The New Asylum Rule – CBP One

May 31, 2023

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This is the first in a series of blog posts HILSC will be writing about the end of Title 42 and the imposition of the Biden administration’s Circumvention of Lawful Pathways final rule. This post explores the CBP One app and its use in the asylum seeker process.

What is CBP One?

CBP One is an application developed by DHS that must now be used by asylum seekers to secure a place in line at the southern border. The Biden administration’s new asylum rule indicates that, with few exceptions, a person will be presumed ineligible for asylum unless they entered to United States at an official port of entry after attending an appointment at that point of entry scheduled through CBP One.[1] The use of the CBP One app as one of the only methods of entry for asylum seekers has proved controversial and problematic on many levels.

The first raft of problems comes with the CBP One app itself. Officially launched by DHS in October 2020, the app was initially to be used for getting an I-94 at a land border or requesting appointments for the inspection of perishable goods.[2] Although expansion of the CBP One app was considered at its launch, it was never intended to be used to process asylum seekers at the southern border,[3]  and the technical difficulties encountered when using the app show that it is ill equipped to function for this purpose. Prior to the expiration of Title 42, users could only register for an appointment at the point of entry at a specific time each day, which meant that thousands of people were trying to access the app at the same time and led to constant refreshing only to then find all the appointments filled. If an appointment slot was available, the app frequently timed out before asylum seekers could input all their information, or got stuck while uploading their picture, which resulted in the appointment slot being lost.

In response to complaints about the functionality of the app, CBP changed the process to request appointments: “[n]oncitizens will be allowed to request appointments at any point during a full 23-hour period each day and, if allocated an appointment, will have another 23-hour period to confirm that appointment.”[4] The second 23 hour period was intended to remedy the problem of the app timing out before information could be submitted. CBP also expanded the number of appointments available to 1,000 per day. However, this did not remedy several other issues with the app that shows that app did not consider the very specific and difficult circumstances asylum seekers experience.

First, CBP, by requiring use of this app, assume that all people have access not only to a mobile phone, but a mobile phone that is sophisticated and updated enough to allow for the downloading and proper functioning of apps. However, the reality is that many asylum seekers will have limited means, often having spent their life savings or borrowed heavily to pay for the journey to the southern border, and need to spend what little resources they have on food and shelter rather than paying for expensive electronics. In addition, in many places along the southern border internet connectivity is hard to come by and cell phone reception is unreliable, so that even if an asylum seeker has the requisite mobile phone, they cannot use the app.

Nevertheless, if the stars align and the asylum seeker has access to a mobile phone with the app and an internet connection, CBP One requires the asylum seeker to upload a “selfie” taken at the same time as filling out the appointment information. This can challenge even strong internet connections, but many nonprofits reported that the “app can fail to register those with darker skin tones,”[5] leading to the asylum seeker being unable to submit their request for an appointment. Finally, the CBP One app is available only in English, Spanish, or Haitian Creole, which leaves out a large portion of asylum seekers, including those who may not be literate, even if they speak one of those three languages.

Given all the issues with CBP One and legal concerns about its use,[6] it would seem like 8 CFR 208.33(a)(2)(ii)(B) contains the perfect remedy when it says that an asylum seeker can show that “it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.” However, HILSC has learned from practitioners and other professionals at the border that CBP has been asking asylum seekers who were unable to use the app why they did not use someone else’s phone or ask someone who was literate or spoke the requisite language for help.

Process at the Border for CBP One Users

Not only has the Biden administration significantly altered the process for when asylum seekers arrive at the border with the CBP One app, it has also significantly reworked what happens after a person presents at the border and expresses an intent to claim asylum. If the person was able to use the CBP One app to make an appointment and shows up to the correct point of entry at the appointed time, they will fall into an exception to the Circumventing Lawful Pathways final rule, which means they do not have to rebut the presumption they are ineligible for asylum. It is HILSC’s understanding that asylum seekers will be paroled into the United States after presenting at the border. However, due to the injunction from a federal district court in Florida, CBP One asylum seekers must be paroled with a Notice to Appear (NTA).[7]

It is worthwhile noting that DHS’s Factsheet on the Circumvention of Lawful Pathways Final Rule does not mention that individuals that use the CBP One App will be paroled. The Fact Sheet indicates that although the person used the CBP One app, they do not have a “lawful pathway” to enter the United States, so a CBP officer will process the person in accordance with INA 235(b)(1)(A), which puts them in line for a credible fear interview (CFI). According to NIPNLG’s Practice Advisory, parole for CBP One users was mentioned in several stakeholder calls and appears to be what is happening per anecdotal evidence HILSC has collected.

Process for Everyone Else

Since Title 42 expired and CBP resumed processing immigrants per Title 8, migrants who do not have an appointment through CBP One are processed in a similar manner to before, although potentially more rapidly. It appears that, despite indicating that use of the CBP One app is the only way to request asylum at the border, CBP will process asylum seekers waiting at the border with no appointment after all the migrants with CBP One appointments have been processed. In addition, although the Circumvention of Lawful Pathways rule says that if you cross into the United States between ports of entry you are ineligible for asylum, CBP must still process these individuals and assess their eligibility for asylum prior and assess their fear of return to country of removal under nonrefoulment agreements prior to removing them from the country. Stay tuned for more on this process in HILSC’s upcoming blog posts.

[1] The presumption of ineligibility is rebuttable if the person “[p]resented at a port of entry, pursuant to a pre-scheduled time and place, or presented at a port of entry without a pre-scheduled time and place, if the alien demonstrates by a preponderance of the evidence that it was not possible to access or use the DHS scheduling system due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle. 8 CFR 208.33(a)(2)(B).

[2]Government Documents Reveal Information about the Development of the CBP One App,” American Immigration Council, 2/28/2023.

[3] Id.

[4]CBP Makes Changes to CBP One™ App,” U.S. Customs & Border Protection National Media Release, 05/05/2023.

[5]‘It’s Like a Lottery.’ Migrants Struggle to Make Asylum Appointments Through U.S. Government App,” Time Magazine, 05/16/2023.

[6] Amnesty International has indicated that the CBP One app “raises serious privacy, discrimination and surveillance concerns. Amnesty International is concerned that facial recognition and GPS technologies, along with cloud storage, are used to collect data on asylum seekers before they enter the US. This technology poses significant risks to their human rights and raises serious questions about the indiscriminate and discriminatory use of facial recognition technology.” “USA: Mandatory use of CBP One mobile application violates right to seek asylum,” Amnesty International, 05/08/2023.

[7] The state of Florida filed suit the day before Title 42 was set to end to challenge a “Parole with Conditions” policy DHS had promulgated as part of the end of Title 42 and implementation of the Circumventing Lawful Pathways rule. DHS’s policy indicated that migrants could be paroled into the United States before an NTA was issued for them with the condition that they appear at an appointed ICE office to receive the notice. This is similar to a suit Florida filed earlier this year about a similar parole provision, claiming it was against the INA and the APA. The judge agreed and issued a TRO which he later converted to a preliminary injunction. See the Justice Action Center’s excellent summary on this case on its “Litigation Tracker.”
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