Circumvention of Lawful Pathways
February 28, 2023 5:59 PM   Subscribe

The Department of Homeland Security and the Department of Justice issued a notice of proposed rulemaking regarding asylum seeking last week. Public comment is open in the Federal Register until March 27.

The proposed rule would make ineligible for asylum any noncitizens who cross the southwest land border without authorization unless they have been denied asylum in a third country through which they traveled, used the CBP One app to schedule an appointment at a port of entry, or some other limited exceptions.

Organizations that oppose the rule include immigrant advocates American Immigration Lawyers Association, Florence Immigrant and Refugee Rights Project & Kino Border Initiative, the US Committee for Refugees and Immigrants, Human Rights Watch, the anti-immigration Federation for American Immigration Reform, and the conservative think tank Heritage Foundation.

Rep. Henry Cuellar (D-TX) says it's reasonable while Congressional Hispanic Caucus Chairwoman Rep. Nanette Diaz Barragán (D-CA) says it goes against our national values.
posted by joannemerriam (35 comments total) 6 users marked this as a favorite
 
remember when democrats do it its not fascism
posted by lalochezia at 6:43 PM on February 28, 2023 [15 favorites]


I would like to leave a comment. All are welcome here. Can someone please identify a few of the most important talking points for me?
posted by aniola at 6:49 PM on February 28, 2023 [2 favorites]


This applies only the southwest border.

COME THE FUCK ON.
posted by Slackermagee at 7:03 PM on February 28, 2023 [17 favorites]


How's the reunification of asylum-seekers with their children going, Mr. President?

If someone has a legitimate explanation of why we can't do better than this I'm willing to sit still long enough to listen but be forewarned: I'm gonna need some serious convincing. Some evidence that we are at least trying might help make that case, though I haven't seen any so far.
posted by Nerd of the North at 7:30 PM on February 28, 2023 [6 favorites]


I think this actually violates the Convention on Refugees.
posted by grobstein at 8:34 PM on February 28, 2023 [9 favorites]


I hate that we're in the timeline where "not quite as completely and utterly fucked as it could be" is what we're aiming for as a nation.
posted by wierdo at 8:53 PM on February 28, 2023 [1 favorite]


Can someone please identify a few of the most important talking points for me?

I don't know the most important talking points, but here are some things I believe, as a private citizen:

1) Your comments on this federal rule are really important. Agencies are required to respond to all comments, and explain their rationale for not incorporating a comment. This can be used in ultimate court challenges to the legality of this rule. Thus: talking about 'you immoral SOBs' may not be helpful, but '

2) You are more likely to force them to respond when you "reference a specific portion of the proposed rule; explain the reason for any recommendation; and include data, information, or authority [who are you? why should they listen?] that supports the recommended course of action"

3) Similarly when you address the things they say they are asking for,
"Whether the proposed duration of the rule should be modified, including whether it should be shorter, longer, or of indefinite duration;

Whether the Departments should modify, eliminate, or add to the proposed grounds for necessarily rebutting the rebuttable presumption;

Whether the Departments should modify, eliminate, or add to the proposed exceptions to the rebuttable presumption;

Whether the proposed mechanisms for evaluating asylum, statutory withholding, and CAT claims should be retained or modified;

Whether any further regulatory provisions should be added or amended to address the application of the rebuttable presumption in adjudications that take place after the rule's sunset date; and

Whether the proposed rule appropriately provides migrants a meaningful and realistic opportunity to seek protection.

In addition, although the Departments have not identified any persons or entities with justifiable reliance interests in the status quo concerning eligibility for asylum—which is an entirely discretionary benefit—the Departments welcome comments on the existence of reliance interests and the best ways to address them.
4) They are required by executive order to assess the costs and benefits of the proposed rule and its alternatives. You can argue that there are more costs they are unaware of! Or more benefits to the alternatives!

5) Here are some factors that have caused courts to hold rules to be arbitrary and capricious before. Sure would be a shame if some comments made arguments that allowed some of these arguments to be made when the final rule came down!
-contradicting the “expert record evidence” without explanation
- “fail[ing] to provide any coherent explanation for its decision”
- failing to consider circumstances that “warrant different treatment for different parties” reaching a conclusion that contradicts the underlying record
- failing to consider a relevant and important factor in making a decision
- issuing a rule that was based on “pure political compromise, not reasoned scientific
endeavor”
- failing to “exercise sufficiently independent judgment” by deferring to private parties
- utilizing a model for studying risk that was inconsistent with the underlying data.
posted by corb at 9:01 PM on February 28, 2023 [31 favorites]


I think this actually violates the Convention on Refugees.

