraw the proposed rule in its entirety and stop pursuing asylum restrictions and bans that advance the anti-immigrant agenda intensified under the Trump Administration and welcomed by right-wing hate groups. The Administration should instead uphold refugee law, restore full access to asylum at ports of entry, ensure fair and humane asylum adjudications, and rescind entry and transit bans in their entirety. 

With the proposed rule, President Biden and his administration ultimately cheat US obligations under international law and throw the responsibility of accepting asylees to transit countries. International asylum law, ratified by the US, clearly establishes that migrants seeking refuge are entitled to seek asylum in the country of their choice. The proposed rule denies this right of choice to migrants seeking asylum in the US by requiring them to request asylum in countries they transit on the way to the US, even if they don’t want asylum in those transit countries. Migrants have been in this place before with the Trump administration’s third-party agreements and with the continuing agreements with Mexico. The proposed rule will cause migrants to be trapped and tortured in detention prisons and other dangerous conditions as they wait for the asylum process in transit countries. Black asylum-seekers coming to the US experience serious anti-Black violence and discrimination in transit countries, including Mexico. Critically, this proposes asylum rule disproportionately harms Black people coming through Central America and trapped at the US/Mexico border, where they are frequently beaten, robbed, kidnapped, raped, and killed. Furthermore, the proposed rule will exponentially increase the incidents of refoulement since the rule allows even people with a credible fear of persecution in their home country to be expelled back to their home country simply because they got asylum in a transit country, not of their choosing or did not apply for asylum in a transit country on their journey to the US. 

Making asylum inaccessible is incongruous with the racial equity that was promised at the start of this Administration’s tenure. If this cruel & harmful anti-Black, anti-Indigenous & anti-Brown proposed rule is implemented, racist border policies will become the legacy of President Biden’s administration.

BAJI strongly urges this Administration to withdraw the proposed rule in its entirety and ensure a fair and humane asylum process that is rooted in racial equity and protection of vulnerable migrants seeking refuge. 

The 30-Day Comment Period Provides Insufficient Time to Comment on the proposed rule!

President Biden’s administration has provided only 30 days for the public to comment on the proposed rule, effectively denying the public the right to meaningfully comment under the notice and comment rulemaking procedures required by the Administrative Procedure Act. This timeframe is insufficient for a sweeping proposed rule that would deny many people access to asylum in violation of U.S. law. On March 1, 2023, 172 organizations wrote to the agencies urging them to provide at least 60 days to comment on the complex 153-page rule that would have enormous implications for asylum access at the border and in USCIS and immigration court asylum proceedings. 

Providing a 30-day comment period for the proposed asylum ban is reminiscent of Trump administration practices when agencies routinely provided 30-day comment periods on sweeping asylum rules, leaving little public time to meaningfully assess and respond to proposed rules. BAJI strongly recommends that the Administration provide an additional 30 days to permit further comments on this critical proposed rule.