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LSSNCA's Public Comment Regarding the Notice of the Proposed Rulemaking: Circumvention of Lawful Pathways. (The Administration's Proposed Asylum Restrictions)

We are Lutheran Social Services of the National Capital Area (LSSNCA), a nonprofit human services organization serving immigrants and refugees in the District of Columbia, Virginia, and Maryland. LSSNCA has served the Washington, D.C. metro community for more than 100 years leading with a vision of an inclusive community of well-being where people thrive. We are the largest refugee resettlement agency in the region and served more than 4,500 Afghan Allies following the fall of Kabul to the Taliban. In fiscal year 2022, LSSNCA served 425 asylum-seekers and asylees. We provide mental health services to asylum-seekers enrolled in Immigration and Customs Enforcement (ICE)’s Intensive Supervision Appearance Program (ISAP). We also provide case management, workforce development services, immigration legal services, financial assistance, cultural orientation classes, English as a Second Language services, and housing support to asylees. 

This public comment is in response to the Department of Homeland Security (DHS), United States Citizenship and Immigration Services (USCIS), and the Department of Justice (DOJ) Executive Office for Immigration Review’s (EOIR) (the Departments) Joint Notice of Proposed Rulemaking (NPRM): Circumvention of Lawful Pathways. Federal Register number: 2023-03718. LSSNCA’s comment is a response to this request from the Departments: Whether the proposed rule appropriately provides migrants a meaningful and realistic opportunity to seek protection. LSSNCA’s position is that the proposed role would significantly curtail access for vulnerable migrants to seek protection through the asylum-process. Our concerns are related to the flawed premise in the rule that migrants would be able to apply for asylum in transit countries as well as the documented accessibility challenges with the CBP One app. Primarily, the proposed rule violates U.S. asylum law, our commitment to international human rights treaties, and our moral responsibility and legacy as a country that is a beacon of hope for those fleeing persecution and seeking freedom. 

The requirement that migrants apply for asylum in countries of transit is unrealistic and would restrict access to protection to those who need it most. Many transit countries simply do not have adequate systems and capacity in place to provide asylum protection. Additionally, many of these transit countries are hemorrhaging large numbers of their own citizens who are fleeing violence and persecution.2 We need not look far to find examples of dangerous conditions endured by asylum-seekers on their journeys to the United States. LSSNCA serves individuals who personally experienced or have family who endured kidnappings, extortion, assault, robbery, rape, or death on their journeys through countries which the proposed rule would require they seek asylum as well as when turned away at the U.S. border. For those family members in the U.S., the experience of excruciating stress when extortionists demand impossible payments for the release of loved ones is all too common. For those whose loved ones are murdered, it leaves behind wounds that will never heal. These tragedies are avoidable - our asylum laws are intended to prevent them.  

Requiring use of the CBP One app poses another challenge to accessing protection. The app is not accessible to many of the vulnerable individuals seeking safety in the U.S. Inaccessibility is namely due to lack of access to reliable internet, and language accessibility. Many asylum-seekers do not use the three languages offered on the app (English, Spanish, and Haitian Creole), nor do many asylum-seekers have the time and opportunity to enter the required information for themselves and their family(ies) while fleeing life or death situations, nor on their long, dangerous journey. There are also concerning reports of the CBP One app containing bugs in its facial recognition feature for Black individuals and people of color. Further, the lack of availability for appointment time slots is of concern. The app has reportedly run out of appointments within minutes of enrollment windows and easily crash.

Finally, LSSNCA disputes the legality of the proposed rule. The ending of Title 42 - a policy challenged and blocked by federal court - should not be used as an excuse to resurrect Trump-era categorical bans on asylum seekers. The proposed Lawful Pathways rule is contrary to international law, - primarily the International Declaration of Human Rights which the U.S. ratified6 as well as the Convention Relating to the Status of Refugees, and its subsequent 1967 Protocol which the U.S. ratified. Additionally, the proposed rule is contrary to well-established U.S. law regarding the right to seek asylum in our country, like the Refugee Act of 1980. According to U.S. law, individuals are entitled to access our asylum system regardless of how they arrive at our borders or declare their fear of persecution once on U.S. soil. There is also no provision stating that they must seek asylum in transit to the United States.  

In short, this new rule would have a devastating impact on asylum-seekers who need protection and are rightfully and legally owed said protection. It is contrary to what our values are as a “nation of welcome.” As was demonstrated by the previous Trump Transit Ban, the rule is likely to create confusion and additional backlogs in the immigration courts as individual judges attempt to apply a complicated, convoluted rule. We wish to see our nation live up to our values by building a fair and orderly asylum system that welcomes people with dignity. In publication of the proposed rule, the Biden Administration recognizes that “… a systemic lack of resources and the changing nature, scope, and demographics of the migratory flows that the United States is encountering has made it difficult to achieve …” goals of “efficiently and fairly providing protection to noncitizens who are in the United States and are deserving of protection…” Instead of instituting an unjust, immoral ban on asylum, let us instead work together and apply best practice experience to rebuild our asylum system.  

We recommend the Biden Administration develop a safe, humane, and orderly process that honors the dignity of the protection-seeking migrant and their legal right to ask for asylum at the southern border. The Administration must reassert its commitment – and America’s commitment to asylum-seekers and refugees seeking safety and protection in the United States.  

The Administration should prioritize: 

  • Person and family-centered policies to ensure families remain together. 
  • Coordination with faith-based and community partners at the border to welcome migrants with dignity. 
  • Investing in a more robust immigration courts system, circuit rides, and pro bono attorneys to increase the efficiency of the asylum system. 
  • Further invest in, and explore community-based Alternatives to Detention (ATD) which has proven to be more cost effective, fosters greater compliance with immigration court, and leads to better physical and mental health outcomes for program participants. Utilizing community-based wraparound case management and allowing individuals the dignity of working and living independently while awaiting an asylum decision provides an opportunity to heal, better pathways to becoming part of the community and supporting the economy. ATD would also address concerns put forth by the Administration such as overcrowding in detention centers and congestion of asylum-seekers at points of entry. 

As such, policies such as the proposed rule should not be considered or implemented in the future as a means of addressing the challenges in the U.S, asylum and immigration system. We urge you to rescind the proposed rule immediately and to honor President Biden’s campaign promises to fully restore access to asylum. 


Lutheran Social Services of the National Capital Area (LSSNCA)