Isn't that one of the ones we aren't signatory to & have a law on the books authorizing an invasion of the Hague if anybody were held accountable to it for?
posted by CrystalDave at 10:03 PM on February 28, 2023 [1 favorite]


No, you're probably thinking of the Rome Statute, which the US actually did sign but has since indicated that it does not plan to ratify, and which is the subject of the US "Hague Invasion Act."

The US acceded to the Convention on Refugees through the 1967 protocol.
posted by grobstein at 10:21 PM on February 28, 2023 [3 favorites]


I think this actually violates the Convention on Refugees.

Quite possibly, certainly it violates the spirit of the convention.

It has been the repeated finding of various European courts that countries are not permitted to deny asylum applications based on method of entry. It is legal to return them to a safe third country pending resolution of an application but obviously that requires that country to be willing to take them and for that country to be genuinely safe.

Countries also go to incredible lengths to avoid letting you in so that you can actually file an application in the first place. Whether's that's FRONTEX working with neighbouring governments (and actual people traffickers) to keep people out of the EU external frontier, or the UK refusing to create any asylum application locations in Calais.
posted by atrazine at 3:28 AM on March 1, 2023 [4 favorites]


I an reminded once again that Our Founding Fathers, the Framers of the Constitution enjoyed Open Borders, which is why they never gave Congress authority to regulate where Free People choose to travel and reside (or build walls) and that the word "immigration" does not appear anywhere in the US Constitution.
posted by mikelieman at 4:22 AM on March 1, 2023 [6 favorites]


he word "immigration" does not appear anywhere in the US Constitution.

Its sibling does, however, appear in the Declaration of Independence.

"[Kng George] has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands."

Mind you, Ben Franklin took a dim view of Certain People.
posted by BWA at 5:16 AM on March 1, 2023 [2 favorites]


I hate that we're in the timeline where "not quite as completely and utterly fucked as it could be" is what we're aiming for as a nation species. FTFY!
posted by dannyboybell at 6:19 AM on March 1, 2023 [2 favorites]


Can someone please identify a few of the most important talking points for me?

I'm still formulating my own comment for submission, but here are some comments that I think are particularly insightful or well-stated for inspiration: National Korean American Service & Education Consortium, Peter Nixon, Just Neighbors Ministry, Ruth Fertig.
posted by joannemerriam at 7:14 AM on March 1, 2023 [2 favorites]


This is always a handy chart for comparing Democratic and Republican approaches to immigration in the last 40 years.
posted by derrinyet at 7:27 AM on March 1, 2023 [2 favorites]


IMHO a bitter truth that a lot of very liberal people need to hear is that the whole "let them all in" thing is electoral poison. There is a very small minority of people who believe passionately that borders should be mostly open, and who are wildly overrepresented in certain forums like this one; the overwhelming majority of Americans, and a solid majority of Democratic voters, want tightly-controlled borders and these economic migrants kept out. Trump used cruelty to them to appeal to his base; Biden is trying to thread the needle between seeming compassionate and upholding border security. Were he to "let them all in", he and any supporter of that would be absolutely trounced in the next election.

My personal feelings on the subject are completely irrelevant, here: I'm talking about the long run. Letting them all in or something similar will result in Republican supermajorities, full stop.
posted by outgrown_hobnail at 8:45 AM on March 1, 2023 [2 favorites]


outgrown_hobnail, yes I'm very sure we're all political grown-ups so we know that.
posted by atrazine at 8:50 AM on March 1, 2023 [2 favorites]


Clearly.
posted by outgrown_hobnail at 8:57 AM on March 1, 2023


Is there much evidence to show that this is an issue that likely-Democratic voters base their vote on (one way or the other)? It's my impression that for the most part people don't pay any attention and don't care, and are basing their votes on economic issues, LGBTQ rights, healthcare and abortion, but I don't live in a border state and since I'm an immigrant myself, maybe the Americans around me don't feel free to express themselves fully on this issue.
posted by joannemerriam at 8:59 AM on March 1, 2023 [2 favorites]



