Featured Issue: Border Processing and Asylum
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.
- Congress is currently weighing changes to the credible fear standards, safe third countries, and parole authority in exchange for aid for Ukraine, Israel, and Taiwan. AILA sent a letter to Congress in opposition to these changes and circulated a new policy brief on the credible fear standard.
- 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 this regulation on July 25, 2023, by granting summary judgement in East Bay Sanctuary Covenant v. Biden. The order was stayed for 14 days, and the Biden Administration appealed. In a 2-1 ruling, the 9th Circuit kept the CLP in place pending the appeal process. Practitioners should be aware that this regulation is still in place for the foreseeable future. This rule has significant implications for asylum both at the border and in the interior. Read more about CLP here.
- The Administration continues to conduct Credible Fear Interviews (CFIs) in CBP custody rather than in ICE custody. Learn more with this Practice Alert: Key Takeaways on the Credible Fear Interviews in Customs and Border Protection Custody.
- The Biden Administration has set up in-country processing in Latin America, although the impact of this program will be long term.
- Members of the AILA and Council staff as well as executive committees conducted a border delegation to Tucson and Nogales September 27-28, 2023. The key takeaways from this trip include the importance of local collaboration, federal communication with local providers, and the increasing humanitarian role that border patrol agents are currently taking in the field. You can read more key takeaways and our policy recommendations here.
- USCIS continues to have a significant portion of its finite resources devoted to the southern border, which will impact the processing of other immigration applications.
- Recent Policy Briefs:
- The Asylum Credible Fear Standard
- Barriers to Immigrant Visas Driving Migrants to the Southern Border
- 2023 Border Delegation Summary
- What Does Effective Border Management Look Like?
- American Immigration Council, Beyond A Border Solution: How to Build a Humanitarian Protection System That Won’t Break
- The Proposed Asylum Transit Ban Creates Access to Asylum in Name Only
- Solutions to the Humanitarian Challenge at the Border
- Credible Fear Interviews in CBP Custody
- Asylum Transit Ban
- Lawful Pathways
- CBP One Mobile App
- Parole Programs for Certain Nationalities (“CHNV”)
- Border Processing in the Interior
- Improving Access to Asylum-Based EADs
Solutions to the Humanitarian Challenge at the Border
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.
- Policy Brief: What Does Effective Border Management Look Like? – Updated May 9, 2023
- Beyond A Border Solution How to Build a Humanitarian Protection System That Won’t Break – May 2, 2023
Credible Fear Interviews in CBP Custody
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.”
AILA and the American Immigration Council Resources
- Stays in CBP Custody Are Getting Longer Due to ‘Phone Booth Asylum’ Policy, Immigration Impact, July 21, 2023
- AILA Sends Letter Highlighting Concerns Regarding Conducting Credible Fear Interviews in CBP Custody, June 30, 2023
- Practice Alert: Key Takeaways on the Credible Fear Interviews in Customs and Border Protection Custody, April 20, 2023
- Lawyers Say Helping Asylum Seekers in Border Custody Is Nearly Impossible, New York Times, July 22, 2023
- Adult migrants are held in border facilities too long amid Biden administration policy changes, sources say, CNN, July 18, 2023
- The Biden administration guaranteed attorney access for all migrant screenings. Most don’t have it, AP, July 2, 2023
Asylum Transit Ban
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.
Resources and Advocacy
- AILA Practice Alerts
- National Immigration Project: Practice Advisory: Biden’s Asylum Ban
- Looking into the Crystal Ball: What do we expect with the end of Title 42? – May 4, 2023
- AILA and the Council Submit Comments on Circumvention of Lawful Pathways Proposed Rule, March 26, 2023
- Policy Brief: The Proposed Asylum Transit Ban Creates Access to Asylum in Name Only, February 22, 2023
Government Announcements and Information
- Fact Sheet: U.S. Government Announces Sweeping New Actions to Manage Regional Migration, April 27, 2023
- DHS and DOJ Proposed Rule to Establish an Asylum “Transit Ban”, February 23, 2023
- Biden’s Asylum Rule Loss Is Signal To Expand Legal Avenues, Law360, July 26, 2023
- “Amy Grenier, policy and practice counsel with the American Immigration Lawyers Association, told Law360, that she also thinks the administration should put more effort into lawful pathways, but that doesn’t have to come at the expense of complying with U.S. asylum law. ‘These lawful pathways can still exist. And they should still exist, and we can build on them, and also have access to asylum at the border. So I think they're not mutually exclusive,’ she said.”
- New York Times, Who Gets In? A Guide to America’s Chaotic Border Rules., May 11, 2023
- Wall Street Journal, Biden’s New Immigration Policy Cements End of Liberal Asylum Rules, May 9, 2023
- Law 360, Texas Parole Case May Doom Biden's Title 42 Exit Plan, May 4, 2023
- Border Report, Expedited asylum screenings begin in CBP facilities, lawyers still banned, Cuellar says, April 12, 2023.
