Motion (2023-06-23)

Date: 2023-06-23

Summary

Plaintiffs' Supplemental Appendix, Document 181-3 in East Bay Sanctuary Covenant, et al. v. Joseph R. Biden, President of the United States, et al., Case No. 18-cv-06810-JST, in the U.S. District Court for the Northern District of California, filed June 23, 2023. It collects administrative record materials cited in the plaintiffs' reply in support of their motion for summary judgment and opposition to the defendants' cross motion. Its index lists three CLP_AR documents, including the MIRPS National Action Plan and a Creative Associates report, and eight CLP_PC documents, including public comments and Nicaragua and Panama 2021 Human Rights Reports. The 283-page appendix opens with the MIRPS national plans for Belize, Costa Rica and other countries and closes with a Mexico Travel Advisory.

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Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 1 of 283

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

East Bay Sanctuary Covenant, et al.,

Plaintiffs,
Case No.: 18-cv-06810-JST
v.

Joseph R. Biden, President of the United States, et
al.,

Defendants.

PLAINTIFFS’ SUPPLEMENTAL APPENDIX
The following documents are supplemental excerpts of the administrative records cited

in support of Plaintiffs’ concurrently-filed reply in support of their motion for summary

judgment and opposition to Defendants’ cross motion for summary judgment.

INDEX OF “CLP_AR” DOCUMENTS

Title Page Number
1. Comprehensive Regional Protection and Solutions Framework, CLP_AR_0005009-32
MIRPS National Action Plan: Belize, Costa Rica, El Salvador,
Guatemala, Honduras, Mexico, Panama
2. Creative Associates, Saliendo Adelante: Why Migrants Risk It CLP_AR_0005077-88
All (Sept. 2019)
3. Inter-Agency Coordination Platform for Refugees & Migrants CLP_AR_0006307-53
from Venezuela, Regional Refugee and Migrant Response
Plan Jan. 2023-Dec. 2024 [Colombia & Ecuador] (Nov. 30,
2022)

INDEX OF “CLP_PC” DOCUMENTS

Title Page Number
1. Diego Fernandez-Pages Public Comment (Mar. 7, 2023) CLP_PC_003999-4002
2. American Immigration Lawyers Association and American CLP_PC_020712-38
Immigration Council Public Comment (Mar. 26, 2023)
3. Brooklyn Defender Services Public Comment (Mar. 27, 2023) CLP_PC_021450-70
4. U.S. Dep’t of State, Nicaragua 2021 Human Rights Report CLP_PC_024058-104
(Apr. 2022)
5. U.S. Dep’t of State, Panama 2021 Human Rights Report (Apr. CLP_PC_024113-43
2022)
6. International Refugee Assistance Project Public Comment CLP_PC_031200-32
(Mar. 27, 2023)
7. American Gateways Public Comment (Mar. 27, 2023) CLP_PC_031496-518
8. U.S. Dep’t of State, Mexico Travel Advisory (Oct. 5, 2022) CLP_PC_033467-79

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MIRPS NATIONAL
ACTION PLAN
BELIZE
COSTA RICA
EL SALVADOR
GUATEMALA
HONDURAS
MEXICO
PANAMA
CLP_AR_005009
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INDEX

National Plans Objectives .....................................................................................................3

National Plan in Belize ............................................................................................................4

National Plan in Costa Rica .................................................................................................. 6

National Plan in El Salvador ................................................................................................. 9

National Plan in Guatemala ................................................................................................12

National Plan in Honduras...................................................................................................15

National Plan in Mexico ........................................................................................................18

National Plan in Panama ......................................................................................................21

CLP_AR_005010
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NATIONAL PLANS OBJECTIVES

• Improve mechanisms for reception and admission

• Respond to immediate and persistent humanitarian and protection needs

• Support host countries and communities

• Enhance opportunities for durable solutions

FOCUS AREAS:

PROTECTION JOBS AND SOCIAL
LIVELIHOODS PROTECTION

EDUCATION HEALTH

COMMITMENTS BY COUNTRY
BELIZE · COSTA RICA · EL SALVADOR · GUATEMALA ·
HONDURAS · MEXICO · PANAMA

CLP_AR_005011
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MIRPS NATIONAL ACTION PLAN IN
BELIZE

10 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND EDUCATION
7 COMMITMENTS LIVELIHOODS 1 COMMITMENT
2 COMMITMENTS

Committed to a comprehensive refugee response, Belize has been improving standard operating
procedures for identiﬁcation, reception and referral of refugees, while simultaneously upgrading
the quality of refugee status determination processes. Effects of the current pandemic however
have created obstacles, delaying envisioned progress. Similar delays have occurred in advancing
sustainable solutions in the livelihoods sector as negative socioeconomic fall-out from the pandem-
ic has limited the absorption capacity of the formal and informal economies. Within its recovery
plan, Belize has identiﬁed Technical Vocational Education and Training, when adopting new trans-
formational vocations, as key instrument for creating new growth industries, while possessing suffi-
cient potential to rebuild Belize’s economy and to include young refugees, migrants and vulnerable
nationals in delivering individual and common beneﬁts.

CLP_AR_005012
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BELIZE
PROTECTION EDUCATION
• Capacity building for all relevant Government au- • Support to comprehensive knowledge-, skills-, and
thorities, delivering Standard Operating Proce- livelihood-based integration opportunities
dures for POC referral
• Provision of information to POC in relation to ad-
mission to territory and asylum processes JOBS AND LIVELIHOODS
• Provision of public information campaigns, to sen-
sitize the general population about the reality of • Collaboration with international community in rela-
refugees in Belize tion to improved opportunities for refugee integra-
• Improved comprehensive data collection (applica- tion
tions; admissions; rejections) and analysis System • Optimize internal coordination, ensuring that asy-
• Consideration of participation in the Quality Assur- lum-seekers access all social services to which
ance Initiative (QAI) for strengthening of the asylum they are entitled
process • Mapping and data collection exercises on POC and
• Exchange of information with MIRPS States on best host communities to create evidence for inclusion
practices and mechanisms of responsibility sharing in national plans

CLP_AR_005013
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MIRPS NATIONAL ACTION PLAN IN
COSTA RICA

32 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND SOCIAL EDUCATION
11 COMMITMENTS LIVELIHOODS PROTECTION 5 COMMITMENTS
4 COMMITMENTS 12 COMMITMENTS

Costa Rica stands on a long tradition of providing asylum and protection to refugees and asylum
seekers. However, its national asylum system is under pressure as a result of displacement situ-
ations in the region, particularly Nicaragua. The country hosts approximately 100,891 persons in
need of international protection, this ﬁgure represents 2% of Costa Rica total population. Out of that
number 90,891 are asylum seekers (mostly Nicaraguans) and 9,801 refugees.
Through the implementation of its national chapter Costa Rica increased the overall recognition
rate of refugees from 21% (2019) to 49% in 2020. Similarly, the Refugee Unit opened an office in
the northern border to ensure access to the national asylum system. The access to state-run social
services extended to include asylum seekers and refugees on an equal standing with nationals and
provided medical insurance to 6,000 refugees and asylum seekers in high vulnerability.
Despite these efforts, the pandemic has aggravated the challenges to respond to this population,
including extended claim processing times, loss of livelihoods, economic hardships, and xenopho-
bia. In response to this scenario, the national technical team quantiﬁed and developed three con-
cept notes on key sectors that include social assistance services, health services and the access to
the national asylum system for refugees and asylum seekers

CLP_AR_005014
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COSTA RICA
PROTECTION • Adaptation of the RSD Procedures for people with
disabilities: CONAPDIS will advise the DGME to de-
velop a mechanism to assist asylum-seekers with
• Presence at the border: Strengthen the agree- cognitive, physical or sensory disabilities during the
ment that exists between the DGME and UNHCR refugee status determination procedures
to maintain the current presence of personnel at
border migration posts in Peñas Blancas, Los Chil-
es and Tablillas in the north, Paseo Canoas in the
south; as well as extend it with at least one person
in the ports of Golﬁto, Limón, Caldera and in both
international airports EDUCATION
• Regionalization of the Shelter Unit: Advance in the
regionalization of the Shelter Unit in Upala, Liberia, • Flexible requirements for academic training: The
Paso Canoas and Limón to decentralize the func- INA will develop an alternative mechanism to check
tions of this Unit the academic requirements and / or the matching
• Strengthening CATEM: Ensure the allocation of of technical skills of refugees who want to enter
funds for the maintenance of the infrastructure, technical training courses. Likewise, it will carry out
equipment and administration of CATEM as a good joint actions with the private sector for the promo-
regional practice as an alternative to administrative tion of learning internships and the certiﬁcation of
detention competencies through dual training opportunities
• Promote national or international public-public and/ • Provision of alternative evidence for the recogni-
or public-private alliances for fundraising and re- tion of academic degrees: CONARE will incorpo-
sponse to the needs for legal assistance and spon- rate the Consular Section of the Ministry of Foreign
sorship for applicants in procedures for determin- Affairs to the agreement of understanding with UN-
ing refugee status HCR for the provision of alternative evidence for
• Project for the prevention of delays: Project for the the formalization of the application for recognition
prevention of delays: Increase the number of spe- of academic degrees and professional degrees in
cialized officers in refuge matters, in at least 6 peo- country of origin in favour of refugees
ple for each of the instances • Technological Literacy Project: The Ministry of Cul-
• Strengthening the CVRR: Assign a full-time Special- ture, IMAS and the Ministry of Science and Tech-
ized Legal Advisor to each Commissioner, by the nology will promote the technological literacy of
respective Ministries in order to assist in the review asylum-seekers and refugees through literacy ac-
of ﬁles received by the Unit of Shelter, and in the tivities of the National Library System (SINABI) and
elaboration of draft resolutions of the CVRR the National Strategy of Costa Rica Digital (access
to equipment)
• Modernization of the TAM: Establish the Migratory
Administrative Court (TAM) with two specialized • Project for the recognition of the contributions of
administrative sections: one for refuge matters and the population to the culture of the host communi-
another in immigration. ties: The Ministry of Culture and Youth will strength-
en the information and training processes of the
• Documentation for refuge applicants: Submit the
cultural advisors of the local governments that are
provisional identiﬁcation document with DIMEX
carrying out activities with population of interest, to
numbering and temporary work permit at the time
promote the recognition of refugees to the cultural
of ﬁling the application for the condition of refugee.
dynamics of the host communities
• Maintain no-cost documentation for the applicants
• Refugee children in the SINEM project: The Nation-
for refugee status and reduce the cost of documen-
al Music Education System (SINEM) will give free
tation for refugees
access to refugee minors to music education pro-
• Guarantee the non-refoulement principle: Establish cesses, including free access to musical instrument
complementary protection or other mechanisms to
guarantee the non-refoulement principle for peo-
ple who do not meet the requirements to be rec-
ognized as refugees but should not be returned to
their country of origin, because of reasonable risk
of suffering harm

CLP_AR_005015
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COSTA RICA
• Protocol for the attention of refugee women: INAMU
JOBS AND LIVELIHOODS together with the DGME, PANI and UNHCR will de-
velop a protocol for the assistance of women, ad-
olescent mothers and victims of gender-based vio-
• Employment opportunities for LGTBI populations: lence that allows the coordination and attention of
The Ministry of Human Development and Social In- refugees and asylum-seekers cases in Costa Rica;
clusion, in coordination with the Costa Rican Cham- this will include women in Attention Centres
ber of Commerce and with the support of UNHCR,
will develop a training and job placement program • Protocol for the protection and attention of refugee
for refugees from LGBTI communities children: The PANI, with support from UNHCR and
DGME, will update the Protocol for the protection
• Digital Consultation initiative for Work Permits: The and attention of refugee children following interna-
DGME, in coordination with the Ministry of Labour tional standards. The protocol shall include actions
and Social Security and the support of UNHCR, will for the protection of unaccompanied or separated
create a digital consultation mechanism that allows children and at risk of Statelessness
refugees to certify the validity of their work permit to
potential employers • Fund for DNA testing: The PANI will develop a pro-
ject for the creation of a fund for DNA testing for ref-
• Intermediation for the inclusion for refugees in the ugee families or asylum-seekers, to be used when in
labour market: (a) The Ministry of Labour and Social doubt of the ﬁlial link to prevent trafficking or other
Security will provide effective access to labour in- type of activities that affect children
termediation programs such as www.buscoempleo.
go.cr, EMPLEATE Program, My First Job and PRO- • Protocol for the elderly refugee population: The Min-
NAE 4x4, in addition to the micro-enterprise support istry of Human Development and Social Inclusion in
programs. (b) The National Labour Inspectorate will coordination with CONAPAM will manage the devel-
consider refugee persons in its procedures with the opment of a specialized protocol for the attention of
objective of ensuring that their labour rights and em- elderly refugee populations, allowing access to pub-
ployer obligations are recognized on equal terms as lic services and the right to health
nationals. (c) Informative actions will also be carried • Protocol for the attention of refugees with problem-
out on current legislation to improve the recognition atic use of psychoactive substances: The IAFA will
of ID documents and reduce discrimination and xen- develop a protocol for the attention of refugee pop-
ophobia during recruitment and selection processes ulation in recovery centres for people with addition
• Project for the promotion of entrepreneurship: The and under the supervision of the Institute
Ministry of Economy, Industry and Commerce will • Solidarity networks for refugees: The Ministry of Hu-
include ventures led by refugees in the Entrepre- man Development and Social Inclusion, with the col-
neurs Registry and will encourage their participation laboration of UNHCR, will promote the participation
in business meetings and other activities organized of civil society in the attention of refugees through
by the Ministry to strengthen micro and small busi- research and professional practice initiatives with
nesses public and private universities
• Methodology for the quantiﬁcation of the state’s
contribution to refugees: The Ministry of National
SOCIAL PROTECTION Planning and Economic Policy (MIDEPLAN), with
technical support from the OECD, will develop a
methodology for quantifying the state’s contribu-
• Inclusion of a category of “refugee or asylum-seeker” tion on refugees. Formulation, validation and imple-
in the Social Information Sheet: The Ministry of Hu- mentation of a system of simultaneous generation
man Development and Social Inclusion will instruct of actual data on ﬁnancial gaps to cover all the pro-
all institutions of the social sector and the National grammes available for refugees and asylum-seek-
Registration System of Beneﬁciaries (SINIRUBE) to ers. Also, training for officers at institutional levels for
include the categories in their information sheets the optimal use and analysis capacity that facilitates
• Protocols for refugee assistance in the social sec- decision-making and the collection of resources in
tor: The Ministry of Human Development and Social international cooperation
Inclusion will provide technical support to all institu- • MINARE permanent team: The MINARE Technical
tions in the social sector to establish protocols that Team will be a permanent mechanism for monitor-
allow the standardization of the assistance provid- ing, evaluation and fundraising that ensures the
ed to refugees and asylum-seekers, and for the im- sustainability of the MINARE’s implementation. The
plementation of internal awareness processes that team will be coordinated by the Ministry of Govern-
guarantee the application of these protocols at all ance and Police through monthly meetings. UNHCR
levels within the institution will participate as a technical secretariat
• National programmes for the reduction of poverty: • Temporary housing program: The Ministry of Hous-
The Ministry of Human Development and Social In- ing and Human Settlements (MIVAH) will look for
clusion will include refugees and asylum-seekers in ways to incorporate asylum-seekers into their ser-
the poverty reduction programmes implemented by vices in order to facilitate a housing solution, with an
the Institute of Social Assistance inclusive approach
CLP_AR_005016
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MIRPS NATIONAL ACTION PLAN IN
EL SALVADOR

49 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND EDUCATION HEALTH
27 COMMITMENTS LIVELIHOODS 5 COMMITMENTS 7 COMMITMENTS
10 COMMITMENTS

Since joining the MIRPS, El Salvador is highly committed to address forced displacement, deﬁning
a comprehensive National Action Plan that involves 7 line-ministries. Despite challenges posed by
Covid-19, during 2020 the country managed to advance more than 15 commitments, particularly in
the areas of protection and education, including the IDP Law approval, hiring and specialized train-
ing of staff, adequation of a shelter, enhancement of asylum capacity, deﬁnition of a roadmap for the
protection of displaced children and adolescents in the education system, among others. During
2021, efforts will be focused in the areas of education, health, and livelihoods / jobs, as priorities to
reduce greater vulnerability of POC, as well partnership-building with relevant cooperation actors
to cover gaps and reach goals.

CLP_AR_005017
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EL SALVADOR
PROTECTION • Establish a specialized unit for displaced popu-
lations with technical teams trained to attend to
those with different proﬁles within the DAV.
• Creation and installation of shelters and shelters to • Creation of the Single Registration of displaced
serve internally displaced persons and deported populations and people at risk of forced displace-
persons in need of protection (with a focus on the ment, carrying out annual statistical analyses.
family unit); that have adequate protocols for their • Update the study on internal displacement proﬁl-
management. ing.
• Training of personnel in specialized legal assis- • Develop studies and analyses on the types of dis-
tance (economic, social and cultural rights), and on possession of property and housing; analyse the
the protection of property and assets for popula- legal, regulatory and institutional framework to pro-
tions of interest pose possible protection actions
• Review and update of existing protocols and road- • Identify spaces for the installation of shelters for
maps in the GAMI to include specialized care for asylum-seekers
vulnerable populations (children and adolescents,
• Design and implement a strategy with a communi-
women, families, LGBTI population, persons with
ty approach, for monitoring protection services at
disabilities, elderly).
local offices
• Implementation of the single migratory registry by
• Design and implement contingency plans at the
all institutions in the GAMI; design and implemen-
municipal level to generate early alerts and re-
tation of a module on protection, to strengthen the
sponses to forced displacement.
identiﬁcation and management of cases of depor-
tees with protection needs (children and adoles- • Strengthen the community approach of local offic-
cents, women, families, LGBTI population, people es through interinstitutional and intersectoral coor-
with disabilities, elderly). dination.
• Establishment of a training plan for the GAMI per- • Present the project for the creation of a Special
sonnel, which ﬁlls the identiﬁed needs with the in- Law for the Attention of Populations At-Risk of
volvement of competent institutions according to Forced Displacement and other regulatory frame-
their expertise. works that provide greater protection for internally
displaced persons.
• Creation, printing and dissemination of informative
material on the services available in the GAMI. • Coordinate with COMURES for the elaboration of
guidelines and principles related to the implemen-
• Training processes on the identiﬁcation of people
tation of policies and roadmaps for the attention on
with protection needs, for the consular networks in
forced displacement at the local level, to boost the
Mexico, the United States and Guatemala.
participation of local governments in the response.
• Design of a protocol for the identiﬁcation and assis-
• Promote the development of a policy for the at-
tance of people with protection needs outside the
tention, protection and solutions for internally dis-
country, including roadmaps for the direct linkages
placed persons at the national and local levels.
with national services.
• Present the Law initiative for the granting of “Inter-
• Conduct training on international protection and
national Protection and Statelessness”. Integration
Refugee Status Determination for DGME officers
of the refugee population in El Salvador.
and child protection institutions at the borders and
in other institutions involved. • Encourage the creation of spaces for dialogue, par-
ticipation and consultation between the central and
• Strengthen the CODER Secretariat and Subcom-
local government and the forcibly displaced popu-
mittee, and increase their capacities for the analy-
lation to promote their participation in the design of
sis and resolution of applications.
local, municipal or departmental plans or policies
• Design and disseminate educational materials on for comprehensive care.
Refugee Status Determination in El Salvador.
• Promote, together with the municipalities, the crea-
• Establish a document that certiﬁes that a person tion or adjustment of mechanisms, programs, plans
has started the Refugee Status Determination and or local, municipal or departmental policies for hu-
is awaiting for a resolution. manitarian assistance and reception for internally
• Review and update the protocol for the assistance displaced persons in prioritized municipalities that
for internally displaced persons, establishing road- have a greater number of displaced population or
maps according to speciﬁc proﬁles and their needs, at risk of being displaced.
for monitoring cases and mapping existing servic-
es.

CLP_AR_005018
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EL SALVADOR
EDUCATION HEALTH
• Develop and implement an internal roadmap for • Design and implement information and awareness
the protection of displaced children and adoles- campaigns on the right of access to health for dis-
cents, and for at-risk teachers. placed persons, deportees in need of protection,
• Inclusion of variable on school dropout due to dis- refugees and asylum seekers.
placement in the SIGES NID SYSTEM, to get relia- • Preparation of a specialized protocol for compre-
ble information on the magnitude of the impact on hensive health care (medical and psychosocial) for
the educational community. displaced persons, deportees in need of protec-
• Include courses on forced displacement caused by tion, refugees and asylum seekers.
violence, and on primary psychological attention, in • Provide specialized training to health system offi-
the training programmes for teachers. cials on psychological, psychiatric and psychoso-
• Implement psychosocial care programs to mitigate cial care for people affected by forced displace-
the impact of violence, with children and adoles- ment (internally displaced people, deportees in
cents in contexts of social violence and at risk of need of protection, refugees and asylum seekers).
dropping out of school.
• Coordinate comprehensive mobile care (Medical
• Design and implement an educational strategy in and psychosocial) for health services in shelters
schools, to raise awareness on the inclusion of dis- and reception areas to care for displaced people,
placed children and adolescents.
deported people in need of protection, refugees
and asylum seekers.
• Design a model of psychological / psychosocial
JOBS AND LIVELIHOOD care for people affected by violence (internally dis-
placed people, deportees in need of protection,
refugees and asylum seekers).
• Design campaigns to inform and raise awareness
on the rights of displaced populations and existing • Design indicators of internal forced displacement
services for inclusion in the MINSAL Information System for
the analysis of the impact on health of internally
• Disseminate information to raise awareness in gov- displaced persons, as an input for the design of
ernmental institutions and the private sector about
programs and interventions.
the rights and issuance of identity documents for
asylum-seekers and refugees. • Include within its policies and protocols of compre-
• Prioritize displaced and at-risk women and youth in hensive health care (direct medical care, psychoso-
employment rosters cial care, care for chronic diseases, special health
conditions) to guarantee the continuity of care and
• Strengthen and coordinate the Roundtable for La- access to speciﬁc medicines for displaced people,
bour Insertion, and coordinate with different LGBTI
deported people in need of protection, refugees
associations and INSAFORP for the technical train-
and asylum seekers, without discrimination.
ing of populations of interest.
• Awareness campaign with the private sector to pro-
mote the recruitment of LGBTI population.
• Expand and strengthen the entrepreneurship pro-
gramme to support and sponsor displaced per-
sons, asylum-seekers and deportees with protec-
tion needs.
• Create a Specialized Centre that promotes tech-
nical and vocational programs, access to tertiary
education, livelihoods, and labour insertion (in co-
ordination with the private sector) for displaced
populations.
• Promote a programme for skills training for dis-
placed populations.
• Design of a local integration model for refugees
and asylum-seekers that includes legal, economic
and social actions.
• Dissemination of the new Migration and Foreigners
Law for the population nationwide
CLP_AR_005019
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MIRPS NATIONAL ACTION PLAN IN
GUATEMALA

30 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND EDUCATION HEALTH
19 COMMITMENTS LIVELIHOODS 2 COMMITMENTS 1 COMMITMENT
8 COMMITMENTS

The purpose of the National Action Plan is to provide a comprehensive response to persons with
protection needs, among the results obtained in its implementation, is the strengthening of the
capacities of government institutions, as well as the improvement in the procedure of registration
and resolution of asylum seekers and alliances between the public and private sectors about the
importance of formal employment when it comes to equality of opportunities for vulnerable groups.
Guatemala has prioritized working in the protection, jobs and livelihood sectors, the expected re-
sults for this year are the labour inclusion of asylum-seekers and refugees, improve the protection
for children and adolescents especially in border areas and the creation of decent and specialized
shelters for the care of persons in need of international protection. To achieve the expected results,
it is necessary to expand resources to complement state efforts.

CLP_AR_005020
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GUATEMALA
PROTECTION • Design, create and implement a mechanism for
registering cases and complaints about human
rights violations against migrants in transit through
• Strengthen the institutional capacity of the General Guatemalan territory.
Directorate of Migration / Guatemalan Institute of • Create and/or improve adequate spaces with inter-
Migration, particularly those capacities related to view rooms that guarantee the conﬁdentiality of the
attention and protection. information of asylum-seekers, as well as special-
• Awareness raising and training of migration dele- ized and friendly spaces for children and adoles-
gates, National Police, Army, Jurisdictional Bodies cents.
and border security personnel and airports in the • Expand the staff of eligibility officers that process
ﬁeld of international protection. refugee applications at the General Directorate of
• Inclusion of refugee-related courses in the training Migration / Guatemalan Migration Institute.
programmes for authorities involved in the nation- • Start the creation of a multidisciplinary team for the
al protection systems, including information from international care and protection of refugees and
the Migration Code, the Law for the Protection of refugee applicants.
Children and Adolescents, and other international • Preparation of a diagnosis for the creation of open
protection measures and instruments. shelters in decent conditions, specialized for the
• Prepare and update the regulations and proto- population with international protection needs, with
cols for attention and protection of refugees and specialized and trained teams.
asylum-seekers, in accordance with the Migration • Restructure the Temporary Foster Care Program,
Code, including information on refugees and other for the care of returned girls, boys and adolescents
measures taken by the Government, such as the in transit with international protection needs.
humanitarian visa.
• Strengthen inter-institutional and intersectoral co-
• Strengthen the awareness raising and training pro- ordination to expand basic service options to refu-
cesses for border migration delegates on the iden- gees and refugees.
tiﬁcation of people with protection needs.
• Create the international protection mechanism in
• Preparation and distribution of informative materi- transit for people at high risk who need support
als on access to refuge and other systems of inter- for safe and regular access to countries of refuge
national protection and care for migrants. (MINEX-UNHCR)
• Strengthening of the Reception Centres for the • Include in the Institutional Strategic Plans, Multian-
identiﬁcation (in situ) of returned Guatemalan peo- nual Plan and Annual Operational Plan the provi-
ple with protection needs and victims of rights vio- sion of basic services to people with international
lations in the returning process. protection needs.
• Training and awareness raising of officials who
work with the migrant population, for a comprehen-
sive approach, taking into account the age, gender
and diversity of the people, with special attention to
unaccompanied girls, boys and adolescents, wom-
en at risk, LGTBI population, victims trafficking, the HEALTH
elderly and people with different abilities.
• Strengthening the governing institutions for the • Strengthening of the Directorate for the Attention
protection of children and adolescents, especially to Migrants of the Ministry of Public Health and So-
in border areas. cial Assistance.
• Develop the Regulation of the Migration Code for
the continuity of the permit mechanism for people
in transit, in order to ensure regular transit through
the country.

CLP_AR_005021
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GUATEMALA
EDUCATION JOBS AND LIVELIHOOD

• Negotiation and implementation of regional and in- • Propose changes to the labour regulations to allow
ternational agreements for the recognition of study the access to work permits for refugees and asy-
certiﬁcates with special attention to the speciﬁc lum-seekers.
needs and difficulties of refugees in presenting • Design awareness campaigns for the private sector
documentation from their countries of origin. and public officers on rights of refugees, especially
• Coordination of actions with local authorities and on labour market and access to services ( job fairs).
educational institutions throughout the country for • Strengthening information campaigns for general
the inclusion of children and young people into the public on labour rights and insertion of refugees
national education system. These include aware- and asylum-seekers.
ness campaigns about the risks and consequences • Prioritize the process and resolution of work per-
of the migration route; and the socialization of the mits requests for refugees and asylum-seekers.
guide for the attention of the student population
on the move. Preparation and implementation of • Facilitate access to Spanish language courses for
the roadmap for the attention of the Guatemalan refugee and refugee applicants.
migrant population in the process of accreditation • Create an intersectoral mechanism for the estab-
and certiﬁcation of labor competencies. Implemen- lishment of roadmaps and national strategies for
tation and socialization of Ministerial Agreement the labour insertion of returned Guatemalans with
696-2017 which establishes “to validate the stud- or without needs of international protection.
ies of deported Guatemalans who will continue • Give continuity to statistical studies and improve
their training in the National Educational System” registration systems to understand the proﬁles of
(Agreement 696-2017 was repealed, by Ministerial returnees, asylum seekers or refugees, including
Agreement 1753-2019 “Regulation of Equalization labour proﬁling, for their integration and, if neces-
and Equivalences of studies at the levels of pre-pri- sary, internal relocation.
mary, primary and secondary education, and in the • Design awareness campaigns for the private sec-
subsystems of school and extracurricular educa- tor on labor inclusion of returned Guatemalan mi-
tion ”) grants.

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MIRPS NATIONAL ACTION PLAN IN
HONDURAS

44 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND EDUCATION
39 COMMITMENTS LIVELIHOODS 1 COMMITMENT
4 COMMITMENTS

Honduras made progress on (i) identifying the causes, impacts, and magnitude of displacement
through a Characterization Study at the national level; (ii) the technical and participatory drafting of
a Bill that deﬁnes the framework of protection and care for the internally displaced population; (iii)
the consolidation of a system for registering of land and assets abandoned or dispossessed.
Progress was also made in strengthening care protocols for returnees with protection needs, in-
cluding the training of 120 officials from the central, municipal and foreign service governments.
Registration and processing capacities within the asylum system were increased, and registration
and interview brigades continue to be implemented in border areas, with the aim of centralizing
access to the asylum system.
As for 2021 it is expected; increase access in high-risk areas, as well as increase reception capac-
ities and humanitarian assistance for returnees with protection needs and refugees and promote
access to livelihoods for the persons of interest

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HONDURAS
PROTECTION proﬁles that includes a prioritized access to doc-
umentation, and maintain updated information on
displacement for an adequate response.
• Strengthen the capacity to identify people with in- • Create a contingency plan in cases of massive dis-
ternational protection needs. placements due to violence.
• Undertake training processes for migration public • Implement a humanitarian assistance mechanism
officials in border areas to strengthen their capacity articulated with the existing state response.
to identify protection needs. • Progress in the formulation and implementation of
• Provide information material in offices and border prevention and protection strategy at schools.
areas. • Develop strategies to prevent and address speciﬁc
• Increase the capacity of municipal officials who as- risks for women and girls, commercial transporters,
sist returnees, migrants and their families. people at risk due to land dispossession, returnees
• Follow-up on the protocol to assist returnees/de- with protection needs, and LGBTI persons.
portees with protection needs. • Establish an information mechanism on displace-
• Develop a referrals protocol to follow-up on cases ment that provides periodic data.
of returnees with protection needs through the Mu- • Promote measures to facilitate the access to per-
nicipal Units for the Attention to Returnees. sonal identiﬁcation documents
• Strengthen and update existing capacities of con- • Develop a communication and awareness-raising
sular officials for the identiﬁcation and referral of strategy on the rights of internally displaced people
cases with protection needs abroad. together with local governments.
• Train and update consular representations on inter- • Develop an information and awareness-raising
national protection. strategy on the rights of internally displaced peo-
• Implement the assistance and protection roadmap ple.
to facilitate the reception, assistance and referral of • Design a methodology that enables a close rela-
cases, and strengthen the technical and ﬁnancial tionship with communities and internally displaced
capacities of the DPPDIV. people without increasing their risk.
• Strengthen the technical and operational capaci- • Implement a national protection system for inter-
ties of DPPDIV. nally displaced people, progress towards the es-
• Undertake awareness-raising activities for deci- tablishment of a mechanism to register abandoned
sion-makers on internal displacement and the as- goods, facilitate access of internally displaced
sistance and protection roadmap. people to vocational training programmes and ini-
tiatives to generate income, promote dialogue and
• Continue strengthening humanitarian and legal as-
consultation spaces with displaced populations.
sistance mechanisms
• Promote dialogue spaces among state institutions
• Provide humanitarian and legal assistance at CAMIs
and groups of displaced people or at risk.
at the national level.
• Create a conﬁdential system to register abandoned
• Develop an awareness-raising initiative for authori-
goods and housing.
ties and the private sector on the category of refu-
gees and asylum seekers, and their rights. • Strengthen the institutional response through coor-
dination and referral of cases.
• Strengthen the assistance provided to returnees
with protection needs to cover their basic needs • Include the population within the prevention and
of shelter, food and health at the short and medium protection mechanism in affected communities.
term. • Establish dialogue spaces to achieve the inclusion
• Enhance the coverage of humanitarian assistance of the population in prevention and protection
during the reintegration process. • mechanisms.
• Strengthen mechanisms of referral and legal orien- • Include the interests of refugees within the insti-
tation abroad. tutional response and continue strengthening the
• Establish partnerships with free legal representa- capacities of groups and organizations through the
tions abroad to provide effective assistance Refugee Commission.
• Train staff to provide better assistance and guid- • Promote initiatives for the participation of the Refu-
ance at consulates. gee Committee to incorporate their needs through
the Refugee Commission.
• Implement a roadmap to coordinate the actions
and services provided abroad.
• Continue strengthening the state presence in com-
munities at risk, develop programmes for the pre-
vention and protection based on causes and risk
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HONDURAS
EDUCATION JOBS AND LIVELIHOOD

• Establish a dialogue with the Ministry of Labor and • Promote priority access for returnees to existing la-
the Ministry of Education to resolve obstacles in the bour reintegration programmes.
access to employment and education for refugees • Promote interinstitutional partnerships at the cen-
and applicants for refugee status tral and local levels to provide priority access to la-
bour reintegration programmes.
• Strengthen leadership at the community level.
• Facilitate access to vocational training programmes
and initiatives to generate income.

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MIRPS NATIONAL ACTION PLAN IN
MEXICO

38 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND SOCIAL
19 COMMITMENTS LIVELIHOODS PROTECTION
5 COMMITMENTS 9 COMMITMENTS

EDUCATION HEALTH
1 COMMITMENT 4 COMMITMENTS

Mexico promotes the integration of asylum seekers and refugees in national systems, with full
access to employment, public health services, and education at all levels. The MIRPS framework
has been key to achieve a more efficient registration of asylum seekers, and to achieve progress
in the protection of the best interests of children in migratory contexts, including those in need of
international protection. A policy to internal displacement is currently being developed by the Mex-
ican government. Simpliﬁed asylum procedures, ﬁnancial inclusion and the strenghtening of public
services in host communities in the south, also remain priorities of the 2021 action plan.

