News

What timing for Lee Gelernt (2020 winner of the Fraser Human Rights Award) to join us at the Human Rights Awards Dinner, as it was just a few weeks after the Biden Administration announced its latest, most sweeping regulation targeting the border. Despite promises of restoring the US to compliance with our international and moral obligations to migrants, the Biden Administration has caved to political gamesmanship and chosen to target asylum seekers, reprising enforcement-focused policies rather than making visionary changes that further ensure safe, orderly and fair pathways to migration and uphold the ability to seek safety with dignity. 

The Biden Administration kept the Title 42 expulsions, initiated by the Trump Administration, until May 2023 when they then instituted a sweeping asylum ban, also known as "Circumvention of Lawful Pathways" Rule. That rule has been under litigation, with at least one court finding that it violates the law by barring asylum based on manner of entry and for people who transit through third countries. Then, in May 2024, the Administration issued a proposed regulation to apply mandatory bars to asylum at the initial fear screening stage, putting decisions about nuanced and complex legal issues in the hands of asylum officers who are not trained as judges and requiring applicants to defend against such bars with limited access to counsel, language services, evidence and mental health supports. 

With very few exceptions, the June 4, 2024, Presidential Proclamation and an Interim Final Rules- which took effect within 24 hours of announcement-forecloses crucial protections for the vast majority of people who enter through the southern border. After seven days of at least 2500 average apprehensions-numbers that have been common for quite some time- changes to the asylum system are triggered and cannot be withdrawn until numbers dip below 1500 for two weeks. 

The Rule requires: 

• Doing away with immigration officials' obligation to affirmatively ask about fear of return and provide basic advisals on the right to asylum. Instead, people will have to spontaneously manifest a fear-also known as a "shout test;" 

• Raising the standard of proof that one must show to obtain protections;   

• Barring asylum for people who cannot enter on a visa, limited parole programs, or having obtained a CBP One App-based appointment.  

These changes are in violation of the Refugee Convention and Protocol, as well as US law through the Refugee Act of 1980. They also violate best practices in the Global Compact on Migration, punishing people for seeking safety in ways that will increase violent crime and exploitation as people are forced to seek alternative pathways to safety. 

The "shout test" will have a disproportionate impact on uncommon-language speakers as there is no guarantee a border agent will understand their expressions of fear. Similarly, people who have suffered torture or persecution will be impacted as they may be too fearful to express fear to a person in authority or uniform.  

Raising the standard of proof required to obtain asylum violates the UNHCR guidelines as well as undermining Congress' intent in setting a lower bar at the fear screening stage to ensure US compliance with protections against refoulement.   

Moreover, the UNHCR and federal courts have concluded that people cannot be barred from asylum based on their manner of entry, which this rule will do. Even the preamble to the Convention recognizes that the nature of fleeing harm often requires individuals to violate immigration laws. 

The rule is also problematic because it provided only 30 days for the public to comment-the bare minimum under the APA and a break with tradition for such weighty and sweeping policy changes. The rule also fails to provide adequate justification, basing its supposed need on incorrect data related to asylum and blaming asylum seekers for U.S. failures to adequately fund the infrastructure to process asylum claims instead of devoting ever-greater resources to enforcement-only policies. The data in the Rule mischaracterizes asylum grant rates after positive credible fear interviews as evidence that people are abusing the credible fear interview to benefit from long delays in processing. However, the data shows more than half of people who pass the interviews are later granted asylum when the case is decided on the merits-and that number increases when they have counsel, judges who correctly apply the law, and are not barred by the arbitrary one-year filing requirement. 

Luckily, the ACLU and others are again taking these illegal provisions to court-Lee Gelernt announced he intended to sue the government again the day the regulation was issued. That case is on a fast-track for decision but has not had an injunction issued. This means that it remains in effect, with the full weight of its humanitarian harms being wrought against people seeking to exercise their right to asylum and the communities that wish to welcome them. 

At The Advocates, we are working on ensuring our intake and legal services respond to these changes and keep abreast of ongoing whiplash. We also commented on the Mandatory Bar regulation with the support of volunteers from Stinson, and commented on the June 4 bars despite the limited, 30-day window. We will continue to advocate for the rights of migrants to be upheld in the US, especially as anti-immigrant sentiment plays a prominent role in this year's election cycle.