Doctors Without Borders Médecins Sans Frontières (MSF) submitted the following comment in opposition to the rule proposed by the Department of Homeland Security (DHS) and the Executive Office for Immigration Review (EOIR) on Circumvention of Lawful Pathways, CIS No. 2736-22; Docket No: USCIS 2022-0016; A.G. Order No. 5605-2023.
MSF is writing to strongly object to the proposed rule on the “Circumvention of Lawful Pathways” and demand that it be withdrawn entirely. The proposed rule, published on February 23, 2023, would establish a “presumption of ineligibility” for asylum for most noncitizens who cross the southwest land border of the US without authorization. Based on its expertise and experience working with asylum seekers and migrants in Mexico, MSF is extremely concerned about the devastating impacts this sweeping rule would have on the physical and mental health of people seeking safety. The implementation of the rule would only exacerbate humanitarian needs and unsafe conditions along the US-Mexico border and in other locations on the migration route. MSF urges the concerned US government agencies to withdraw the proposed rule. The Biden administration should instead focus on restoring full access to asylum at ports of entry, in line with US law and international obligations.
MSF and its interest in the issue
MSF is an independent international medical humanitarian organization that delivers neutral and impartial emergency aid to people affected by armed conflict, epidemics, natural and human‐made disasters, and exclusion from health care in more than 70 countries. We were awarded the Nobel Peace Prize in 1999. The decision to offer assistance in any country or crisis is based solely on our independent assessment of needs. Our financial independence allows us to provide aid free from any governmental influence that could be used to further political or military goals. MSF is currently responding to some of the world’s most severe humanitarian crises, including in Afghanistan, Syria, Yemen, Democratic Republic of Congo, and South Sudan.
Since 2012, MSF has been actively addressing the health needs of tens of thousands of asylum seekers, migrants, and forcibly displaced people across the region—including in Mexico, Honduras, Guatemala, Panama, Peru, and Haiti. Our teams provide comprehensive primary health care, mental health, social services, and health promotion activities.
In Mexico, MSF is currently operating through a team of 381 employees across eight projects, including along the US-Mexico border in Nuevo Laredo, Piedras Negras, Reynosa, and Matamoros. In 2022 alone, we provided 44,388 primary health consultations, including to migrants and refugees suffering from illnesses caused or aggravated by the conditions they faced in transit or while stranded in Mexico. Last year MSF provided over 6,000 mental health consultations to migrants and refugees suffering from mental distress largely caused by the violence, loss, and uncertainty they experienced in their home countries and along the migration route. We have also provided care to survivors of sexual and gender-based violence who were forced to travel through unsafe routes or to stay in insecure locations.
Over the past decade, MSF has vocally opposed numerous efforts by successive administrations to block access to asylum at the US southern border as these restrictions put the health, safety, and lives of our patients at risk. These harmful policies have included metering, the so-called Migrant Protection Protocols, family separation, and the misuse of the Title 42 public health order. While MSF looks forward to the potential lifting of Title 42 in May, we are deeply disturbed that the Biden administration is seeking to radically limit access to asylum at the southern border through the proposed rule.
MSF has repeatedly urged the Biden administration to live up to its commitments to build a safe and humane immigration and asylum system. The proposed rule betrays the pledges made by President Biden in his Executive Order issued in February 2021 to “restore and strengthen our asylum system, which has been badly damaged by policies enacted over the last four years that contravened our values and caused needless human suffering.”
In fact, these extreme restrictions on access to asylum now proposed by the Biden administration mirror the most harmful immigration restrictions imposed by the Trump administration. The Biden administration’s proposed rule on the “circumvention of lawful pathways” specifically restricts access to asylum for most people seeking entry along the US southern border without authorization—and will therefore have disproportionate impacts on brown, black, and indigenous people who come from or are transiting through Central America and Mexico.
The potential implications of the proposed rule
The implementation of the proposed rule would sharply curtail access to asylum for vulnerable people forced to flee. While the drivers of migration across the Americas region are manifold, most of the people we treat have been displaced by extreme circumstances. From the surveys we regularly conduct with asylum seekers and migrants and through daily interactions with our patients, we know that the majority make the painful decision to leave their homes because of violence, persecution, insecurity, and economic collapse. In many cases, our patients are pushed onto the migration route by direct attacks, threats, extortion, or forced recruitment by armed groups. The intense pressures driving people to leave their homes far outweigh considerations of the risks they will face while on the move or the dim prospects of entry into the US. As MSF has repeated time and again, highly restrictive migration measures do not stop migration. These harsh policies expose vulnerable people to more danger and often drive them to seek riskier pathways to safety. The proposed rule change and its “presumption of ineligibility” for asylum would further compound the suffering.