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MEXICO
PROTECTION ugees, the Migration Law and the Complementary
Protection and Political Asylum regulations.
• The SIPINNA, from the Protection Commission for
• Increase COMAR’s presence in INM Immigration migrant children and asylum-seekers, will promote
Stations for a greater number of applicants for ref- the harmonization of the General Law on the Rights
ugee status. of Children and Adolescents with the Law on Ref-
• COMAR will train INM personnel in airports, where ugees, the Migration Law and the Complementary
there is greater ﬂow of people requesting refugee Protection and Political Asylum regulations.
status. • CONAVIM will promote access to services for fe-
• Promote permanent information campaigns that in- male asylum-seekers or refugees in the Justice
form about rights and the process for the recogni- Centres for Women (CJM), by coordinating with the
tion of refugee status, in a simple and understand- 3 governmental levels. CONAVIM and COMAR will
able way. carry out actions aimed at preventing and eradicat-
ing gender-based violence against girls and women.
• Provide training to public servants who assist or
work directly with refugee applicants, refugees and • COMAR, UNHCR and UNICEF will review and
beneﬁciaries of complementary protection, to en- standardize the interview format for children seek-
sure decent attention; institutions that make up the ing asylum for quality assurance during the inter-
Interinstitutional Roundtable on Refugee and Com- views; a guide for the use of appropriate language
plementary Protection will be prioritized. with children will be developed and used in all in-
terviews and questionnaires.
• COMAR and UNHCR will promote the “Jaguar” in-
formation and awareness campaign on the rights • COMAR, UNHCR and UNICEF will develop and
of applicants and refugees in the areas of greatest share support materials with appropriate language
transit and destination. for children, to be used during eligibility interviews
and other questionnaires addressed to this popula-
• SE-SIPINNA, the DIF and the PFPNNA will strength-
tion of interest.
en alternative care centres for temporary housing,
preventing the use of Migration Stations for shelter. • Disseminate a handbook of available shelters (pub-
lic and private) by federation, for asylum-seekers,
• INM, COMAR, SE-SIPINNA and UNHCR will seek for
refugees and beneﬁciaries of complementary pro-
alternatives for shelters to lower the use of the Mi-
tection.
gration Stations, particularly for family groups with
children. • Review and accelerate current procedures for the is-
suance of documents for asylum-seekers, refugees
• Improve coordination mechanisms between the
and beneﬁciaries of complementary protection.
authorities that assist children (COMAR, INM, PF-
PNNA, SIPINNA) to facilitate the identiﬁcation of • Guarantee the right to the identity to asylum-seek-
international protection needs and access to Refu- ers, refugees and beneﬁciaries of complementary
gee Status Determination. protection, through the issuance of the temporary
and/or permanent CURP, and establish coordi-
• The INM and the Procurator’s Office for the Protec-
nation mechanisms between RENAPO, INM and
tion of the Rights of Children and Adolescents (fed-
COMAR to strengthen management, implementa-
eral, state and municipal) will apply the specialized
tion and training; also, review and make regulatory
protocol for the care of children developed by CO-
changes, for the assignation of CURPs in a more
MAR, UNICEF and UNHCR; also for interview tech-
efficient and simple way.
niques to identify needs of international protection
and for the referral of cases to the COMAR or to the • INM, COMAR and UNHCR will promote measures
competent authority. to accelerate the signing process at the COMAR
and INM offices, in accordance with the obligations
• Increase the operational capacity of the federal,
of people requesting refugee status.
state and municipal Child Protection Offices, prin-
cipally in the states with the largest migrant and
asylum-seeker population, (Chiapas, Tabasco and
Veracruz).
• The PFPNNA, through SIPINNA, will generate coor-
dination mechanisms with state and municipal pro- EDUCATION
tection offices to standardize criteria that regulate
the determination, coordination, monitoring and
• SEP, INEA and COMAR will promote actions that allow
restitution plans for child protection.
the formal inclusion of children seeking asylum, refu-
• The SIPINNA, from the Protection Commission for gees and beneﬁciaries of complementary protection
migrant children and asylum-seekers, will promote to mandatory school education (preschool, primary,
the harmonization of the General Law on the Rights secondary and preparatory), as well as access to ed-
of Children and Adolescents with the Law on Ref- ucational programs nationwide through the INEA.
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MEXICO
JOBS AND LIVELIHOOD SOCIAL PROTECTION
• Within the scope of their competencies, the agen- • Together with COMAR and UNHCR, the participat-
cies will promote the incorporation of asylum-seek- ing institutions of the Interinstitutional Roundtable
ers, refugees and beneﬁciaries of complementary on Refugee and Complementary Protection will de-
protection, to public and private institutions for job velop materials that describe and explain how to
training and certiﬁcation processes. access the programs and services available to the
• UNHCR will carry out projects aimed at peaceful populations of interest.
coexistence in the main host communities, and will • COMAR, together with the participating agencies
foster spaces for cultural and learning exchange, in the Interinstitutional Roundtable on Refugee and
which will favour the integration of the population Complementary Protection, will promote access to
of interest. public services and programs at the federal and
• Promote the recruitment of asylum-seekers, refu- state levels, through the revision of guidelines and
gees and beneﬁciaries of complementary protec- the creation of integration modules
tion for job vacancies available in the National Em- • Development and dissemination of awareness mass
ployment Service; disseminate the calendar of job campaigns, through television, radio and social
fairs organized nationwide. networks to counteract xenophobic manifestations
• Promote actions to include asylum-seekers, refu- against migrants and refugees, including informa-
gees and beneﬁciaries of complementary protec- tion on the mechanisms to ﬁle complaints with CON-
tion to housing programs. APRED for discriminatory acts committed by public
or private servants.
• CNBV will promote access to ﬁnancial services
for asylum-seekers, refugees and beneﬁciaries of • CONAPRED will provide courses and workshops to
complementary protection with the Association of public officers and media to avoid prejudiced
Banks of Mexico. • and stigmatizing news coverage and communica-
tion for asylum-seekers, refugees and beneﬁciaries
of complementary protection.
• INDESOL will promote asylum-seekers, refugees
HEALTH and beneﬁciaries of complementary protection, in
the activities organized by civil society organiza-
tions, and will review social joint venture programs
• The Ministry of Health and COMAR will carry out ac- for the inclusion of this population.
tions aimed at risk prevention and access to health • Promote actions for the inclusion and issuance of
services for asylum-seekers, refugees and bene- credentials for elder asylum-seekers, refugees and
ﬁciaries of complementary protection; the CNPSS beneﬁciaries of complementary protection, to as-
will promote strategies for Primary Health Care, sure their access to services offered by INAPAM at
Childbirth, puerperium and new born care, preven- the national and state levels.
tion of gender-based violence and addiction, by
• COMAR, in coordination with UPM, will generate and
training public officers on the speciﬁc needs of this
publish statistical information including data disag-
population.
gregated by sex, age, place of origin, and other var-
• Perform actions aimed at ensuring access to men- iables, with the objective of analysing the character-
tal health services for asylum-seekers, refugees istics of the populations of interest for its inclusion to
and beneﬁciaries of complementary protection. programs and services.
• Promote the inclusion of asylum-seekers, refugees • UPM, in coordination with COMAR, will promote col-
and beneﬁciaries of complementary protection, in laboration and joint efforts between governmental
all reforms to the General Health Law, secondary institutions, academia and civil society organizations
laws and administrative provisions, in terms of ac- for the generation of studies and information linked
cess to health services and medicines, and con- to the design and evaluation of public policy related
sideration of the documentation issued by the CO- to populations of interest.
MAR and the INM, instead of social security, for the
• The Welfare Secretariat will promote actions for the
populations of interest.
inclusion of asylum-seekers, refugees and beneﬁ-
• UNDP, UNHCR and PAHO will conduct studies of ciaries of complementary protection in all social pro-
the capacities of public health services in the host grams, especially in “Sembrando Vida” and “Emer-
communities in southern Mexico (mainly Chiapas gencia Social”.
and Tabasco), identifying opportunities to strength-
en them and meet the needs of the host communi-
ties and populations of interest.

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MIRPS NATIONAL ACTION PLAN IN
PANAMA

26 TOTAL COMMITMENTS
FOCUS AREAS:

PROTECTION JOBS AND SOCIAL
12 COMMITMENTS LIVELIHOODS PROTECTION
7 COMMITMENTS 5 COMMITMENTS

EDUCATION HEALTH
3 COMMITMENT 1 COMMITMENTS

Panama, as a transit and asylum country, has strengthened its capacities to ensure access to refu-
gee protection for those ﬂeeing violence. The implementation of the MIRPS National Plan has led to
a signiﬁcant improvement in the access to their basic rights, livelihoods, and local integration. This
includes the approval of work permits for asylum seekers admitted to the procedure, strengthening
of ONPAR’s presence at the southern border and the implementation of innovative employability
programs, among other achievements.
However, there are still some challenges that need to be addressed. The COVID-19’s emergency
worsened the already vulnerable condition of some refugees and asylum seekers, forcing to rede-
ﬁne priorities and actions to continue providing refugees and asylum seekers protection, inclusion
and humanitarian assistance.

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PANAMA
PROTECTION EDUCATION
• Strengthen training processes for public servants • Share information with asylum seekers on workshops,
at the national and local levels on international pro- courses and trainings provided by the National Insti-
tection, in order to enhance their capacity to identi- tute for Professional Training (INADEH), as follow-up
fy and refer people with protection needs. Special to the agreements reached in the beginning of 2019.
focus will be provided to SENAFRONT, SNM, SEN- • Match tuition costs for refugee students who are un-
AN, ONPAR, INAMU, SENNIAF, Ombudspersons dertaking a bachelor’s degree or technical careers
Office and local authorities in priority areas. at University of Panama with the cost for a national,
• Promote an agreement between the Ministry of recognizing the special protection condition of this
Safety and Ministry of Government (ONPAR) to population and their recognition by the Panamanian
formalize and set in motion referral protocols and state.
guidelines between SNM – ONPAR, and SENA- • Promote the creation of an instruction manual ‘Proce-
FRONT – ONPAR. In order to provide a timely re- dure and placement tests’ for the operation of Decree
sponse to the identiﬁcation and referral of people 1225 of 2015
with international protection needs in border areas
and airports, and in line with what is established in
Executive Decree N.5 of 2018
• Improve the registration system (TRE) to facilitate a
cross-cutting revision of asylum claims among au-
thorized public institutions, ensuring conﬁdentiality.
• Reduce the backlog of claims submitted to ON-
HEALTH
PAR under the jurisdiction of Decree N. 23 of 1998,
which gave way to the development of Law N. 5 • Promote and establish an attention roadmap and
of 1977, that approves the 1951 Convention and the protocol between the Ministry of Government (ON-
1967 Protocol. PAR) and Ministry of Health (Department of mental
• Facilitate the management of larger human and ﬁ- health and other services) for the attention and re-
nancial resources of ONPAR in order to ensure the ferral of refugees and asylum seeker for whom it is
capacity to provide a response to an increasing required as a result of their mental health.
number of asylum seekers, which includes, inter
alia, personnel for project management, data man-
agement, lawyers, social workers, psychologists
and other relevant professions.
• Undertake meetings with technical teams of
CONARE to analyze cases to be presented during
ordinary meetings of the National Commission for
the Protection of Refugees, with the aim of ensuring
a swifter response for cases admitted by ONPAR.
• Undertake brigades to issue documents in areas of
difficult access, to renew refugee identity documents.
• Promote the elaboration of a legal instrument so
that people recognized as stateless can opt for a
permanent residence and Panamanian nationality.
• Promote an attention and referral roadmap and a
protocol between the Ministry of Government (ON-
PAR) and the National Institute for Women (INAMU)
and other partners for refugee and asylum-seeking
women, survivors of SGBV.
• Engage legal clinics of Law faculties in private and
public universities in providing free orientation ac-
companiment and legal assistance to asylum seekers.
• Promote the university social service and or in-
ternships within ONPAR for University of Panama
students undertaking careers in law, psychology,
social work, archives, public administration, among
others.
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PANAMA
JOBS AND LIVELIHOOD SOCIAL PROTECTION
• Manage the certiﬁcation of extension of work per- • Launch the incorporation of actions within existing
mits in cases where people recognized as refugees social policies for highly vulnerable refugees.
present a request before the Ministry of Labour • Promote existing programmes to cover basic needs
and Labour Development (department of migra- with key actors (including food and temporary shel-
tion), with 30 days or more prior to the expiration ter) for extremely vulnerable people.
of their permit, and that the extension request is in • Promote the participation and consultation of com-
progress. munities in the design of activities and public poli-
• Promote the issuance of work permits for asylum cies and enhance joint work with identiﬁed facilita-
seekers admitted to procedure by ONPAR tors within communities.
• Promote the issuance of drivers licenses for asylum • Promote anti-xenophobia campaigns for different
seekers who have possession of their claim certiﬁ- entities for the integration of refugees and asylum
cation issued by ONPAR seekers in Panama.
• Search for income generation alternatives for refu- • Promote community-based integration initiatives for
gees. Focus will be given to institutions, the private refugees and host communities.
sector and the civil society to explore alternatives
and put in motion concrete strategies for the eco-
nomic inclusion of refugees.
• Raise awareness within the private sector on refu-
gees seeking employment.
• Incorporate asylum seekers admitted to procedure
and refugees within the database of the Ministry of
Labour, for their participation in job fairs and job ex-
change.
• Manage the viability of opening bank accounts for
refugees

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CLP_AR_005032
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CLP_AR_005077
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At the root of migration
The pervasive challenges of the Northern Triangle, its fragile economies and
epidemic levels of gang violence, lead thousands to cross borders in search
of a better future. If the global development community is to respond to the
ongoing but constantly shifting migration crisis, it requires nuanced and in-
depth data that go beyond common knowledge of the region’s economics
and security situation.

Creative Associates International believes that combined account for more than half of all the
development can signiﬁcantly mitigate irregular region’s emigration. In those 60 municipalities,
migration through a ﬁrst mile approach – one Creative then conducted 2,400 individual in-
that addresses the speciﬁc factors that trigger person surveys to gather data on intentions to
someone to leave their home. With an intentional migrate, family, the economic situation of the
and targeted ﬁrst mile approach, development household and exposure to crime, among other
programs can address the root causes that drive points. Based on these surveys and extensive
migration and ultimately reduce the number of data analysis, Creative was able to distinguish
people embarking on an often dangerous journey, the different triggers of migration in each
whose absence reverberates through their municipality, as well as paint a general portrait of
communities. potential migrants. These conclusions shed light
on the region’s textured migration landscape and
It is important to note that this ﬁrst mile
can be used to inform highly focused programming
approach must be tailored for each location,
that can mitigate irregular migration and improve
based on the speciﬁc factors that push people
the conditions of Central Americans.
to emigrate from one high-migration area as
opposed to another. In fact, the success of this The study took on the name “Saliendo Adelante,”
approach in mitigating migration hinges on a borrowing from a Spanish phrase that was heard
localized strategy. frequently across the region as people described
what drives them to migrate – their resilience and
In February 2019, Creative commissioned an
desire to move forward in life.
ambitious research study that ﬁrst zeroed in on
those municipalities that have the highest rates The factors at play in each of these 60 mostly
of outward migration from Honduras, El Salvador urban municipalities, while varied, can be broken
and Guatemala. Analyzing data from nearly 900 down into three principal categories: economics,
municipalities, Creative identiﬁed the 60 that victimization and transnational ties.

Percentage of survey respondents who intend to migrate

El Salvador Guatemala Honduras

24 %
18%
33 %

CLP_AR_005078
2 | Why
Whymigrants
migrantsrisk
riskititall
all
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CLP_AR_005079
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ECONOMICS

The principal factors that differentiate those who do intend to migrate from those
who do not in the 60 high-migration municipalities surveyed fall under the category Figure 1:
of economics. When asked what their primary reason for migrating would be, more Percentage of those who intend to
than 60 percent of respondents cited economic-related concerns. Migration from migrate who cite economic concerns as
their primary reason for migration.
the Northern Triangle occurs against the backdrop of a vulnerable regional economy,
where many of those who are working do so in an informal capacity with few EL SALVADOR - 50%
protections or opportunities for advancement.
GUATEMALA - 71%
Within the broader context of economics, three main factors were found to be HONDURAS - 67%
differentiators:

Unemployment Household Earnings Pessimistic Outlook

On average across the region’s high- Those whose households earn less than Believing that their household’s
migration municipalities, being $400 a month and who cannot make ends economic situation is on the decline
unemployed makes someone nearly meet are 1.25 times more likely to consider is an interestingly strong indicator of
twice as likely to consider migrating. migrating. More than one-third of survey migration. This is particularly true in high-
According to Creative’s analysis, the issue respondents reported household earnings migration municipalities in Honduras,
of unemployment is particularly inﬂuential under the $400 line and said they could not where believing that the household is
in Guatemala and El Salvador, and slightly make ends meet. worse off than it was the previous year
less so in Honduras. makes individuals 1.5 times more likely to
However, in breaking this information
consider migrating.
By looking closely at the local data, the down further, Creative found that
study can also identify the municipalities individuals in that group whose households Looking closely at the coastal municipality
in which unemployment is a stronger push earn under $200 monthly and who cannot of La Ceiba, Honduras, pessimistic
factor for migration. In Guatemala City, make ends meet are actually less likely to economic outlook is a clear differentiator:
for example, 16 percent of those who have migrate. One explanation could be that 71 percent of those who have considered
considered migrating are unemployed, those with the most limited resources migrating think their economic situation
compared to just 5 percent who have not cannot afford the journey; depending on will be worse next year, compared to 39
considered migrating but are unemployed. the country, hiring a coyote, or smuggler, to percent who have not considered migrating
Holding a low-skill and unstable job is also lead the trip to the U.S. border can cost up but feel the same.
a differentiator in Guatemala City, and to $8,000 per person.
20 percent of those who have considered
migrating are low-skill workers.

Figure 2:
Migration and unemployment among youth ages 18 to 29

EL SALVADOR GUATEMALA HONDURAS
Plans to migrate & No plans Plans to migrate & No plans Plans to migrate & No plans
unemployed to migrate & unemployed to migrate & unemployed to migrate &
unemployed unemployed unemployed
Young men 20% 10.4% 18.4% 2.2% 23.6% 18.4%
Young women 18.5% 1.9% 11.5% 8.6% 8.3% 4.2%
CLP_AR_005080
4 | Why migrants risk it all
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CLP_AR_005081
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VICTIMIZATION

Across the Northern Triangle, and particularly in high-migration, urban municipalities, residents are coping with levels of violence
that are among the highest in the world. Creative’s study sought to look beyond the alarming homicide rates and focus instead
on personal experiences of victimization and how they relate to migration. The study focused not just on homicides, but also on
exposure to other crimes that breed feelings of insecurity, including extortion, robbery, bribery and violence against women.
Regionally, having been a victim of a crime or having a family member or someone close to you who has been makes an individual
1.5 times more likely to consider migrating. The analysis suggests that how people react to these crimes varies signiﬁcantly by
country and by municipality; Hondurans and Salvadorans appear to be more greatly impacted by victimization than Guatemalans.

Homicides Robbery Extortion

Having personal exposure to homicide is a Even more so than homicides, robberies Extortions are particularly concentrated
clear differentiating factor in the high- are a powerful inﬂuencer of migration in the high-migration municipalities
migration municipalities of both Honduras decisions. Again, this is truer in Honduras surveyed. Eighty-six percent of the total
and El Salvador. and El Salvador than in Guatemala. registered extortions in Honduras in
2017 occurred in these municipalities,
Nearly one-third of survey respondents In Honduras, 61 percent of those who have
which are home to less than 60 percent
who have considered migrating from considered migrating have been robbed
of the total population. In El Salvador, 70
Honduras have had a family member or on the street, compared to 39 percent who
percent of registered extortions occurred
close friend murdered, while 15 percent of haven’t considered migrating but have been
in high-migration municipalities, and in
those who do not intend to migrate have robbed.
Guatemala, 43 percent. Extortions seem
lost a relative or friend to homicide.
to have the biggest impact in El Salvador:
Nearly a quarter of those who have
considered migrating have been extorted,
compared to 11 percent of people who have
not considered migrating but have been
Figure 4: extorted.
Percentage of those who intend to migrate who cite victimization
factors as their primary reason for migration

EL SALVADOR GUATEMALA HONDURAS
38% 14% 18%

Figure 5:
52% of those who say
they have thought about
In Guatemala, victimization affects municipalities differently,
as seen in Guatemala City and Totonicapán. migrating say they would
Municipality Intends to migrate and Does not intend to migrate do so alone; 26% say they
has been exposed to at but has been exposed to would migrate with their
least two acts of crime or at least two acts of crime or
violence violence children
Guatemala City, Guatemala 57% 39%
Totonicapán, Guatemala 50% 27%
CLP_AR_005082
6 | Why migrants risk it all
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CLP_AR_005083
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TRANSNATIONAL TIES

Transnational ties – deﬁned here as existence of family in the U.S., receipt of Over 20%
remittances, and prior migration to the U.S. – is an important pull factor in the of income for
migration equation, although far less impactful than economics and victimization. households across
In the larger regional context, a culture of migration has been and continues to the region comes
be solidiﬁed through the generations. Nearly two-thirds of all survey respondents
have a relative living abroad, 75 percent of those relatives have lived in the U.S. for
from remittances
10 years or more, and about 25 percent for over 20 yeas. However, an expectation
that family reuniﬁcation would be a signiﬁcant driver of migration was disproven by
the data collected, with only 3 percent of survey respondents citing reuniting with
relatives as their primary reason for migration.
In addition, statistical analysis shows that simply having a family member in the U.S.
is not a differentiating factor between those who intend to migrate and those who
don’t, despite the large number of people who reported family ties.
Remittances, however, are indicative of a strong family connection to the U.S. while
Remittances
also pointing to viable job opportunities, an existing support system in the U.S. and
the potential for economic prosperity. Nearly a quarter of those who say they have
thought of migrating receive remittances
across the Northern Triangle’s high-migration
municipalities, in comparison to 15 percent
of those who haven’t thought of migrating but
receive remittances. The statistical signiﬁcance
of remittances is greatest in Guatemala, where
receiving remittances makes an individual nearly
twice as likely to have thought about migrating.
But remittances also have a positive effect in
reducing poverty and help families below the
$400 monthly income threshold make ends meet.

Only 3% of those
who intend to
migrate cite family
reuniﬁcation as their
primary reason for
migration

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8 | Why migrants risk it all
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CLP_AR_005085
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CLP_AR_005086
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CONCLUSIONS &
RECOMMENDATIONS
The results of the Creative Associates International migration study underscore the need for a ﬁrst-
mile approach to reducing migration that addresses speciﬁc drivers, strengthens communities and
creates opportunity locally. The following ﬁndings and recommendations are intended to help
shape effective migration-focused programming in the Northern Triangle.

Key conclusions Recommendations for development

Migration is highly localized Focus on high-migration areas
A small number of municipalities, largely urban, account For the most effective and efﬁcient results in mitigating
for the bulk of all irregular out-migration from the migration, programs should focus on high-migration
Northern Triangle. While trends emerge at the national municipalities. Interventions should be designed to address
level, the factors that inﬂuence one’s decision to migrate the speciﬁc factors inﬂuencing migration in each.
vary dramatically by municipality.

Economics are driving migration Expand economic programs
Economic factors are the most salient in inﬂuencing Programming should seek to stabilize vulnerable local
migration and are cited far more often as the primary economies and then expand on traditional economic
motivator for migration than victimization factors. development interventions to address the speciﬁc
economic realities of high-migration municipalities,
including the informal economy.

Youth are most likely to migrate Meet youths’ urgent needs
People from the ages of 18 to 29 report distinct Youth, and positive youth development, should be at the
levels of exposure to economic and victimization center of migration-speciﬁc programs. Implementers should
factors and react to these factors differently than also be cognizant of differences in young women’s and young
adults in their decisions to migrate. men’s motivations for migration.

Victimization is varied Address the victimization spectrum
Extortion, robbery and other crimes are, in most Programs should seek to reduce the high levels of
cases, an even stronger motivator for migration victimization in target areas, taking into account not only
than exposure to homicide. homicides but all types of crime and violence that create
highly victimized communities.

CLP_AR_005087
Saliendo-Adelante.com | 11
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About Creative

Creative Associates International works with
underserved communities by sharing expertise
and experience in education, elections, eco-
nomic growth, citizen security, governance and
transitions from conflict to peace.

Based in Washington, D.C., Creative has active
projects in nearly 30 countries. Since 1977,

it has worked in nearly 90 countries and on
almost every continent. Recognized for its
ability to work rapidly, flexibly and effectively
in conflict-affected environments, Creative is
committed to generating long-term sustainable
solutions to complex development problems.

Creative has grown to become a leader among
US. private sector implementers of global
development projects. Creative is minority
owned and operated.

Creative in Latin America
and the Caribbean

Creative has been leading innovative, sustain-
able development programs in Latin America
and the Caribbean for four decades.

Creative’s programming in the hemisphere
is built on evidence, proven tools and a deep
understanding of local contexts. Projects

are designed to be inclusive of marginalized
groups, operate with local organizations and
engage the private sector to ensure that the
positive change put in motion lasts long after
Creative’s interventions.

Creative began its work in the Northern
Triangle in 1983 with a training of Peace Corps
volunteers in Guatemala. Since then, Creative
has implemented dozens of programs in the
region’s most challenging communities and
contexts, supporting gang violence prevention,
peace and reconciliation, education and civic
engagement, positive youth development, rule
of law and governance strengthening and more.
Creative currently implements four programs
in Honduras, El Salvador and Guatemala,
reaching many of the region’s highest-migra-
tion municipalities.

To see more study results and
hear migrant stories, visit:

Saliendo-Adelante.com

Study Methodology

Creative's study began in early 2019 with
an extensive review of available data at the
regional, national and municipal levels that
relate to migration.

To narrow down the study to those
municipalities that have the highest rates of
emigration, Creative relied on a methodology
that uses remittance payment points in the
recipient country to identify the place of
origin of migrants who are in the United
States. This methodology was designed by
Manuel Orozco and has been adopted and
used by the International Fund for Agricultural
Development and the Inter-American Dialogue
since 2009. In the Northern Triangle, there are
more than 100,000 payment points where
families collect remittances.

Drawing data from 893 municipalities in El
Salvador, Guatemala and Honduras, Creative

identified the 60 municipalities that 1) each
account for more than 1 percent of irregular
migration from their respective countries and
2) combined, make up a majority of outward
irregular migration from the Northern Triangle.

Creative then commissioned a randomized
survey of residents in those 60 municipalities,
first testing the detailed survey instrument in two
municipalities in Honduras. Trained enumerators
were then dispatched to conduct 2,400 in-
person surveys, which ultimately generated
about 100,000 individual data points.

With municipal-level data on 48 distinct social,
economic and crime variables that relate to
migration, Creative analyzed migratory trends
and their relationship to the survey indicators.
Statistical regression models were used to
identify any statistical significance of these
indicators on the likelihood of migration.

The 60 municipalities surveyed were (by country, in
order of emigration from highest to lowest):

El Salvador

San Salvador (18% of
Salvadoran emigration),
San Miguel, La Libertad,
Soyapango, Santa Ana,
Sonsonate, La Unidn,
Apopa, Zacatecoluca,
Usulutan, Cojutepeque,
Metapan, Ahuachapan,
llopango, Santa Rosa

de Lima, Juayua, San
Francisco Gotera, Antiguo
Cuscatlan, Chalatenango,
San Vicente

Guatemala

Guatemala City (16% of
Guatemalan emigration),
Mixco, Villa Nueva,
Totonicapan, Chiquimula,
Huehuetenango,
Jutiapa, Chimaltenango,
Retalhuleu, Solola, San
Pedro Sacatepéquez,
Coban, Villa Canales,
Escuintla, Flores, La
Libertad, Coatepeque,
Morales, San Marcos,
Antigua Guatemala,
Salama, San Juan
Sacatepéquez, Jalapa,
Zacapa, Sayaxché,
Esquipulas, Puerto Barrios

Honduras

Central District
(Tegucigalpa and
ComayagUela, 27% of
Honduran emigration),
San Pedro Sula (20% of
Honduran emigration),
La Ceiba, Comayagua,

El Progreso, Choluteca,
Santa Rita, Puerto Cortés,
Choloma, Siguatepeque,
Danii, Juticalpa

*Municipalities listed above without a number account for between
1 percent and 5 percent of their respective country’s emigration.

) (in) Creative Associates International

Washington, DC 20015

5301 Wisconsin Avenue NW, Suite 700

CLP_AR_005088
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CLP_AR_006307
© Flores Solano

2023
Le
e eee hee
POPULATION PEOPLE IN PIN PEOPLE
PROJECTION NEED (PN) PERCENTAGE TARGETED
VENEZUELANS WM 298M 239M 80.3% M 740k
IN-DESTINATION 3.26 M 2.62 M 80.3% 590.7K
402.3 K 349.6 K 86.9% 104.3 K
IN-TRANSIT
446.2 K 3879 K 86.9% 875K
190 M 124M 65.2% 369.8 K
PENDULAR
193M 126 M 65.2% 284.3 K
Pananer 980.0 K 541.6 K 55.3% 1615 K
RETURNEES 980.0 K 549.8 K 56.1% 122.2 K
AFFECTED HOST - 885.3 K - 264.1 K
COMMUNITIES - 941.2 K - 212.3 K
| 6-..LlLlUe | hE hm he hm
AGE AND GENDER P 340% P377% | P 344% BP 373% a sau ® 373%
DISAGGREGRATION t u | tT t t u
P 141% 142% | ® 142% P 14.1% 142% F 141%
aW TOTAL REQUIREMENTS RMRP PARTNERS

$575.86M WD 7%

CLP_AR_006308
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 40 of 283
RMRP 2023 - 2024 COLOMBIA 133

COLOMBIA: BENEFICIARIES TARGETED

Caribbean Sea ±
La Guajira
Atlántico

Magdalena Cesar

PANAMA Sucre
Norte de
Córdoba Bolivar Santander BOLIVARIAN REPUBLIC
OF VENEZUELA

Antioquia Santander Arauca

Chocó
Boyacá
Caldas
Cundinamarca Casanare
Risaralda
Pacific Ocean Quindio
Bogotá D.C. Vichada

Valle del Tolima
Cauca
Meta
Huila Guainía
Cauca

Guaviare
Nariño

Vaupés
Putumayo
Caquetá

BRAZIL

ECUADOR
Amazonas

PEOPLE TARGETED 2023
14 - 5,000 PERU
5,001 - 30,000
30,001 - 90,000
90,001 - 200,000
200,001 - 280,000 This map is for illustration purposes only. The boundaries and names shown and the designations
used on this map do not imply official endorsement or acceptance by the UN.
CLP_AR_006309
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 41 of 283

COLOMBIA: KEY FIGURES BY DEPARTMENTS

Z. 3 Population Projection eo People in Need (PiN)

AMAZONAS
ANTIOQUIA
ARAUCA

ATLANTICO
BOGOTA DC

BOLIVAR
BOYACA
CALDAS
CAQUETA
CASANARE
CAUCA

CESAR

CHOCO
CORDOBA
CUNDINAMARCA
GUAINIA
GUAVIARE
HUILA

LA GUAJIRA
MAGDALENA
META

NARINO
NORTE DE SANTANDER
PUTUMAYO
QUINDIO

RISARALDA

SAN ANDRES Y
PROVIDENCIA

SANTANDER
SUCRE

TOLIMA

VALLE DEL CAUCA
VAUPES

VICHADA

be
Ca)

aw
People Targeted rs) Total Requirements

“oo me COG a of me COS
19K 15K 436 $3182K 20K 15K 339 $3098K
6533K SOL9K 497K $5788M 725K SAl4K 122K $4652M
6557K 4372K 1304K $4207M 6717K 448.8K 1012K $3749M
375.0K 2660K 793K $5326M 4Q0IK 2857K 644K $43.81M
9325K 7052K 203K $80.08M 100M 76OIK 171SK $6673M
24K 150.3K 448K $2614M 2349K 1606K 362K $2171M
725K 567K 169K $I084M 777K 608K 137K SIL86M
359K 282K 84K $144M 384K 303K 84K $1L94M_
54K 42K 12K $210K S6K 43K 981 $I8.0K
421K 314K 94K $688M 453K 339K 76K $650M
396K 276K 82K $8I5M 427K 299K 67K $720M
474K 1069K 319K $2045M 1566K 143K 258K $I691M
72k 53K 16K $71I9M 77K S8K 13K $741M
63K 415K 124K $5600K 657K 435K 98K $5774K
296.0K 2223K 663K $2371M 3IBOK 240IK 542K $22.08M
IK 93K 28K $34IM 180K 101K 23K $296M
35K 27K 799 $1930K 37K 29K 646 $120K
24SK 160K 48K $698K 263K 173K 39K $583K
B618K 6309K 1882K $8103M 8904K 654.0K 475K $6867
1.6K 13L7K 393K $2378M 1832K (LOK 318K $1931M_
657K 492K 147K $224M 707K S3IK 120K $297M
350K 279K 83K $3407M 377K 30IK 68K $3186M_
140M 9342K 2786K $9322M 145M 97L6K 2I92K $76.21M
246K 159K 47K 195M 263K 172K 39K $184M
400K 29IK 87K $7685K 429K 314K 71K —SISIM
784K 609K 182K $713M 843K 656K 148K $78IM
293 187 +56 $80K 307 198 45 $80K
2267K 1632K 487K $30.07M 2424K 1755SK 396K $2646M
686K 420K 125K $500K 709K 438K 99K 0
634K 536K 160K $250M 667K S62K 127K $326M
3924K 2944K 878K $3660M 4201K 3I62K 713K $3281M
6 4814 0 6 SS 1 oO
167K 129K 38K $8.77M

BK OKC LPOAR_006310
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 42 of 283

M023 COLOMBIA: NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE “RAY 9135 +

NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE

International National

TOTAL ; Others UN Agencies
NGOs NGOs / CSOs' 2
Financial requirements $664.87 M 22.8% 3.4% 3.0% 70.9%
Organizations y JA 35 | 6 12
' Civil Society Organizations. The list of organizations only includes appealing organizations under the
' Others include the Red Cross Movement, academia and faith based RMRP, many of which collaborate with implementing partners to carry out
organizations. RMRP activities.

POPULATION IN NEED AND TARGET, FINANCIAL REQUIREMENTS
AND NUMBER OF PARTNERS BY SECTOR"

Seep People in PiN People mtTargeted Financial Partners
Need (PiN) percentage” targeted lnneed requirements
Education 409M 549% 4404K So S62IM 18
SS Food Security 396M 532% 758K fun 2536M 17
2 teaith 532M 715% 143M feat 9729M 34
erator 185M 249% 194K geah 466M 10
@® integration 525M 70.6% 2001K Sra 12684M 46
Q Nutrition 120M 161% 148K goa 438M 12
WW Protection" 458M 616% S4&20K Saat 642M 38
Wy Child Protection 170M 22.8% 196K oe 2802M 17
“P otcnoe (cay) 297M 399% 177K Seo 2023M 35
YW comnwing | 9482K 127% ~=— 280K aw 675M 8
FF shelter 508M 682% 2325K Sia 3602M 18
WASH 380M 5.0% 2887K son 2263M 29
rps cash - - 2724K - 59.42 M 2I
7x Common Services” : = = - 12.97M 2

While not being Sectors, data for Multipurpose Cash and for Common Services is included to inform on the overall targets and distribution of financial
requirements in the RMRP 2023-2024.

** The PiN calculations for some sectors (namely, Nutrition, Education and all Protection subsectors) are based on specific age and gender groups,
resulting in a low PiN percentage as a proportion of the total population.

**k This includes Support Spaces.

soe Thin; on an . .
This includes AAP-CwC, Communication, Coordination, Information Management, PSEA, and Reporting. CLP AR 00 > 2 | |

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 43 of 283

“9136 + Rav COLOMBIA: NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE M024

NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE
International National 7 .
TOTAL NGOs NGOs / CSOs’ Others" UN Agencies
Financial requirements == $575.86 M 19.9% 2.7% 3.3% 741%
Organizations 59 25 17 6 ii
' Civil Society Organizations. The list of organizations only includes appealing organizations under the
"Others include the Red Cross Movement, academia and faith based RMRP, many of which collaborate with implementing partners to carry out
organizations. RMRP activities.
POPULATION IN NEED AND TARGET, FINANCIAL REQUIREMENTS
AND NUMBER OF PARTNERS BY SECTOR’
Sean People in PiN People m Targeted Financial Part
eeror Need (PiN) percentage” targeted lnneed requirements armners
[Education 4.36 M 554% 494K Sea 46.27 M 13
SB Food Security 420M 534% 6935K fend 99.98 M 15
@ Health 566M A9% B8494K Seod 78.42 M 2t
Humanitarian
Ges ansportation 203M 258% 999K Sand 454M g
integration 559M AG% 2376K Sa 12726M 40
Q Nutrition 125M 159% W99K wird 3.85 M g
WW? Protection” 491M 62.4% = 278K eo 51.31 M 28
Child Protection 182 M 231% 134K gen 25.02 M 15
se Gender-Based
T Violence (GBV) 317M 40.2% «1032K Ha 18349M 26
Human Trafficking
Ys smuggling 1.02 M 129% 279K fran 554M 6
(F1_ shelter 542M 68.8% (867K SeaW 28.14M 14
FA WASH 404M 513% 284.5K 7.0% 20.85 M 20
aa Multipurpose Cash - - 2351K . 52.97 M 17
Assistance . .
4 .
zy’x. Common Services” = = = - 13.20 M 17
While not being Sectors, data for Multipurpose Cash and for Common Services is included to inform on the overall targets and distribution of financial
requirements in the RMRP 2023-2024.
* The PiN calculations for some sectors (namely, Nutrition, Education and all Protection subsectors) are based on specific age and gender groups,
resulting in a low PiN percentage as a proportion of the total population.
*** This includes Support Spaces.
x««* This includes AAP-CwC, Communication, Coordination, Information Management, PSEA, and Reporting. ClLD AD 00634. 2

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 44 of 283

COUNTRY OVERVIEW

Colombia is the country hosting the largest number of
refugees and migrants from Venezuela in the region,
2.48 million.'*? The reopening of official border crossings
in the course of 2022 facilitated onward movements, as
well as additional inflows of refugees and migrants from
Venezuela and Ecuador and increased the proportion of
regular entries in recent months. '”° Irregular arrivals are
expected to continue, in parallel with onward movements
towards Central and North America of refugees and
migrants of various nationalities. Pendular movements
between Colombia and Venezuela remain frequent. |”

The results of the joint needs assessment for in-transit
and pendular population, '*° by the National R4V Platform
inColombia(GIFMM) show apersistence of humanitarian
needs. For example, 92 per cent of those in-transit have
no resources for their journey; 51 per cent are severely
food insecure, 69 per cent face difficulties accessing
potable water; and important gaps for assistance to
children aged 0 to 5 were identified. '*° Fifty-two per cent
faced protection risks and 33 per cent knew someone
within their environment who was a GBV survivor. Those
engaging in pendular movements enter Colombia mainly
to access food, healthcare (including mental health and
SRH'”’), medicines and livelihoods.