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.
CBP One Mobile App
- American Immigration Council: Government Documents Reveal Information about the Development of the CBP One App – February 28, 2023
- Immigration Impact Blog: DHS Fails to Address Concerns about CBP One as the Agency Expands the App’s Use – January 13, 2023
- CRS Insight: CBP One Application: Evolution and Functionality
- CBP Fact Sheet: Using CBP OneTM to Schedule an Appointment
- CBP 60-Day Notice and Request for Comment on Proposed Revisions to Customs Declaration Information Collection to Add CBP One App (88 FR 13452, 3/3/23)
- DHS Scheduling System for Border Processing Goes Live on CBP OneTM App
- CBP Announces Spanish Option for I-94 Features in the CBP One Mobile App - June 10, 2022
- DHS Releases Privacy Impact Assessment for CBP One Mobile Application – February 19, 2021
- Roll Call: House Democrats call to improve border appointment app – March 14, 2023
- Reuters: Struggling with U.S. asylum app, migrant families split at border – February 27, 2023
Parole Programs for Certain Nationalities (“CHNV”)
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.
- Practice Alert: Parole Programs for Venezuela, Nicaragua, Haiti, and Cuba – January 17, 2022
- Round Table: Navigating the Venezuelan Parole Process – October 26, 2022
- AILA Shares Key Takeaways from USCIS Engagement on Uniting for Ukraine – May 10, 2022
- Fact Sheet: Biden-Harris Administration Announces New Border Enforcement Actions (Nicaragua, Haiti, and Cuba) – January 5, 2023
- DHS Implementation of Changes to the Parole Process for Venezuelans – January 5, 2023
- DHS Implementation of a Parole Process for Cubans – January 5, 2023
- DHS Implementation of a Parole Process for Nicaraguans – January 5, 2023
- DHS Implementation of a Parole Process for Haitians – January 5, 2023
- USCIS, Process for Venezuelans – November 18, 2022
- DHS Notice of New Parole Process for Certain Venezuelans – October 19, 2022
- USCIS, Uniting for Ukraine – November 21, 2022
- DHS Notice of Implementation of Uniting for Ukraine Process – April 27, 2022
- Biden Administration Expands Legal Pathways with Parole Strategy but Deeply Erodes U.S. Commitment to Asylum Protection – January 5, 2023
- Biden Administration Pairs Humanitarian Aid and H-2B Visa Expansion with Trump-Style Border Enforcement in Venezuelan Response Plan – October 13, 2022
Border Processing in the Interior
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.
- Practice Alert: Operational and Policy Updates from ICE Post-Title 42
- Featured Issue: Asylum and Credible Fear Interim Final Rule (enrollments are currently paused as USCIS focuses capacity elsewhere).
- Family Expedited Removal Management (FERM)
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 and CLINIC, Practice Pointer: Fixing Erroneous Addresses, May 3, 2023
- Practice Alert: EOIR to Create Dedicated “EOIR 33” Docket, December 13, 2023
- Cascading Errors of a Wrong Address, Think Immigration, August 24, 2022 – provides further background information on this issue.
- AILA and Partners Submit Recommendations to Fix Erroneous Addresses on Asylum Seekers’ Documents, September 15, 2022
- Hundreds of Migrants Were Sent to ‘Live’ in a Brooklyn Heights Office Building, Curbed, Sept. 15, 2022
- Border Agents Keep Sending Immigrants to Wrong Addresses with Little Regard for How It Could Affect Their Court Cases, Advocates Say, BuzzFeed News, September 21, 2022
Improving Access to Asylum-Based EADs
AILA is advocating to address the asylum work permit backlog, delays, and inefficiencies throughout the employment authorization (EAD) process. AILA is also a leading partner in the Let Asylum Seekers Work campaign.
- AILA supports the bipartisan House Asylum Seeker Work Authorization Act of 2023, reintroduced by Representative Chellie Pingree (D-ME) and the Senate Assisting Seekers in Pursuit of Integration and Rapid Employment (ASPIRE) Act introduced by Senator Kirsten Gillibrand (D-NY) and is working with coalition partners to promote this legislation.
- This bill enables asylum seekers to apply for an EAD within 30 days. It would also tie work authorization to the pendency of the asylum application, meaning renewals would no longer be necessary. This would help free up USCIS resources to focus on other types of EADs and bring down the backlog.
- Read AILA and coalition partner’s Policy Brief: H.R. 1325, Asylum Seeker Work Authorization Act of 2023
- AILA, the Council, and the Asylum Seekers Advocacy Project drafted and sent a recommendation letter in December 2022 with specific ideas on how to address these inefficiencies and inequities in processing the Form I-765.
- AILA and partners sent a letter to the administration urging the end to the asylum EAD clock.
- AILA and partners worked with Cities 4 Action on a bipartisan letter signed by over 50 mayors and county executives in March 2023.