IMHO a bitter truth that a lot of very liberal people need to hear is that the whole "let them all in"


does that include the huge line of strawmen?

fox et all will ALWAYS, ALWAYS, ALWAYS sell ANY tiny diversion from closed, militarized anti-brown-human borders as "let em all in". you will NEVER appease them enough. there are a myriad more humane decisions between "open borders" and "what we do now" , that if we were smart, and willing to expend capital (human and $$) that we could shift the discussion on.

but we - and by we, I mean "liberals" - are scared of this approach. not only because of the power of fox et al, but also, to be blunt, because secretly we agree with a lot of the "i got mine" philosophy of the borders as they are constructed. just in less overtly racist ways.
posted by lalochezia at 9:01 AM on March 1, 2023 [6 favorites]


but we - and by we, I mean "liberals" - are scared of this approach. not only because of the power of fox et al, but also, to be blunt, because secretly we agree with a lot of the "i got mine" philosophy of the borders as they are constructed. just in less overtly racist ways.

Talk about a strawman. You're assuming that someone who opposes open borders must be a racist, whether overt or covert. But many people oppose open borders from the point of view of American workers, whose wages will be undercut by the tsunami of economic migrants that open borders would unleash.
posted by outgrown_hobnail at 9:06 AM on March 1, 2023


But many people oppose open borders from the point of view of American workers, whose wages will be undercut by the tsunami of economic migrants that open borders would unleash.

Maybe, but there is little evidence that such wage undercutting actually happens, except maybe amongst those Americans whose educational/job opportunities are so low as to be in competition with new, just-short-of-undocumented immigrants.


Also, fine that actual open borders might be considered a problem, but is it currently a problem , or is Joe Biden cowtowing to Republican governors over a made up problem, they can use to control narrative and rile up their racist base? The answer is it is not, and yes he is folding like a cheap suit.
posted by The_Vegetables at 9:21 AM on March 1, 2023 [1 favorite]



Talk about a strawman. You're assuming that someone who opposes open borders must be a racist, whether overt or covert. But many people oppose open borders from the point of view of American workers, whose wages will be undercut by the tsunami of economic migrants that open borders would unleash.


glad you read my explicit comment that

there are a myriad more humane decisions between "open borders" and "what we do now" as "open borders". '

as 'open borders'

a hanlon's razor to you! you are arguing in poor faith.
posted by lalochezia at 9:26 AM on March 1, 2023 [1 favorite]


Is there much evidence to show that this is an issue that likely-Democratic voters base their vote on (one way or the other)? It's my impression that for the most part people don't pay any attention and don't care, and are basing their votes on economic issues, LGBTQ rights, healthcare and abortion, but I don't live in a border state and since I'm an immigrant myself, maybe the Americans around me don't feel free to express themselves fully on this issue.

I think the thing that is not widely understood is that the US economy has depended for decades on labor from immigrants outside the formally legitimate streams. Anti-immigration policy is not really about keeping "them" out at all -- doing so would be destructive to the most powerful interests in US society. It's about excluding an enormous class of people who live and work and pay taxes in America from the legal protections they would be entitled to as legal residents or citizens. This suits big employers just fine, because it means you don't have to treat your workers according to minimum legal standards, and if they get uppity you can threaten to call La Migra on them. And it can be sold to people who are anxious about their place in the pecking order because it means there are some people solidly below them, who don't compete to access the ever-dwindling public resources being an American entitles you to. But the part about physical exclusion is mostly a fantasy, a cruel pantomime of the real social exclusion.
posted by grobstein at 9:43 AM on March 1, 2023 [18 favorites]


Like policing, the current US immigration systems and restrictions on movement of people across borders are structurally and inherently racist.

Now, if we were talking about opening borders to people but putting more restrictions on the movement of capital, then the claim that there are reasons to oppose open borders that aren’t in some way and on some level racist might have some validity.

These are the sort of conversations we need to be having in order to shift the discussion so that it doesn’t always just assume Fox News framing.
posted by eviemath at 9:55 AM on March 1, 2023 [3 favorites]


Thanks to corb for this excellent and detailed comment on points to touch on in public comments.