For refugees and migrants in-destination, despite the
efforts of the Colombian government to regularize and
integrate refugees and migrants through the Temporary

Protection Status for Venezuelans (TPS), and the
subsequent access to the General Social Security Health
System(SGSSS) and other social protection programmes
through the Sisbén,'*° multiple challenges persist. As
such, the results of the JNA conducted for the population
in-destination'”’ reflect persistent humanitarian needs
and integration challenges, particularly for those that do
not have TPS and asylum-seekers (many of whom face
barriers in accessing the asylum system). Eighty-two per
cent of households live in inadequate indoor housing
conditions, 51 per cent eat two meals a day or less, 92 per
cent have insufficient or intermittent access to water and
only 48 per cent of children attend school. Meanwhile, 52
per cent earn less than the minimum wage, 19 per cent
are unemployed and 24 per cent of households resort
to risky activities as a negative coping mechanism.
Furthermore, a significant number of refugees and
migrants face multiple challenges in a context of armed
conflict and disasters caused by natural threats, where
indigenous populations are particularly affected.'°°
Services in some territories are saturated due to the
increase of the population in need, posing challenges to
access to health, education, shelter, water and sanitation,
basic goods and services.

The current government has prioritized the integration
of refugees and migrants through the TPS, in particular
focusing on homologation of higher education degrees
and employability. However, Colombia's socio-economic

[122] Migration Colombia. Distribution of Venezuelans in Colombia as of 28 February 2022. https://bit.ly/3SABjtv

[123] Official figures (available at Migration Colombia dashboard on Migration Flows of Foreigners in 2022, https://tabsoft.co/3sKO9MD) register >171,400 official
entries of Venezuelan nationals in the first nine months of 2022 through the Venezuelan border and >8,300 from Ecuador; similarly, the National R4V Platform
(GIFMM) estimates, based on the extrapolation of Migration Colombia data and movements monitored through an R4V partner's Wi-Fi Analytics project,
indicate >112,000 irregular entries between Venezuela and Colombia and >11,800 from Ecuador.

[124] 37% of the groups of refugees and migrants interviewed perform pendular movements "whenever required", 19% undertake them on a monthly basis and 8%

undertake them daily. R4V, RMNA, October 202
[125] Ibid.

[126] 60% of children ages 0 to 5 have not accessed nutritional interventions, only 2% reported attending a kindergarten, institutional or community-based child
development centre or school, and 25% are cared for by their parents while they are working (mostly in informal settings), which exposes them to risks

[127] 60% of pendular groups required mental health services while 41% mentioned needs in sexual and reproductive health.

[128] The Sisbén is the System for the Identification of Potential Beneficiaries of Social Programmes, which classifies the population according to their living
conditions and income. This classification is used to target social investment and ensure that this access to social programmes (housing, health, education,
among others) is allocated to those who need it most. The Sisbén is administered by the National Planning Department (DNP). According to an R4V partner's
analysis based on DNP data, between January and July 2022, 459,169 refugees and migrants who had a Temporary Protection Permit were affiliated to
Sisbén IV (38% of total Venezuelans with a TPP). See more at: https://bit.ly/3uyDiCV

[129] R4V, RMNA, October 2022;https:/rmrp.r4v.info

[130] The humanitarian emergencies that occurred in 2022 as a result of the armed conflict in Arauca, Vichada and Magdalena stand out, as well as impacts
in regions such as Narifio, Norte de Santander and Cauca; and those caused by disasters also in Vichada and Arauca, in Norte de Santander and in the

Caribbean region (including the Mojana).

CLP_AR_006313
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conditions, characterized by income inequality'’', high
labour informality, growing inflation and unemployment
are challenges that require a differentiated approach
to effectively integrate refugees and migrants from
Venezuela.'** Coupled with above-mentioned challenges
to integration, concerning levels of xenophobia and
discrimination against refugees and migrants are
expected to persist.'*°

SCOPE OF THE RESPONSE AND PRIORITIES

This Plan contains a comprehensive and coordinated
response in 31 of Colombia's 32 departments'**
implemented through 74 partners. Priority is given to
departments on the country’s borders with Venezuela,
Ecuador and Panama, as well as cities and territories
with a high proportion of refugees and migrants in rural
and remote areas.

While addressing the needs identified through the
RMNA, the RMRP will support the State's response with
complementary programmes funded through bilateral
cooperation, particularly in the area of medium to longer-
term socio-economic inclusion of refugees and migrants
from Venezuela in their host communities. To achieve
this goal, the planning process included consultations
with International Financial Institutions (IFI),'°° donors
and the government of Colombia to ensure a coherent
and complementary response by stakeholders within
and outside the RMRP. Following a roundtable with
bilateral, multilateral donors and IFIs in July, the GIFMM
mapped key areas of bilateral donor support to the
state.'°° The National Council on Economic and Social
Policy (CONPES) document on migration,'*’ adopted
in July 2022, reflects the Government's key response
priorities to the socio-economic inclusion of refugees and
migrants from Venezuela for the next decade, a direction
which has been reaffirmed by the current government to
RAV partners in 2022.

In line with government priorities, R4V partners will
support the socio-economic and cultural integration
of refugees and migrants from Venezuela, including
through their registration in the Sisbén, facilitating
access to education and health/SGSSS affiliation, and
will work on capacity development for the State’s health,
protection, education and justice services. Support for
regularization will remain a priority, providing the basis
for integration. The overall aim is to ensure refugees’
and migrants’ effective access to rights, goods and
services, advancing the generation of sustainable
livelihoods, jobs and entrepreneurship opportunities, and
promoting harmonious relations with host communities.
Corresponding RMRP activities will particularly target
female heads of households, young people of productive
age, entrepreneurs, and people in areas affected by
conflict or disasters.

Humanitarian assistance will be provided through
direct assistance/activities, such as Cash and Voucher
Assistance (CVA), nutritional assistance, provision of
food and sanitation items, humanitarian transportation
and collective temporary shelters. These interventions
willtarget the most vulnerable, such as those in-transit on
foot (‘caminantes’), refugees and migrants who recently
arrived or who live in informal settlements, indigenous
populations, persons with specific protection needs (e.g.
UASC, women at-risk, people with disabilities and/or
chronic diseases) and those who cannot access the TPS
or asylum procedures and therefore cannot benefit from
social protection schemes.

Protection is central in all activities under this Plan. As
such, partners will support and strengthen mechanisms
to identify, refer and assist vulnerable cases and profiles.
Mass information strategies on access to rights and
risks will target particular profiles and contexts (e.g. on
transit routes and/or situations of conflict and disasters,
among others).

[131] The Gini index, which measures income distribution and inequality on a scale from 0 (least unequal) to 1 (most unequal), Colombia was ranked 0.523 in 2021.
According to World Bank Data, the country ranks as the most unequal among the 38 OECD countries (OECD average Gini index is 0.334) and the third most
unequal in Latin America and the Caribbean (average Gini index from the 25 LAC countries with available data is 0.461).(https://datos.bancomundial.org/

indicador/SI.POV.GIN!)

[132] According to an assessment conducted by an R4V partner on the integration of refugees and migrants from Venezuela in Colombia, 30 out of every 100
refugees and migrants who report having been living in the country for more than two years still have humanitarian needs. Norwegian Refugee Council,
Report on the integration of refugees and migrants in Colombia, 2022, https://nrc.org.co/wp-content/uploads/2022/07/Annex-4-NRC-Reporte-Quedarse-no-

rendirse-Colombia.pdf

[133] Even though in the different rounds of the GIFMM JNA this proportion has gradually decreased, by 2022, 37% of interviewees in -destination had experienced

discrimination, 96% due to their nationality. R4V, RMNA, October 2022.

[134] With the exception of Vaupés, given the low presence of both refugee and migrant populations and humanitarian actors.

[135] World Bank and Inter-American Development Bank.

[136] The CONPES priorities as well as the donor mapping can be found at: https://www.dnp.gov.co/CONPES/documentos-conpes

[137] National Planning Department (DNP), National Council on Economic and Social Policy (CONPES). CONPES document N° 4100: Strategy for the integration of
the Venezuelan migrant population as a factor for the country's development. 11 July 2022. https://bit.ly/3 THOEjN.

CLP_AR_006314
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 46 of 283

The RMRP incorporates cross-cutting principles relating
to gender, environment, Centrality of Protection (CoP),
Protection from Sexual Exploitation and Abuse (PSEA)
and Accountability to Affected Populations (AAP). PiN
and target populations are therefore disaggregated by
age and gender; while partners self-evaluated through
the Gender and Age Marker (GAM)'*° the differential
considerations of their response. Under the joint
guidance from the Environment focal point and the
national coordination team, partners will expand the
scope of the environmental approach,'? including
environmental considerations to improve the design
of the response and also to identify and minimize

CASH AND VOUCHER ASSISTANCE (CVA)

According to the JNA,'“ food is the main need for
the different population groups: in-destination (74
per cent), in-transit (82 per cent), pendulars (85 per
cent) and host communities'*' (66 per cent). Other
needs differ according to the population's profile: for
those in-destination and affected host communities
employment or income generation (69 per cent and 61
per cent respectively), shelter (52 per cent and 44 per
cent) and education (22 per cent and 15 per cent) are
the prevalent needs; for those in-transit, humanitarian
transportation (62 per cent), medical care (39 per cent),
and shelter (37 per cent) are the most important needs;
and for the pendular population medical care (78 per
cent), medication (58 per cent), and employment or
income generation (55 per cent) are the key needs.

Insufficient financial resources, among others, prevent
the populations from meeting their multiple needs,
leading refugees and migrants to resort to negative
coping mechanisms. '“2

sectoral gaps. Protection will be mainstreamed across
interventions to ensure safety and dignity of all people
reached, to promote their exercise of fundamental rights,
safe access to services and their participation in decision-
making without discrimination. Aligned with the principle
of “Do No Harm” and to promote minimum standards
in PSEA, R4V partners will establish actions to prevent
and mitigate sexual exploitation and abuse (SEA). AAP
will inform the design and implementation of context-
specific, confidential, and safe community complaint
and feedback mechanisms, for reporting possible SEA
situations, as well as other sectoral community feedback
requirements.

0+)

Multi-Purpose Cash Assistance (MPC) will be
employed to:

Support refugees and migrants in-need to meet all
or part of their basic needs while respecting direct
decision-making at the individual and household level.

Prevent the use of negative coping mechanisms. CVA
programmes will be implemented in all territories
where targeted population groups are present, both in
border areas and in the interior of the country.

The CVA Group (CCWG) will take into account
the estimate of the minimum expenditure basket
(MEB) for 2022'° and updated guidelines of the
national government that promote the inclusion of
host populations and the strengthening of the link
with national social protection systems. The CCWG
will also ensure that targeting criteria and procedures,
intersectoral coordination and exit strategies are
coordinated. It will also promote the implementation
of accountability models, community engagement,
CwC and cross-cutting issues such as PSEA, gender,
environment, diversity, age and disability.

[138] According to the GAM marker self-assessments, 97% of R4V 2023-2024 partners in Colombia incorporated considerations of gender equity according
to age and/or disability in their activities (this is 19% higher than RMRP 2022 results), while 1% expect to promote and/or contribute to gender
equity without incorporating age and/or disability. However, only two thirds (67%) aim at actions to transform gender roles, which are root causes of

discrimination and violence. In addition, 73% of the submissions evaluated include specific needs of LGBTQI+ persons in the project design.

[139] In Colombia, 81 R4V partners self-assessed their interventions using the cross-sectoral questionnaire of the Environmental Scoreboard, through 1,020
answers to questions regarding 13 humanitarian sectors. As a result, 38% of the responses indicate that the environmental considerations consulted
have been previously or are currently carried out by the organizations, 42% are considering the evaluated aspects; while in 9% of the cases such
indications are not being considered and only 1% were not aware of these criteria (for the remaining 10%, such considerations did not apply to the

evaluated submission).

[140] R4V, RMNA, October 2022.

[141] Considering only five municipalities: Arauca, Cucuta, Pasto, Riohacha and San Miguel, where Venezuelans and host communities were interviewed in

the GIFMM's JNA for in-destination and returnee populations.

[142] Mechanisms such as: begging, spending savings, buying food on credit, selling goods, or doing some activity that they had never thought would do and

prefer not to mention.

[143] GTM Colombia and REACH, Gap Analysis, 2022, https:/www.r4v.info/es/document/gifmm-colombia-canasta-basicay

para-poblacion-migrante

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 47 of 283

6 TOTAL REQUIREMENTS

Le . ;
nye F 343% F 370%
gg PEOPLE TARGETED

f 145% Ff 14.2%

449.4K 419.4 K

$46.27M 18

2023 2024
ore PEOPLE IN NEED FT 34.2% F 371% 2
4.09 M 436m ft 145% # 14.2% :
A020 aw
wre PIN PERCENTAGE
54.9% 55.4% $56.21M
SECTORLEADS: NRC, SAVE THE CHILDREN, UNICEF

The Education Sector will prioritize: '““

1. Promote access and retention in the education
systemof children and adolescents, with anemphasis
on education phases with the greatest enrolment and
retention gaps, such as early childhood education
and high school. '*°

2. Improve capacities of educational institutions
and authorities, and welfare systems, teachers and
providers of early childhood education to support
the inclusion and permanence of children and
adolescents in the educational system. '“°

3. Promote the recovery of post-pandemic learning
through remedial learning, curricular adaptation,
greater flexibility in assessments for children and
adolescents, and capacity development for teachers
to create more inclusive and protective learning
environments.

Response modalities:

These priorities will be delivered through:

° Technical assistance to national and_ local
educational institutions to support the effective
inclusion and retention of refugee and migrant

children and adolescents in the education system
and education services within the welfare system.

° Capacity development for educational authorities,
teachers and providers of early childhood education;
application of educational strategies tailored to
specific characteristics and challenges of the target
population, as well as strengthening social cohesion
and integration with host community children.

° In-kind distribution of educational supplies, guides
and school meals to assist families in enrolling their
children and reducing school dropouts, including
through CVA.

The Education Sector will ensure an_ integrated
response in collaboration with several other Sectors.
It will promote PSEA actions and will coordinate with
the Ministry of Education in line with the Ministry's
strategy on education of Venezuelans and Decree 1288
of 2018.'“’ It will also coordinate with the Food Security
and Nutrition Sectors to promote childhood nutrition
and WASH to rehabilitate sanitary facilities and hygiene
promotion (including menstrual hygiene campaigns) in
educational institutions and early childhood education
services. It will bolster child protection and GBV efforts
by promoting regularization of refugee and migrant

[144] The response will focus on border areas, and municipalities with higher rates of refugee and migrant children and adolescents from Venezuela enrolled in the

school system.

[145] This includes the provision of school supplies and support services, flexible and accelerated education models, and tailored educational strategies for

children and adolescents in-transit.

[146] This includes the information-sharing with education actors to allow the completion of school trajectory and the link with socio-economic integration.

CLP_AR_006316
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 48 of 283

children, and develop joint strategies that aim to prevent
violence, xenophobia and recruitment by illegal armed
actors and organized criminal groups. The Sector will
coordinate efforts with the Integration Sector to promote
obtention and validation of academic degrees and assist

2023 2024
arg PEOPLE IN NEED T 34.7% F 373% :
—— 420m 14.0% # 140% |
he.we i\ i
PIN PERCENTAGE
53.2% 53.4% $125.36 M
SECTOR LEAD: WFP

The main response priorities identified by the Food
Security Sector partners are:

1. Food assistance for refugees and migrants in highly
vulnerable situations with an AGD and ethnicity-
sensitive approach, and a focus on community
integration.

2. Recovery of productive capacities and sustainable
agricultural livelihoods = through agro-food
systems tailored to the local context,'** taking into
consideration environmental impact evaluations,
anticipatory action, and socio-economic integration
approaches.

3. Food and nutrition education activities, including on
healthy lifestyle habits, in accordance with peoples’
age, food practices and their income and livelihood
prospects.

Populations in-transit and in pendular movements, peri-
urban and rural populations in-destination, indigenous

6 TOTAL REQUIREMENTS

with pathways in technological or entrepreneurial fields
for the youth. The Sector will also coordinate alternative
education solutions for children living in shelters and
school transportation services with the Humanitarian
Transportation and Shelter Sectors.

vs ‘ :
ese FT 34.7% F 373%
nw PEOPLE TARGETED

t 14.0% # 14.0%

975.8 K 693.5 K

~ ®& amer partners

$99.98M ”

households, households with pregnant and lactating
members, children, and those located in highly affected
departments"? will be prioritized. Actions will integrate,
wherever possible, gender equity in food assistance and
livelihoods, and will engage populations in accountability
processes including awareness on PSEA.

The following response modalities will be used by Food
Security Sector:

° Food assistance through CVA (both vouchers and
MPC), as well as targeted'®° in-kind food assistance
for households or groups in locations without
adequate access to markets. Environmentally
conscious management of organic waste will also be
promoted.

° In-kind provision of and technical assistance on
the use of agricultural supplies for the rehabilitation,
maintenance and/or protection of livelihoods and
rapid food production, while protecting natural
resources.

[147] https:/www. suin-juriscol.gov.co/viewDocument.asp?ruta=Decretos/30035590

[148] Includes ecosystems, productive uses, market access, culture, and local identity.

[149] Antioquia, Arauca, Atlantico, Bolivar, Cauca, La Guajira, Narifio, Norte de Santander, Santander, and Valle del Cauca are prioritized departments; however,

sectoral response covers other departments.

CLP_AR_006317
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 49 of 283

° Capacity building through community workshops,
practical activities on optimization of agricultural
production, food purchases and _— cooking,
dissemination of key messages on food and healthy
life habits with an age, gender and_ ethnically
sensitive approach.

Integral response approaches:

Collaborative approaches will be undertaken with
multiple sectors to ensure food security actions are more
effective. For example, working with the WASH Sector
to ensure water is available for food production and for

6 TOTAL REQUIREMENTS

agricultural livelihoods, while promoting handwashing
practices. Partners will also work with the Health Sector
to integrate food assistance and agricultural livelihoods
programmes to promote affiliation to the General Health
Social Security System (SGSSS). With the Integration
Sector, access to agricultural livelihoods through
entrepreneurship will be promoted. Intersectoral actions
will also be carried out with the Education, Protection
and Shelter Sectors, the GBV Sub-sector and the CVA
Working Group.

Vd
ang PEOPLE TARGETED

— & ame partners

@*® PEOPLE IN NEED F 34.3% F 373% :
532M 566M §143% % 141% |
ee aw
PIN PERCENTAGE
15% 19% $9729 M
SECTORLEADS: MINISTRY OF HEALTH, WHO/PAHO

The main response priorities identified by Health Sector
partners are to:

1. Contribute to the effective access of refugees and
migrants to health services, by increasing access to
health insurance among the regularized population,
and through the implementation of health access
mechanisms targeting those in irregular situations
and those with unmet health needs.

2. Provide effective and complementary health
services based on quality standards according to
individualneedsand risks. Health services will include:
a) primary healthcare; b) nutritional health; c) mental
health; d) sexual and reproductive health (maternal
care, voluntary termination of pregnancy (VTP),
contraception, prevention, and care for GBV, STI/
HIV); e) assistance for chronic or ‘high-cost’ diseases;
f) epidemiological surveillance and response to

communicable diseases; g) health prevention and
promotion for children; h) promotion of oral health;
and i) environmental health.

3. Strengthen institutional and community capacity
supporttofacilitateeffectiveaccesstohealthservices
that ensure durable solutions. Additionally, health
services and referral and counter-referral processes
at different levels of care will be strengthened aimed
at ensuring comprehensive and safe care for the
population.

Response modalities:

° In-kind assistance will be provided applying a case-
management approach. Direct provision of health
supplies (including medicines, equipment, assistive
devices, etc.) and telemedicine/teleassistance.

CLP_AR_006318
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 50 of 283

° Support the enrolment in national health insurances
and access to services through communication
campaigns and health fairs with the Ministry of
Health and relating advocacy.

° Institutional and community capacity development
to improve healthcare standards, especially for
primary healthcare facilities, first responders,
community health vigilance, dialogues on ancestral
knowledge’?! and health education, as well as
coordination between host communities and
healthcare institutions, articulating intersectoral
plans, and monitoring of accountability and advocacy
measures.

Integral response approaches:

Interventions of Health Sector partners will incorporate
human rights-based, gender-based, cross-cultural, and
multi-sectoral approaches and PSEA actions. Partners

will prioritize assistance to refugees and migrants
in highly vulnerable situations, such as children and
adolescents, pregnant and lactating women, people
living with HIV/AIDS, people with specific needs and
LGBTQI+ persons.

In addition to coordinating with the Ministry of Health,
the Sector will coordinate with the Protection Sector
and the GBV Sub-sector to provide assistance for GBV
survivors, psychosocial support and establish referral
pathways for critical mental health cases, and with
Humanitarian Transportation to support access to
healthcare. Coordination will take place with the WASH,
Food Security, Nutrition, Education and Shelter Sectors
related to social determinants of health. '°* This response
will contribute to SDG 3 to ensure healthy lives, free from
violence, and promote well-being at all ages.

te . :
e.e T 35.3% F 35.3%
nw PEOPLE TARGETED

f 152% # 14.3%

~ ®& amer partners

$454M 10

2023 2024
any PEOPLE IN NEED FT 35.3% F 35.3% :
ae poam + 15.2% # 14.3% -
Aewe al
PIN PERCENTAGE 6 TOTAL REQUIREMENTS
24.9% 25.8% $4.66 M
SECTORLEADS: 10M, NATIONAL RED CROSS SOCIETY, UNHCR

The Sector will prioritize the following responses:

1. Transportation between cities and municipalities
in Colombia to facilitate family reunification, socio-
economic integration and assistance within the
framework of other sectoral activities (Health,
Education and Protection). It also includes
transportation within the country to official border

crossings, in close coordination with migration
authorities and subject to prior verification of the
documentation required for regular transit to a third
country and is underpinned by R4V partner case
management of each individual case. The response
generally does not include cross-border or border-to-
border transportation.

[150] According to the specific needs of children and adolescents, pregnant/lactating women, elderly people, people with disabilities and ethnic groups.

[151] Dialogues on indigenous practices in the field of health treatment and medicines with indigenous groups.

[152] WHO defines the social determinants of health (SDH) as the conditions in which people are born, grow, work, live and age, and the wider set of forces and

systems shaping the conditions of daily life that influence health outcomes:https://www.who. int/health-topics, CLP AR 00631 9

Local transportation assistance (within cities/
municipalities) to facilitate access to basic goods and
services (protection, education, food, documentation,
regularization, health, socio-economic integration,
among others). The Sector will seek to encourage
engagement and advocacy with the national and
local authorities, to promote safe and dignified
transportation solutions for refugees and migrants in
an irregular situation.

Priority will be given to women at-risk (unaccompanied
women, women heads of households responsible
for children, pregnant and lactating women, and GBV
survivors), LGBTQI+ personsat-riskand/orGBV survivors,
households with children and adolescents, UASC (within
the framework of best interest determination processes
with prior coordination between the R4V partner and
the Colombian Family Welfare Institute), persons with
specific needs or with critical/chronic diseases, elderly
people, and families threatened or at-risk within the
context of the internal armed conflict or in contexts of
generalized violence.

Response modalities:

In-kind assistance through the procurement of land
transportation services and distribution of individual
land transportation tickets. CVA, both restricted and
multipurpose (MPC), will allow refugees and migrants
to make the direct purchase of land transportation
tickets. All activities will be implemented within a case
management framework.

Integral response approaches:

Coordination with the CVA Group is a priority. The
Humanitarian Transportation Sector will also work with
Education and Integration Sectors to promote access to
services for those in rural areas, as well with Protection
and Health Sectors to update protocols and guidelines
for the incorporation of acomprehensive approach inthe
response, including case management and prioritization
of profiles in vulnerable situations, facilitating the
prevention, identification and management of victims
of human trafficking, as well as cases associated
with smuggling. Cross-cutting approaches to GBY,
environment, PSEA, and AAP. in coordination with CwC,
will be applied.

a
2
2023 2024
@*® PEOPLE IN NEED [a eve
505M 550m 143% # 141% |
Rewe i\ i]
ao PIN PERCENTAGE
70.6% 1.0% $126.84 M
SECTORLEADS: 10M, PADF, UNDP

The Sector will work towards the socio-economic
integration of refugees and migrants from Venezuela,
with an emphasis on activities targeting youth, women
and LGBTQI+ persons, '** by:

1. Improving access to decent work, through the
validation of higher education degrees, certification of
competencies, job trainings andhuman development,
among others.

2. Promoting support services for entrepreneurship, '™’
aiding refugee and migrant entrepreneurs to create,
capitalize and develop their businesses, while
boosting local economies.

3. Strengthening financial autonomy — through
facilitating access to financial education services and
access to savings and credit products.

4. Strengthening social cohesion and_ peaceful
coexistence in order to reduce incidents of
discrimination and xenophobia when accessing
economic and social rights.

5. Strengthening the public offer of socio-economic
and cultural integration services, by assisting
the implementation of the TPS, the Government's

6 TOTAL REQUIREMENTS

ve :
e.e T 341% F 374%
nw PEOPLE TARGETED

F 143% F 14.1%

239.1K 237.6 K

~ ®& pnp partners

$12726M— 46

Comprehensive Migration Policy’ and the new
“Income Generation Strategy for the Migrant
Population and Host Communities”. '°°

Response modalities:

Capacity building through guidance and trainings, as
well as technical assistance, distribution of work tools
and equipment will be provided on an in-kind basis to
refugees and migrants from Venezuela and affected
host communities. Cash grants will also be provided to
support refugees and migrants with their rents, food,
transportation and connectivity needs, among others, to
complement employability pathways, entrepreneurship,
financial inclusion, and social cohesion.

Toimprove capacities of government institutions, private
sector and RAV partners, the Sector will provide technical
assistance, assist with the recruitment of personnel,
conduct research exercises, provide equipment and the
strengthen of information systems.

Integral response approaches:

The Integration Sector will coordinate with the CVA
Group to develop mechanisms that complement
entrepreneurship and employability pathways and
improve financial inclusion. With the Food Security

[153] Environmentally conscientious solutions will also be considered and promoted, including green jobs, green ventures, and green loans.

[154] Especially in territories where the implementation of the “Centros Intégrate’” (Integration Centres for Development) strategy and INNPULSA Colombia's
entrepreneurship programme coincide.

[155] The CONPES 4100 “Strategy for the Integration of the Venezuelan Migrant Population as a Development Factor’, https://colaboracion.dnp.gov.co/CDT,

Conpes/Econ%C3%B3micos/4100.pdf
CLP_AR_006321

[156] https://www.undp.org/es/colombia/publications/estrategia-de-ingresos-para-migrantes-venezolanos

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 53 of 283

and Nutrition Sectors, the Integration Sector will jointly
promote access to agricultural livelihoods; while with
the Education Sector, technical secondary education will
be supported; and with the Protection Sector, the GBV
and, Child Protection Sub-sectors, and with the PSEA
focal point, strategies for the prevention of xenophobia,
prevention and assistance to GBV, PSEA, protection of

labour rights and the prevention of child labour will be
developed and implemented.

The Integration Sector will work closely with government
authorities to strengthen socio-economic integration
strategies, according to Action Line #3 of the CONPES
4100, which includes employability entrepreneurship,
diploma recognition and skills certification. '°”

e.e Q on 4 ; : bd . 4 ;
®*® PEOPLE IN NEED T 00% #422% .. PEOPLETARGETED - t-9.0% # 422%
120M 125M # 279% + 29.8% | nny ask $ 279% + 29.8%
ce. @ : aw
° PIN PERCENTAGE | @ TOTALREQUIREMENTS & RMRP PARTNERS
18% 159% S36M — $385M i
SECTOR LEADS: WFP, UNICEF

The response priorities based on the needs and gaps
identified by Nutrition Sector partners are:

1. Providing direct nutritional assistance, to prevent
and manage malnutrition among refugee and
migrant children, and pregnant and lactating women.
Assistance will include measures to prevent and treat
acute malnutrition, such as nutritional assessments,
micronutrient supplementation and deworming
treatments, taking into account an AGD approach.

2. Strengthening the capacity of health and social
protection services to ensure access to nutrition
interventions including nutritional assessments
and referral, and interventions (e.g. deworming,
micronutrient supplementation, identification and
treatment of malnutrition due to deficiency and
excesses in children under 5 and pregnant and
lactating women).

3. Awareness raising and information provision on
breastfeeding, infantandyoungchildfeedingpractices
for parents, caregivers, families, health workers
and community agents. The active participation of
refugees and migrants will be promoted in the design
and monitoring of nutrition interventions, through an
AGD approach.

Response modalities:

° Ensure provision of services to concerned refugees,
migrants and affected host communities provided by
local health institutions.

°* Community focused participatory and practical
sessions with refugee and migrant families on
breastfeeding, young child feeding and key nutrition
practices.

[157] Government authorities include: Ministry of Labour and the Public Employment Service; Ministry of Commerce, Industry and Tourism; The National Learning

Service (SENA); Ministry of Finance, and the Ministry of Education.

CLP_AR_ 006322
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 54 of 283

° Capacity building for health and social protection
workers, on regulations on nutritional care and
good practices in reducing barriers to access to
health services and social protection for refugee and
migrant populations.

All the actions described will apply PSEA considerations.
Integral response approaches:

The Nutrition Sector will coordinate and liaise with the
Education, Health, WASH and Protection Sectors to
promote and incorporate nutrition considerations in

2023 2024
@*® PEOPLE IN NEED LOSE Ea
458M gam t 151% # 14.4% |
Ae.we i\]
PIN PERCENTAGE
61.6% 62.4% $64.12 M
SECTORLEADS: DRC, UNHCR

The response activities of the Protection Sector aim to
identify refugees and migrants with protection needs,
including those exposed to double impact contexts
(linked to armed conflict and/or organized crime).
The departments of Antioquia, Arauca, Bolivar, Cauca,
Narino, Norte de Santander, and the Bogota area,'*° as
well as the sub-region of Uraba,'°’ are the most affected

@ (TOTAL REQUIREMENTS

their strategies through education, information provision
and factoring in nutritional outcomes of refugees and
migrants, while enhancing key actions (e.g. breastfeeding
counselling, nutrition services engagement) including
with CVA programmes.

ved ;
e.e T 341% F 364%
ne PEOPLE TARGETED

f 151% # 144%

542.0 K 2478 K

~ ®& pnp partners

$5131IM—: 38

and will be prioritized. Priority is also given to individuals
and communities subject to double affectation. '°°

Capacity building and advocacy with the Government"?!
regarding Refugee Status Determination (RSD)
procedures is a response priority, as well as mass
information, counselling and follow-up strategies on
access to rights. '°

[158] Ombudsperson’s Office,/Dynamic Dashboard on Early Warnings,’ accessed 28 July 2022, https:/alertastempranas. defensoria.gov.co/Alerta/Tablero

[159] A strategy has been prioritized in the Uraba area in response to the identified protection risks of mixed movements in the area.

[160] In accordance with the back-to-back coordination mechanism with the Protection Cluster, and focusing on profiles that include indigenous peoples in border
contexts, people at risk of eviction, pregnant and lactating women, LGBTQI+ people, youth between 18-23 years old, people with serious medical situations,
and those in-transit.

[161] By complementing the actions developed by the authorities through the ICBF, the Ministry of Health and Social Protection, Social Prosperity, among other
entities, and also through guidance, advisory and legal representation, aiming to guarantee protection services.

[162] Such as access to medical services, financial and bank services, appropriate housing programmes, access to legal work opportunities, education in all levels,

and work specialized trainings. C LP_AR_006323
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 55 of 283

The Sector will work on reducing access gaps to
nationality and the risk of statelessness for children of
Venezuelan parents,'°° Colombian returnees born in
Venezuela, and those affected by discretionary document
cancellation measures.

The response will prioritize reducing gaps to
specialized protection services for Venezuelans lacking
documentation, those requiring access to the TPS'“ and
asylum procedures, those who are homeless or at risk of
eviction, or who do not have the possibility of accessing
decent housing in Colombia.'®° Priority will be given to
the response to indigenous peoples in border contexts,
in coordination with national and local authorities, as well
as indigenous organizations.

Response modalities:

The Sector will provide:

° Protection assistance and specialized services,
including case management and referral, for refugees
and migrants to address their protection needs.

RMRP 2023 - 2024

° Capacity-building for relevant national and local
authorities to enhance ongoing regularization
programmes (particularly the TPS process),
international protection capacities, especially to
enhance RSD processing.

° Directservicessuchasmassinformation,counselling
and follow-up strategies on access to rights, aiming
at promoting informed decision-making of refugees
and migrants.

Integral response approaches:

The Protection Sector will promote and ensure the
mainstreaming of protection in all Sectors with a focus
on the identification of individuals facing protection risks
and needs, and the strengthening of Support Spaces
and other key points for the provision of services and
assistance for persons with protection needs; while
ensuring close collaboration on AAP approaches
and PSEA considerations with respective R4V
Working Groups.

[163] Pursuant to Resolution 8470/2019-Law 1997/2019, children born to Venezuelan parents in Colombia are entitled to Colombian citizenship;

https://bit.ly/3bwLIWA.

[164] This also includes the identification of barriers to accessing rights for those who carry the TPP and the design of strategies to overcome those barriers.

[165] According to the R4V Protection Sector's regional housing survey, 90% of people pay rent in host countries and 99.5% do not have access to housing

programmes.

CLP_AR_ 006324
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 56 of 283

2023

2024

f 0.0% # 0.0% |

“@*@ PIN PERCENTAGE

22.8% 23.1%

SUB-SECTOR LEADS: IOM, CID

The Child Protection Sub-sector has identified the

following response priorities:'°

1. Creation and strengthening of protective
environments to carry out activities to prevent the
recruitment, use, utilization,'°’ and sexual violence
by illegal armed groups and criminal groups, or any
type of violence that violates the rights of refugee and
migrant children, especially in border areas. '°°

2. Support the response to unaccompanied and
separated refugee and migrant children to monitor
risks, strengthen access to protection pathways at
the national and local levels, and develop activities to
prevent family separation, facilitate reunification with
families and/or caregivers and strengthen their life
plans and prospects.

3. Support national strategies for the regularization and
social integration of refugee and migrant children,
andthe strengthening of their life plans and prospects
and the socio-economic integration of their families,

# 510% $ 49.0% :

6 TOTAL REQUIREMENTS

$28.02 M

vd :
e.e T 0.0% F 0.0%
ne PEOPLE TARGETED

f 510% # 49.0%

119.6 K 113.4 K

~ ®& pnp partners

$25.02M 17

to facilitate access to care services to enhance
access to rights and prevent violations. This includes
promoting strategies to reduce barriers on access to
nationality and prevent the risk of statelessness.