The rule provides potential grounds for rebuttal, including for people facing an acute medical emergency, imminent and extreme threat to life or safety, or who were the victim of a severe form of human trafficking. However, the rule requires an individual to demonstrate "exceptionally compelling circumstances by a preponderance of the evidence”—a requirement that will be exceptionally difficult for most asylum seekers to meet.
Since 2012, MSF has documented and responded to the violence and poor living conditions endured by asylum seekers and migrants traveling through Central America and Mexico. From sexual assault to mugging to kidnapping, people face threats along the migration route similar to those that drive them to flee their homes in the first place. Harsh US migration policies have for years trapped vulnerable people in cycles of poverty and violence in Mexico.
Through this rule, the Biden administration is attempting to funnel all asylum processing at the US southern border through CBP One—a notoriously inaccessible and systemically flawed mobile application. The proposed rule acknowledges some of the failures of the program, carving out a narrow exemption for asylum seekers who have established that “it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.” Mandating CBP One as the primary pathway to asylum at the US southern border would create a de facto metering system, whereby people seeking protection in the US are made to wait for weeks if not months in northern Mexico while competing over a limited number of ports of entry appointments. Gaining access to scarce appointments via the app seems to be based mostly on luck rather than waiting time. The proposed rule will likely leave large numbers of asylum seekers and migrants stranded in under-resourced and dangerous border areas in Mexico.
The towns along Mexico's northern border are not equipped to provide even the most basic services to asylum seekers and migrants stranded there due to harsh US restrictions. The number of migrants concentrated in these areas is likely to grow if the proposed rule comes into effect, placing further strains on local capacity. Towns like Reynosa and Matamoros are dealing with localized humanitarian crises, despite being under-resourced and experiencing elevated levels of violence by organized crime. Health care, shelter, water and sanitation services, food, and education are all lacking for migrant communities.
At times, MSF has had to expand beyond its regular health programming—even into food distribution—to meet urgent needs. By blocking migrants along Mexico’s northern border and other areas for potentially extended periods of time, the proposed rule is likely to exacerbate existing humanitarian needs and create new needs to which MSF and other organizations will have to respond. The prospect of increased needs comes at a time when global humanitarian funding is already falling far short.
The proposed rule attempts to push refugees to seek asylum in transit countries that have no formal agreements with the US and where refugees would find neither safety nor meaningful avenues to protection. In the proposed rule, the administration refers to “increased access to protection” provided by other countries in the region. The rule makes securing asylum in the US for those who enter without authorization conditional, in most cases, on the denial of asylum in transit countries. While the administration recognizes that not all transit countries offer “viable” protection options for migrants and asylum seekers, it is still attempting to impose a ban on those who do not seek asylum in those countries first. The administration appears to be deliberately ignoring the severity of the violence and abuse that people are facing in many of these countries, including in Mexico, Panama, and Guatemala.
In addition, the administration fails to recognize how inadequate or overburdened the protection systems in some transit countries truly are. MSF has been responding to the impact of endemic violence, insecurity, and economic failure on people living in many of these transit countries. While some of these countries have taken steps in the right direction to provide protection to people seeking safety, they are still facing enormous security, economic, and humanitarian challenges. Whatever margin of protection has been created in these transit countries for some refugees, it should be supported by the Biden administration and not exploited to offload its own responsibilities.
According to the Biden administration, the proposed rule seeks to “disincentivize this expected surge of irregular migration and instead incentivize migrants to take safe, orderly, and lawful pathways to the United States.” Based on our work with people in the region over the past decade, we strongly believe the proposed rule will do far more harm than good. The proposed rule will expose the most vulnerable asylum seekers and migrants to further violence, push them to seek riskier pathways to enter the US, and increase their need for humanitarian assistance.
MSF calls on the Biden administration to withdraw this rule in its entirety, to move away from misguided and harmful border management policies, and rebuild a safe and humane asylum processing system.