Florence Project and Kino Border Initiative: Biden’s Asylum Ban is Immoral and Illegal

Florence Project and Kino Border Initiative: Biden’s Asylum Ban is Immoral and Illegal
The asylum processing rule will block access to protection for most migrants.

Nogales, AZ – Today, the Biden administration released its final asylum ban rule, despite comments from thousands of individuals and organizations opposing it, including the Florence Project and the Kino Border Initiative. The new rule will take effect on May 11 and will block most people from asylum unless they have first applied for protection in Mexico or another country they traveled through, or they manage to secure one of the very few appointments available to present at a Port of Entry through the CBPOne app. Thus, just as the needless and cruel Title 42 border closure is finally lapsing, the Biden administration is replacing it with this new rule that is equally cruel and illegal in many ways. The rule will harshly penalize people who do not use the app to schedule an appointment to present, including reinstituting a five-year ban for people who enter the country between Ports of Entry and illegally demanding that people pass a heightened standard for fear screenings or prove “exceptionally compelling circumstances,” for their failure to use the app in order to have the opportunity to be considered for asylum.

The rule will render ineligible for asylum people like Juan*, who fled Venezuela due to political persecution and violence. He trekked through the Darien Gap, one of the most treacherous migration routes in the world. Juan recounted seeing people dead along the way and feared he would not make it. But he did. And he continued his journey through Panama, Costa Rica, Nicaragua, Honduras, Guatemala, and lastly, Mexico. In Mexico, Juan was extorted numerous times by Mexican authorities and kidnapped three times. He explained that during one of these  encounters, Mexican immigration authorities abducted him with their faces covered.  Juan survived and made it to the southern border, where he now battles to secure an appointment to seek asylum through the CBP One application. When asked if he tried to seek asylum in another country before seeking asylum in the United States, he said, “My journey through Mexico was worse than anything that I experienced in the Darien Gap. Why would I ever seek asylum in a country that has nearly killed me several times? I cannot stay here. I am not safe here.”

“This rule is cruel, punitive, and effectively ends asylum for the majority of the people we serve,” said Laura St. John, Florence Project Legal Director. “Rather than using his presidency to restore humanity and dignity to the border, President Biden has chosen to double down on the Trump playbook and implement a slew of anti-immigrant restrictions that will illegally block thousands of people from accessing protection in the United States. We are bitterly disappointed that despite tens of thousands of comments in opposition and the abject cruelty of this rule, the administration has decided to move forward with it. In addition to narrowing the pathway for accessing asylum to a largely inaccessible and discriminatory app, the rule implements extremely punitive consequences for people who enter between ports of entry, something that even a cruel expulsion policy like Title 42 didn’t do. We stand in solidarity with the people we serve and partner organizations in wholeheartedly opposing this rule and will continue to strive for a welcoming border for all.” 

The rule introduces a two-part ban on asylum: a transit ban similar to one implemented by President Donald Trump that was repeatedly struck down by the courts, and an entry ban. The transit ban bars access to asylum for anyone who has passed through a third country (including Mexico) on their way to the U.S. and has not requested and been denied protection there first. The entry ban bars access to asylum for people who enter the U.S. between ports of entry, despite this being a legal way to access U.S. territory to seek protection. 

People who present at the port of entry with an appointment booked via the CBPOne app will be exempted from these bans. However, as we have consistently explained for months, any system that relies heavily or exclusively on an app to determine who has access to asylum and who does not is inherently unfair and discriminatory. This is no different. In order to secure an appointment, one must have a strong, reliable internet connection; have access to and be able to navigate a smartphone; be able not only to read, but to do so in one of the only four languages the app allows: English, Spanish, Haitian Kreyol, or Russian. Technological issues aside, there is also no way to make any system relying on an app and people waiting for a chance to present to ask for protection comport with the fundamental requirement under United States law that people in or arriving to the U.S. must be allowed to seek asylum no matter where or how they came to the U.S.  

“The stories of so many families and individuals weigh heavily on my conscience as I continue witnessing stricter and inhumane border restrictions being implemented one day before the end of Title 42,” said Pedro De Velasco, Director of Education and Advocacy for the Kino Border Initiative. “How can we look our brothers and sisters in their eyes after they have survived the most unimaginable violence and persecution and tell them that the only way to access much-needed asylum is through a dysfunctional application like CBP One? Migrants from all across the region tell us daily that the violence they endured in Mexico was worse than any horrors they survived journeying through the Darien Gap. These individuals and families are now forced to wait their turn to schedule an appointment through CBP One in the same country that endangered them. To add salt to the wound, the Biden Administration dares to dismiss over 50,000 public comments against the asylum ban and to proclaim the regulation as ‘humane.’ Our faith teaches us to welcome the stranger and protect people from violence, especially those most at risk. This regulation does the opposite and is therefore far from humane.”

The Biden administration also rushed the final rule into effect before the end of the Title 42 border closure on May 11. The rule was initially proposed through notice and comment rulemaking, and the Florence Project, Kino Border Initiative, and over 50,000 other people and organizations submitted comments in opposition. The administration was obligated to consider each individual comment before implementing a final rule, a process which takes months. Yet just six weeks later, a nearly identical rule is being implemented at the border. 

In the Biden administration’s own words, their approach with this new rule is rooted in enforcement and deterrence. It is notably not rooted in providing a humane and fair process to those seeking protection and indeed, specifically aims to deter migrants by restricting access to asylum. We must all demand that the U.S. government devote its resources to processing people fairly, instead of to denying people fair process.  

The Florence Project and the Kino Border Initiative stand together and in solidarity with all the people we serve to continue to call for the restoration of a robust, humane, and orderly asylum process at the United States-Mexico border that treats every person with dignity.