Response modalities:

Support national and partner protection services, with
a capacity building perspective through:

° The creation and strengthening of child friendly
spaces, protective spaces or safe community
spaces to prevent protection risks and assist refugee
and migrant children and adolescent.

° Comprehensive — strengthening of protective
environments to prevent violence against refugee
and migrant children and adolescents.

° Integration activities for children and adolescents to
promote community-based affirmative action. °°

° Activities with adolescent refugees and migrants to
enhance their plans and prospects (as autonomously
as possible).

[166] In complementarity with the State's public policy frameworks, such as the "Strategy for stabilization, integration and future of children, adolescents, young
migrants and their families from Venezuela" implemented by the Colombian Institute for Family Welfare (ICBF), among others https://www.icbf.gov.co/sites/

default/files/30122021_estrategia_migracion_v2._final_esta_si.pdf

[167] According to ICBF, “Reclutamiento’, “Uso” and “Utilizacion’ in Spanish are conceptualized as three specific affectations. See more at: ICBF, Technical Guideline
for the Prevention of Recruitment Use and Utilization of Adolescents and Youth - Technical Appendix (page 6), https://www.icbf.gov.co/sites/default/files/
documentos-construccion/08._anexo_tecnico_para_la_prevencion_del_reclutamiento_uso_y_utilizacion_de_adolescentes_y_jovenes_.pdf

[168] The Recruitment Probability Index designed by the Technical Secretariat of the Intersectoral Commission for the Prevention of Recruitment, Utilization,
and Sexual Violence against Boys, Girls, and Adolescents indicates prioritizing prevention actions in the following border departments: Norte de Santander,

Arauca, Vichada, La Guajira, Putumayo, and Antioquia.

[169] The Colombian Constitutional Court understands affirmative action as policies or measures aimed at favouring certain individuals or groups, either
to eliminate or reduce social, cultural or economic inequalities that affect them or to ensure that members of an underrepresented group, which has
usually suffered from historical discrimination, have greater representation. https://www.corteconstitucional.gov.co/Transparencia/publicaciones/

Igualaci%C3%B3n%20material%20v2%2071020.pdf.

CLP_AR 006325
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 57 of 283

* Carry out case management, activation and
territorialization of pathways enhancing individual
and communhity care.

° Technical assistance to partners and authorities to
integrate child- and adolescent approaches in the
context of mixed movements.

° Technical assistance at the national and local level
for the protection and integration of UASC, with an
emphasis on the search for durable solutions.

Integral response approaches:

The Sub-sector will work in coordination with the
Protection Sector and the Sub-sectors on GBV,
Human Trafficking and Smuggling, as well as the
Health, Education, WASH, Food Security, Nutrition,
and Integration Sectors to mainstream child
protection initiatives.

2023 2024
@*® PEOPLE IN NEED USER A) GBE%a
597M aim t 42% # 194%
ewe ay
PIN PERCENTAGE
39.9% 40.2% $20.23 M

SUB-SECTOR LEADS: UNFPA, UNHCR, UN WOMEN

The GBV Sub-sector has identified an increase in GBV
incidences suffered by refugees and migrants, especially
sexual violence against those in-transit and engaging
in pendular movements, a concern for early unions,
economic and institutional violence.'”? The following
response priorities will be at the core the Sub-sector’s
engagement:

1. Provision of GBV response services through case
management services, safe spaces for women and
girls, as well as to survivor-centred assistance for
LGBTQI+ persons, and increasing services at the
institutional (capacity building), community, and
organizational levels for GBV survivors.

@ TOTAL REQUIREMENTS

Ld . .
e.e T 26.0% F 40.5%
ne PEOPLE TARGETED

f 14.2% # 194%

177.7 K 103.2 K

~ & amep partNERS

$1849M 35

2. GBV prevention actions through the challenging of
stereotypes and relating gender roles, and actions for
the protection of GBV survivors and those at-risk.

3. Promotion of inclusion of women at-risk or survivors
of intimate partner/ex-partner violence in economic
empowerment programmes.

The response priorities have the long-term objective
of driving gender transformations to eradicate GBV.
Prioritized population groups for the Sub-sector’s
response are adolescents, youth and women caught
in human trafficking and sexual exploitation networks,
women community leaders, women heads of

[170] Institutional violence is recognized as a form of GBV: The sentence T-462-18 by the Colombian Constitutional Court recognizes that "when women victims
of violence turn to the public authorities for the protection of their rights, on repeated occasions there is a "re-victimization" by the legal operators, since the
response expected from these authorities is not satisfactory and, in addition, often confirms patterns of inequality, discrimination and violence against this
population." Additionally, in the case of refugees and migrant GBV survivors, according to analysis conducted by the Sub-sector, this pattern is reinforced by

xenophobia. https://www.corteconstitucional.gov.co/relatoria/2018/T-462-18.htm

CLP_AR_ 006326
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 58 of 283

households, pregnant women, women with disabilities
and LGBTQI+'”' persons. '”7

Response modalities:
The following response modalities are proposed:

Capacity-building of public institutions, social and
community organizations to enhance GBV prevention,
response and solutions for survivors. '”°

Guidance, and design of protocols and documentation
to strengthen processes and procedures of public
institutions and social and community organizations in
providing services for survivor-centred care.

Direct actions with the community at the individual and
group levels such as: strengthening of community-based
protection, monitoring and reporting, case management,

4¢

2023 2024
are PEOPLE IN NEED FT 35.7% F 361%
948.2 K 192M ft 141% + 141% :
400 aw
PIN PERCENTAGE
Wee 12.9% $6.75 M

SUB-SECTOR LEADS: IOM, UNODC

The Human Trafficking and Smuggling Sub-sector
identified the following response priorities: '”

1. Strengthen mechanisms, instruments, strategies,
and actions aimed at identifying and preventing
of cases of human trafficking and smuggling of
refugees and migrants. This will target state and non-
state actors.

@ (TOTAL REQUIREMENTS

psychosocial support, including in-kind assistance and
CVA for GBV survivors and those at-risk.

Integral response approaches:

The GBV Sub-sector will ensure that intersectoral
approaches are planned in the response for refugee and
migrant GBV survivors and at-risk populations. With the
Integration Sector, access to livelihoods opportunities
will be prioritized.

With the Health Sector, clinical management. of
sexual violence, PEP kits, emergency and long-term
contraception, and strengthening services with survivor-
centred care (including mental health) will be featured.
Joint work with the Shelter Sector will help identify
and mitigate GBV risks. Throughout, PSEA and AAP
approaches will be applied.

be ; ;
ae 35.7% F 361%
deg PEOPLE TARGETED

f 141% # 141%

~ ®& pmpp partners

$554M 8

2. Reinforce actions, strategies and pathways
aimed at providing comprehensive assistance
and protection to victims of human trafficking and
smuggling at national and local levels through the
relevant inter-institutional coordination mechanisms.

3. Promote spaces and processes for knowledge
generation and management to identify emerging

[171] Especially men and boys with diverse sexual orientations and gender identities.

[172] Furthermore, the geographic scope of the response includes border regions, also covering Caribbean and Pacific coasts, as well as in the main capital cities

of Bogota, Cali, Barranquilla, and Medellin.

[173] For instance, through trainings, GBV awareness, dissemination, and visibility activities, and empowerment of women leaders.

[174] Under a cross-cutting scope of enhancing a human rights-based, gender, intersectional, and victim-centered approach.

CLP_AR_006327
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 59 of 283

trends and new phenomena related to these crimes in
order to enable relevant, timely, effective, evidenced-
based response actions.

All priorities will be implemented working closely with the
national and local authorities, including the Ministry of
the Interior and the Ombudsperson's Office, as well as
local human trafficking committees.

Response modalities:

The corresponding response modalities of the Sub-
sector will be:

° Technical capacity development of state actors,
civil society, R4V partners, academia and others
involved in fighting against human trafficking and
smuggling across the country. Prevention, protection,
assistance and guidance to victims and their families
will be prioritized.

e Enhance and consolidate proactive identification
processes related to the referral of cases to
competent authorities and entities, in accordance

want

with the national assistance pathway for victims of
human trafficking of the Ministry of the Interior!” and
the Protocol Against the Smuggling of Migrants by
Land, Sea and Air. '”°

* Comprehensive direct short and mid-term
assistance to victims of both crimes, based on
the needs of each case, in coordination with the
designated local and national authorities. '””

Integral response approaches:

The Sub-sector will coordinate with the Protection,
Health, GBV and Child Protection Sectors/Sub-sectors
to ensure assistance provided to victims of trafficking
and smuggling integrates the response priorities of
these Sectors. Assistance will be provided with an
AGD approach. Coordination with the Humanitarian
Transportation Sector will ensure assistance is provided
when required. The Sub-sector will also work with the
Integration Sector to feature medium-term actions and
the generation of livelihoods for persons at risk and/or
victims of human trafficking or smuggling.

fede ote Wei Dal

[FRarianF RUZ

[175] Documented in Chapter I! of Decree 1066/2015 of the Ministry of the Interior: https://bit.ly/3xNkrqP
[176] Ministry of the Interior, National Strategy to Combat Human Trafficking, 2020-2024, https://bit.ly/3BCIZnv

[177] This will be implemented by: i) supporting interinstitutional coordination for immediate attention and response to victims (by state entities or through
subsidiary routes), particularly in shelter, medical and psychological healthcare; and ii) capacity development through training of institutional actors
responsible for providing assistance to victims to ensure the adequate restitution of rights from a victim-centered approach throughout the assistance

process.

CLP_AR_ 006328
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 60 of 283

vd
ne PEOPLE TARGETED

~ ®& pnp partners

$36.02 M - $2814M 18

2023-2024
@*® PEOPLE IN NEED HERE PE
508M s4am 7 4G% # 42%
Rewe ; i\ i]
“@ PINPERCENTAGE = @ TOTAL REQUIREMENTS
682% 688%
SECTORLEADS: 10M, NATIONAL RED CROSS SOCIETY, UNHCR

The Shelter Sector will aim to promote timely,
contextualized,'”° comprehensive, decent and safe
shelter solutions through the implementation of the
following priorities:

1. Medium to longer-term collective and individual
shelter solutions, based on financial support for rent
and utility payments, and interventions to improve
community infrastructure (including settlement
management) and housing. '”’

Short-term collective and_ individual shelter
solutions as an emergency response for transit
locations of refugees and migrants,'°° as well as for
the population in-destination to support integration
processes in host cities. This will be implemented in
close coordination with local authorities. '*!

3. Distribution of household items'*? complementing
individual (short and long-term) and collective shelter
response strategies for refugees and migrants in-
destination and in-transit.

Response modalities:

The response priorities will be delivered through:

° In-kind shelter solutions, such as collective shelters
and reception and transit centres, or hotel rooms,
as well as provision of household items, assistance
in reaching agreements between landlords and
organizations, interventions in community and
housing infrastructure and settlement management.

° CVA to access short-term and long-term shelter
solutions (e.g., financial support for rent and utility
payments), as well as to purchase household items.

° Technical capacity development to manage, handle
and coordinate shelter solutions through roundtable
working groups and training sessions with local and
national authorities, Sector partners, community
organizations and other relevant stakeholders.

Integral response approaches:

Within collective shelters and transit centers, it will be a
priority to strengthen the mechanisms for case referral
through complementary response activities provided
by Sectors such as Protection, Food Security, Nutrition,
WASH andHealthaswellastheprovisionofbasic services
associated with these Sectors. For WASH, Protection
and Integration Sectors, joint and complementary
actions will be implemented focusing on community

[178] Designed and implemented with AGD considerations, as well as targeted to each local context.

[179] Mainly in departments with the highest concentration of population in- destination, such as Bogota, Antioquia, Norte de Santander, Valle del Cauca, and

Atlantico.

[180] Norte de Santander, Arauca, Bogota, Valle del Cauca, and Narifio departments.

[181] These solutions include activities related to Collective Centres, Reception and Transit Centres, and hotel rooms.

[182] E.g., those for sleeping, preparing and preserving food, eating and drinking, maintaining thermal comfort, lighting, personal clothing, construction materials

and tools.

CLP_AR_006329
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 61 of 283

infrastructure and settlements. This will contribute to
capacity building for its management, promoting access
to basic services and knowledge transfer on land tenure
security and legalization, favouring durable shelter
solutions supporting integration of the target population.

The adoption of cross-cutting approaches to GBV,
environment, PSEA, and AAP is a priority.

qrq® PEOPLE IN NEED FT 34.3% F 371%
380M — 4OAM * 145% 14.2%
Ae.we : aw
PIN PERCENTAGE
SECTOR LEADS:

The response priorities of the WASH Sector will address
the needs and gaps, in line with the comprehensive
WASH response approach, through:

1. Service construction, improvement, rehabilitation,
installation and hygiene promotion in non-
formalized settlements where refugees and migrants
in-destination and host communities reside.

2. Implementation and maintenance of WASH
services, hygiene promotion and distribution of
critical supplies'*’ for those in-transit and those
engaging in pendular movements at key assistance
points and facilities providing other humanitarian
services. '**

3. Technical assistance and advocacy’ with
government authorities on WASH policies and for

@ TOTAL REQUIREMENTS

$22.63 M --$2085M 29

Close coordination with the CVA Working Group is
key to contribute to the planning, implementation,
and monitoring of activities for the provision of
financial support.

~ & amep partNERS

ACTION AGAINST HUNGER, UNICEF, UNIVERSIDAD TECNOLOGICA DE PEREIRA

the response for vulnerable refugees and migrants
and affected host communities (especially for
binational indigenous peoples) from a multiple
impact perspective and differential AGD approaches.

Response modalities:

Response modalities will include capacity building
through technical assistance and training for community
associations responsible for the management of WASH
services; technical assistance to such organizations and
indigenous groups, as well as to the administrations of
municipalities and departments, especially those facing
multiple impacts and challenges. '°°

Support the provision of services (including
infrastructure interventions), relating to construction,
repair, improvement and rehabilitation of systems
and alternatives for water supply and_ sanitation

[183] For personal and household hygiene, water storage and treatment for consumption.

[184] Specifically in border departments and those areas with constraints for accessing such services.

[185] E.g. derived from the coexistence of displacement and conflict and/or natural disaster-related situations.

CLP_AR_006330
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 62 of 283

RMRP 2023 - 2024

in settlements and host communities, as well as
implementation and maintenance of WASH services in
community facilities. '°°

Hygiene supplies/communication campaigns
on hygiene practices to drive behavioural change,
according to the socio-cultural context and distribution
of critical supplies;'*’ foster spaces that promote access
to menstrual rights (for refugee and migrant women,
girls and transgender men) and disaster risk prevention
and survival techniques.

Integral response approaches:

The WASH Sector response will be implemented in
accordance with international humanitarian response
standards, as well as national standards. Assistance and
coordination will be carried out at the national level with

COLOMBIA | RAY © 155 «

the Ministry of Housing, City and Territory andthe Ministry
of Health and Social Prosperity, as well as with local
authorities. An integrated response with other Sectors
will be applied. WASH strategies and hygiene promotion
will be articulated with Education, Health, Protection,
Food Security and Nutrition interventions. CVA and
Shelter strategies will articulate for hygiene promotion.
Also, the Sector will coordinate with the Integration
Sector on initiatives, promoting medium/longer-term
WASH activities which are tied to the RMRP’s HDPN
priorities. The WASH Sector will coordinate with the GBV
Sub-sector on the installation and/or refurbishment
of safe and illuminated WASH spaces with protection-
sensitive approaches to prevent violence (especially
GBV). All projects and programmes will consider PSEA
and AAP priorities.

[186] Including in health centres, shelters, schools, community kitchens, and points of care for refugees and migrants.

[187] Including in-kind or CVA for personal hygiene, household, storage, waste management and water treatment for consum@yp. P AR 006331
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 63 of 283

CLP_AR_006332
© Flores Solano

2023
Le
O eee hee
POPULATION PEOPLE IN PIN PEOPLE
PROJECTION NEED (PiN) PERCENTAGE TARGETED
M@ sis9k 4025K 776% M 2944k
VENEZUELANS
IN-DESTINATION
536.5 K 416.3K 778% 300.0 K
3679 K 285.5 K 778% (451K
IN-TRANSIT
3571 K 2771 K 778% 140.0 K
- 208.6 K - 84.0 K
AFFECTED HOST
COMMUNITIES
- 2118 K - 83,0 K
AGE AND GENDER P 300% F 315% | P 320% BP 314% 30.0% ® 326%
DISAGGREGRATION tT t tT t t t

® 189% FP 176% | ® 19.0% F 176% ® 195% ® 179%

aw TOTAL REQUIREMENTS : RMRP PARTNERS
6 s28968M WO) 71

CLP_AR_006333
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 65 of 283
158 ECUADOR RMRP 2023 - 2024

ECUADOR: BENEFICIARIES TARGETED

Pacific Ocean
COLOMBIA
±
Esmeraldas Carchi

Imbabura

Pichincha Sucumbíos
Santo Domingo
de los
Tsáchilas

Manabí Napo
Orellana
Cotopaxi

Tungurahua
Los Ríos
Bolívar
Pastaza
Guayas
Chimborazo
Santa Elena

Cañar Morona Santiago

Azuay

El Oro
Zamora
Chinchipe
Loja

PERÚ

PEOPLE TARGETED 2023
100 - 3,000
3,001 - 8,000
8,001 - 15,000
15,001 - 40,000
This map is for illustration purposes only. The boundaries and names shown and the designations
40,001 - 125,000 used on this map do not imply official endorsement or acceptance by the UN.

CLP_AR_006334
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 66 of 283

ECUADOR: KEY FIGURES BY REGION

7:2} Population Projection @*H PeopleinNeed(PIN) 4, People Targeted Total Requirements
ee ee
qo wm 6 OU OO OU
AZUAY 29.7K 218K 3.2K $10.70M 30.5K 224K 133K $I10.60M
BOLIVAR 1.5K 1.1K 389 $520.6 K 18K IK 635. SSIBBK
CANAR 49K 3.6K 11K $1.34 M 5.0K = 3.7K 1.2K $1.64 M
CARCHI 145K 10.7K 78K $18.81M 9K 109K 78K —S713M.
CHIMBORAZO 105K 77K 3.3K $190 M 10.8K 79K 3.9K $1.96 M
COTOPAXI 8.8K 6.5K AIK $3.14 M 90K 86K SSK S275M.
EL ORO SOIK 369K 260K $18.01M SL4K =378K =6254K_ ~—s $1703 M
ESMERALDAS "4K 84K 62K $6.54M 17K 97k «88K «S878M.
GALAPAGOS 125 95 - - 131 97 - -
GUAYAS 213.3K 1570K 922K $41.00M 290K 160.7K 931K $3827.
IMBABURA 201K 185K 141K $1431M 258K 189K 140K $1230M
LOJA 52K 39K 26K $422M 54K 39K 21K $420.
LOS RIOS 185K B6K 73K $2.21M 190K 139K 73K $247M
MANABi 88.6K 652K 399K $24.29M 910K 688K 405K $2531M_
MORONA SANTIAGO 2.6K 19K 200 $55.0 K 27K 20K 200 $82.8 K
NAPO 1.9K 14K 362 $3021K 20K UK «362 SHB56K
ORELLANA 63K 46K 25K $3.05M 6.5K 47K 24K $3.09M
PASTAZA 2.3K 1.7K 585 $250.5 K 23K 17K 486 SSOISK
PICHINCHA 261.6K 1925K 241K $120.71M 268.6K 1971K {251K $115.77M
SANTA ELENA 134K 9.8K 12K $696.6 K BK OK 14K $180.
Se ACHI AS HBL 23.9K 176K 12.6K $8.13 M 246K 180K 13K $8.67M
SUCUMBIOS "2K 4 =683K.—CCG SK S$14.05 M mK 96K 93K S280
TUNGURAHUA 235K 173K 123K $6.62M 241K 177K —10.8K $613 M
ZAMORA CHINCHIPE 1.5K 11K 100 $72.0 K 15K HK 00 sag

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 67 of 283

“9160+ Ray ECUADOR: NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE M2023

NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE
International National . .
TOTAL NGOs NGOs / CSOs’ Others" UN Agencies
Financial requirements $300.92 M 16.3% 5.3% 21% 76.3%
Organizations 71 25 28 5 13
' Civil Society Organizations. The list of organizations only includes appealing organizations under the
"Others include the Red Cross Movement, academia and faith based RMRP, many of which collaborate with implementing partners to carry out
organizations. RMRP activities.
POPULATION IN NEED AND TARGET, FINANCIAL REQUIREMENTS
AND NUMBER OF PARTNERS BY SECTOR’
Sean People in PiN People m Targeted Financial Part
eeror Need (PiN) percentage” targeted Mlnneed requirements armners
[Education 189.2 K 158% 1335K Mead 18.93 M 28
S35 Food Security 643.6 K 537% 2902KkK fo. 6713 M 12
@ Health 5475 K 457% 2A09K MeoW 24.86 M 24
Humanitarian
Ges ansportation 1K 143% = AK aan 612.8 K 2
@ Integration 573K 465% 218K Mea® 53.97 M 43
Q Nutrition 131.6 K 110% B6K Lesa 3.16 M 6
WW Protection” 8385K 700% 4347K MoW 44.05 M 40
Ky Child Protection 4079K 340% 526K avon 12.64M 7
“ G d -B d
T Viclencesy 289K 224% += 830K fs 26BM
Human Trafficking
4 2 smuggling 58.3K 49% 920 Wie 255M 5
(F)_ Shelter 495.9 K Mh% 2K ead 18.29 M 14
Pe WASH 468.6 K 391% 215K Mead 6.27 M 10
aay Ni purpose cash - - 1084K . 2417 M 14
ssistance
4 : tekkk
zy’. Common Services = = = - 11.62 M 29
* — While not being Sectors, data for Multipurpose Cash and for Common Services is included to inform on the overall targets and distribution of financial
requirements in the RMRP 2023-2024.
** The PiN calculations for some sectors (namely, Nutrition, Education and all Protection subsectors) are based on specific age and gender groups,
resulting in a low PiN percentage as a proportion of the total population.
*** This includes Support Spaces.
x««* This includes AAP-CwC, Communication, Coordination, Information Management, PSEA, and Reporting. CID AD 006336

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 68 of 283

n024 ECUADOR: NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE RAY © 161

NUMBER OF ORGANIZATIONS AND FINANCIAL REQUIREMENTS BY ORGANIZATION TYPE

International National

TOTAL ; Others UN Agencies
NGOs NGOs /CSOs' 2
Financialrequirements $289.68 M 15.8% 5.5% 1.7% 77.0%
Organizations 68 2h 28 4 12
' Civil Society Organizations. The list of organizations only includes appealing organizations under the
"Others include the Red Cross Movement, academia and faith based RMRP, many of which collaborate with implementing partners to carry out
organizations. RMRP activities.

POPULATION IN NEED AND TARGET, FINANCIAL REQUIREMENTS
AND NUMBER OF PARTNERS BY SECTOR"

a People in PiN People mTargeted Financial Partners
Need (PiN) percentage” targeted lnneed requirements
[=| Education 195.9 K 16.2% 138.3 K 0.6% 24.17 M 20
= Food Security 648.8 K 53.6% 271.7 K “on 62.51 M 1
2 Health 904.3 K 458% 2356K aan 22.74M 2l
Gy umentarisn 682K 139% B2K ge 5986K 2

Transportation

@ integration 5723K 473% 2054K Meo 5326M 44
Q Nutrition 31K “10% «= BBK.s ew 254M 6
9 Protection“ B461K 699% 4330K Ar 4046M 36
y Child Protection 414.5 K 34.3% 514K LN 14.30 M 15
“P otenoe (cay) 2724K 225% 1305K MeoN IM =
We ncruging = SOK 4% OK ws 253M 5
(A shelter 4990K 412% 254K Mead 162M 14
WASH 4738K 392% 298K Mead 593M 9
ios cash - - 043K - 18.39 M i
7x Common Services” - = = - 11.71M 25

While not being Sectors, data for Multipurpose Cash and for Common Services is included to inform on the overall targets and distribution of financial
requirements in the RMRP 2023-2024.

**k This includes Support Spaces.

soe Thin; on an . .
This includes AAP-CwC, Communication, Coordination, Information Management, PSEA, and Reporting. GLP AR 006337

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 69 of 283

COUNTRY OVERVIEW

Itis estimated that approximately half a million refugees
and migrants from Venezuela live in Ecuador. A high
proportion of this population is in an irregular situation in
the country (73 per cent).'°° Their irregular status affects
their access to services and to the formal labour market,
exposing them to protection risks and limiting their
socio-economic integration prospects. In this context,
the broad regularization exercise announced by the
Government of Ecuador,'*’ which started in September
2022, will be key for enabling the needs of this population
to be met and to advance solutions for refugees and
migrants from Venezuela in Ecuador as part of a broader
socio-economic integration and social inclusion strategy.

The country is also witnessing population movements
from countries such as Haiti, who transit through the
territory in complex routes and secondary movements
both towards the north and the south of the continent.
RAV partners monitor these movements through an
inter-agency Border Monitoring and Population Profiling
System, which also serves as an important entry point to
identify and assist people in-need. The irregular nature
of these movements, due to visa requirements for
Venezuelans and other populations, leads to heightened
protectionrisks andincreased vulnerabilities for refugees
and migrants, who are often exposed to sexual abuse,
trafficking, and other human rights violations.

With the assumption that Venezuelans, as well as
refugees and migrants of other nationalities, will continue
arriving to andtransiting through Ecuador, mainly through
irregular channels, it is estimated that approximately
519,000 refugees and migrants from Venezuela will be
living in Ecuador by December 2023, while some 368,000
will be transiting to third countries throughout the year
(of which approximately 19,000 are of other nationalities,
mainly Haitians).

The presence of irregular armed groups and criminal
gangs in the country and the continued deterioration of
the security situation results in an increasingly complex
operational environment. The challenges are further

deepened by a deteriorating economic situation, made
worse by the impact of the conflict in Ukraine and
continued post-COVID-19 global supply chain factors,
which have caused rising inflation and production
deficits and an increase in the cost of the minimum
expenditure basket. The slow economic recovery and
insecurity affect both host communities and refugees
and migrants, particularly those already in vulnerable
situations. It contributes to increased xenophobia (93 per
cent'”° of those who report episodes of discrimination
mention it is due to their nationality), and heightens
protection risks, as almost 9 out 10 Venezuelans report
resorting to negative coping strategies.'”!

Despite this situation, Ecuador’s legal framework does
guarantee universal access to services such as health
and education, including for refugees and migrants in an
irregular situation, and the Government has continuously
worked to promote their inclusion. However, being the
country hosting the third largest refugee and migrant
population from Venezuela, the pressure on public
capacities often translates into practical barriers for
accessing services.

SCOPE OF THE RESPONSE AND PRIORITIES

Seventy-one R4V partners in Ecuador will work in a
coordinated manner in order to address the protection,
humanitarian and integration needs of refugees
and migrants from Venezuela as well as their host
communities in 23 provinces of the country. The
response will include technical and material support
to the Government, both at the national and local
levels, contributing to strengthening national systems
that assist both refugees and migrants, and their host
communities. It will develop the capacity of civil society
and provide direct support through in-kind assistance
and CVA. Moreover, strategic partnerships with
development actors, including development banks, and
with the private sector, willbe at the centre of the strategy

[188] GTRM, Joint Needs Assessment, May 2022, https://www.r4v.info/es/document/gtrm-ecuador-evaluacion-conjunta-necesidades-mayo-2022

[189] Executive Decree No. 436, 1 June 2022, Decreto Ejecutivo 436 del 01 de junio de 2022 sobre proceso de regularizacién de ciudadanos venezolanos, primera

etapa. | Ecuador - Guia Oficial de Tramites y Servicios (www.gob.ec).
[190] Ibid, pag. 41.
[191] Ibid, pag. 41.

CLP_AR_006338
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 70 of 283

of the national R4V Platform in Ecuador (GTRM), with
a view to promote coherence and synergies between
humanitarian and development actions. This will also
allow for strategic policy, alliances and investments to
advance the Sustainable Development Goals, ensuring
no one is left behind, as reflected in the recently adopted
United Nations Sustainable Development Cooperation
Framework (UNSDCF).

To respond to protection needs, R4V_ partners
will Support the Government in implementing the
registration and regularization exercises, including
through technical, material and financial support, by
facilitating communication with refugees and migrants
from Venezuela. R4V partners will also provide direct
assistance to refugees and migrants to facilitate access
to the regularization exercise, and by coordinating the
implementation of the process across the country. While
these processes go hand in hand with socio-economic
integration efforts, it will also function as an entry point
for partners to identify and respond to immediate urgent
needs of refugees and migrants. Legal assistance and
supportto the Government will also be provided to uphold
the right to access to asylum and the process of Refugee
Status Determination (RSD). Furthermore, partners will
work with different authorities to strengthen national
protection systems, enhancing prevention mechanisms
and specialized services for people with protection
needs, including those in need of family reunification,
GBV survivors, unaccompanied and separated children,
among others.

Advocacy and technical support will also aim at
advancing the mainstreaming of human mobility
considerations into public policies, and to foster the
inclusion of refugees and migrants in social protection
systems and public services such as health, education
and WASH. Partners will work to promote access
to decent work, support self-employment, reduce
xenophobia, improve access to financial services, as well
as other strategies to advance refugees’ and migrants’
self-reliance and contribute to their integration in Ecuador,
while contributing to boosting the country’s economy.

The response will Support the most vulnerable among
affected host community members through a holistic
response that aims to boost community capacities and
foster harmonious coexistence. Food and non-food
items (NFls), temporary shelter, and other forms of more
urgent assistance will be directed mainly to refugees
and migrants in-transit through Ecuador, particularly in
border provinces such as Carchi and El Oro, but also to
new arrivals for whom Ecuador is a destination country

and those who need support in the aftermath of events
that can destabilize communities or families.

CVA for food, health, shelter, education, protection
and other sectoral responses will complement in-kind
assistance and will be delivered both to people in-transit
andthoseconsidered in-destination, and living in Ecuador
in vulnerable situations, to safeguard their well-being
while helping to support local markets. Moreover, where
appropriate, multipurpose CVA will be used to stabilize
families and increase the impact of other sectorial
interventions, including those related to livelihoods.

The needs identified through the JNA, the Secondary
Data Review, and other relevant information, will inform
the geographical prioritization of the response. Targeting
criteria will consider protection and socio-economic
considerations and will be applied, where appropriate,
using inter-agency tools. Inclusive protection and
integration strategies will target refugees and migrants
from Venezuela in-need living in Ecuador as well as
vulnerable members of affected host communities,
particularly in the provinces of Pichincha, Guayas,
Manabi, El Oro, Azuay and Imbabura, as it is estimated
these host the biggest numbers of Venezuelans in the
country, mainly concentrated in these provinces’ capital
cities. As for those in-transit, the response will focus on
Carchi, El Oro, Sucumbios, Imbabura as well as Loja.

RESPONSE PRINCIPLES, GOOD PROGRAMMING/
COLLECTIVE ACCOUNTABILITY CONSIDERATIONS

Communicating with refugees and migrants will be
a cross-cutting action that is key to ensuring their
protection and integration in Ecuador, particularly in light
of changing movement dynamics. Hence, partners will
aim to strengthen communication and accountability
through two-way mechanisms that can contribute to
understanding and responding to population needs. Using
existing local networks will help partners to disseminate
key information more effectively. Moreover, it will improve
two-way-communication throughout the programme
cycle, enabling feedback and direct input in programme
decisions, based on refugees and migrants as well
as affected host communities’ needs, concerns and
capacities. At the coordination level, continuous feedback
will be collected through joint needs assessments and
rapid inter-agency assessments, that among other
initiatives, inform partners’ programming. These cross-
cutting actions will aim at promoting accountability to
affected populations acrossthe response.

CLP_AR_006339
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 71 of 283

With respect to integrated approaches to prevent,
mitigate and respond to protection needs, the Protection
Sector and its Sub-sectors will work in a coordinated
manner with the Government's Secretariat for Human
Rights to implement GBV protocols and will build upon
efforts made in 2022 in order to advance the roll-out of
the inter-agency SOPs on GBV. This will entail technical
support and training to relevant public and humanitarian
actors, including on the protection of LGBTQI+ people.

The Sector will work with a wide range of actors to
promote a multisectoral response to protection cases.
The Education and WASH Sectors will work closely to
ensure education facilities serve as assistance points for
access to menstrual hygiene items, that school sanitary
installations are safe, and that spaces are accessible
for persons with disabilities. In coordination with health
and GBV actors, the Education Sector will also promote
comprehensive education on adolescents’ sexual and
reproductive health. Moreover, the Shelter Sector will

work to enable that temporary shelters, facilities along
travel routes and communal spaces serve as safe
spaces for identification and response to protection
cases. The Food Security Sector will collect ongoing
feedback through post-distribution monitoring and risk
assessments with actors and institutions that deliver
food. Finally, the Integration Sector will work closely with
protection partners to support in breaking the cycle of
violence for GBV survivors by supporting their access
to livelihoods. Regarding PSEA, the GBV Sub-sector will
lead capacity development initiatives and roll-out of
tools on PSEA targeting a wide range of partners and
other actors involved in the response, in order to prevent,
mitigate the risks and respond to misconduct and to put
the protection of victims at the forefront.

CLP_AR_006340
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 72 of 283

2023 2024
ssn aa eee
@*® PEOPLE IN NEED PAM) F 195% | mag PEOPLETARGETED =F 41% ¥ 19.6%

189.2 K 1959 # 345% # 319% |

Aewe ; i\ i]
PIN PERCENTAGE :
58% 182%
SECTORLEADS: RET, UNESCO, UNICEF

The Education Sector will coordinate the actions of 28
partners in 23 provinces, with particular attention to
Pichincha, Guayas and Carchi, with a focus on:

1. improving access to the national education system in
order to boost enrolment levels among refugee and
migrant children;

promoting a safe and inclusive education system that
positively impacts the socio-emotional well-being of
students; and

improving school retention and the completion of
school stages through a holistic and quality learning
in a safe environment.

Awareness raising exercises on the importance of
inclusive education accessible and catered to all children
will target a wide range of actors in the educational
community including parents and caregivers of children
andadolescents from prioritized educationalinstitutions.
An active search process will be promoted to identify
refugee and migrant children in vulnerable situations
who are out of the educational system, as well as those
who are at risk of dropping out.

Parents and caregivers will receive guidance on access
to the education system, within the framework of
the national 026A agreement.'’? Given the multiple
vulnerabilities and barriers to education faced by
many children, this process will be accompanied by

6 TOTAL REQUIREMENTS

~ ®& pnp partners

$18.93 M - $2417M 28

the provision of educational kits and CVA to the most
vulnerable families, as a strategy to address access gaps
and increase school retention rates.

Teachers and staff from the Student Counselling
Departments (DECE) and from the Ministry of Education
will be provided with support and mentoring, including
on the process of inclusion and detection of cases
of bullying and violence. Furthermore, they will be
supported to develop their teaching practice and will
receive training that aims at enhancing their capacities
in incorporating, among other things, psychosocial care
and socio-cultural education into their practice. Support
to the national education system will also aim to improve
school access for children from host communities and
generate safe learning spaces that promote harmonious
coexistence.

Levelling and academic reinforcement programmes
will be carried out with an emphasis on adolescents,
with flexible modalities adapted to their need to address
learning gaps created by significant breaks in education.
At the same time, in coordination with the WASH and
Shelter Sectors, improvements of school infrastructure of
the prioritized educational institutions will be conducted
so they can be safe and accessible and function
as access points for hygiene items and menstrual
hygiene kits.

[192] Ministry of Education, Ecuador. Ministerial Agreement 2021-00026-A, https://educacion.gob.ec/wp-content/uploads/downloads/2021/05/MINEDUC-

MINEDUC-2021-00026-A.pdf

CLP _AR_ 006341
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 73 of 283

2023 2024
@*® PEOPLE IN NEED Wee | |S
eis6k 488K —* 19.0% # 176%
hee Vl
PIN PERCENTAGE
53.7% 53.6% $6713 M
SECTORLEADS: HIAS, WFP

The Food Security Sector, composed of 12 R4V partners,
will coordinate actions in 20 provinces, with an emphasis
on those with the highest numbers of refugees and
migrants from Venezuela in vulnerable situations, namely
the northern and southern borders and Pichincha and
Imbabura provinces.

