News & Views

Oppose the Department of Homeland Security’s (DHS’) Proposed Rule, “Circumvention of Lawful Pathways” – Deadline March 27, 2023

Read HIAS PA’s Agency Letter in Opposition to Circumventing Legal Pathways Proposed Rules


Submit your comment in opposition to the Department of Homeland Security and the Department of Justice’s proposed rule, “Circumvention of Lawful Pathways”.

HIAS PA’s clients and supporters should weigh in on this proposed rule which will result in preventing asylum seekers from entering the US and seeking asylum. There are a variety of problems with the proposed rule, as outlined below.

Please create a comment, using any or all the problems listed below, adding your unique information to the comment to make it stronger (such as personal experiences you or someone you know had) and submitting it through this portal. Or, if you prefer, feel free to use the ideas provided by a national ally, Immigration Justice Campaign. If you click on this link, it will take you to their website where they have sample comments that you can use and submit.

HIAS PA’s main concerns about the proposed rule:

  1. It does not solve the real problem at our Southern border.

Many media reports and politicians have spoken about the enormous numbers of persons seeking asylum at our Southern border. It is true that the numbers of displaced persons in the world, and therefore the numbers of persons seeking safety in our country, have risen dramatically over the last several years. Climate change has caused droughts, floods and other natural disasters which have increased food and water scarcity in many parts of the world. The war in Ukraine and the withdrawal of the United States from Afghanistan have also caused massive displacement. Destabilized governments and rising gang violence have contributed to the displacement of Haitians, Guatemalans, Venezuelans, Hondurans, and El Salvadorans. All these things have led to rising numbers of persons seeking safety. However, the numbers at our Southern border are not what is causing the problem. The problem is that while increasing numbers who meet the initial criteria to be permitted to enter the country to seek asylum are permitted, as they should be under both our laws and international laws, to enter our country, they are not permitted to work.

When you are permitted to enter the country to seek asylum, under current law, you cannot receive authorization to work until six or seven months AFTER you file a petition in a court seeking asylum. This leaves those who have fled persecution with no ability to support themselves or their families for several months – sometimes as long as a year. During that time, not only are they not eligible to work but also, they are not eligible to receive Medicaid, food stamps, cash assistance, public housing or, in many states, a driver’s license. So, all these people who are eligible for asylum are left to rely on churches, food banks and privately run homeless shelters until they can receive their work authorization. This is the true problem, and it is solvable by granting work authorization at the border to all of those permitted to enter the country to seek asylum. Keeping people out simply violates our own obligations under our Constitution and international law. It does nothing to address the needs of asylum seekers.

Keeping people out in this moment, when there are staffing crises in every industry except tech, is also bad for our own citizens. Work authorization for asylum seekers at the border would not only significantly reduce burdens on charitable institutions, it would also go a long way towards resolving the staffing crises that are causing small businesses to close or reduce operations. It would rejuvenate our floundering economy and increase our tax base.

  1. The rule proposes overreliance on an app called CPB One.

CPB One has been proven to not work for brown and Black persons. The app includes facial recognition software that is meant to ensure that persons can easily, through uploading a photo to taking a selfie, identify themselves. However, the app has repeatedly been proven to not recognize photos or selfies of Black or brown migrants. Additionally, the app has frequently misidentified two separate Black or brown individuals as the same person. The inability of the app to deal consistently and appropriately with Black and brown immigrants is unconstitutionally problematic.

In addition, there are significant privacy concerns about the app. According to DHS, use of the app is voluntary and therefore should not pose a privacy concern. However, the proposed rule requires use of the app with limited exceptions therefore it does not seem “voluntary” for those who seek asylum.

Relatedly, instructions about the app – what it is, how to use it, and privacy risks – are not written in plain language. Therefore, even for English speakers, it is confusing and misleading. Furthermore, these confusing instructions have been translated into Spanish and Haitian Creole only. Given the number of countries that people come from who seek asylum at our Southern border, this is hardly adequate language access.

Finally, as mentioned above, the proposed rule does exempt those who do not have access to technology, access to adequate technology or some difficulty in using the app from using CBP One. However, the proposed rule provides no guidance at all for how to apply for this exemption and what happens if you receive an exemption.

  1. The rule requires asylum applicants who have traveled through other countries before getting to the United States to seek asylum in those countries before being able to seek asylum in the US.

This part of the rule is problematic because most people traveling through other countries before getting to our Southern border must go through El Salvador, Honduras, or Guatemala before arriving in the US. These three countries all have what the United States’ Department of State has considered non-viable asylum systems. The Department of State released a report in 2021 discussing the asylum systems in each of these countries and found them to be significantly lacking. Two of them were considered to have processes that were too confusing and vague to access. One of them had a process that did nothing to protect the asylum seeker from violence while trying to access the process. It is unconscionable for our country to require those fleeing danger to delay their ability to reach safety by requiring them to participate in processes which we know to be faulty and unhelpful at best.