I love a good fight over the morality and constitutionality of immigration controls in general, but I think it would be better to keep this particular thread focused on this particular proposed regulatory change.
posted by Not A Thing at 11:01 AM on March 1, 2023 [3 favorites]


Eyerolling that Henry Cuellar supports this. Every bad thing that the furtherest left person any of y'all know says about Democrats that you think is untrue is probably true of Cuellar.

Waiting until I get a chance to read the links to comment further but Cuellar always gets a raspberry from me and not in the delicious fruity way.
posted by gentlyepigrams at 11:31 AM on March 1, 2023 [2 favorites]


But many people oppose open borders from the point of view of American workers, whose wages will be undercut by the tsunami of economic migrants that open borders would unleash.

Indeed. That was the rhetoric behind the very first so-called "immigration law" that unconstitutionally closed the heretofore open borders. The 1875 Page Act was introduced to "end the danger of cheap Chinese labor and immoral Chinese women".
posted by mikelieman at 2:40 PM on March 1, 2023 [1 favorite]


I think you're trying to make the point that such rhetoric is, indeed racist? But in case not, I will not that wages are undercut by anti-union governments and labor laws, and (historically at least) direct violence and (currently as well) other retaliation against workers organizing together. Often one form such tactics take is stirring up racist and xenophobic sentiment to try to atomize and isolate sub-groups of workers.

But more to the point, the proposed rule change that is the subject of this fpp is fairly blatantly racist.
posted by eviemath at 4:04 PM on March 1, 2023 [1 favorite]


Congressional Hispanic Caucus Chairwoman Rep. Nanette Diaz Barragán (D-CA) says it goes against our national values.

I dunno, it seems pretty on-brand to me.
posted by Kadin2048 at 8:55 PM on March 1, 2023 [1 favorite]


There are arguments against immigration that might make at least some sense in a completely different context where we had a substantially larger volume of immigrants than we do presently or have had at any time in recent history. It does, after all, take some time for the economy to adjust to increased activity and for housing to get built, etc.

That's got fuck all to do with asylum-seekers, though.
posted by wierdo at 6:29 AM on March 2, 2023


This is super-depressing. I had followed Biden's policy statements on immigration prior to the election and I actually thought he was pretty good. Safe to say he hasn't lived up to that.

Good places to find more info might be RAICES, or if you want to go deep my favourite source is the Forced Migration Current Awareness blog. They cover the whole world, but every post is either regional or thematic, and there's a lot of US content (ranging from hardcore academic articles to NGO groups to news items).

In terms of arguments against, there's certainly nothing in the Refugee Convention to say that people who have passed through a third-country can't claim asylum, though apparently there is under US law, provided certain circumstances are met. If I was arguing, I'd consider making similar points to those here (especially noting the concerns around credible fear screenings and expediated removal - evaluating asylum claims is not something that can be done quickly!).

This applies only the southwest border.

COME THE FUCK ON.

In practice I suspect the effects will be identical even if it didn't - there aren't a lot of people crossing between the ports on the Canadian border. [But then why even specify the SW border? I'd call it a dogwhistle but it's too loud for that].

But many people oppose open borders from the point of view of American workers

Agreed that they do, but whether they are right or wrong, that's a separate issue from the right to claim asylum, which is something the US signed up to. Everyone has the right to claim and have that claim evaluated fairly.
posted by Pink Frost at 4:00 PM on March 2, 2023 [4 favorites]


Finally took some time to read the links and this is really bad but unfortunately unsurprising. I feel like the Anglophone and western European countries have collectively just decided to say fuck you to people, especially global south people, seeking asylum and this is one more middle finger issued to people in dire need of assistance. Refugees and asylees shouldn't need a smartphone app to ask for help.

I feel like this is part of the ongoing socioeconomic impact of climate change and post Cold War policies throughout the world. The world is more insecure, natural disasters are more frequent (as I write this, the tornado sirens where I am just cut out 15 minutes ago and I just got another severe weather alert on my phone), and the economy sucks everywhere. And the rich parts of the world just want to close the gates and keep the folks on the outside out.

America has long been selfish in this way but scarcity is making it more so.
posted by gentlyepigrams at 4:48 PM on March 2, 2023 [4 favorites]


In case it's of interest, here is my comment.
posted by joannemerriam at 5:39 PM on March 6, 2023 [4 favorites]


joannemerriam: if only we could flag as fantastic there
posted by adamsc at 4:35 AM on March 7, 2023 [1 favorite]


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