Sector partners will centre their response around three
main objectives: 1) Improve the food security situation
for the most vulnerable refugees and migrants, both
those in-transit and in-destination, as well as host
community members, through direct food assistance
as well as support to food delivery services in temporary
shelters and other communal spaces; 2) Enhance
the harmonization of the different food assistance
programmes to increase their efficiency, including by
strengthening inter-sectoral cooperation; 3) strengthen
food security strategies that engage the most vulnerable
host community populations, with an aim to reducing
xenophobia against refugees and migrants.

The Sector plans to introduce a cash and voucher
assistance (CVA) modality aligned with national
programmes directed at vulnerable households with
pregnant and lactating women, and children under 2
years old. Direct in-kind food delivery will complement
this strategy, especially at the borders and through food
assistance provided in shelters and community kitchens.

6 TOTAL REQUIREMENTS

ve . 0
e.e T 29.0% F 32.2%
rm PEOPLE TARGETED

f 20.3% Ff 18.6%

$6251M—: 12

Food assistance provision to vulnerable populations will
prioritize households with pregnant and lactating women,
children under 2 years old, elderly people, and people
with specific needs and/or chronic illnesses. Moreover,
programming will follow gender-sensitive approaches
and emphasize cooperation with host communities.
Direct assistance will be complemented by sensitization
campaigns directed to personnel managing temporary
shelters and communal spaces, and by messages that
help the targeted population to improve their food and
nutritional security, such as families managing home
and communal gardens. CVA will be the main assistance
modality, primarily through rechargeable and single-use
cards that can be used to purchase nutritious food.

Providing an adequate food security response will require
close inter-sectoral coordination, especially between
the Nutrition, Shelter, WASH and Protection Sectors.
Particularly for refugees and migrants from Venezuela
in temporary accommodations, close coordination
between shelter providers and food delivery services will
be sought.

CLP_AR_ 006342
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 74 of 283

2023 202k
@*® PEOPLE INNEED f 307% # 315%
5475 K 543K 19.7% + 18.0% :
ee : aw
PIN PERCENTAGE |
SECTOR LEADS: KIMIRINA, UNFPA, WHO/PAHO

The Health Sector response will include 24 partners with
actions in 21 provinces, prioritizing border provinces
and those with the highest concentration of refugee and
migrant populations. The response will focus on:

1. Strengthening the Ecuadorian public health system
through support to the Ministry of Public Health,
including through technical assistance to develop
and/or update specific administrative regulations
to enhance the mainstreaming of human mobility
considerations, investment in health infrastructure,
provision of equipment, medicines, medical devices
and personal protective equipment.

Enhancing the capacities of health personnel,
including training to communities’ health promoters,
on topics such as health and human mobility, and
mental health.

3. Strengthening national vaccination campaigns
against COVID-19 as well as the regular vaccination
schedule, with special attention to children. By
strengthening the capacities of the national health
system, the Sector also aims at having a positive
impact on the levels of access to medical services for
the host community.

Additionally, direct assistance interventions are planned,
aimed at promoting access to primary health care through
medical brigades, including prenatal care, healthy child
control, psychosocial care and first aid, crisis containment
and the delivery of medicines. Moreover, partners will
deliver vouchers to cover costs related to attending

6 TOTAL REQUIREMENTS

$24.86 M $2274 24

vd
ne PEOPLE TARGETED

~ ®& pnp partners

medical appointments, basic and specialized laboratory
tests and purchase of medicines. Sexual and reproductive
health is also a key priority: it will include the clinical
management of sexual violence, specialized kits, and a
comprehensive care for people living with HIV/AIDS.

Special attention will be given to populations with
chronic and serious diseases and those with specialized
health needs such as pregnant women, nursing mothers,
new-born children and those under 5 years of age,
elderly people and people with disabilities. The main
assistance modality will be capacity development and
technical assistance to the Ministry of Public Health,
direct in-kind assistance that will be complemented
with educational and communication campaigns that
include, among others, public health system access;
sexual and reproductive health awareness; prenatal care
and healthy childhood, among others. The Sector has
planned 29 per cent of the total sectorial budget to be
delivered through CVA.

The Health Sector will work closely with the Nutrition
Sector to assist children under 5 years of age and
pregnant and lactating women in order combat chronic
child malnutrition including child health assessments
and nutritional follow-up for both healthy as well as
malnourished children (provision of nutritional guidelines,
food and vitamins). Similarly, it will coordinate with the
WASH Sector in order to provide safe potable water,
sanitation and hand wash facilities in transit facilities;
as well as the Protection Sector to assist persons with
specific protection needs that require attention, care and
monitoring of their physical and mental health.

CLP_AR_006343
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 75 of 283

2023 2024
@*® PEOPLE IN NEED Se 27a
mK 162k 16.8% # 152% |
hee Vl
PIN PERCENTAGE
14.3% 13.9% $612.8 K
SECTORLEADS: 10M, NRC, UNHCR

The Humanitarian Transportation Sector will provide
assistance to in-transit and in-destination refugees and
migrants in 13 provinces, through:

1. Provision of safe transportation from borders to
urban centres in Ecuador in order to enable family
reunification, reach destinations and reduce
protection risks;

2. Day-to-day transportation within cities or inter-
province transportation to access essential goods
and services, especially health, employment and
consular services.

Priority will be given to people in vulnerable situations
such as pregnant and lactating woman, women with
children, elderly people, and people with disabilities or
chronic illnesses.

These interventions will contribute to alleviating the
pressure on services and host communities in border
areas and those with intense population movements as
well as support refugees and migrants from Venezuela

6 TOTAL REQUIREMENTS

Le . ;
nye F 34.9% F 29.7%
gg PEOPLE TARGETED

141K f 186% # 16.8%

$5986K 2

in reaching areas with support networks and potentially
more integration opportunities. Information on safe
transportation routes will be provided in border areas,
shelters and transportation terminals. In-kind assistance
will complement direct payment to transportation
providers and CVA. Sector partners will coordinate
actions to develop transportation providers capacities to
deliver principled, inclusive and safe services to refugees
and migrants.

Close coordination with the Protection Sector and the
GBV and Trafficking and Smuggling Sub-sectors will be
critical in order to meet transportation needs, prevent
and respond to GBV, and reduce the use of unsafe means
and strategies of travel. Collaboration with the WASH
Sector will be promoted to improve access to hydration
and sanitation services on-route and in terminals.

CLP_AR_ 006344
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 76 of 283

a
2
2023-2024
sonnei ee eee
@*® PEOPLE IN NEED P26 Se P33 7% | pag PEOPLETARGETED = 26.2% #33.7%
ss73K S723k + 205% + 193% 218K — 2054K + 20.7% # 19.4%
ce oe aw :
f PIN PERCENTAGE | @ TOTALREQUIREMENTS | &) RMRP PARTNERS
65% 4% S53Q7M$5326M 43
SECTORLEADS: 10M, FUDELA

The Integration Sector will coordinate the actions of
43 partners in 22 provinces, with a focus on those with
higher concentration of refugees and migrants living in
Ecuador, prioritizing the following:

Access to income generating opportunities, including
different types of technical training, market-oriented
entrepreneurship support and seed funding, targeting
entrepreneurs in the ideation stage and those with small
and medium-sized enterprises. Financial inclusion will
be enhanced through saving initiatives and financial
education. Support to access formal employment
through sensitization and alliances with private sector
stakeholders as well as job placement initiatives, and
support for validation of competences and recognition
of professional titles, will be made available to refugees
and migrants from Venezuela.

Advocacy and technical support to public and private
stakeholders in order to strengthen their capacities to
advance the socio-economic integration of refugees and
migrants, while supporting host communities. Actions
will target relevant public institutions both at the national
and local levels as well as private sector actors, including
through initiatives such as the UN Global Compact. The
Sector will develop joint strategies with state institutions
that promote the integration of refugees and migrants,
such as the Ministry of Labour, Ministry of Economic
and Social Inclusion and Ministry of Production, aimed
at improving services and capacities of state initiatives
to respond to the integration needs of refugees and
migrants. As for the private sector, raising awareness
and creating alliances with key actors, such as industrial

chambers, will be essential to achieve the objectives of
labour inclusion of the population.

Promote social cohesion through support to
community networks with a view to foster resilience and
empowerment and facilitate social inclusion of refugees
and migrants with the communities that host them. For
example, support for cultural initiatives led by refugees
and migrants that reaffirm their cultural identity, inviting
the host community to join in the exchange of cultural
practices that strengthen ties with the community and
advance the construction of the social fabric.

Partners will implement the Sector strategy through
direct in-kind assistance and CVA, support to relevant
Government institutions, and capacity development
focusing on both public and private actors. Strategic
partnerships with financial institutions and development
actors will be at the centre of the Sector strategy, with
a view to promote coherence and synergies between
humanitarian and development actions in relation to
strategic policy, alliances and investments to advance
the Sustainable Development Goals.

The Sector will work closely with the Cash Working
Group on guidance to harmonize seed funding
targeting criteria, including levels of funding. Moreover,
it will coordinate actions with the Protection Sector to
foster the socio-economic integration of refugees and
migrants, enhancing referral mechanisms both for those
in an irregular situation facing various vulnerabilities, as
well as people who benefited from the registration and
regularization processes launched by the Government in
2022. For the latter, the response will focus on access

CLP_AR_ 006345
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 77 of 283

to formal employment and support to meet national
requirements to establish formal businesses and access
the national financial system. Coordination with the GBV

@*® PEOPLE INNEED f 00% # 388%
isk 331k 314% 429.8%
“e. : aw
PIN PERCENTAGE 2
10% = O%
SECTORLEAD: UNICEF

The Nutrition Sector will implement its response through
six partner organizations across 19 prioritized provinces.

The actions will focus on the following activities:

1. Nutrition counselling aimed at strengthening Infant
and Young Child Feeding (IYCF) practices for children
under 5 years old, and nutrition practices for pregnant
women and adolescents;

2. Nutritional and health screenings of children under
5 years old, pregnant women and adolescents,
including children anthropometric testing and
anaemia testing, ensuring children under 2 years old
and pregnant women receive a prioritized package of
health services to prevent stunting and other forms of
malnutrition; and

3. Provision of nutritional supplements for pregnant
women, adolescents and children under 5 years
old, including micronutrient supplementation and
nutritional supplements.

The activities delivered by the Nutrition Sector will
target vulnerable groups of children under 5 years old,
pregnant women and lactating women, and adolescent
girls both in-transit and in-destination. By targeting these
groups, the actions will prioritize the work with women
by supporting them and responding to their needs.
Moreover, the response will aim to support strengthening

and Human Trafficking and Smuggling Sub-sectors will
also be key to promote the economic empowerment of
GBV survivors and victims of human trafficking.

vs . c
e.e T 0.0% F 41.7%
ore PEOPLE TARGETED

8.6K 86K § 298% # 28.5%

the Government's campaign to eradicate chronic child
malnutrition, also reaching children and mothers in
affected host communities.

The response modality for these actions will include direct
service provision through mobile teams; in kind-support
through the provision of micronutrients and nutritional
supplements; capacity development of health care
providers and local authorities in areas related to nutrition
inemergencies. CVA willbe delivered andrepresents 35 per
cent of the total Sector budget and willinclude transfers for
access to medical consultations, rehabilitation, medicines
and access to nutritional supplements. The activities
will also be complemented by social and behavioural
change strategies and campaigns to sensitize people on
the relationships between nutritional factors and health
outcomes, improving cooking practices and promoting
changes in unfavourable dietary habits, with the aim to
improve the nutritional status of vulnerable populations.

Actions to addressing nutritional deficiencies and
malnutrition require multisectoral efforts, including
with the WASH, Education, Health, Food Security and
Protection Sectors. Collaboration with these Sectors will
aim at improving access to safe water for consumption,
working to ensure that children under 2 years old receive
the package of care required to prevent stunting, and
working to implement actions to promote healthy habits

among school-aged children andGidRsARRs. 006346
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 78 of 283

2023 2024
@*® PEOPLE IN NEED 732.0% # 31.2%
8385 K B41 * 191% *# 176%
Aewe ; i\ i]
PIN PERCENTAGE 6
SECTOR LEADS: NRC, UNHCR

The Protection Sector will coordinate the actions of 40
partners in 21 provinces and will prioritize:

1. Supporting relevant Government institutions to
facilitate access to the territory, asylum, and regular
stay arrangements, and will support other national
protection systems, to promote a holistic protection
response and advance durable solutions for refugees
and migrants.

Promote the peaceful coexistence between refugees
and migrants from Venezuela and their hosts
communities to enhance protection mechanisms.

In support of the registration and regularization
exercise initiated by the Government of Ecuador on 1
September 2022,'”° partners will focus on disseminating
and strengthening the scope and coverage of the
registration and regularization processes. This will be
achieved through the deployment of teams to different
areas of the country to support the Government-led
communication campaign,’ of legal teams that will
enhance referral mechanisms and provide legal services,
specialized counselling services, and assistance
focused on obtaining the certificate of permanence,
subsequently applying for the Exception Temporary
Residence Visa for Venezuelan citizens (VIRTE), and
finally obtaining a national identity document. CVA will
be provided for the payment of the consular fees, identity
orders, mobilization expenses and other costs involved

=.
wo
So
ww
=
Ts
ce
ee)
=

SihosM $4046 “0

in these processes. The Sector will support Government
institutions through the provision of financial, technical
and material support in order to enhance their capacities
to effectively implement these processes.

Legal assistance to promote access to essential rights
and services, particularly the right to access to asylum
and the process of RSD, as well as the different types of
migratory arrangements available in Ecuador, will also be
prioritized.

Peaceful coexistence is a central aspect to enhancing
protection mechanisms for refugees, migrants and
their host communities. To promote this, the Sector will
engage with communities to harness their knowledge
and resources to strengthen their capacities to protect
themselves, promote integration and rebuild their
lives. Communities will have an active and leading role
in the response.

With a population largely concentrated in urban and peri-
urban areas (80 per cent) and often sharing similar risks,
vulnerabilities and opportunities with local communities,
Sector partners’ work will focus on implementing field
activities that promote access to rights, particularly
for the most vulnerable. Over 340 community-based
organizations have been mapped across the country, and
the Sector will build upon existing efforts to strengthen
community-based groups and engage them, among
other things, in social media and other innovative
initiatives to fight against xenophobia and discrimination.

[193] Executive Decree No. 436, 1 June 2022: Decreto Ejecutivo 436 del 01 de junio de 2022 sobre proceso de regularizacién de ciudadanos venezolanos, primera
etapa, https://www.gob.ec/regulaciones/decreto-ejecutivo-436-01-junio-2022-proceso-regularizacion-ciudadanos-venezolanos-primera-etapa

[194] ‘Estoy Aqui’ Campaign: https://estoyaqui.ec/ CLP AR 006347

Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 79 of 283

As part of the Sector strategy, partners will prioritize,
among others, women heads of households, pregnant
and lactating women, sex workers, children, elderly
people, people affected by evictions, people with
disabilities and those with serious and chronic diseases.
An overall vision, close collaboration and continuous
feedback with the Child Protection, GBV and Human
Trafficking and Smuggling Sub-sectors will strengthen
referral mechanisms and protocols between partners

2023 2024
@*® PEOPLE INNEED f 171% # 187%
4079 K MG5K 7 343% F 318% :
Aan 8 aw
PIN PERCENTAGE
saa 34.3% $12.64 M

SUB-SECTOR LEADS: COOPI, UNICEF

With 17 R4V partners, the Child Protection Sub-sector will
focus its intervention on three main response priorities:

1. Provision of psychosocial support and recreational
activities in child-friendly spaces, strengthening
community mechanisms and safe spaces for
the identification of child protection cases. It will
include mental health services, psychosocial
assistance, inclusion strategies through art, sports
and recreational activities, as well as leadership
programmes for adolescents and support groups for
adolescent parents.

2. Enhance identification, referral and case
management services of children and adolescents
at risk, including unaccompanied and separated
children. Among other services, this will entail the
provision of legal assistance to refugee and migrant
families with children and adolescents to mitigate
the vulnerabilities and protection risks that may arise
from their lack of documentation and irregular status
in Ecuador. The Sub-sector will place a particular

@ (TOTAL REQUIREMENTS

and enable a holistic response. Coordination with other
Sectors such as Shelter (for preventing evictions) and
Health (for community-based health initiatives) will also
be key. Finally, in view of the regularization exercise,
joint strategies with the Integration Sector will be a
cornerstone of the response, with a view to advancing
the socio-economic integration of refugees and migrants
from Venezuela and thus fostering peaceful coexistence
and mitigating protection risks.

Ls ; ;
e.e T 13.8% F 16.7%
iq PEOPLE TARGETED

f 36.3% f 33.3%

~ ®& amep partners

$14.30 M 17

focus on unaccompanied and separated children
and adolescents as a cross-cutting consideration
throughout all response interventions, given their
specific vulnerability to being exposed to sexual
exploitation, human trafficking and other protection
risks.

3. Advocacy and capacity development aimed to
strengthening the national protection system for
children and adolescents through the development
of specific methodologies to prevent children’s rights
violations, training to public officials and civil society
organizations in comprehensive care for refugee
and migrant children at risk, and the development
of campaigns for the integration of children that
promote social cohesion, interculturality and non-
discrimination.

Assistance for children and adolescents at-risk and

those unaccompanied and separated will prioritize

care in border provinces for the population in-transit,

and in the main cities for the payor in-destination,
LP

"AR 006348
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 80 of 283

ensuring coordination among partners in different areas.
The main form of assistance will be direct, through case
management, referrals and the provision of recreational
activities and psychosocial assistance. CVA will also
be utilized (11 per cent of the Sub-sectors financial
requirements), particularly for supporting alternative
care and supervised independent living arrangements
for unaccompanied adolescents as well as to support
access to the registration and regularization process for
children and adolescents. Advocacy and strengthening
of local and national child protection systems will also
be a key component of the Sub-sector response, with
a view to promoting access to protection services for

refugee and migrant children in-need, as well as those for
host communities.

In order to provide an effective child protection response,
the Sub-sector will focus on intersectoral planning and
coordination with Sectors such as Education, Health
and Nutrition to respond in a comprehensive and
complementary way to the needs related to accessing
national educational system, completing vaccination
schedules and combating chronic child malnutrition.
Moreover, it will work in an articulated manner as part of
the Protection Sector strategy and its Sub-sectors, such
as GBV.

2023 2024
@*® PEOPLE IN NEED PRES seo
2689K 2724k ft 97% # 83%
Aewe al
PIN PERCENTAGE
22.4% 22.5% $12.66 M

SUB-SECTOR LEADS: UNFPA, UN WOMEN

The GBV Sub-sector will coordinate the actions of 27
partners in 21 provinces, with particular focus on border
areas and cities with high concentration of refuges and
migrants.

The response priorities will be oriented to:

1. Strengthening public policies and mechanisms
for the prevention and protection against GBV,
including technical assistance and national and
local-level advocacy for the mitigation, prevention
and response to GBV, as well as for the protection
of the rights of the LGBTQI+ refugees and migrants.
This will include capacity building for first line
responders such as public servants, civil society
organizations and humanitarian actors on GBV,
positive masculinities, PSEA, minimum. standards
and IASC Guidelines on GBV, GBV Case Management
Standard Operating Procedures, LGBTQI+ protection,

6 TOTAL REQUIREMENTS

be . 0
e.e T 56% F 76.6%
nw PEOPLE TARGETED

133.0 K 305K t 96% # 82%

~ ©& amer partners

SLIM: 27

clinical management of sexual violence and referral
pathways and protocols.

2. Enhancing safe spaces and_ safe reporting
mechanisms (such as partners’ complaint and
reporting mechanisms and helplines articulated
with national and local GBV responses) and
comprehensive response services for GBV survivors
to access safe spaces, legal assistance and the
justice system, sexual and reproductive health, and
psychosocial support. This will also include the
delivery of specialized GBV kits.

3. Developing edu-communicational campaigns to
prevent GBV, xenophobia and discrimination, and to
disseminate life-saving information about GBV risks
and response services. This includes campaigns
in public schools on preventing GBV and teenage

CLP AR 00634
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 81 of 283

pregnancy; and campaigns targeting refugees,
migrants and affected host communities on
masculinities and gender diversities.

The delivery of GBV assistance to both in-transit
and in-destination populations will prioritize women,
children and LGBTQI+ refugees and migrants, as well
as vulnerable cases detected in host communities.
The main response modality will be support to relevant
Government institutions at the national and local levels,
with a view to strengthening public policies and the
implementation of referral mechanisms and protocols
both for refugees and migrants from Venezuela in-
need as well as for their host communities. This will be
complemented by direct in-kind assistance, such as
kits, and through CVA for GBV survivors to access safe

2023 2024
@*® PEOPLE IN NEED osm # 260%
58.3K s70k ft 165% # 15.1% 2
ee aw
PIN PERCENTAGE
cue 47% $2.55 M

SUB-SECTOR LEAD: IOM

The Human Trafficking and Smuggling Sub-sector will
coordinate the actions of five partner organizations with
the following priorities:

1. Provide direct assistance that supports the recovery
of victims of trafficking and reduces protection risks
of people at-risk and in situations of exploitation,
including psychosocial and medical assistance,
development of a life plan and prospects, and
integration activities.

2. Strengthen the capacities of public officials, NGOs,
civil society organizations and UN partners. This
will include capacity development targeting judicial
officials inthe investigation and prosecution of human

6 TOTAL REQUIREMENTS

accommodation, health services, and livelihoods (12 per
cent of the planned budget). Direct assistance will be
accompanied by information campaigns and roll-out of
behaviour change methodologies.

As part of the overall protection strategy, the GBV Sub-
sector will coordinate with the Human Trafficking and
Smuggling Sub-sector, including through a_ shared
coordination working group, to advance advocacy
and communication efforts. Close collaboration will
also be sought with the Integration Sector to promote
access to livelihoods for GBV survivors. Finally, Sectors
such as Health, Shelter and WASH as well as partners
providing multi-purpose CVA will be key for articulating
comprehensive multisectoral GBV response.

vd : .
ese T 318% F 31.6%
ang PEOPLE TARGETED

ft 189% F 176%

~ & awep partners

$253M —: 5

trafficking and smuggling crimes, and awareness
raising and training sessions on specialized SOPs
and other relevant topics to partners. Technical
assistance will be provided to prevent human
trafficking and smuggling through the development
of tools for handling cases, improving detection
and identification mechanisms, and developing
and implementing referral pathways. These tools
will facilitate specialized case management by
law enforcement and migration authorities as well
as other state actors, in addition to humanitarian
personnel.

3. Support the strengthening of public policies and

prevention and protection Weil =da\-weleeciae
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 82 of 283

national and local networks and case committees,
providing technical and financial assistance to
promote the application of local ordinances, and
supporting the development of care protocols and
the improvement of mechanisms for identifying and
referring cases.

The delivery of assistance will prioritize border provinces
as Tulcan, Sucumbios, and Orellana in the north, and
EI Oro in the south. It will also focus on provinces with
high concentrations of refugees and migrants, such as
Guayas, Pichincha and Ibarra. Assistance to refugees
and migrants will target single women and men,
adolescents’ girls, and boys, and LGBTQI+ people at-risk.

Direct multisectoral assistance to victims and people
at-risk will be provided through CVA (47 per cent) and
in-kind assistance. It will be complemented by capacity
development and technical and financial support to the
civil society and Government authorities.

Human Trafficking and Smuggling Sub-sector partners
will coordinate with GBV Sub-sector partners both to
articulateactivities andtocomplementdirectassistances
and advocacy efforts. In addition, it will implement a
comprehensive response through close articulation with
other Sectors such as Health, Education and Integration
through improved coordination, information exchange
and joint referral pathways.

e.e ; m & a bd i of, & 9
@*® PEOPLEIN NEED 327% F307 ey PEOPLETARGETED == 95.0% ¥ 29.8%
4959K 4agok 191% # 174% Quik 254K 185% # 16.8%
PINPERCENTAGE @ TOTALREQUIREMENTS — (@) RMRPPARTNERS
SECTOR LEADS: 10M,NRC, UNHCR

Through its 14 partners, the Shelter Sector will focus its
response on 19 provinces, particularly Pichincha, El Oro
and Guayas, prioritizing the following interventions:

1. Establishment of and support to temporary
shelters and communal spaces, including through
infrastructure upgrades of collective shelters and
communal spaces to meet minimum. standards,
community infrastructure improvements in prioritized
neighbourhoods, provision of equipment, and
strengthening of management capacities, including
through the effective mainstreaming of protection
considerations. Within the Sector strategy, spaces
such as community kitchens and educational facilities
will be supported, and partnerships with private actors
willbe sought for temporary accommodation options.

2. Rental support both directly through CVA for up
to three months (cash-for-rent) as well as through
infrastructure upgrades that will also benefit host
community homeowners, with a focus on WASH
improvements.

3. Delivery of non-food items (NFls), including kits,
essential household items and equipment, for
individual families and to support community spaces.

The response will focus on both in-transit and_ in-
destination populations, targeting households with
high levels of vulnerability, including those where
children, elderly people and people with disabilities are
present. Family groups at imminent risk of eviction
will be considered as a priority within the rental

support assistance.
CLP_AR_006351
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 83 of 283

The main response modalities will consist of direct
collective shelters upgrades, including through
operational and financial support; capacity development
and technical support in communal spaces
management and protection; infrastructure support to
improve community spaces, aiming to serve both the
host and refugee and migrant communities and foster
peaceful coexistence; direct assistance through NFIs
distributions, including the provision of household items
such as mattresses, blankets, among others; and CVA

@*® PEOPLE INNEED f 314% # 315%
468.6K AB BK 19.2% % 178% |
40 aw
PIN PERCENTAGE ,
SECTORLEAD: UNICEF

The WASH Sector, composed of 10 partners, will
coordinate actions in 22 provinces. The Sector will seek
to provide assistance both to refugees and migrants
in-transit and new arrivals, to satisfy their essential
needs, as well the communities hosting them, with
priority to women and girls, with a gender approach and
accessibility considerations to people with disabilities or
serious illnesses.

The response will focus on assistance to access drinking
water, personal hygiene items and sanitation services
along highways, in temporary shelters and at border
crossing points through:

1. Provision of hygiene services, distribution of
water and establishment of hydration points and
bathrooms/showers at information points in border
areas and along the route.

2. Distribution of NFls such as hygiene supplies for
womenand menas well as specific NFIkits for babies.

for rent coupled with information campaigns on rental
rights and host community sensibilization.

For the development of the response, close coordination
with the WASH, Health, Education and Integration
Sectors will be key to broaden the shelter support
spectrum within a safe-space perspective. Moreover,
joint strategies with the Protection Sector will be a key
priority in order to prevent and respond to eviction cases.

ve
es PEOPLE TARGETED

se27M$583M i

3. For those residing in Ecuador, to mitigate protections
risks that can arise from sharing a bathroom with
other households, shelters will be upgraded to
promote access to adequate housing, including
through improvements to WASH facilities in homes,
in coordination with the Shelter Sector.

The main response modalities will include direct
assistance through hygiene kits distribution, CVA for
people in-need living in prioritized provinces, WASH
infrastructure upgrades, and capacity-development to
manage WASH infrastructure.

Public institutions, such as schools and health centres
that provide services to a considerable number of
refugees and migrants will be supported by increasing
their installed capacity, improving, adapting or building
WASH facilities so that they meet minimum standards,
and thus provide better services to both refugees and
migrants and their host communities. Moreover, partners
will work on improvements, repairs, and construction of

CLP AR 006352
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 84 of 283

WASH infrastructure and services in community and — Sector will coordinate with Nutrition partners in order
public spaces. This will require close coordination with to address underlying causes of malnutrition related to
the Shelter, Health and Education Sectors. Finally, the inadequate access to water, sanitation and hygiene.

CASH AND VOUCHER ASSISTANCE (CVA)

In Ecuador, 14 partners will provide multipurpose CVA
through recurring as well as one-time assistance,
while 31 partners will use CVA as part of their sectorial
interventions, including Food Security, Protection,
Health, Shelter and Education. CVA represents 38
per cent (USD 223M) of RMRP activities in Ecuador.

Most refugees and migrants from Venezuela, 74
per cent of households, live in poverty'?? and have
considerably less income than is needed to afford
minimum needs based on the minimum expenditure
basket. The Cash Working Group will coordinate
CVA approaches to ensure support is reflective of
the cost-of-living and to the update the Minimum
Expenditure Basket, which is set at USD 853 per
month for an average family of four members
according to a recent study'°° (compared to USD 713
in 2019), an amount considerably higher than the
average income in Ecuador. |”

The Cash Working Group will focus on monitoring
market trends updating identification and targeting
methodologies; fostering coordination between
partners in different provinces; harmonizing transfer

e+)

mechanisms; and advocating to improve access to
financial services and ease Know Your Customer
(KYC) requirements (identificationandauthentication
standards for financial services) for refugees and
migrants from Venezuela, in coordination with the
Integration Sector. Finally, the Working Group will
aim to strengthen the nexus between CVA and social
protectionschemes, including by closer collaboration
with relevant public actors.

The Cash Working Group will promote exchanges
among partners on best practices, monitor the
results of multipurpose CVA and collect data to
inform and improve programming. It will share
experiences and solutions from other countries with
the aim to apply those considered relevant in Ecuador
through collaborative initiatives such as the UN
Common Cash System (UNCCS), the Collaborative
Cash Delivery Network (CCD) and the Cash Learning
Partnership (CaLP). The coordination model will
incorporate IASC guidance, while acknowledging the
context and particularities of the Venezuela situation.

[195] For 74 per cent of households, the average per capita income is lower than USD 85.60 (which is the income poverty threshold established by the
Ecuadorian Statistic and Census National Institute, INEC). R4V, RMNA 2022, page. 152.

[196] Minimum Expenditure Basket Taskforce, Cash Working Group. Market and basic goods evaluation and monitoring study. Ecuador, July 2022.

Publication forthcoming

[197] The cost of living and thus the minimum expenditure basket are on the rise in Ecuador (1.22 per cent and 2.16 per cent monthly increases for the
survival and the livelihood baskets, respectively, set at USD 529.07 and USD 751.04 as of June 2022). At the same time, as the JNA shows, the
average monthly income of USD 235.54 for a Venezuelan family of four is notably lower than the minimum expenditure basket. R4V, RMNA 2022,

page 152.

CLP_AR_006353
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 85 of 283
As of: May 08, 2023
Received: March 07, 2023
PUBLIC SUBMISSION Status: Posted
Posted: March 09, 2023
Tracking No. ley-vys0-3ywh
Comments Due: March 27, 2023
Submission Type: Web

Docket: USCIS-2022-0016
Circumvention of Lawful Pathways

Comment On: USCIS-2022-0016-0001
Circumvention of Lawful Pathways

Document: USCIS-2022-0016-3267
Comment Submitted by Diego Fernandez-Pages

Submitter Information
Name: Diego Fernandez-Pages
Address:
New Haven, CT, 06511
Email: diegofernandezpages@gmail.com

General Comment
See attached file(s)

Attachments
Asylum Rule_Comment

CLP_PC_003999
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 86 of 283

This proposed rule is flawed in several respects, and, should it be promulgated in its current
state, does not account for several fatal problems:

1. Speculative Projections

The proposed rule is based primarily on “planning assumptions [that] suggest that
encounter numbers may increase to 11,000-13,000 per day following the termination of the
Title 42 public health Order.” The model used to project that is difficult to access and not
apparently available to the general public. The model should by law be available for perusal
from statistical experts to ensure its accuracy. United States v. Nova Scotia Food Products
Corp., 568 F.2d 240 (1977).

Apart from the model’s unavailability, the Departments offer no justification for these
conceded assumptions in the body of the proposed rule. Indeed, the Departments use
vague and imprecise language to describe the potential increase in encounter numbers at
the Southwest Border: “could,” (p. 11705), and “may” (p. 11728), “assumes” or
“assumption,” (p. 11712) and “projections” (p. 11705) all suggest a high level of
uncertainty—one not at all alleviated by any explanation of the assumptions in the text.
Further, the Departments concede that “a number of factors make it particularly difficult to
precisely project the numbers of migrants who would seek to cross the border, without
authorization, after the lifting of the Title 42 public health Order.” (p. 11705). These factors
are also unexplained.

When a rule of such magnitude, affecting the entire breadth of the asylum system, relies on
such unclear, uncertain, and unsubstantiated projections, it must be arbitrary.

2. Reliance on CBP One

The proposed rule relies on CBP One, the new application extensively discussed, to
operationalize the “scheduling system” referenced in § 1280.33(a)(ii) of the proposed
rule. CBP One is poorly tested. Three primary problems remain unaddressed: A. People
that have attempted to use the app to schedule entry—CBP’s preferred method—report
long, arbitrary wait times reminiscent of “a lottery.” B. The assumption that most
asylum seekers have devices that will allow them to access the CBP One app is poorly
substantiated. C. Exceptions to the use of the application are not sufficient to account
for technical problems with the application that are not due to user error.

A. The Departments do not address the concern that the CBP One app functions as a
lottery. The Departments have not looked into these claims, or conducted any
surveys to that end. (Miriam Johnson, Biden Administration Announces New Border
Crackdown, NY Times (Feb 21 2023).) If CBP One does function as a lottery, then it
may contradict the Immigration and Nationality Act. 8 USC § 1158 makes clear that
“any” migrant who arrives at or enters the United States can apply for asylum. If it
functions as a lottery, then CBP One first prevents arriving migrants from applying

CLP_PC_004000
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 87 of 283

for asylum, and second, removes procedural protections afforded migrants who are
seeking asylum.

B. While the Departments have addressed concerns that asylum seekers will not have
the necessary devices to access the CBP One app, the study they rely on to
substantiate their dismissal of the concerns only looks at 95 migrants at a single port
of entry. (Part III.E.7) This represents .8% of the number of encounters at the
Southwest Border CBP projects at minimum. To establish an additional barrier to
asylum based on a single small-scale study at a single port of entry is irresponsible
and does not substantially address the concerns the Departments themselves
reference.

C. The Departments do not offer alternative processes for asylum seekers who
encounter technical difficulties not due to their own error with the CBP One app. If,
for example, the app crashes, is unavailable, or is compromised by cyberattack,
asylum seekers may lose their place in line, may have to restart their application, or
may have their valuable personal data stolen. The Departments’ exception creates
an unreasonable additional procedural barrier to asylum seekers by creating a
threshold adjudication where the burden of proof is on the asylum seeker rather
than on the Department to prove inability to access the application. (Part III.E.7)

3. Inaccurate Comparison to U4U

The Departments rely on the Uniting for Ukraine (U4U) and Venezuela parole processes
to justify promulgating this rule. (Part V.A.) This reliance is inaccurate. Both processes
introduce affirmative parole procedures in addition to regular asylum procedures for
migrants from two specific countries undergoing emergencies. The U4U parole process
lowers barriers to entry: The U4U program required Ukrainian migrants to show only
that they: Resided in Ukraine before February 11, 2022; are a Ukrainian citizen or
possessed a valid Ukrainian passport; have a vetted supporter file an I-134A form; and
pass biometric and biographic security checks. (https://www.uscis.gov/ukraine).

These four requirements represent significantly less stringent procedural barriers to
Ukrainian asylum or parole seekers. They also do not establish a rebuttable presumption
of ineligibility; they affirmatively create a presumption of eligibility if Ukrainian migrants
meet these four criteria. The new rule, meanwhile, establishes higher procedural
barriers for asylum seekers by introducing a stringent presumption, rebuttable only on
very specific, hard-to-meet grounds.

