By Kathreen Harrison

We need to stop playing politics with people’s lives. We need to stop trying to undo U.S. law and international law through bans like this. And we need to become a country that does truly welcome and does actually live up to the ideals that it claims on the world stage.

— Lisa Parisio

On February 23, the Biden administration proposed a rule change to asylum eligibility that many advocates are calling “an asylum ban” because passage would effectively make it impossible for most Black and Brown migrants to seek asylum in the U.S.

Lisa Parisio, ILAP’s Senior Policy and Outreach Attorney, said that the rule change represents a major shift in U.S. policy and would be “completely counter to our existing U.S. law, to the commitments that we have made under international law … and principles that asylum exists because people are fleeing persecution and they are in need of safety. Our law makes very clear that no matter how you are forced to travel to the United States, no matter how you were forced to enter the United States, you have the right to seek asylum. And what this rule does is undo those core principles of this humanitarian protection.”

If approved, eligibility for applying for asylum would be based on how people enter the U.S., including whether or not they traveled through a third country to get here. Most of those who enter through the southern border would be rejected if the rule change takes effect. The public has until March 27 to comment on the proposal.

According to the rule change, if you travel through a third country, you must apply for asylum in the country you are passing through. The trouble with this, according to Parisio, is that “… some of these countries may not have a functioning asylum system … and people may fear the same type of persecution that they fled for originally in their home country in one of these countries that they’re passing through. They may fear the government in these countries that they’re passing through…there may not be humanitarian protections. ..So when we are denying people asylum based on the fact they have to travel through a third country…we are … failing to recognize the reality that people are facing.”

El Paso, Texas | Phot courtesy of Sue Ann DiVito

And some of the logistical requirements of the new rule just aren’t practical – or worse. For example, the rule requires the use of a cell phone application called CBP One phone that many say is highly problematic. It is not available in some of the languages that many migrants speak; and the facial recognition technology it uses does not function well for people who have dark skin. Yet most of the people applying for asylum at the southern border do have dark skin.

As the Maine Immigrants’ Rights Coalition noted in a recent statement, “One of the main points of the new policy is that it essentially prohibits entry for anyone who does not use the new CBP One phone application to book an appointment at an official border point-of-entry. This development is especially poignant given we are now in the last few days of Black History Month; the CBP One uses facial recognition technology which has consistently been proven to disadvantage people with darker skin tones, such as asylum seekers from sub-Saharan Africa, Haiti, and parts of Latin America. Indeed, Maine has many immigrant communities who would have friends and family members affected by this.”

As the British-Somali poet Warsan Shire has written, “no one leaves home unless/home is the mouth of a shark.” Applying for asylum is something people do only when they have no other choice left to them. “People are not seeking asylum by choice. They have been forcibly displaced. They are making journeys and going through incredible difficulties,” Parisio said.

Nogales, Sonora | Photo courtesy of Frances Wheeler-Berta

The federal register listing the proposed rule change notes it is “…in anticipation of a potential surge of migration at the southwest border of the United States following the eventual termination of the Centers for Disease Control and Prevention’s (“CDC”) public health Order. The proposed rule would encourage migrants to avail themselves of lawful, safe, and orderly pathways into the United States…”

But advocates say those pathways are non-existent for just about everyone, and that is why people travel on foot through such treacherous jungles – fording rivers and risking death each day. If safe pathways existed, people would choose those.

Sue Roche, ILAP’s Executive Director said: “This rule will needlessly force already vulnerable people into even more disastrous situations, deny them their rights, and cost them their lives. Our energy and resources should be focused on building a just, humane, and welcoming asylum system which upholds the law and human rights – the administration must not move forward with this cruel and counterproductive rule.”

Nogales, Sonora | Photo courtesy of Frances Wheeler-Berta

The short timeline for public comment on this rule proposal is unusual. However, those wishing to respond to the rule change are urged to contact their elected officials; let them know your opinion; ask them to submit a public comment themselves – and quickly.

“Typically when a rule is proposed, the government will give 60 days for a public comment period which allows them to hear from the public, hear from experts, think about the proposal from all different angles that they may not have considered, understand what the consequences of it may be, what the other costs of it might be — and all of these really important pieces of feedback that our system needs from the outside stakeholders for our system to function the best possible. Unfortunately, this administration is trying to move this through quickly and is only giving the public 30 days to comment on this rule, which is extremely, extremely concerning and again will limit the amount of information that people are able to submit,” Parisio said

The federal register itself admits that “Economic and political instability around the world is fueling the highest levels of migration since World War II, including in the Western Hemisphere.” According to the UNHCR, the UN refugee agency, “In the first months of 2022, the number of people forced to flee war, violence and persecution worldwide surpassed 100 million for the first time.” Since then, numbers have continued to rise. 

Rabbi Joshua Lesser, President of Bridges Faith Initiative, has joined other advocates in refusing to condone a major change in law  based on inconvenience. “This proposed rule is reminiscent of the times that the United States manufactured excuses to turn back Jewish people and others escaping the Holocaust,” Lesser tweeted. 

“You know, people are coming because they need protection,” Parisio said. “They need help. So let’s invest our time and resources on helping welcome people and helping them to have the tools and the resources they need to rebuild their lives, to thrive, and to continue to make incredible contributions to Maine and communities across the country,”