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AILA Doc. No. 19032731 | Dated July 31, 2023
In recent years, the ability to apply for protection in the United States at the southern border has been severely restricted by a combination of policies, practices, and regulations. Together, they form a barrier to asylum and due process for migrants that is unfair, inhumane, and in violation of long-established United States and international refugee norms. We are witnessing unprecedented migration around the globe, including record numbers of fatalities of migrants en route or at our border as attempts to control migration force migrants to take even more deadly routes.
This featured issue page provides updates and analyses of U.S. asylum and border policies along with AILA’s advocacy for the creation of a humane and fair border processing system for all individuals arriving at our southern border seeking safety and to reunite with awaiting families and communities.
AILA is urging lawful, humanitarian-based solutions to the seasonal increase in migrants, in particular children, at the U.S. southern border. As the Biden Administration rebuilds an asylum system that was gutted by the prior administration, the only sensible choice is to transform how we receive and screen people at the border.
Long-standing U.S. law says that any person who is physically present in the United States or who “arrives” at the border must be given an opportunity to seek asylum.
Instead of deterrence and enforcement-only approaches, we should welcome people with dignity in line with American values. We must extract ourselves from the counter-productive “crisis at the border” news cycle. Instead, America must lead the way in building a sustainable migration system that meets the demands of the modern world and current events.
In preparation for the end of Title 42, the Biden administration returned to Credible Fear Interviews (CFIs) while in CBP custody. U.S. Citizenship Immigration Services (USCIS) asylum officers began administrating credible fear interviews (CFI) while asylum seekers were in U.S. Customs and Border Protection facilities (CBP) on April 12, 2023. These CFIs are conducted via telephone. The Trump Administration had a similar program known as Prompt Asylum Claim Review (PACR) and the Humanitarian Asylum Review Process (HARP).
Despite early assurances on stakeholder calls that access to counsel would be maintained in this process, there are serious ongoing concerns around access to counsel in CBP custody. In an interview with the New York Times, AILA’s Greg Chen called the CFIs in CBP custody as including “a mere fig leaf of legal access.”
The asylum transit ban, or Circumvention of Lawful Pathways Rule (CLP) went into effect on May 11, 2023. Judge Jon Tigar in the Northern District of California vacated the asylum transit ban on July 25, 2023 by granting summary judgement in East Bay Sanctuary Covenant v. Biden. AILA had spoken out against the rule, known as the Circumvention of Lawful Pathways rule, and Judge Tigar found the regulation to violate the APA because it was not in accordance with the law, was arbitrary and capricious, and not procedurally valid. Many of the arguments made in AILA’s joint comment to the CLP were also made and found persuasive in this litigation. The litigation efforts were led by the Center for Gender and Refugee Studies, the National Immigrant Justice Center, and the American Civil Liberties Union. This order is stayed for 14 days, and the Biden administration has appealed. In the meantime, the CLP — and its implications for asylum law — remain in place.
The CLP relies heavily on a series of complex “exemptions” and “presumptions” to condition access to asylum based on how asylum seekers enter the country. All clients who entered at the Southern border around or after May 11, 2023 should be screened for the implications from this regulation.
These expanded lawful pathways are distinct from the asylum transit ban. Even if the asylum transit ban ends, these lawful pathways will remain – pending the outcome of other, slow-moving litigation. These pathways aim to decrease pressure at the Southern border and can stand without limiting access to asylum. It is important to remember that asylum is also a lawful pathway.
The Biden Administration has increasingly used its parole power to alleviate migrant displacement around the world by creating specific parole programs for certain nationalities. This began with Uniting for Ukraine (U4U), and a separate program was created for Cuba, Haiti, Nicaragua, and Venezuela (CHNV). (The Afghanistan programs are distinctly different from these parole programs and are covered in more detail in our “Find Resources for Assisting Afghan Clients.”)
The parole programs for Venezuela, Nicaragua, Haiti, and Cuban all offer a legal pathway for a migrant from these countries to come to the United States if they meet certain parameters, including having a valid passport and a contact in the United States willing to sponsor them as a “supporter.”
There are some distinct differences between U4U and the later programs. Notably, U4U allowed for dual nationalities to apply, did not have a cap, and did not expand Title 42 to include Ukrainians.
The impact of border policies can be felt throughout the interior. For example, certain families who entered through the Southern border have their CFIs scheduled at interior asylum offices, and erroneous addresses entered on a Notice to Appear (NTA) at the border have significant implications for migrants in the interior, who may have never received their hearing notice.
Since spring 2022, nonprofits began receiving government paperwork (including Notices to Appear (NTAs) and calendar hearing notices) for migrants that were not their clients. Similarly, some migrants began appearing at nonprofits with NTAs that listed the nonprofit’s address. While this issue is prevalent across the country, many of the migrants being transported around the country are arriving with paperwork with a nonprofit address. With the end of Title 42, AILA is expecting this practice to continue and likely increase.
Immigration attorneys should incorporate screening for a nonprofit address on NTAs and hearing notices into their practice. While many nonprofits are actively working to resolve this issue for the migrants for whom they receive notices, it is possible that a future client of yours could have already missed a hearing date because of this issue. AILA members can read our practice alert on this issue.
AILA and CLINIC are developing a resource for future possible motions to reopen. If your organization has received erroneous immigration documents, please contribute to this resource here.
AILA is advocating to address the asylum work permit backlog, delays, and inefficiencies throughout the employment authorization (EAD) process.
Cite as AILA Doc. No. 19032731.
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