The proposed rule suffers on several other grounds. Exceptions to the rebuttable presumption,
for instance, are impermissibly high and do not give migrants a reasonable opportunity to make
a credible fear argument before an asylum officer. The risk of error that those subject to the
presumption but do have a credible fear of persecution will be even higher than it already is.
The Departments do not address this and other due process problems in any part of the rule. I

CLP_PC_004001
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 88 of 283

do not believe that the Departments should issue this rule at all for the reasons stated, but also
because I believe this is a violation of asylum seekers’ right to seek asylum per long-standing
and ratified international law.

CLP_PC_004002
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 89 of 283
As of: May 08, 2023
Received: March 26, 2023
PUBLIC SUBMISSION Status: Posted
Posted: March 29, 2023
Tracking No. lfp-h6ww-7c60
Comments Due: March 27, 2023
Submission Type: API

Docket: USCIS-2022-0016
Circumvention of Lawful Pathways

Comment On: USCIS-2022-0016-0001
Circumvention of Lawful Pathways

Document: USCIS-2022-0016-12228
Comment Submitted by American Immigration Lawyers Association and American Immigration Council

Submitter Information
Email: agrenier@aila.org
Organization: American Immigration Lawyers Association and American Immigration Council

General Comment
Please see the attached comment and four attachments.

Attachments
2023 AILA AIC Asylum Transit Ban Comment

Attachment 001_AICAILACommentMar23

Attachment 002_AICAILACommentMar23-compressed

Attachment 003_AICAILACommentMar23-compressed

Attachment 004_AICAILAComment Mar23

CLP_PC_020712
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 90 of 283

March 26, 2023

Daniel Delgado Lauren Alder Reid
Acting Director, Border and Immigration Assistant Director
Policy, Office of Strategy, Policy, and Plans Office of Policy
Department of Homeland Security Executive Office for Immigration Review
Washington, DC 20528 Department of Justice
5107 Leesburg Pike
Falls Church, VA 22041

Submitted via http://www.regulations.gov

Re: American Immigration Lawyers Association and American Immigration Council
Comment on Circumvention of Lawful Pathways
DHS Docket Number USCIS 2022-0016

Dear Mr. Delgado and Ms. Alder Reid:

The American Immigration Lawyers Association (AILA) and the American Immigration Council
(Council) submit the following comments in response to the above-referenced Department of
Homeland Security (DHS) and Department of Justice (DOJ) (collectively, “the Departments”)
Notice of proposed rulemaking (proposed rule), Circumvention of Lawful Pathways (DHS
Docket Number USCIS 2022-0016), 88 Fed. Reg. 11704 (February 23, 2023). The Departments
request comment on, among other things, “[w]hether the proposed rule appropriately provides
migrants a meaningful and realistic opportunity to seek protection.”1

The situation the Departments face is a uniquely difficult one. Regional migratory and
displacement patterns have shifted significantly in recent years. Increased numbers of asylum
seekers at the Southern Border are a symptom of these shifting patterns and long-term
Congressional inaction to address humanitarian needs holistically to fix issues within the wider
immigration system that would alleviate the pressure at the Southern border. Compounding this
is a historic asylum backlog across both Departments.

1
Circumvention of Lawful Pathways, 88 FR 11704, 11708 (proposed Feb. 23, 2023) (to be codified at 8 CFR 208
and 8 CFR 1208),
https://www.federalregister.gov/documents/2023/02/23/2023-03718/circumvention-of-lawful-pathways. [hereinafter:
“NPRM”]

1
CLP_PC_020713
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 91 of 283

However, the proposed rule is a step in the wrong direction. The proposed rule will prevent
meaningful access to asylum to individuals who arrive at the U.S.-Mexico border, which covers
the majority of asylum seekers who are unable to afford a passport (or had their passport revoked
by a persecuting government) and a flight. The proposed rule amounts to an asylum transit
ban—relying on transit countries that can neither ensure asylum seekers' safety nor meaningful
access to a system that protects the human rights guaranteed under U.S. law. It further conditions
access to asylum based on how asylum seekers enter the country. Furthermore, the proposed
“core protections” and safeguards will not sufficiently protect access to asylum and other forms
of humanitarian relief, particularly in light of our significant concerns surrounding its
implementation and access to counsel.

AILA and the Council urge the Biden administration to remain true to its commitment to asylum
law and humanitarian protections.
I. About AILA and the Council
Established in 1946, AILA is a voluntary bar association of more than 16,000 attorneys and law
professors practicing, researching, and teaching in the field of immigration and nationality law.
AILA’s mission includes the advancement of the law pertaining to immigration and
naturalization and the facilitation of justice in the field. AILA members regularly advise and
represent businesses, U.S. citizens, U.S. lawful permanent residents, and foreign nationals
regarding the application and interpretation of U.S. immigration laws.

The Council is a non-profit organization established to increase public understanding of
immigration law and policy, advocate for the just and fair administration of our immigration
laws, protect the legal rights of noncitizens, and educate the public about the enduring
contributions of America’s immigrants. The Council litigates in the federal courts to protect the
statutory, regulatory, and constitutional rights of noncitizens, advocates on behalf of noncitizens
before Congress, and has a direct interest in ensuring that those seeking protection in the United
States have a meaningful opportunity to do so.
II. The proposed rule violates international and domestic law, as it functionally denies
individuals safety from persecution
(A) The proposed rule undermines both U.S. domestic and international law
obligations

The proposed rule violates the United States’ obligations to protect individuals fleeing
persecution under both international and domestic law. As a signatory to the 1967 Refugee
Protocol, the United States has agreed to uphold the principles of the 1951 Convention Relating
to the Status of Refugees, including the right to seek asylum and the prohibition on refoulement.
Domestic law also requires the United States to protect asylum seekers. Under the Immigration
and Nationality Act (INA), an individual may apply for asylum regardless of their manner of
entry, subject to certain very limited exceptions.2 The INA also sets limits on when an asylum
seeker can be denied protection based on residing in a third country. The proposed rule denies

2
8 U.S.C. § 1158(a)(1) (1952).

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access to asylum to individuals primarily on the basis of their manner of entry and is therefore
contrary to international and domestic law.
The proposed rule is inconsistent with fundamental international law principles aimed at
protecting refugees, which the United States has agreed to uphold. The Refugee Convention’s
principle of non-refoulement prohibits the United States from returning an individual seeking
humanitarian protection to a country where they could face persecution.3 Under the proposed
rule, asylum seekers subject to the ban will be ineligible for asylum and face a heightened risk of
being returned to countries where they fear persecution based on factors that have nothing to do
with the merits of their underlying asylum claim. The proposed rule’s requirement that asylum
seekers enter through a port of entry with an appointment or via parole also violates the Refugee
Convention’s prohibition against imposing penalties on asylum seekers based on their irregular
entry into the country.4
The United States incorporated these international law principles into domestic law when it
passed the 1980 Refugee Act.5 In 8 U.S.C. § 1158, Congress established a comprehensive
asylum system, which includes limited exceptions to noncitizens’ ability to apply for and be
granted asylum. The rule relies on 8 U.S.C. § 1158(b)(2)(C), which allows the Attorney General
to establish regulations with additional limitations, to justify its ability to implement a new bar to
asylum. However, 8 U.S.C. § 1158(b)(2)(C) mandates that any additional limitations be
“consistent with” the statute.6 The limitations in the proposed rule are in direct conflict with the
INA.7 For example, the INA states that, subject to certain exceptions, anyone “who is physically
present in the United States or who arrives in the United States (whether or not at a designated
port of arrival . . .), irrespective of [their] status, may apply for asylum.”8 The proposed rule
contravenes the statute by barring from asylum individuals who enter between ports of entry and
those who arrive at a port of entry without utilizing DHS’s appointment system, unless there is a
specific reason why they could not.9
Additionally, Congress already explicitly addressed asylum restrictions for people who may find
safety in other countries in two separate statutory provisions. First, under
8 U.S.C. § 1158(a)(2)(A), individuals generally cannot apply for asylum if they can be removed
to a country that has a formal safe third country agreement with the United States. A “safe third
country” is defined as a country where that person’s life or freedom would not be threatened and
3
United Nations High Commissioner for Refugees (UNHCR), Note on Non-Refoulement (Submitted by the High
Commissioner), Aug. 1977,
https://www.unhcr.org/en-us/excom/scip/3ae68ccd10/note-non-refoulement-submitted-high-commissioner.html.
4
See UNHCR, Brief of the Office of the United Nations High Commissioner for Refugees, O.A., et al. v. Trump, et
al., Aug. 13, 2020, No. 19-5272 (“[n]either the 1951 Convention nor the 1967 Protocol permits parties to condition
access to asylum procedures on regular entry”), https://www.refworld.org/docid/5f3f90ea4.html, at 24.
5
Matter of D-L-S, 28 I. & N. Dec. 568, 571 (BIA 2022) (“It is well established that Congress enacted the Refugee
Act of 1980 to ‘bring United States refugee law into conformance with the country’s obligations under the
Protocol.’” (citing and quoting Matter of Q-T-M-T-, 21 I. & N. Dec. 639, 645 (BIA 1996)).
6
8 U.S.C. § 1158(b)(2)(C) (“The Attorney General may by regulation establish additional limitations and
conditions, consistent with this section, under which a [noncitizen] shall be ineligible for asylum under paragraph
(1).”).
7
See E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (upholding preliminary injunction of
Trump administration transit ban interim final rule) [hereinafter “East Bay I”].
8
8 U.S.C. § 1158(a). Emphasis added.
9
See E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 669 (9th Cir. 2021) (concluding that a 2018 asylum
restriction based on manner of entry was “not in accordance with law”) [hereinafter “East Bay III”].

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where they would have “access to a full and fair procedure” for accessing humanitarian
protection. Second, under 8 U.S.C. § 1158(b)(2)(A)(vi), an asylum seeker who was “firmly
resettled,” meaning that the person was eligible for or received permanent legal status, in another
country is generally not eligible for asylum.
Finally, 8 U.S.C. § 1231 codified the Convention’s prohibition against returning refugees to
countries where they face persecution. The proposed rule, which conditions access to asylum on
manner of entry and transit, would result in the return of refugees to danger and contravenes
these provisions of U.S. law.
The proposed rule is also contrary to the credible fear screening standard Congress established in
1996, when it created the expedited removal process through the Illegal Immigration Reform and
Immigrant Responsibility Act (“IIRIRA”). Under this process, asylum seekers placed in
expedited removal who establish a credible fear of persecution must be referred to full removal
proceedings, where they can apply for asylum.10 Congress intended the “significant possibility”
standard used in credible fear interviews to be a low threshold.11 If an asylum officer determines
that an applicant is not eligible for asylum under the proposed rule, the officer must interview the
person under the heightened standard generally applicable in reasonable fear proceedings to
determine if they may qualify for withholding of removal or protection under the Convention
Against Torture.12 Given the higher standard required for withholding and CAT, the proposed
rule will drain resources from USCIS by requiring asylum officers to apply a two-step process
while making it more difficult for individuals to qualify for life-saving protection. Even those
who meet the higher standard for withholding of removal or CAT will not receive the same
benefits that asylum provides, which could lead noncitizens to experience instability, lack of
permanency, and family separation.13
The proposed rule undermines our domestic law obligations. As a result, most individuals who
cross the southern border without an appointment, except Mexican nationals or those who meet
the proposed rule’s limited exceptions, would be ineligible for asylum in the United States
because they would have transited through a country that is a signatory to the Convention or the
Protocol. Additionally, nearly every country in the world is a signatory to the Convention or the
Protocol.14 Thus, this proposed rule will adversely impact asylum seekers from all over the world
who are seeking protection in the United States.
Such a ban undermines congressional mandates regarding our domestic asylum system and
betrays our international law obligations. Indeed, federal courts repeatedly vacated and enjoined
similar Trump administration asylum bans based on manner of entry and transit because they

10
See 8 U.S.C. § 1225(b)(1)(B)(ii).
11
See 142 CONG. REC. S11491–02 (daily ed. Sept. 27, 1996) (statement of Sen. Hatch) (“The conference report
struck a compromise by rejecting the higher standard of credibility included in the House bill. The standard
adopted . . . is intended to be a low screening standard for admission into the usual full asylum process”),
https://www.govinfo.gov/content/pkg/CREC-1996-09-27/html/CREC-1996-09-27-pt1-PgS11491-2.htm.
12
NPRM at 11750.
13
See American Immigration Council, Fact Sheet: The Difference Between Asylum and Withholding of Removal,
https://www.americanimmigrationcouncil.org/research/asylum-withholding-of-removal (Oct. 6, 2020).
14
148 countries signed one or both of the 1951 Convention and the 1967 Protocol. See UNHCR, States Parties to
the 1951 Convention relating to the Status of Refugees and the 1967 Protocol,
https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf.

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were contrary to U.S. law.15 The proposed rule relies on these same premises that courts have
already found unlawful.

(B) Mexico, Guatemala, and other common transit countries lack fair and functioning
asylum systems
The proposed rule exempts people who apply for protection in a third country and receive a
denial. However, Mexico, Guatemala, and most countries through which asylum seekers
regularly transit en route to the United States have deficient asylum systems that fail to meet the
INA’s requirements of a “full and fair” process. In particular, Mexico and Guatemala lack the
capacity, infrastructure, and rule of law required to process high numbers of asylum claims while
providing safety to the number of refugees in need.16
It is well documented that the Mexican asylum system is deeply flawed and underfunded.17
Mexico already receives high numbers of asylum applications, but it struggles to adjudicate them
in a timely manner. From January to August 2021, Mexico received nearly 78,000 asylum
applications but resolved only about 23,000 cases.18 In 2019, the Mexican Commission for
Refugee Assistance (“COMAR”) had only 48 staff members adjudicating asylum claims.19
According to the Department of State, “COMAR’s budget increased modestly in recent years but
was not commensurate with the growth in refugee claims.”20 Asylum approval rates also differ
widely based on country of origin, with most Haitian and Guatemalan asylum seekers being
denied asylum in Mexico.21 Given current backlogs and resource constraints, Mexico is not
prepared to adjudicate the increased volume of applications that will be generated by the
proposed rule.

15
See Cap. Area Immigrants' Rts. Coal. v. Trump, 471 F. Supp. 3d 25, 60 (D.D.C. 2020) (vacating Trump
administration transit ban interim final rule); see also East Bay I (concluding that a 2019 third country transit bar is
not “consistent with this section”); O.A. v. Trump, 404 F. Supp. 3d 109, 154 (D.D.C. 2019) (vacating Trump
administration interim final rule barring asylum for individuals who entered between ports of entry).
16
See Human Rights First, Is Guatemala Safe for Refugees and Asylum Seekers?,
https://humanrightsfirst.org/wp-content/uploads/2022/10/IsGuatemalaSafeforRefugeesandAsylumSeekers.pdf (June
2019); see also Human Rights First, Is Mexico Safe for Refugees and Asylum Seekers?,
https://humanrightsfirst.org/wp-content/uploads/2022/10/MEXICO_FACT_SHEET_PDF.pdf (Nov. 2018).
17
See Human Rights First, Is Mexico Safe for Refugees and Asylum Seekers? (Nov. 2018).
18
See Human Rights Watch, World Report 2022: Mexico,
https://www.hrw.org/world-report/2022/country-chapters/mexico#39f1f6 (n.d.).
19
See Refugees International, Harmful Returns: The Compounded Vulnerabilities of Returned Guatemalans in the
Time of COVID-19,
https://www.refugeesinternational.org/reports/2020/6/16/harmful-returns-the-compounded-vulnerabilities-of-returne
d-guatemalans-in-the-time-of-covid-19 (June 23, 2020).
20
U.S. Dep’t of State, 2021 Country Reports on Human Rights Practices: Mexico,
https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/mexico/.
21
See Refugees International, Harmful Returns: The Compounded Vulnerabilities of Returned Guatemalans in the
Time of COVID-19 (June 23, 2020); see also Alex J. Rouhandeh, “Haitians Stuck in Mexico’s ‘Open Air Prison’
City Claim Racism as Asylum Cases are Denied,” NEWSWEEK,
https://www.newsweek.com/haitians-stuck-mexicos-open-air-prison-city-claim-racism-asylum-cases-are-denied-166
2251 (Dec. 22, 2021).

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Additionally, Mexico’s asylum process presents asylum seekers with many hurdles, which
severely limit access to asylum.22 Mexican officials often expel individuals seeking protection or
violently detain them.23 Black migrants in particular report experiencing longer periods of
detention and discriminatory treatment by officials while detained.24 Asylum seekers in Mexico
must also generally apply for asylum within 30 days of arriving in Mexico and they must remain
in the state where they applied for asylum until their application is decided.25 Given the
instability faced by recently arrived asylum seekers, Mexico’s onerous asylum requirements and
lack of capacity severely limit the availability of protection.
Guatemala has a “nascent and cumbersome asylum system” that is unable to meet current
demands, much less process a significant increase in asylum applications. In 2018, around 260
people applied for asylum in Guatemala (an increase of 75 percent from previous years), and
only 20 cases were approved.26 A Guatemalan Office of the Ombudsman official warned, “If we
had, in two years, 472 cases and we were not able to resolve them, what is going to happen if we
have thousands of cases or hundreds each day? We are not going to be able to resolve them. We
don’t resolve the cases because the [National] Migration Authority, the institution responsible for
resolving the cases, is not interested in resolving them . . . Asylum is not a priority for our
country.”27 Instead, the Guatemalan government shifts the burden to civil society groups to
provide critical legal orientation and humanitarian aid to asylum seekers.28
Though the preamble to the proposed rule mentions developments in Guatemala’s asylum system
during the last two years, it is unfathomable that Guatemala’s very new asylum system could be
prepared to provide a full and fair asylum process for people in need of protection. Indeed, the
preamble states that as of March 2022, the Guatemalan Migration Institute (“IGM”) had “already
received nearly 300 applications in 2022 and granted asylum to 590 individuals.”29 However,
according to the document cited in the preamble, 590 actually refers to the total number of
individuals ever granted asylum in Guatemala, not to the number of applications granted in
2022.30 Other Central American countries are also ill-equipped to offer necessary protection to a

22
See Kirk Semple, “A Flawed Asylum System in Mexico, Strained Further by U.S. Changes,” New York Times,
https://www.nytimes.com/2017/08/05/world/americas/mexico-central-america-migrants-refugees-asylum-comar.htm
l (Aug. 5, 2017); see also Human Rights First, Is Mexico Safe for Refugees and Asylum Seekers? (Nov. 2018).
23
See Human Rights Watch, World Report 2022: Mexico.
24
See S. Priya Morley et al., “There is a Target on Us” – The Impact of Mexico’s Anti-Black Racism on African
Migrants at Mexico’s Southern Border,
https://baji.org/wp-content/uploads/2021/01/The-Impact-of-Anti-Black-Racism-on-African-Migrants-at-Mexico.pdf
(2021).
25
See Asylum Access, Mexican Asylum System for U.S. Immigration Lawyers FAQ,
https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-Lawyers.pdf
(Nov. 2019).
26
See Human Rights First, Is Guatemala Safe for Refugees and Asylum Seekers? (June 2019).
27
Georgetown Law Human Rights Institute, Dead Ends: No Path To Protection for Asylum Seekers Under the
Guatemala Asylum Cooperative Agreement, https://www.refworld.org/docid/5f0eeeb04.html (June 10, 2020).
28
Id.
29
NPRM at 11722.
30
See Instituto Guatemalteco de Migración, Información Sobre Personas Solicitantes y Refugiadas en Guatemala:
Enero 2002–Marzo 2022, https://igm.gob.gt/wp-content/uploads/2022/04/Informe-con-Graficos-Marzo-2022.pdf
(Mar. 2022).

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large number of asylum seekers because their asylum systems are either not well-established or
suffer from severe resource constraints.31
Given these known deficiencies in Guatemala’s and Mexico’s asylum systems—the two
countries most migrants transit through—the proposed rule does not adequately explain why
only those who seek asylum in such countries and are denied can rebut a presumption against
asylum in the United States.

(C) The proposed rule would place bona fide asylum seekers in danger
The proposed rule will return bona fide asylum seekers to danger and persecution abroad or force
them to remain in dangerous transit countries. Individuals will be forced to attempt to find
protection in transit countries, such as Mexico and Guatemala, that are not equipped to offer safe
harbor.
Mexico and Guatemala are deeply affected by violence and instability. Non-Mexican asylum
seekers have been subjected to extortion, kidnapping, rape, and other violent crime while in
Mexico, especially following the implementation of the “Migrant Protection Protocols” (MPP).32
The State Department has also documented numerous risks to migrants in Mexico and it has
stated that “violence against migrants by government officers and organized criminal groups” is
one of the “most significant human rights issues” in Mexico.33 In his October 2021 memorandum
terminating the Migrant Protection Protocols, DHS Secretary Mayorkas cited concern for
migrant safety as one of the reasons for ending MPP, as “there were pervasive and widespread
reports of MPP enrollees being exposed to extreme violence and insecurity at the hands of
transnational criminal organizations that prey on vulnerable migrants.”34 Black migrants in
Mexico “faced widespread racial discrimination from individuals and authorities” and are
particularly vulnerable.35 Mexico also has high rates of gender-based violence, with the
government reporting nearly 1,000 femicides in 2020.36
Guatemala has high rates of systemic violence, instability, and corruption, making it unsafe for
asylum seekers.37 The Department of State has reported that Guatemala “remains among the
most dangerous countries in the world,” due to “endemic poverty, an abundance of weapons, a

31
See Karen Musalo, “Biden’s Embrace of Trump’s Transit Ban Violates US Legal and Moral Refugee Obligations,”
Just Security,
https://www.justsecurity.org/84977/bidens-embrace-of-trumps-transit-ban-violates-us-legal-and-moral-refugee-oblig
ations (Feb. 8, 2023).
32
See American Immigration Council, Letter Urges Sec. Nielsen to End the Migrant Protection Protocols Policy,
https://immigrationjustice.us/advocacy/advocacy-issues/access-to-counsel/letter-migrant-protection-protocols/ (Feb.
6, 2019); See also Human Rights First, Delivered to Danger: Illegal Remain in Mexico Policy Imperils Asylum
Seekers’ Lives and Denies Due Process,
https://humanrightsfirst.org/library/delivered-to-danger-illegal-remain-in-mexico-policy-imperils-asylum-seekers-liv
es-and-denies-due-process (Aug. 2019).
33
U.S. Dep’t of State, Country Reports on Human Rights Practices for 2017: Mexico (2018),
https://www.state.gov/reports/2017-country-reports-on-human-rights-practices/mexico/.
34
U.S. Dep’t of Homeland Security, Explanation of the Decision to Terminate the Migrant Protection Protocols,
https://www.dhs.gov/sites/default/files/2022-01/21_1029_mpp-termination-justification-memo-508.pdf (Oct. 29,
2021).
35
U.S. Dep’t of State, 2021 Country Reports on Human Rights Practices: Mexico.
36
See Human Rights Watch, World Report 2022: Mexico.
37
Human Rights First, Is Guatemala Safe for Refugees and Asylum Seekers? (June 2019).

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legacy of societal conflict, and the presence of organized criminal gangs.”38 According to the
Department of State, “[v]iolent crime such as extortion, murder, armed robbery, carjacking,
narcotics trafficking and gang activity are common.”39 It also notes that “Guatemala’s high
murder rate is driven by narcotrafficking activity, gang-related violence, a heavily armed
population, and a law enforcement and judicial system unable to hold criminals accountable.”40
Moreover, Guatemala, like other Central American countries, has recently attempted to crack
down on migration, implementing new regulations in January 2023 that could criminalize
religious workers and volunteers for assisting asylum seekers.41 Leaders of the Catholic Church
in Guatemala reported that the new regulations could force them to close all nine of their
shelters.42 This would leave asylum seekers in Guatemala without a crucial source of
humanitarian aid.
Seeking asylum in neighboring countries is not a viable option for Central American asylum
seekers in particular, because the border between Mexico and Guatemala is porous and law
enforcement in both countries lack resources and are susceptible to corruption. Central American
gangs and other armed groups can easily find and persecute their victims in Mexico.43 Conditions
throughout Central America’s Northern Triangle are no better, as Guatemala, Honduras, and El
Salvador have the highest rate of femicide in the world and all three countries have extremely
high rates of violence against LGBTQ+ individuals.44
By forcing individuals transiting through countries such as Mexico and Guatemala to seek
asylum there, the rule will in practice lead to asylum seekers being caught in countries where
they are not safe.
III. The proposed rule is not materially different from previous entry and transit rules
enjoined by the 9th Circuit
The proposed rule suggests that it is significantly different from two rules previously issued and
then vacated due to subsequent litigation.45 In those cases (collectively East Bay I, II, and III) the
9th Circuit’s reasoning was crystal clear—a categorical bar to asylum based on either how a
person enters the country and/or what processes they do or do not avail themselves of in a
country through which they transit is in violation of Section 208 of the INA.46 The proposed
rule’s suggestion that this iteration is distinct because it only applies a rebuttable presumption
instead of a categorical bar is a distinction without a difference. The presumption can only be
38
U.S. Dep’t of State, Overseas Security Advisory Council, Crime & Safety Report (2022),
https://www.osac.gov/Content/Report/2013f384-296b-4394-bfcb-1c9c40b9c7df.
39
U.S. Dep’t of State, Guatemala Travel Advisory,
https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/guatemala-travel-advisory.html (Mar. 1,
2023).
40
U.S. Dep’t of State, Overseas Security Advisory Council, Crime & Safety Report (2022),
https://www.osac.gov/Content/Report/2013f384-296b-4394-bfcb-1c9c40b9c7df.
41
Jeff Abbott, “Migrant Shelters in Guatemala under Threat from Legal Reforms,” Al Jazeera,
https://www.aljazeera.com/news/2023/2/18/migrant-shelters-in-guatemala-under-threat-from-legal-reforms (Feb. 18,
2023).
42
Id.
43
U.S. Dep’t of State, Country Reports on Human Rights Practices for 2017: Mexico (2018).
44
See Karen Musalo, “Biden’s Embrace of Trump’s Transit Ban Violates US Legal and Moral Refugee Obligations.”
45
East Bay III; East Bay I, and an injunction in E. Bay Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663 (N.D. Cal.
2021) (“East Bay II”).
46
Id.

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rebutted by a demonstration of extremely narrow circumstances that are wholly unrelated to a
person’s asylum claim.

While the proposed rule claims that this system is designed to vet out meritorious claims, the
bases for rebuttal do nothing of the sort. Those bases—acute medical issues, imminent and
extreme threats to life or safety, or severe forms of trafficking—do not relate to whether an
individual is more or less likely to have a meritorious claim for asylum. While the rule allows for
adjudicators to accept a rebuttal based on other “extremely compelling circumstances,” the
proposed rule is designed to exempt people from the presumption based only on circumstances
related to their manner of entry.

Further, the means of implementing this system of presumption and rebuttal is so fraught that it
will in practice become a de facto categorical bar. According to the rule as currently designed, an
adjudicator would first assess whether a person is subject to the presumed ineligibility. If that
adjudicator finds the presumption applies, the burden shifts to the asylum seeker to prove by a
preponderance of the evidence that they can rebut it. Functionally, this burden is nearly
impossible for an asylum seeker to meet. These determinations are made in a single interview
with an asylum officer. The idea that a person who has just fled across the border seeking safety
would have the means to provide evidence of an acute medical issue, an imminent and extreme
threat, or trafficking is absurd. There is no indication that the asylum officer would be directed to
affirmatively elicit from an applicant facts related to a possible basis for rebuttal.

This process is significantly different from how other presumed bars to asylum function. For
example, when an asylum officer believes at a credible fear interview that a person is likely to be
subject to the firm resettlement bar, this determination is not dispositive. While it is indicated on
the credible fear worksheet, it is ultimately up to an immigration judge to determine whether the
bar actually applies. The potential for immigration judge (IJ) review of the application of the
presumption under this proposed rule is unclear. It is clear, however, that an individual who was
deemed subject to the presumption would have to affirmatively request review by an IJ. This
makes the application of the rule more akin to the categorical bans prohibited by previous federal
courts than to other forms of presumptive bars.
IV. In practice, implementation of the rule will be fraught with problems

(A) The rule will cause confusion and inconsistent application at the ports of entry

Implementation of this rule can be expected to go poorly at the ports of entry. While there are
exceptions built into the rule for individuals who do not have an appointment to present at the
border nor prior authorization such as parole, how the exceptions will be determined and at what
stage in the process is unclear, and can easily lead to improper application of the rule. Will
individuals without an appointment be uniformly admitted upon presentation at the port, to be
assessed later by an asylum officer as to whether they meet the exemption, or will Customs and
Border Protection (CBP) officers turn away people who do not have an appointment? Though the
rule indicates the latter should not happen, experience with officers implementing previous
similar rules is a cause for concern that, while CBP may not be formally empowered to make
these determinations, in practice they often make their own determinations on the spot.

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Further complicating this process is how family units are treated under the proposed rule. For
families, the proposed rule states that the presumption of ineligibility does not apply if any
member of the family unit traveling together meets one of the exceptions.47 For example, the
presumption of ineligibility would not apply if one person in the family unit traveling together
was fleeing imminent and extreme danger. This presents a quandary for an individual—do they
wait to travel with their family, or do they flee on their own, leaving their family to have to meet
the higher standard for entry?
For those who do avail themselves of a processing appointment through the CBP One app, under
the proposed rule, there are no assurances as to how long individuals will be required to wait in
Mexico to make their appointments on the app. For migrants, then, this system will be
unpredictable and technology-dependent. Rather than creating a more predictable process, the
new rule only adds an additional requirement for individuals to be put on this new list: they must
access a smartphone, connect to the internet, download the CBP One app, and navigate that app
in order to even be put on a list.
Under Title 42, MPP, and the metering policy implemented under President Trump, similar
restrictions on entering the United States resulted in large communities of migrants settling in
temporary encampments by the ports of entry waiting for their opportunity to cross the
US-Mexican border as discussed above in Section III. Widespread media reports have
documented the challenges facing individuals living in these makeshift communities. Primary
among them are that the individuals must often live in the most dangerous cities in Mexico,
where they have been extremely vulnerable to kidnapping, extortion, rape, and other abuses.
In a March 2021 report, Human Rights Watch (HRW) documented widespread targeting of
asylum seekers waiting at the southern border.48 In interviews with 71 Venezuelan asylum
seekers who transited through Mexico, HRW concluded that “migrants in Mexico are exposed to
rape, kidnapping, extortion, assault, and psychological trauma.” 49 They articulated a fear of
reporting crimes and abuse to Mexican authorities.50 In addition to threatening the health and
safety of the asylum seekers, violence and other setbacks in Mexico also posed a major obstacle
to attending the hearing dates set in the United States.51 HRW writes:
Nearly half of asylum seekers under the Remain in Mexico program lost their
cases after missing court dates. Human Rights Watch has spoken to families who
missed court dates because they were kidnapped in Mexico. Others were bused
south by the Mexican government, leaving them thousands of miles from their
hearing locations.52
The same difficulties that plagued these earlier border externalization programs will
affect users of CBP One. Kidnappings, violence, and extortion from criminal actors, and
limitations on movement by Mexican authorities will all prevent individuals from
booking appointments through CBP One and showing up once those appointments are
47
NPRM at 11750.
48
Human Rights Watch, Mexico: Abuses Against Asylum Seekers at US Border,
https://www.hrw.org/news/2021/03/05/mexico-abuses-against-asylum-seekers-us-border (Mar. 5, 2021).
49
Id.
50
Id.
51
Id.
52
Id.

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scheduled. Already, international media have reported on the death of a 15-year-old
Haitian boy waiting for his CBP One appointment in Reynosa, Mexico.53
In addition to the risks of waiting in Mexico, the CBP One app stands to inherit other
pitfalls of earlier Trump administration initiatives caused by inconsistencies across
different ports of entry. Due to the differences in processing capacity across ports of
entry, some ports will inevitably have more appointments, faster processing, or gain a
reputation for easier access. Migrants will be motivated to travel between ports of entry,
based on either real or rumored advantages at one port over another, exposing them to
greater risk of harm along the way, simply to get an appointment at the port with the most
appointments or fastest processing. Such movement was common under the Trump-era
“metering” practice: an October 27, 2020 memo prepared by the DHS Office of Inspector
General found that CBP agents themselves would tell migrants to travel to other ports
where processing could take place more quickly.54
This movement of migrants to find the best port will create artificial and unnecessary
inefficiencies in the asylum process, expose migrants to greater risk of harm in Mexico,
and undermine the goal of equitable and efficient implementation of the rule at the
southern border. These likely scenarios are not taken into account by the proposed rule.
The new system, then, introduces a number of elements that will cause implementation to go
poorly at the ports of entry. It will create new waitlists and feed into makeshift communities of
migrants forming around the ports of entry as they wait on the CBP One list, or wait to join that
list. For those who cannot access CBP One, the rule does not lay out a process by which CBP
will process their cases at the border, which may result in incentivizing crossing without
permission. This will present a drain on CBP resources as well as asylum officers responsible for
credible fear screening, while adding complexity to the process at a time when both agencies are
suffering from understaffing. In short, implementation at the border is expected to result in many
predictable problems.

53
Jaime Jiménez, “Haitian Youth Dies in Reynosa, Waiting to Enter the United States [Muere joven haitiano en
Reynosa, esperaba ingresar a Estados Unidos],” El Sol de Tampico,
https://www.elsoldetampico.com.mx/policiaca/muere-joven-haitiano-en-reynosa-esperaba-ingresar-a-estados-unidos
-9552796.html (Jan. 31, 2023).
54
DHS Office of Inspector General, OIG 21-02, CBP Has Taken Steps to Limit Processing of Undocumented Aliens
at Ports of Entry, 7, 10-12, https://www.oig.dhs.gov/sites/default/files/assets/2020-10/OIG-21-02-Oct20.pdf (Oct.
27, 2020).

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(B) Implementation by asylum officers will be overly burdensome
In addition, the new system will add to the burden of asylum officers, who are also already
grossly understaffed. Already, the agency is processing record numbers of credible fear
interviews, and denials of this initial screening are being reviewed and overturned in record
numbers by the immigration judges.55 The Citizenship and Immigration Services (CIS)
Ombudsman warned in its most recent annual report to Congress that using asylum officers in
the credible fear interview (CFI) process has in turn reduced capacity to process affirmative
applications and contributed to a growing backlog of affirmative applications.56 By adding the
additional burden of screening for applicability and exceptions to the new rule, the fear
interviews can be expected to take even longer per case, and further contribute to growing
backlogs.

Far from furthering the agencies’ goal of streamlining asylum processing and easing the burden
on already-overtaxed immigration judges, the proposed regulation will overtax the Executive
Office for Immigration Review (EOIR) at both the negative credible fear review (NCFR) and
asylum merits stages.

1. Negative Credible Fear Adjudications
The proposed rule presumes that the new process will cull potential asylum applicants from the
pool, and will result in fewer asylum seekers presenting their claims to EOIR. To the extent that
the new bar will result in more negative credible fear determinations it is true that the total
number of people who are placed in removal proceedings will quite likely fall. But any increase
in negative CFI determinations at the DHS level will result in a concurrent increase in NCFR
proceedings. As such, EOIR will need to divert more immigration judges to adjudicate more
credible fear review proceedings and those reviews will require significantly more administrative
resources than do NCFR adjudications under the current regulatory scheme. EOIR will be
overloaded on the front end, with more IJs expending more time on more negative credible fear
review proceedings, particularly since the proposed rule adds significant additional fact-based
determinations to the process.

The proposed rule lays out a complicated framework for assessing the applicability of the new
bar to asylum eligibility in NCFR proceedings. It requires that the IJ first evaluate de novo
whether the bar applies; that is, whether the applicant 1) had authorization to travel to the U.S. to
seek parole pursuant to a DHS-authorized parole process; 2) presented at a port of entry at a
pre-scheduled time and place unless it was not possible for them to access CPP One because of
language, literacy, or technical barriers or an undefined “other ongoing and serious obstacle;” or
3) applied for and was denied asylum or an undefined “other protection” in a third country en
route to the United States. That analysis will require significantly more factual development than

55
TRAC Immigration, Immigration Judge Decisions Overturning Asylum Officer Findings in Credible Fear Cases,
https://trac.syr.edu/reports/712/ (Mar. 14, 2023).
56
U.S. Dep’t Homeland Security, Citizenship and Immigration Services Ombudsman, Annual Report 2022, at 43,
https://www.dhs.gov/sites/default/files/2022-07/2022%20CIS%20Ombudsman%20Report_verified_medium_0.pdf
(June 30, 2022).

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does the current NCFR scheme—a scheme in which none of the bars to asylum apply, and in
which the relevant facts are limited to those relating to the applicant’s fear of persecution or
torture.

If the judge determines that the presumption applies, the rule further mandates that they engage
in still more factual development to review de novo whether “exceptionally compelling
circumstances exist” including (but not limited to) evidence that the applicant or their family 1)
faced an acute medical emergency; 2) faced an imminent and extreme threat to life or safety such
as rape, kidnapping, torture, or murder; or 3) was a victim of a severe form of trafficking in
persons.

The proposed rule places the burden on the applicant to establish either the inapplicability of the
presumption or an exception to that presumption by a preponderance of the evidence. But it does
not define or provide guidance on many of the dispositive terms (such as “extreme threat to life
or safety” or “acute medical emergency”), and does not articulate whether the “exceptionally
compelling circumstance” is in any way tied to the applicant’s failure to use CBP One—that is, it
does not clarify whether the exceptionally compelling circumstance must be one which
prevented the asylum seeker from scheduling an appointment or whether it may be an equitable
factor which mitigates in favor of granting humanitarian protection.

And finally, the rule not only permits but demands that immigration judges look outside of the
record of proceedings to rely on their own personal breadth of knowledge57 to reach a
conclusion. Not only requiring but actually mandating that IJs engage in speculation and
guesswork is wholly contrary to the notion of an unbiased adjudicator, and will lead to disparate
adjudications and confusion in the courts.

The rule would significantly expand the scope of NCFR proceedings, would place a tremendous
burden on the IJs to develop the factual record, and would not only encourage but actually
mandate that they engage in improper speculation and rely on facts outside of the record of
proceedings in the course of their adjudications.

2. Asylum Adjudications
The proposed rule lays out a complicated framework for assessing the applicability of the new
bar to asylum eligibility to NCFR proceedings, but says not a word about substantive asylum
adjudications. As such, it will likely engender confusion among the nation’s IJs about whether
the rule even applies once an applicant has been placed in removal proceedings or whether it is
applicable only at the credible fear stage. This is because the text of the rule indicates that once
an individual passes the fear interview with the higher standard applied, it indicates the person
could then apply for asylum, withholding, or other humanitarian relief. The inclusion of asylum
as a possibility at this stage is unexplained and will cause confusion. And assuming the bar does
apply at the merits stage, the same issues discussed above—the lack of clarity as to many of the
dispositive terms and overly complicated adjudicatory framework—will continue to plague
adjudicators in the removal context.
57
NPRM at 11752, proposed 8 CFR § 1208.13(c)(1), instructing that IJs in credible fear determinations “shall take
into account the credibility of the statements made by the [noncitizen] in support of the [noncitizen]’s claim and
such other facts as are known to the immigration judge.” (emphasis added).

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Far from easing EOIR’s burden, the proposed rule would front-end already overtaxed EOIR
resources to credible fear review proceedings, and would significantly expand the IJ’s duty to
develop a factual record in both NCFR and removal proceedings. And the lack of clarity in the
proposed rule as to the meaning of dispositive terms, the applicability to removal proceedings,
and the scope of the IJ’s authority to consider extra-record evidence will overtax the agency and
lead to disparate adjudications.
V. The proposed rule improperly makes asylum eligibility contingent on individuals’
ability to use CBP One
With the proposed rule, CBP effectively has made the use of a mobile phone app—CBP One—a
threshold requirement for asylum. The scheme under the proposed new rule establishes a
rebuttable presumption of ineligibility for asylum for those who “present[ ] at a port of entry
without a pre-scheduled time and place,” i.e. an appointment, for inspection.58 Based on language
in a related document, CBP One is the “mechanism” for noncitizens to schedule a time to arrive
at ports of entry at the southwest border.59 Because asylum seekers now must submit information
prior to arrival at a port of entry and receive an appointment time for their inspection, CBP One
is, in practice, the only way asylum seekers can be processed at the border. To be clear, the
proposed rule would not codify the use of CBP One because it references a “DHS scheduling
system.” However, DHS has clarified in related documents that CBP One will serve as the “DHS
scheduling system.”60

The new heavy reliance on CBP One to prepare an asylum seeker to present at the border is
concerning given CBP One’s poor track record during its roll out as part of the Title 42
exemption process.

In short, the app has barred thousands of individuals from seeking exemptions to restrictions
under Title 42. Previously, international organizations had been tasked with entering information
on behalf of individuals seeking Title 42 exemptions and helping them secure an “appointment”
at ports of entry. Though CBP touted CBP One as a method an individual could use to enter
information to secure appointments on their own, users immediately encountered myriad issues
with CBP One that prohibited them from entering their information into the app and securing a
time and place for inspection. While the proposed rule acknowledges some of CBP One’s
failures by offering limited exceptions to the app’s use, the rule lacks guidance as to how these
exceptions will be applied. Because the proposed rule addresses asylum eligibility rather than
CBP officers’ conduct at ports of entry, this lack of guidance is particularly troublesome as it
leaves many questions unanswered relating to how asylum seekers, especially those without
appointments, will be able to access ports of entry.

First, the agency’s expansion of CBP One relied on the assumption that asylum seekers near the
U.S.-Mexico border would have obtained, or be able to obtain, a mobile phone that could support
the app’s functions. However, those who arrive at the border seeking safety in the United States
58
NPRM at 11750 (to be codified at 8 C.F.R. § 208.33(a)(ii)).
59
NPRM at 11707 fn. 25, citing CBP, Fact Sheet: Using CBP One to Schedule an Appointment,
https://www.cbp.gov/document/fact-sheets/cbp-one-fact-sheet-english (last modified Jan. 12, 2023).
60
NPRM at 11750.

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often lack the latest phone models that can support the app’s functions.61 Those who cannot
afford a phone are shut out from the process unless they can procure assistance from
non-governmental organizations.

Though DHS states in the proposed rule that CBP One will help minimize the influence of
smugglers, the requirement that individuals have access to advanced technology to use CBP One
has played into the hands of unscrupulous actors at the border. The Office Chief for the United
Nations International Organization for Migration in Ciudad Juarez reported that people pose as
lawyers or other professionals and offer vulnerable migrants assistance using CBP One in
exchange for a fee.62 The government’s purported goal to use CBP One to create a safer way for
asylum seekers to access the asylum process is thwarted when the new system is based on an
assumption that users will have access to certain technology. When potential users lack a mobile
phone that supports CBP One, they are vulnerable to exploitation.

Another issue users have encountered with CBP One is challenges in meeting the requirement
that an individual submit a live photograph taken with their mobile phones while the app is
operating at various stages of the data entry process. Some users have not been able to submit
photos through the app because conditions such as bad lighting, poor internet connection, and
even darker skin tones often lead to CBP One rejecting the photo.63 When CBP One rejects a
user’s submission of a photo, it allows the user to try again. But multiple rejections cost users
valuable time and prevent them from obtaining appointments during the limited number of
timeslots at ports of entry on a given day. Though CBP has not informed the public about the
number of appointments available at the participating ports of entry, reports suggest that all
appointments are taken only minutes after they are released early in the morning. Thus, any
delays in accessing CBP One are costly.64

Issues with internet connectivity also limit asylum seekers’ access to CBP One. Registering as a
CBP One user, and then using the app’s functions, requires individuals to be connected to the
internet for a prolonged time. Users must first create an account through login.gov, then navigate
the app’s identity verification process, enter extensive biographic information for themselves and
their accompanying family members, and finally access CBP One’s scheduling feature.65
Throughout this process, if users are disconnected from their internet connection, the app
prohibits them from advancing to the next step, delaying their submissions.66 This particularly
burdens immigrants at shelters, which often lack reliable internet, forcing some individuals to
seek Wi-Fi signal in dangerous places. Families must wander into city centers controlled by
61
Bernd Debusmann Jr., “At US border, tech issues plague new migrant applications,” BBC News,
https://www.bbc.com/news/world-us-canada-64814095 (Mar. 8, 2023).
62
Julian Resendiz, “IOM warns asylum-seekers of CBP One scams in Juarez,” Border Report,
https://www.borderreport.com/immigration/iom-warns-asylum-seekers-of-cbp-one-scams-in-juarez/ (Jan. 23, 2023).
63
Eileen Sullivan and Steve Fisher, “At the End of a Hard Journey, Migrants Face Another: Navigating
Bureaucracy,” The New York Times,
https://www.nytimes.com/2023/03/10/us/politics/migrants-asylum-biden-mexico.html (Mar. 10, 2023).
64
Id.
65
U.S. Dep’t of Homeland Security, “Privacy Impact Assessment for the CBP OneTM Mobile Application,”
https://www.dhs.gov/sites/default/files/2023-01/privacy-pia-cbp068-cbpmobileapplication-jan2023.pdf, 1, 15-16
(Feb. 19, 2021; updated Jan. 19, 2023).
66
See Arelis R. Hernández, “Desperate migrants seeking asylum face a new hurdle: Technology,” The Washington
Post, https://www.washingtonpost.com/nation/2023/03/11/asylum-seekers-mexico-border-app/ (Mar. 11, 2023).

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cartels that “kidnap, rape and extort migrants” to find stable internet.67 In one tragic case, a
migrant was severely burned because he climbed onto the roof of a building and ran into
low-hanging power lines looking for Wi-Fi signal to make an appointment.68 Users also received
error messages while they used the app that prevented them from completing the pre-registration
process.69 Many families state that CBP One simply does not work.70

These issues are aggravated by how difficult it is to navigate CBP One. Asylum seekers may not
have the tech skills to be able to complete all the steps required to access CBP One. An
unintelligible error message may cause some to simply abandon use of the app altogether.
The limited number of appointments, coupled with CBP One’s systemic issues, have led to
families being separated at the border. The system requires asylum seekers to make appointments
for each member of the family.71 Individuals who can enter their information quicker are more
likely to get one of the coveted inspection appointments. This issue has left families with the
unenviable decision of either waiting an unknown amount of time for everyone to get an
appointment, or allowing one family member to take an appointment while leaving their family
behind with the hope those left in Mexico can later join them.72

Finally, CBP One is not accessible in the multiple languages spoken by asylum seekers. Until
February 2023, CBP One was only available in English and Spanish. Media reports indicate that
in February, CBP One became available in Haitian Creole.73 Based on government data showing
asylum seekers’ nationalities,74 many asylum seekers coming to the southern border speak many
other languages other than English, Spanish, and Creole; for example, Russian and Turkish.
Thus, thousands of asylum seekers could be deemed ineligible for asylum simply because they
do not speak one of the languages in which CBP One is available.

The agency has implemented some positive changes to CBP One. For example, CBP One now
allows individuals to submit their registration information separately from the time they schedule
an inspection appointment, which can reduce the time that people need to be connected to the
internet to get an appointment. Agency officials have also stated that the app was recently

67
Eileen Sullivan and Steve Fisher, “At the End of a Hard Journey, Migrants Face Another: Navigating
Bureaucracy,” The New York Times,
https://www.nytimes.com/2023/03/10/us/politics/migrants-asylum-biden-mexico.html (Mar. 10, 2023).
68
Arelis R. Hernández, “Desperate migrants seeking asylum face a new hurdle: Technology,” The Washington Post,
https://www.washingtonpost.com/nation/2023/03/11/asylum-seekers-mexico-border-app/ (Mar. 11, 2023).
69
Regina Yurrita, “Asylum seekers met with issues from new CBP One app,” CBS8,
https://www.cbs8.com/article/news/local/asylum-seekers-met-with-issues-from-cbp-one-app/509-5f69579c-05e1-49
99-a7a9-720eab0cc680 (Feb. 1, 2023).
70
Corrie Boudreaux, “Hundreds of frustrated Venezuelan migrants block bridge linking El Paso and Juárez,” El
Paso Matters, https://elpasomatters.org/2023/03/12/el-paso-juarez-bridge-blocked-by-venezuelan-migrants/ (Mar.
12, 2023).
71
Arelis R. Hernández, “Desperate migrants seeking asylum face a new hurdle: Technology,” The Washington Post,
https://www.washingtonpost.com/nation/2023/03/11/asylum-seekers-mexico-border-app/ (Mar. 11, 2023).
72
Id.
73
Melissa del Bosque, “Facial recognition bias frustrates Black asylum applicants to US, advocates say,” The
GuardiaN, https://www.theguardian.com/us-news/2023/feb/08/us-immigration-cbp-one-app-facial-recognition-bias
(Feb. 8, 2023).
74
Dep’t Homeland Security, Annual Flow Report, Refugees and Asylum: 2021, 9-11,
https://www.dhs.gov/sites/default/files/2022-10/2022_0920_plcy_refugees_and_asylees_fy2021.pdf ( Sept. 2022).

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updated to make groups of appointments available at the same time so families could stay
together.75

The agency must continue to improve CBP One’s functionality so asylum seekers can access
inspection appointments and their safety does not hinge upon a technological glitch. Otherwise,
the same issues that have plagued app users applying for Title 42 exemptions will prohibit people
from accessing asylum processing at ports of entry under the scheme outlined in the proposed
rule.

(A) CBP has failed to clearly explain how individuals may obtain exemptions to CBP
One, and restrictive agency interpretations of eligibility for exemptions may lead
to wrongful denials

The proposed rule recognizes that in some situations people cannot access CBP One. The rule
purportedly exempts a person from using CBP One if they can demonstrate by a “preponderance
of the evidence” that they cannot access the app “due to language barriers, illiteracy, significant
technical issues, or other ongoing and serious obstacle.”76 Without examples of what information
an individual would need to provide or how the information will be assessed, this standard has
little meaning for asylum seekers. In addition, the proposed rule provides no details about
whether asylum seekers will be able to simply present at ports of entry and, if they can, what the
process will look like for people trying to demonstrate that an exemption to the use of CBP One
should apply to them. The rule states that people seeking processing at ports of entry will need to
appear at pre-scheduled times and places for their inspections, but DHS has not provided any
information as to how people without an appointment will be able to access ports of entry. This is
concerning, especially considering that many asylum seekers were turned back from ports of
entry during the implementation of Title 42 or due to metering.

The rule also fails to explain how the exemptions’ evidentiary standard—“preponderance of the
evidence”—might be met to demonstrate language barriers, illiteracy, significant technical
issues, or other “ongoing and serious” obstacles. For example, officers could ask asylum seekers
about their ability to read or write, but it is unclear whether individuals’ testimony about their
own abilities will be sufficient to apply an illiteracy exemption. It is also unclear whether an
individual’s failure to indicate that they believe an exception applies to a CBP officer would be
counted against them when an asylum officer reviews their case for applicability of the rule, as is
sometimes the case for asylum seekers in other contexts. The rule also fails to define what type
of technical difficulties qualify for the exemption and how individuals who encounter technical
difficulties with CBP One will be able to document them to meet the standard of proof
envisioned in the proposed rule.

This lack of clarity is particularly problematic as it relates to the language barrier exemption
because it will lead to disparate outcomes depending on individuals’ spoken languages.
Assuming no other exception applies, Spanish speakers, English speakers, and Creole speakers

75
Eileen Sullivan and Steve Fisher, “At the End of a Hard Journey, Migrants Face Another: Navigating
Bureaucracy,” The New York Times,
https://www.nytimes.com/2023/03/10/us/politics/migrants-asylum-biden-mexico.html (Mar. 10, 2023).
76
NPRM at 11750.

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are required to use CBP One because the app is available in those languages. For asylum seekers
who are not fluent in one of the languages in which the app is available, the rule provides no
standards as to how officials will determine asylum seekers’ language proficiency to justify an
exemption. This could lead to erroneous denials when applicants speak limited English but may
have trouble understanding the app’s English-only directions.

(B) DHS’s lack of publicly available guidance has contributed to asylum seekers’
troubles using the app

The proposed rule does not outline a plan to educate intending asylum seekers about the app,
even as media and advocacy groups question its workability. As DHS has expanded the uses for
CBP One so individuals can submit their own information, the agency has failed to educate
potential users about how to use the app and its potential risks. In contrast, the agency prepared
detailed presentations for staff members of international organizations instructing them how CBP
One worked as it recruited these staff members to help enter asylum seekers’ information into the
app to request exemptions to Title 42. A description of how CBP One’s functions work can only
be obtained by piecing together the limited information the agency has made available on the
CBP One webpage, the information on agency fact sheets, and several Privacy Impact
Assessments (PIA) published by DHS on different functions of the app. For example, while DHS
published a PIA dedicated to CBP One, a more detailed explanation about how CBP uses some
photographs submitted to the agency through the app is found in the Traveler Verification
Service PIA. In short, the agency has not created a user-friendly instruction manual for CBP One
or a one-stop repository where users can easily find information on the app.

This lack of information makes asylum seekers attempting to use CBP One vulnerable to fraud
and scams. Migrants have complained that, in Ciudad Juárez for example, individuals have
offered to help them navigate the app in exchange for money.77 DHS officials have stated that the
agency is continually improving CBP One.78 However, the agency lacks a cohesive publicly
available repository with all information related to CBP One, so it is unclear what changes the
agency is making to the app and when those changes will be made. When this information is
available, it is not effectively communicated to potential CBP One users.

The proposed rule channels all asylum seekers into one track: seeking asylum at ports of entry
via the CBP One app (or mounting the evidentiary burden to show why they cannot access the
app). Implementation of technology tools to make border processing more efficient and safer is
likely inevitable, but for the technology to serve this laudable goal, it must work. Technology is
not infallible, and it is seldom accessible to all, which is why a mobile phone app cannot be the
only way vulnerable populations access their passage to safety. There should be other methods
for presenting the same information users provide through CBP One, and asylum seekers should
not be penalized for using alternatives to CBP One. All those who seek asylum should be able to

77
Julian Resendiz, “IOM warns asylum-seekers of CBP One scams in Juárez,” Border Report,
https://www.borderreport.com/immigration/iom-warns-asylum-seekers-of-cbp-one-scams-in-juarez/ (Jan. 23, 2023).
78
Sandra Sanchez, “DHS tweaks CBP One app after reports of family separation, agency says,” NewsNation,
https://www.newsnationnow.com/us-news/immigration/border-coverage/dhs-tweaks-cbp-one-app-after-reports-of-fa
mily-separations-agency-says (Mar. 6, 2023).

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access processing at ports of entry. These alternatives must be robust realistic alternatives to CBP
One and be widely publicized to ensure that asylum seekers can make an informed decision as to
their preferred method for making appointments. Forcing individuals to use CBP One, while
providing unworkable exemptions to the app’s use, will inevitably bar individuals from seeking
asylum at our borders. It also may lead to greater numbers of individuals attempting to reach the
United States outside the ports of entry, undermining DHS’s intended purpose for implementing
this rule.
VI. The proposed rule will exacerbate problems with access to counsel
The proposed rule does not adequately address concerns regarding meaningful access to counsel
for asylum applicants. Notably missing from the Departments’ preamble is any mention of
access to counsel during the credible and reasonable fear interview process. The importance of
legal representation cannot be overstated. A person who can retain an attorney is far more likely
to succeed in immigration court.79 A 2015 study showed that for immigrants who were never
detained, those with lawyers were nearly five times more likely to obtain immigration relief than
those without (63 percent of those with representation obtained relief versus 13 percent of those
without representation).80 The proposed rule allows asylum officers at the border to quickly
determine whether a person can rebut the presumption of ineligibility or prove why they
shouldn’t be subject to the rule, with no explicit reference to access to counsel. Under the
proposed procedure, the asylum officer first determines whether the asylum seeker has rebutted
the presumption of asylum ineligibility.81 If they have not rebutted the presumption, then they
will have to show a higher bar of a “reasonable possibility” of persecution or torture.82 Because
of the fast-tracked nature of the proceedings that the proposed rule contemplates, it is unlikely
that asylum seekers will have counsel throughout this period to help them support this higher
threshold showing or to demonstrate that an exemption should apply. The May 2022 asylum
processing rule is telling in this regard. Under proceedings subject to that new rule, only one
percent of credible fear cases have had attorney representation.83
The proposed presumption of ineligibility is applied as a part of the credible fear screening
interviews at the border, which is an element of the expedited removal process.84 The expedited
removal process has long been rife with concerns of a lack of due process and little access to

79
Ingrid V. Eagly & Steven Shafer, A National Study of Access to Counsel in Immigration Court, 164 U. Pa. L. Rev.
1, 48–59, https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=9502&context=penn_law_review (2015).
80
American Immigration Council, Access to Counsel in Immigration Court, 2-3,
https://www.americanimmigrationcouncil.org/sites/default/files/research/access_to_counsel_in_immigration_court.p
df (Sept. 2016).
81
8 C.F.R. 208.33(a)(2).
82
8 CFR 1208.33(c)(2)(ii).
83
U.S. Dep’t of Homeland Security, “Asylum Processing Rule Cohort Report – December 2022,”
https://www.dhs.gov/immigration-statistics/special-reports/asylum-processing-rule-report (Jan. 6, 2023). (Tab:
Credible Fear Claims, “Final or Most Recent Credible Fear Outcome by Attorney Representation.” The available
data demonstrates that 42 cases have attorney representation out of 3,741 cases completed under this pilot program,
with four of these cases with attorney representation still pending completion.)
84
See 208.33(c).

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counsel.85 The majority of asylum seekers navigate expedited removal without an attorney. Now,
under the proposed rule, they must mount a case, likely without an attorney, to make a case for
one of the exceptions to the proposed rule. Without counsel, they will likely struggle to provide
the evidentiary support needed to clear that burden, nor will they have the requisite knowledge of
asylum procedures to make a claim for relief. The United Nations High Commissioner for
Refugees (UNHCR) has specifically recommended that “exclusion” decisions, which would
include decisions such as those made on the applicability of the transit ban, not be made in
accelerated procedures such as expedited removal.86
The proposed rule will accelerate the already fast-tracked removal proceedings in a way that will
exacerbate barriers to counsel. Data collected from immigration cases that are part of another
recent initiative to fast-track immigration proceedings, known as the “Dedicated Docket,” makes
clear that accessing counsel takes time.87 In May 2021, the U.S. Department of Justice (DOJ) and
DHS announced the Dedicated Docket initiative, which places certain families who crossed
between ports of entry on or after May 28, 2021 into fast-tracked removal proceedings where an
IJ is generally expected to issue a decision within 300 days of the master calendar hearing.88 In
the first seven months of the Dedicated Docket initiative, only 15.5 percent of asylum seekers
had counsel to represent them in their proceedings, compared to 91.1 percent of asylum seekers
whose cases were decided over the same period, virtually all of whom were not in fast-tracked
proceedings.89 Of those who had been on the Dedicated Docket for seven months—more than
three times as long as the IFR’s timeline (60 days) for issuing an asylum decision—only 45
percent had an attorney to represent them in court.90 A total of 1,557 asylum seekers on the
Dedicated Docket have received deportation orders so far. Of these, only 75—just 4.7
percent—had representation. By contrast, since the start of the Dedicated Docket program just 13
people—all represented—have been granted asylum or another form of lawful relief from
deportation.91 These statistics are particularly troubling given the administration’s assurances that
families placed on the Dedicated Docket would have time, despite the expedited schedule, to
access representation.92

85
See, e.g., Daniel Kanstroom, Expedited Removal and Due Process: “A Testing Crucible of Basic Principle” in the
Time of Trump, 75 Wash. & Lee L. Rev. 1323, 1356 (2018); Stephen Manning and Kari Hong, Getting It Righted:
Access to Counsel in Rapid Removals, 101 Marq. L. Rev. 673, 692 (2018).
86
UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951
Convention relating to the Status of Refugees, III. Procedural Issues, 31 at p. 8-9,
https://www.refworld.org/docid/3f5857684.html (2003).
87
TRAC Immigration, Unrepresented Families Seeking Asylum on “Dedicated Docket” Ordered Deported by
Immigration Courts, https://trac.syr.edu/immigration/reports/674/#f4 (Jan. 13, 2022) [hereinafter “TRAC Dedicated
Docket Report”].
88
U.S. Dep’t of Justice, DHS and DOJ Announce Dedicated Docket Process for More Efficient Immigration
Hearings,
https://www.justice.gov/opa/pr/dhs-and-doj-announce-dedicated-docket-process-more-efficient-immigration-hearing
s (May 28, 2021).
89
See TRAC Dedicated Docket Report.
90
Id.
91
Id.
92
U.S. Dep’t of Justice, DHS and DOJ Announce Dedicated Docket Process for More Efficient Immigration
Hearings,

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These concerns relating to the Dedicated Docket will only be amplified by the addition of a new
evaluation of a rebuttable presumption against asylum eligibility. Those individuals subject to the
rebuttable presumption who pass the heightened “significant possibility” screening standard
applied by the proposed rule and are placed on the Dedicated Docket will find it even more
difficult to obtain counsel, as they will have to argue a case for withholding of removal while
simultaneously attempting to rebut the presumption a second time. In essence, the proposed rule
will further compound the already significant problems with access to counsel caused by the
Dedicated Docket.
Furthermore, it can only be presumed that most immigrants going through the new
rebuttable-presumption credible fear process will be detained. Among detained immigrants,
people with lawyers were twice as likely to obtain relief than those without lawyers (49 percent
of those with representation are able to obtain relief whereas only 23 percent of those without
representation are able to obtain relief).93 Notably, non-detained immigrants are much more
likely to have representation, with two-thirds of them having counsel compared to only 14
percent of detained immigrants.94 Recently arrived asylum seekers—who often have added
vulnerabilities, including trauma, language barriers, and a lack of familiarity with the U.S. legal
system—are especially dependent on counsel to understand and navigate our evolving and highly
complex U.S. asylum laws.
In sum, navigating the process outlined in the proposed rule, with its added burdens, imposes
new complexity to an asylum system that is already impenetrable to pro se individuals.
Navigating that system without the aid of counsel will have devastating consequences for those
fleeing persecution who are making a protection-based claim. The proposed rule fails to address
these challenges and the critical need for access to counsel.

VII. Flawed data is at the heart of the justification for this proposed rule
There is a concerning and deeply flawed assumption within the rationale of the proposed rule
that an alleged disparity between credible fear grants and the number of IJ grants of relief
justifies the issuance of this proposed rule. The proposed rule asserts that “a full 83 percent of the
people who were subject to ER and claimed fear from 2014 to 2019 were referred to an IJ for
section 240 proceedings, but only 15 percent of those cases that were completed were granted
asylum or some other form of protection.”95

However, this 15 percent figure is misleading. The choice of the denominator of “total case
completions” in getting to this figure is problematic and artificially deflates this number. DHS
Office of Immigration Statistics (OIS) numbers divide asylum grants by total case completions,
which generally include cases that have been abandoned, not adjudicated, withdrawn, and

https://www.justice.gov/opa/pr/dhs-and-doj-announce-dedicated-docket-process-more-efficient-immigration-hearing
s (May 28, 2021).
93
Supra note 79.
94
Supra note 79.
95
NPRM at 11716.

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administratively closed.96 Including these “other closures” in the math deflates the overall grant
rate, as many of those asylum applications may well have been found to be meritorious if
litigated to their conclusion. The proposed rule cites OIS analysis which is not publicly available.
However, available EOIR data on asylum decisions originating with a credible fear claim shows
that when dividing the number of grants by the total of grants and denials (i.e., only looking at
those cases which are adjudicated on the merits), the asylum grant rate rises to 36 percent.97
Theoretically, this number would be higher if it included withholding of removal and Convention
Against Torture (CAT) cases, which the 15 percent number includes.

The administration acknowledges this methodological choice. Tucked in a footnote within the
proposed rule is an acknowledgment that the 15 percent number includes case completions that
were not decided on the merits, stating that “OIS estimates that 28 percent of cases decided on
their merits are grants of relief” (emphasis added).98 Choosing to uplift the lower 15 percent
number, which includes cases not decided on their merits in its math, is not only misleading but
misrepresents the ratio of asylum seekers who present at our southern border with a meritorious
claim of persecution.

Whatever methodological choices are made in crunching numbers, the success rate in seeking
relief from persecution should have no impact on meaningful access to asylum. The
consequences of an asylum seeker being returned to persecution are simply too dire to be
distilled to a number in an Excel chart.
VIII. Relying on “legal pathways” disparately harms Black, Brown, and Indigenous
asylum seekers
The proposed rule applies only to people who seek protection at the southern border, and as a
result, specifically impacts individuals who do not have access to a passport or a visa. An asylum
seeker may not have access to a passport for any number of reasons, including affordability,
bureaucratic instability, and that it would need to be issued by the government that may be
persecuting them. Indeed, it is not uncommon for an individual facing persecution due to being
critical of their government to have their passport revoked.99 If a passport is in hand, an asylum

96
NPRM at note 97; EOIR, “Executive Office for Immigration Review Adjudication Statistics: Asylum Decisions
and Filing Rates in Cases Originating with a Credible Fear Claim,”
https://www.justice.gov/eoir/page/file/1062976/download (Jan. 16, 2023).
97
EOIR, “Executive Office for Immigration Review Adjudication Statistics: Asylum Decisions and Filing Rates in
Cases Originating with a Credible Fear Claim,” https://www.justice.gov/eoir/page/file/1062976/download (Jan. 16,
2023). Period of time: 2014 to 2019.
98
NPRM at note 97.
99
See e.g., Melissa Medina Márquez, Adding to the Stress of Emigration from Venezuela: Passports hard to come by,
Venezuela Politics and Human Rights,
https://www.venezuelablog.org/migration-venezuela-passport-inefficiencies/#:~:text=A%20major%20factor%20is%
20the,follow%2Dup%20after%20the%20first (Apr. 19, 2018) (stating “in early 2017 several opposition politicians
and public figures reported having their passports seized or their migration procedures canceled.”); Charlie
Campbell, “The Thai Junta Revokes a Famed Academic’s Passport in Its Crackdown on Dissidents,” Time,
https://time.com/2971785/thailand-junta-pavin-chachavalpongpun-passport/ (July 10, 2014); The World, “This
Egyptian musician's passport was revoked for his political songs. He still can't wait to go home again,”
https://theworld.org/stories/2019-01-10/egyptian-musicians-passport-was-revoked-his-political-songs-he-still-cant-w
ait-go (Jan. 10, 2019); Radio Free Europe Radio Liberty, “Iran Revokes Passports Of Celebrities Who Supported

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seeker is not likely to have access to a visa in a timely manner. While visa wait times vary by
post, a tourist visa requiring an interview in Guatemala City will have a 371-day wait as of
writing.100 Complicating this is the fact that someone is unlikely to get a tourist visa if they
intend to abandon their foreign residence to seek asylum.101 For individuals who cannot access a
passport and visa and are not one of the specific and limited countries with a parole program, the
southern border is their only avenue to asylum in the United States.

The availability of lawful pathways to a potential asylum seeker is more narrow for individuals
from predominantly Black countries. The Department of State has limited public statistics
available and does not state specific reasons for denying visas, but reports show disproportionate
denials for African countries. Professionals in international education, for example, report that
“[d]enial rates for US F1 visas reached ‘a new high’ in Nigeria in 2022, with around two in three
students being rejected” and “denial rates for students in Ghana and other Sub-Saharan regions
are trending in a similar fashion.”102 This problem is not a new one. A published author was
denied a visa to attend a prestigious literary residency.103 A University of Southern California
attempted to hold an Africa Trade Meeting without any Africans after losing “about 100
attendees, including speakers and government officials [due to visa denials]. The countries
affected included Sierra Leone, Guinea, Ghana, Nigeria, Ethiopia and South Africa.”104 While
AILA has heard reports of perceived higher denial rates of visas from its members, a 30-day
comment period is not a sufficient length of time to adequately survey more than 16,000
members.

The visa denials are significant because they leave only the Southern border open to asylum
seekers from these countries. This is reflected in the change in migrant flows, as according to a
Migrant Policy Institute (MPI) report, Africans are increasingly joining the migrant flows to the
southern land border of the United States.105

Someone who experiences persecution should not have to settle for the first country they transit
through if this will mean facing discrimination on account of their race. According to MPI, most
Africans “enter the Americas through Brazil or Ecuador,” and experiences with racism begin
then, “making it difficult for those who may otherwise intend to remain, at least in the short term,

Nationwide Protests,” https://www.rferl.org/a/iran-bans-celebrities-leaving-country-support-protests/32074157.html
(Oct. 10, 2022).
100
U.S. Dep’t of State, “Global Visa Wait Times,”
https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/global-visa-wait-times.html (Mar. 9,
2023).
101
9 FAM 402.2-2(B), https://fam.state.gov/fam/09fam/09fam040202.html.
102
Maureen Manning, “US visa denials in Sub-Saharan region concern stakeholders,” The Pie News,
https://thepienews.com/news/us-visa-denials-in-sub-saharan-region-concern-stakeholders/ (Jan. 18, 2023).
103
Nkiacha Atemnkeng, “‘Try again next time’: my three visa rejections,” The Guardian,
https://www.theguardian.com/world/2020/oct/29/try-again-next-time-my-three-visa-rejections (Oct. 29, 2020).
104
Michelle Quinn, “Africa Trade Meeting Has No Africans After US Visa Denials,” Voice of America,
https://www.voanews.com/a/african-trade-conference-canceled-after-visas-denied-african-delegates/3770907.html
(Mar. 17, 2017).
105
Caitlyn Yates and Jesica Bolter, African Migration through the Americas: Drivers, Routes, and Policy Responses,
Migration Policy Institute, https://www.migrationpolicy.org/research/african-migration-through-americas (Oct.
2021).

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to secure housing and good jobs, and leading to violence and harassment for some.”106 The
Department of State Country Reports on Human Rights Practices for both of these countries
acknowledge a high level of racism.107 Both of these countries also signed the 1951 Convention
relating to the Status of Refugees and the 1967 Protocol, and under the proposed rule, African
arrivals would need to apply in these countries.108 The unsuitability of the proposed alternative
countries is discussed further below.

As discussed, requiring asylum seekers to use CBP One to seek asylum at the border disparately
harms Black asylum seekers due to the challenges recognizing Black faces.109 CBP One also has
accessibility issues for individuals who are illiterate in a language other than English, Spanish,
and Haitian Creole, which will include many native speakers of indigenous languages.
Indigenous languages such as Mam, K’iche’ and Q’anjob’al have become increasingly common
among asylum seekers in recent years and should not be discounted.110

In short, this proposed rule is significantly out of line with the Biden administration’s recent
executive order stating a “commitment to advancing equity for all . . . and addressing systemic
racism in our Nation’s policies and programs.”111
IX. 30 days is insufficient time to prepare a comment on a rule of this magnitude
The Biden administration has provided only 30 days for the public to comment on the proposed
rule, effectively denying the public the right to meaningfully comment under the notice and
comment rulemaking procedures required by the Administrative Procedure Act. This timeframe
is insufficient for a sweeping proposed rule that would deny many people access to asylum in
violation of U.S. law. On March 1, 2023, 172 organizations wrote to the agencies urging them to
provide at least 60 days to comment on the complex 153-page rule that would have enormous
implications for asylum access at the border and in USCIS and immigration court asylum
proceedings.112

106
Id. at 2.
107
U.S. Dep’t of State, 2021 Country Reports on Human Rights Practices: Brazil,
https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/brazil/,
at 32 (“Despite this high representation within the general population, darker-skinned citizens, particularly
Afro-Brazilians, encountered discrimination.”); U.S. Dep’t of State, 2021 Country Reports on Human Rights
Practices: Ecuador, https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/ecuador/ at 27,
(“Afro-Ecuadorian citizens . . . suffered pervasive discrimination, particularly regarding educational and economic
opportunity.”).
108
UNHCR, States Parties to the 1951 Convention relating to the Status of Refugees and the 1967 Protocol.
109
Melissa del Bosque, “Facial recognition bias frustrates Black asylum applicants to US, advocates say,” The
Guardian (Feb. 8, 2023).
110
Jennifer Medina, “Anyone Speak K’iche’ or Mam? Immigration Courts Overwhelmed by Indigenous
Languages,” New York Times, https://www.nytimes.com/2019/03/19/us/translators-border-wall-immigration.html
(Mar. 19, 2019).
111
Exec. Order No. 14091, 88 Fed. Reg. 10825,
https://www.federalregister.gov/documents/2023/02/22/2023-03779/further-advancing-racial-equity-and-support-for
-underserved-communities-through-the-federal (Feb. 16, 2023).
112
Letter from 172 organizations to Attorney General Merrick Garland, Secretary Alejandro Mayorkas, et. al.,
https://immigrantjustice.org/sites/default/files/content-type/commentary-item/documents/2023-03/Biden%20Asylum
%20Ban%20-%20Extension%20letter%20to%2030-days%20comment%20period%20FINAL.pdf (Mar. 1, 2023).

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Executive Orders 12866 and 13563 state that agencies should generally provide at least 60 days
for the public to comment on proposed regulations.113 A minimum of 60 days is especially
critical given the rule’s attempt to ban asylum for many refugees in violation of U.S. law and
international commitments and return many to death, torture, and violence. While the agencies
cite the termination of the Title 42 policy in May 2023 as a justification to curtail the public’s
right to comment on the proposed rule, this reasoning is specious especially given that the
administration itself sought to formally end Title 42 nearly a year ago and has had ample time to
prepare for the end of the policy.

Providing a 30-day comment period for the proposed asylum ban is reminiscent of Trump
administration practices, when agencies routinely provided 30-day comment periods on
sweeping asylum rules, leaving the public little time to meaningfully assess and respond to
proposed rules.

For example, while AILA has heard reports of perceived higher denial rates of visas from our
members, a 30-day comment period is not a sufficient length of time to adequately survey our
more than 16,000 members, evaluate their responses, and incorporate them into a comment. This
is indicative of the many challenges presented by having a shortened comment period.

Furthermore, on March 23, we learned that the API technology on Regulations.gov had been
malfunctioning, causing an unknown number of public comments to be discarded when posted
via third-party software. In a conversation on March 23, a representative from Regulations.gov
indicated that the issue began on Monday, March 20. According to the representative, as of
Thursday afternoon, March 23, there was no timeline for a resolution and no plan for accepting
the public comments that failed to post to Regulations.gov. This technical outage effectively
shortened the 30-day period further and apparently discarded public comments without the
knowledge of the commenters.

X. The standards set to bypass the sunset date set up the proposed rule to be continued
indefinitely
The structure created within this proposed rule would apply from the date of the termination of
the Title 42 public health order (May 11, 2023) until 24 months after the rule’s effective date.114
After the sunset date, the proposed rule would continue to apply to the asylum seekers who
entered under this rule.115 If the proposed rule is effective as scheduled, the sunset date will be a
few months into either the current administration’s second term or a few months into a new
administration.

113
Exec. Order 12866, 58 Fed. Reg. 190,
https://www.archives.gov/files/federal-register/executive-orders/pdf/12866.pdf (Sep. 30, 1993) (stating “. . . each
agency should afford the public a meaningful opportunity to comment on any proposed regulation, which in most
cases should include a comment period of not less than 60 days.”); Exec. Order 13563, 76 Fed. Reg. 3821, 3822,
https://www.federalregister.gov/documents/2011/01/21/2011-1385/improving-regulation-and-regulatory-review
(Jan. 18, 2011) (stating “[t]o the extent feasible and permitted by law, each agency shall afford the public a
meaningful opportunity to comment through the Internet on any proposed regulation, with a comment period that
should generally be at least 60 days.”).
114
NPRM at 11708-08.
115
NPRM at 11726.

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It is highly problematic that the standard the proposed rule states for supporting the
determination that the sunset provision should be extended sets up a current or future
administration to extend the proposed rule indefinitely. The proposed rule states “if migration
remains or is expected to remain at a sustained or heightened level, despite the Departments’
actions, that could support a determination that the sunset provision should be lifted or
extended.”116 Notably, there is no definition of “sustained” or “heightened” levels.

Without a concrete definition of what is considered “sustained” or “heightened,” the sunset
clause grants DHS effectively unbounded discretion to continue using the heightened standard
set forth in the proposed rule. Every modern administration has looked to the southern border
and seen a problem thought to be sustained or heightened.117 This is part of a larger problem in
addressing border security more broadly: a lack of concrete standards and metrics. In 2011,
researchers observed DHS “has never clearly defined what border security means in practice,” an
observation that has withstood the test of time.118 Without clear definitions of what constitutes
“sustained,” “heightened,” or a border “emergency,” this administration or subsequent ones can
claim sustained or heightened numbers indefinitely.
XI. Conclusion
AILA and the Council urge the administration not to move forward with this proposed rule and
to rescind the proposed rule. The consequences of this proposed rule are too grave to do
otherwise.

For any questions, please reach out to Amy Grenier at agrenier@aila.org or Rebekah Wolf at
rwolf@immcouncil.org.

Sincerely,

THE AMERICAN IMMIGRATION LAWYERS ASSOCIATION
THE AMERICAN IMMIGRATION COUNCIL

Attachments (4): Select Citations Sources

116
NPRM at 11727.
117
Notably, when issuing the Trump administration’s asylum ban in 2018, President Trump observed, “[f]ailing to
take immediate action to stem the mass migration the United States is currently experiencing and anticipating would
only encourage additional mass unlawful migration and further overwhelming of the system.” President Donald
Trump, “Read Trump’s Proclamation Targeting the Caravan and Asylum Seekers,” New York Times,
https://www.nytimes.com/2018/11/09/us/politics/trump-proclamation-caravan-asylum.html (Nov. 9, 2018); The
Obama administration faced an “influx of children” requiring a “surge” in resources in 2014. The White House
Office of the Press Secretary, The Obama Administration’s Government-Wide Response to Influx of Central
American Migrants at the Southwest Border,
https://obamawhitehouse.archives.gov/the-press-office/2014/08/01/obama-administration-s-government-wide-respo
nse-influx-central-american- (Aug. 1, 2014); President George W. Bush noted in a 2006 speech “we do not yet have
full control of the border.” George W. Bush, “Transcript: Bush’s Speech on Immigration,” New York Times,
https://www.nytimes.com/2006/05/15/washington/15text-bush.html (May 15, 2006).
118
Danilo Zak, What Makes a Border Secure? Building a Healthier Border Dialogue, National Immigration Forum,
https://immigrationforum.org/article/what-makes-a-border-secure-building-a-healthier-border-dialogue/ (Apr. 16,
2022), citing Edward Alden and Bryan Roberts, “Are U.S. Borders Secure? Why We Don’t Know, and How to Find
Out,” Foreign Affairs, 90, 4 (2011): 19–26, http://www.jstor.org/stable/23039603 (2011).

26
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As of: May 08, 2023
Received: March 27, 2023
PUBLIC SUBMISSION Status: Posted
Posted: March 29, 2023
Tracking No. lfr-75e9-b2oa
Comments Due: March 27, 2023
Submission Type: Web

Docket: USCIS-2022-0016
Circumvention of Lawful Pathways

Comment On: USCIS-2022-0016-0001
Circumvention of Lawful Pathways

Document: USCIS-2022-0016-12269
Comment Submitted by Brooklyn Defender Services

Submitter Information
Email: ksiegel@bds.org
Organization: Brooklyn Defender Services

General Comment
Brooklyn Defender Services (“BDS”) submits the attached comment in response to Circumvention of Lawful
Pathways, a Notice of Proposed Rule published on February 23, 2023 by the Department of Homeland Security
and the Department of Justice, 88 Fed. Reg. 11,704, OMB Control Number 1651-0140, Doc. No. 2023-03718.

Attachments
USCIS-2022-0016_BDS_Public_Comment_3_27_2023

CLP_PC_021450
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B Brooklyn Defender Services Tel (718) 254-0700
roo yn ( D ) 177 Livingston St., 7 Fl. Fax (718) 254-0897
D fi d . Brooklyn, NY 11201 ksiegel@bds.org

March 27, 2023

Via Federal e-Rulemaking Portal

Daniel Delgado Lauren Adler Reid

Acting Director, Border and Immigration Policy — Assistant Director, Office of Policy, EOIR
Office of Strategy, Policy, and Plans Department of Justice

U.S. Department of Homeland Security 5107 Leesburg Pike

2707 Martin Luther King Jr. SE Falls Church, VA 22041

Washington, DC 20032

Re: Circumvention of Lawful Pathways
88 Fed. Reg. 11,704 (Feb. 23, 2023)
OMB Control Number 1651-0140

Doc. No. 2023-03718

Dear Daniel Delgado and Lauren Adler Reid,

Brooklyn Defender Services (“BDS”’) submits this comment in response to Circumvention
of Lawful Pathways, a Notice of Proposed Rule (“NPRM”) published on February 23, 2023 by the
Department of Homeland Security (“DHS”) and the Department of Justice (“DOJ”) (collectively,
“the Departments”). For the reasons set forth below, BDS firmly opposes the NPRM in its entirety.
If implemented, the NPRM would eviscerate the right to asylum by imposing unlawful manner of
entry and transit bans on refugees entering the United States via the southwest border. These
measures revive unlawful and racist plans created by the Trump administration and betray the
Biden administration’s commitment to strengthening the US asylum system. BDS urges the
Departments to rescind the unlawful NPRM in its entirety.

BDS is a public defense office in Brooklyn, New York, that provides multi-disciplinary
and client-centered criminal, family, and immigration defense, and civil legal services, along with
social work and advocacy support. BDS represents low-income people in nearly 22,000 criminal,
family, civil, and immigration proceedings each year. Since 2009, BDS has counseled, advised, or
represented more than 16,000 clients in immigration matters, including deportation defense,
affirmative applications, advisals, and immigration consequence consultations in Brooklyn’s
criminal court system. About a quarter of BDS’ criminal defense clients are foreign-born, roughly
half of whom are not naturalized citizens and therefore are at risk of losing the opportunity to
obtain lawful immigration status as a result of criminal or family defense cases. Our criminal-
immigration specialists provide support and expertise on thousands of such cases. In addition, BDS
is one of three New York Immigrant Family Unity Project (“NYIFUP”) providers and has
represented more than 1,700 people in detained deportation proceedings since the inception of the
program in 2013. BDS represents noncitizens in non-detained removal proceedings in New York’s

DEFEND ¢ ADVOCATE ¢ CHANGE
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immigration courts, in petitions for review before the U.S. Circuit Court of Appeals for the Second
and Third Circuits, and in writs of mandamus and habeas corpus in U.S. district courts.

I Overview of Proposed Rule

The NPRM proposes to unlawfully ban refugees from asylum protection based on manner
of entry into the United States and transit through other countries. It does so through a presumption
of non-eligibility for sweeping categories of people seeking refuge in the United States. According
to the NPRM, all people entering the United States via the southwest border who are not Mexican
nationals will be presumptively ineligible for asylum unless: (1) they are preapproved nationals
of the five countries subject the administration’s parole programs (Cuba, Haiti, Nicaragua,
Venezuela, and Ukraine); (2) they have preregistered at a port of entry using the CBP One
application; or (3) they have requested and failed to obtain asylum in a transit country.' The
presumption would also be rebuttable through a showing of “exceptionally compelling
circumstances by a preponderance of the evidence.” As described below, these restrictions are
unmistakable violations of U.S. asylum law and of the United States’ commitments under
international refugee law.”

The ban would apply to anyone physically present in the United States after crossing the
southwest border, “without regard to whether the noncitizen has been inspected by an immigration
officer, evaded inspection by an immigration officer, or was free from official restraint or
surveillance.”? Therefore, even people not in removal proceedings who apply affirmatively for
asylum would still be subject to a presumption of ineligibility.

In addition, many refugees subject to the bans will not have the opportunity to a full
removal proceeding as they will be subject to expedited removal proceedings following
apprehension near the southwest border or presentation at a port of entry. Through these already
flawed proceedings,’ the government is able to deport noncitizens without a hearing unless they
express a fear of return and show either a significant possibility of establishing eligibility for
asylum in a “credible fear interview” or, if ineligible for asylum, the higher standard of a
reasonable fear of persecution or torture in a “reasonable fear interview.”

' 88 Fed. Reg. 11,723.
> See infra Part II.G.
3 88 Fed. Reg. 11,723.

4 See infra Part II.G.3.ii; see also, e.g., American Civil Liberties Union 63, American Exile: Rapid
Deportations That Bypass the Courtroom (2014) (describing erroneous expedited removal of Mexican
citizen who had lived in the United States for 14 years); id. at 38 (recounting case of a Guatemalan citizen
and mother of four U.S. citizen children who was removed under an expedited removal order even though
she told the CBP officers that she was afraid to be deported to Guatemala, where her father had been
murdered and her mother had been the target of extortion by gangs); id. at 39 (describing 22-year-old
woman who fled domestic violence removed to El Salvador without being provided a credible fear
interview).

> See generally 8 U.S.C. § 1125(b); 8 C.F.R. § 253.3.

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Under the NPRM, asylum officers first would determine whether the presumption of
ineligibility applies and, if so, whether the noncitizen has rebutted it.° Those who fail would
automatically be subjected to the higher reasonable fear standard and would be eligible only for
the lesser forms of relief known as withholding of removal and protection under the Convention
Against Torture (“CAT”).’ Refugees barred from applying for asylum under the NPRM would
generally have no opportunity to gather evidence and prepare arguments to rebut the presumption
of ineligibility. While a negative determination could be reviewed de novo by an immigration
judge, the NPRM requires noncitizens to affirmatively request such review, rather than being asked
by an officer if they want administrative review by an immigration judge.®

According to the NPRM, the Departments expect that their asylum bans will push refugees
to avail themselves of several “lawful pathways” the Departments put forward.” It is, however,
doubtful that these pathways provide anything like the protection of the United States asylum
system or respond to the urgent needs of people seeking persecution. '°

* * *

The NPRM’s deficiencies are myriad. Among other issues discussed below, it is a revival
of previously enjoined and inhumane policies made by the Trump administration to further its
xenophobic and racist platform;'' it exposes refugees to extreme physical danger and contravenes
U.S. law and international obligations; and it is based on unsupported and erroneous assumptions
about the efficacy of immigration deterrence, the safety of transit countries, and the usability of a
Customs and Border Patrol’s (“CBP’’) online application.

The Departments must rescind the NPRM in its entirety and recommit to strengthening the
statutory right of refugees to apply for asylum in the United States regardless of manner and place
of entry or their path to the United States.

II. Analysis and Recommendations

A. The 30-day comment period is insufficient for a rule of the NPRM’s
magnitude.

Despite the magnitude of their proposed changes to asylum law, the Departments have only
provided 30 days for public comment on the NPRM. This abbreviated comment period effectively

® 88 Fed. Reg. 11,724-5.

7 88 Fed. Reg. 11,725.

8 Td.

° See, e.g., 88 Fed. Reg. 11,728.
'0 See infra Part ILC.

'l See, e.g., Michele Goodwin and Erwin Chemerinsky, The Trump Administration: Immigration, Racism,
and COVID-19, 169 U. PENN. L.R. 313, 318 (2021) (“[W]e raise alarm about the unconstitutional legal
policies that flow from racist ideology, manifesting harmful racial ideologies into law.”)

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denies the public its right to meaningfully comment on the NPRM," including, for example, to
discuss the NPRM with other stakeholders or with clients whose family members may be
impacted. A minimum comment period of 60 days is necessary to allow the public to comment on
the NPRM’s attempt to create a wholesale reordering of asylum at the border in a way that violates
U.S. and international law.

As with much in the NPRM, the Departments’ decision to truncate the comment period is
reminiscent of the practices of the previous administration. In Centro de la Raza v. EOIR, for
example, the District Court for the Northern District of California found that the previous
administration violated the Administrative Procedures Act (“APA”) by providing only 30 days to
comment on a rule that would have significantly changed immigration court procedures.!* In
addition to highlighting the magnitude of the rule, the court noted that, as here, the Departments
“acknowledged that the Rule constituted a ‘significant regulatory action,’ and stated that they
‘drafted the rule consistent with the principles of Executive Orders 12866 and 13563.’”!* Those
executive orders, in turn, state that “a comment period . . . should generally be at least 60 days.”!>
The court found it “curious” that EOIR had not explained its departure from those executive orders
despite stating that it had complied with them.

The situation is no different here. In discussing their compliance with the aforementioned
executive orders, the Departments do not explain why this NPRM, with its massive changes to the
treatment of refugees at the southwest border, should deviate from recommended procedures for
significant regulatory actions. Moreover, the Departments invoke the impending end of the Title
42 public health order, which allows DHS to expel arriving noncitizens at the border, as a reason
for rapid action.'® But they neglect to mention that the administration has been seeking to end Title
42 for the past year. Similarly, they say that the resolution of litigation seeking to end Title 42
would create chaos at the border, but omit that the litigation has been pending for over one year.
They also discuss the administration’s decision to end the Covid-19 public health emergency as if
it were an external factor that they could not have anticipated.'’

Because the possibility of Title 42’s end was clearly foreseeable, the Departments have
had ample time to craft their policy and provide an appropriate amount of time for public
comment.!® The Departments should withdraw the NPRM in its entirety and instead pursue a

25 U.S.C. § 553(b), (c); Rural Cellular Ass’n v. FCC, 588 F.3d 1095, 1101 (D.C. Cir. 2009) (noting that
the requirement under the APA is for a “meaningful opportunity” for comment).

'3.524 F. Supp. 3d 919, 954-56 (N.D. Cal. 2021).
'4 Td. at 955 (quoting 85. Fed Reg. 81,463) (cleaned up).

'S Exec. Order No. 13,563, 76 Fed. Reg. 3821, 2821-22 (Jan. 18, 2011); see also Exec. Order. 12866, 58
Fed. Reg. 51,735 § 6(a)(1) (Oct. 4 1993).

'6 See 88 Fed. Reg. 1170.
"" See id.

'8 Cf Centro de la Raza, 524 F. Supp. 3d at 955 (“DOJ did not identify any exigent circumstances
requiring a compressed comment period.”’).

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lawful and humane asylum policy. At a minimum, should the Departments continue their course
to circumvent U.S. law and treaty obligations, they must provide at least 60 days to meet their
obligations under the APA and provide the public sufficient time to provide comment on its
catastrophic effects for refugees.

B. The NPRM revives the Trump administration’s cruel and illegal asylum bans
and abandons the idea of fair and humane asylum procedures.

The Departments’ proposed restrictions on asylum based on manner of entry and transit
are alarmingly similar to the bans that the Trump administration sought to implement. In 2018, the
Trump administration issued an interim final rule that categorically barred asylum for any
applicant who entered the United States via the southwest border outside of a port of entry.'? (The
Departments refer to this regulation as the “Proclamation Bar.”’) In 2019, the administration issued
an interim final rule that would deny asylum to anyone crossing the southwest border who had not
applied for humanitarian protection in a transit country, was not a victim of trafficking, or only
transited through countries that were not parties to the relevant United Nations conventions.”° (The
Departments refer to this regulation as the “TCT ban” or “transit ban.”) Both regulations were
repeatedly enjoined for violating U.S. asylum law.)?!

During the approximately one year in which the transit ban was in effect, it inflicted
immense hardship on refugees deported to unsafe countries, on families separated at the border,
and on people subject to prolonged detention. Among the documented deportations due to the
transit ban were those of a Venezuelan opposition journalist and her one-year-old baby, a Cuban
asylum seeker persecuted and subjected to forced labor for his political activity, a Nicaraguan
student shot during an antigovernment protest, and a gay Honduran threatened and assaulted for
his sexual orientation.”

The Departments try repeatedly to distinguish their proposal from the Trump-era bans by
saying that they are merely creating a rebuttable presumption of ineligibility, rather than
categorical bars.** The current proposal would nonetheless bar scores of refugees from asylum
eligibility, and, as discussed infra Part II.G, rebuttal does not save the bans from violating the
asylum statute or the United States’ commitments under international law.

'9 See Aliens Subject to a Bar on Entry Under Certain Presidential Proclamations; Procedures for
Protection Claims, 83 Fed. Reg. 55,934 (Nov. 9, 2018); Addressing Mass Migration Through the
Southern Border of the United States, 83 Fed. Reg. 57,661, 57,663 (Nov. 9, 2018).

20 See Asylum Eligibility and Procedural Modifications, 84 Fed. Reg. 33,829 (July 16, 2019).

*1 See E. Bay Sanctuary Covenant v. Garland, 994 F.3d 962 (9th Cir. 2020) (“East Bay I’); E. Bay
Sanctuary Covenant v. Barr, 519 F. Supp. 3d 663 (N.D. Cal. 2021) (“East Bay IT’); E. Bay Sanctuary
Covenant v. Biden, 993 F.3d 640 (9th Cir. 2021).

°2 See Asylum Denied, Families Divided 6-7, Human Rights First (2019), https://humanrightsfirst.org/wp-
content/uploads/2022/10/AsylumDeniedFamiliesDivided.pdf.

°3 See 88 Fed. Reg. 11,735, 11,736, 11,739, 11,740.

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Regardless, the Departments’ attempt to place such extreme restrictions on the right to
asylum is irredeemably misguided. The Departments support their authority to make these
restrictions on the basis of the alleged breadth of their discretion and by interpreting the asylum
statute as narrowly as possible. In doing so, they give the impression that they hope to provide
persecuted people the meagerest protection they can. As BDS has learned in hundreds of asylum
cases, people seeking refuge in the United States need more avenues for protection and more
safeguards to ensure that their claims are fully and fairly adjudicated. Far from burdening the
country, asylees enrich the United States and contribute to the vibrancy of countless communities
across the country.

Early on, it appeared that the Biden administration understood the need to welcome and
protect people fleeing persecution. As a candidate, President Biden campaigned on not “denying
asylum to people fleeing persecution and violence””‘ and on reversing President Trump’s asylum
restriction.”> In Executive Order 14,010, President Biden pledged to “restore and strengthen our
own asylum system, which has been badly damaged by policies enacted over the last 4 years that
contravened our values and caused needless suffering.”*° While President Biden did mention
“enhanc[ing] lawful pathways” as part of a comprehensive policy platform, it is dismaying that his
administration has now abandoned one half of this formula and chosen instead what the press has
accurately called “a Trump-style plan’””’ and an “embrace of Trumpian border policies.””* The
administration’s plan is also one that the United Nations High Commissioner for Refugees
(“UNHCR”) has warned is “not in line with refugee law standards” because it “establish[es] a link
between [the expansion] of safe and legal pathways” and the right to asylum.”

The Departments are completely wrong to revive the inhumane and illegal practices of the
Trump administration. They must rescind the NPRM in its entirety and renew their commitment
to a lawful, just, and compassionate asylum system.

*4 Biden Harris, The Biden Plan for Securing Our Values as Nation of Immigrants,
https://joebiden.com/immigration/#, last accessed March 21, 2023.

°5 Elena Moore, Trump’s and Biden’s Plans On Immigration, NPR (Oct. 16, 2020),
https:/Awww.npr.org/2020/10/16/9 1925840 1/trumps-and-biden-s-plans-on-immigration.

6 Exec. Order No. 14,010, 86 Fed. Reg. 8267 (Feb. 2, 2021).

°7 Biden unveils Trump-style plan to deter asylum seekers at Mexico border, THE GUARDIAN (Feb. 21,
2023), https://www.theguardian.com/us-news/2023/feb/2 1/us-mexico-border-immigration-joe-biden-

donald-trump.

8 Nicole Narea, How Biden came to embrace Trumpian border policies, VOX (Feb. 22, 2023),
https://www.vox.com/policy/2023/2/22/23610849/biden-border-asylum-app-transit.

?° New US border measures ‘not in line with international standards’, warns UNHCR, UN NEWS (Jan. 6,
2023), https://news.un.org/en/story/2023/01/1132247.

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C. The Departments do not show that implementing a rebuttable presumption of
ineligibility would discourage refugees from seeking protection in the United
States.

The Departments’ primary justification for the new asylum restrictions is the need to reduce
“border encounters, [which] could rise, and potentially rise dramatically ... subsequent to the
lifting of the Title 42 public health Order.’”*° Even if, arguendo, this were an acceptable reason to
broadly deny access to asylum—which it is not—the Departments have not provided adequate
evidence for their assertion that the proposed restrictions will “deter” refugees from arriving at the
southwest border.

The Departments’ estimation of the number of border encounters it expects when Title 42
is lifted is critical to its justification of the NPRM. The Departments cite a “DHS Office
Immigration Statistics planning model [that] assumes that, without a meaningful policy change,
border encounters could rise, and potentially rise dramatically—up to as high as 13,000 a day.”>!
The Departments aver that DHS does not have the capacity to process “migratory flows of this
magnitude” and must therefore take immediate action.** While the Departments’ footnotes
includes a reference to “DHS SWB Encounter Planning Model generated January 6, 2023,” there
is no link to that model and it does not appear on a search of DHS’ website. Without more
information on the model (such as methodology, data sources, and alternative figures), the public
is unable to evaluate a piece of data that underpins the Departments’ supposed need for the NPRM.

Moreover, the Departments’ own data shows that Title 42—which allows the summary
expulsion of refugees—has not deterred people from seeking refuge by crossing the southwest
border.** Similarly, the implementation of expedited removal in 1997 was not correlated with a
drop in apprehensions of people who crossed the southwest border without authorization.*> It was,
however, associated with a drop in asylum applications,*° suggesting that a primary effect of
expedited removal was to deny asylum to people apprehended along the southwest border whether
or not they were eligible. There is also no correlation between the previous restrictions on
asylum—the ban on applications filed after one year from entry to the United States, the safe third
country bar, or firm resettlement, for example—and a rise or drop in apprehensions.

3° 88 Fed. Reg. 11712.

31 88 Fed. Reg. 11,713.

32 Td.

33 Td. 0.76.

4 See, e.g., Fed. Reg. 11,710.

35 See U.S. Border Patrol, Southwest Border Sectors — Total Illegal Alien Apprehension By Fiscal Year
(1960-2018), https://www.cbp.gov/sites/default/files/assets/documents/2019-Mar/bp-southwest-border-
sector-apps-fy 1960-fy2018.pdf, last accessed March 14, 2023.

36 See 2003 Yearbook of Immigration Statistics 56, Office of Immigration Statistics (2004),
https://www.dhs.gov/sites/default/files/publications/Yearbook Immigration Statistics 2003.pdf.

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As discussed throughout this comment, there are many compelling moral, policy, and legal
reasons to reject the Departments’ proposal. The Departments’ failure to provide substantial
evidence that the NPRM will accomplish the goals they profess is an independent reason that it
must be rejected.

D. The Departments obfuscate or fail to address the grave humanitarian
consequences of their asylum bans.

1. The Departments incorrectly vouch for the safety of transit countries that
cannot adequately protect refugees.

The Departments claim that there is no issue in requiring refugees to first apply for and be
denied asylum in a transit country because the most common transit countries have become safe
places for asylum seekers.*”? The Departments ignore significant evidence that these countries do
not offer refugees safety and protection comparable to the United States.

For example, the Departments refer to Colombia as “one of the leaders in the Western
Hemisphere—and the world—in its response to the unprecedented surge in irregular migration
from Venezuela.”** In fact, 40 percent of Venezuelan women in Colombia reported being victims
of both psychological and physical violence between 2020 and 2022.*? Moreover, Colombia
continues to suffer from chronic internal displacement, which affected 61,396 people in 2022.*°

In Mexico, too, another country whose humanitarian record the Departments tout, the
reality is much grimmer. Human Rights First, for example, documented over 13,480 reports of
violence against asylum seekers in Mexico between January 2021 and December 2022.*! These
include the rape of a Guatemalan trans woman by Mexican police after she was denied entry to
the United States and a 13-year-old Venezuelan child abducted at gunpoint after being expelled
under Title 42.” Funding per refugee status applicant in Mexico fell from approximately $1,800
in 2011 to just $17 in 2021. Asylum seekers in Mexico also reported in 2021 and 2022 that

37 See 88 Fed. Reg. 11,720.
38 88 Fed. Reg. 11,722.

>° Everado Esquivel, For Venezuelan women, gender-based violence is a widespread risk at home and
abroad, warns IRC, International Rescue Committee (Nov. 25, 2022), https://www.rescue.org/press-
release/venezuelan-women-gender-based-violence-widespread-risk-home-and-abroad-warns-irc.

4° Internal Displacement/Colombia, UNHCR (Dec. 2022), https://reporting.unhcr.org/document/4248.

“| Human Rights Stain, Public Health Farce 4, Human Rights First (2022),
https://humanrightsfirst.org/wp-content/uploads/2022/12/HumanRightsStainPublicHealthFarce-1.pdf.

*? See id.

‘3 See Mexico: Asylum Seekers Face Abuses at Southern Border, Human Rights First (2022),
https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border.

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immigration agents tried to dissuade them from applying for refugee status or turned them away
at the southern border of Mexico.“4

In other Western Hemisphere transit countries, the U.S. Department of State is itself a
source for information on the inadequacy of asylum procedures. In the NPRM, the Departments
claim, for example, that “the Government of Guatemala has taken key steps to continue to develop
its asylum system.”*> Their colleagues at the Department of State, however, state in their latest
country report that “identification and referral mechanisms for asylum seekers were inadequate”
and that “there continued to be gaps and lack of clarity in the procedures for implementing the
[asylum] framework.”4° In Honduras, a transit country the Departments do not even address, the
Department of State says that the asylum system is “nascent” and that “asylum seekers with
pending cases were vulnerable to abuse and sexual exploitation.”*”

The Departments simply ignore the reality that transit countries are dangerous for asylum
seekers and do not offer adequate protection. Their revival of the Trump-era transit ban is therefore
arbitrary and lacking support in substantial evidence.

2. The Departments do not address the likelihood that the NPRM will lead to
mass deportations, leave families separated, and deprive refugees of a path
to citizenship.

The Departments do not adequately address the consequences of the NPRM in terms of the
conditions under which refugees will be deported or the otherwise precarious status of people
barred from asylum under the proposed bans.

To begin—as discussed infra Part II.G.3.1i—the constraints of the expedited removal
process and of credible fear screenings make it almost certain that vast numbers of refugees will
face summary removal from the United States if the NPRM is implemented. Language barriers,
abusive and dangerous conditions of confinement, acute trauma, and lack of knowledge of the
complexities of both existing asylum law and the new presumption would all contribute to making
it challenging for asylum seekers to overcome the presumptions in initial screenings. Just as
occurred when the Trump ban was in effect and during Title 42, these mass deportations at the
border will unlawfully put refugees in harm’s way and endanger their lives.

The Departments offer the possibility of withholding of removal or protection under the
CAT as alternative forms of protection for people denied asylum under the NPRM. However,

“4 See id. (“Some said immigration agents tried to dissuade them from applying for refugee status and
pressured them to agree to voluntary return, even when they said they would be at risk of violence and
persecution in their home countries.”).

45 88 Fed. Reg. 11,721.

46 2021 Country Reports on Human Rights Practices: Guatemala, Department of State (2022),
https://www.state. gov/reports/202 1 -country-reports-on-human-rights-practices/guatemala/.

472021 Country Reports on Human Rights Practices: Guatemala, Department of State (2022),
https://www.state.gov/reports/202 1 -country-reports-on-human-rights-practices/honduras/.

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withholding of removal and CAT are not replacements for people with a valid asylum claim. First,
both require applicants to meet a higher standard of proof in order to receive protection. Moreover,
neither is a permanent status, nor do they provide definitive relief from deportation or a pathway
to permanent residence or citizenship. BDS represents many people who seek withholding of
removal or CAT because of statutory asylum restrictions. Those who are successful live with the
stress and precarity of knowing how thin their protection from deportation is. Unable to request
derivative status for their family members, they also face the possibility of permanent separation
and worry for the safety of loved ones who could not escape persecution or torture.

It is unfair and arbitrary to subject refugees to a higher standard of proof and an inferior
form of relief based on factors unrelated to the strength of their claim or even to their statutory
eligibility for asylum.

The Departments do not adequately address the likelihood that the NPRM will result in
large-scale deportations of people with valid asylum claims or that people with such claims will
never have access the protection they deserve.

E. CBP One is a cumbersome and inaccessible platform that cannot be trusted to
facilitate appointments at ports of entry.

Under the NPRM, the only way refugees can request asylum is by prescheduling an
appointment at a port of entry through the CBP One app. Because of the app’s deficiencies and the
uncertainty of DHS’ expansion plans for it, this restriction will further limit the number of refugees
able to exercise their right to apply for asylum.

CBP One is and will remain inaccessible to many asylum seekers. The app requires the use
of a working smartphone connected to a cellular network or Wi-Fi, which a significant number of
asylum seekers do not have. The Departments acknowledge this “access concern,” but provide
only a vague assurance that an “ongoing and serious obstacle” will overcome the presumption of
ineligibility created when a refugee does not use the app.*® It is alarming that CBP agents would
have discretion to turn away refugees without a smartphone, leaving them vulnerable to
victimization as they try to access the app in Mexico. Additionally, the app does not clearly identify
the option to schedule an appointment at a port of entry (confusingly, users must press an icon
labeled “Traveler”’), features many other unrelated services, and requires multiple login and
authentication steps.

Furthermore, the app is available in only three languages: English, Spanish, and Haitian
Creole.” It is completely inaccessible to refugees who cannot read. The Departments do not
indicate any plan to add new language capabilities. Many refugees BDS has represented, including
indigenous people from Central America, may have basic communication skills in English or
Spanish, but cannot read or write proficiently in those languages, and are instead fluent in

48 88 Fed. Reg. 11,720.

4 See Asylum Processing at the U.S.-Mexico Border: February 2023 1, Strauss Center for International
Security and Law (2023), https://www.strausscenter.org/wp-
content/uploads/Feb_2023 Asylum _Processing.pdf.

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indigenous languages. CBP agents and asylum officers will likely wrongly conclude that people
in this position do not have a “language barrier” that would exempt them the requirement to use
the app.

The app also discriminates against Black refugees because its facial recognition system
rejects images of people with darker skin tones, a well-documented problem in facial recognition
technologies that the Departments have full knowledge of, but do not address.°°

Even if refugees have access to the app, appointment slots are extremely limited and
inadequate for the number of people a/ready trying to book an appointment. In February 2023,
there were a total of approximately 500 unique appointments per day (with one appointment for
one person), and thousands of people with pending appointments were seeking shelter in Mexican
border cities.°'! The Departments say that “CBP will, upon the lifting of the Title 42 public health
Order, expand access to the CBP One app.”*” They provide no details on their expansion plans,
including how many appointments will be available and what new information the app—which
does not currently ask about intent to apply for asylum**—will solicit. Without any information
beyond the existence of a goal to expand CBP One’s use, the pubic cannot meaningfully comment
on the Departments’ expansion plan for CBP One, a central component of the processing scheme
they propose.

Requiring asylum seekers to schedule an appointment through CBP One, often weeks or
months ahead of time, has already resulted in horrific violence, including the murder of a 17 year-
old Cuban child while he was waiting for weeks for his appointment.°* A Venezuelan family
unable to secure an appointment at a port of entry near them in Piedras Negras and forced to travel
over 1,200 miles to another port of entry for an appointment was kidnapped, tortured, and extorted
by a criminal group while traveling to their appointment. After 20 days, their abductors blindfolded
them and brought them to the U.S.-Mexico border, threatening to murder them if they did not
cross. After crossing, the family tried to explain to Border Patrol that they had been kidnapped and
forced to cross, but agents told them they were criminals for crossing illegally and expelled them
back to Mexico.°> Women, LGBTQI-+, and survivors of gender-based violence (“GBV”) will be

%° See, e.g., Melissa del Bosque, Facial recognition bias frustrates Black asylum applicants to US,
advocates say, THE GUARDIAN (Feb. 8, 2023), https://www.theguardian.com/us-news/2023/feb/08/us-
immigration-cbp-one-app-facial-recognition-bias.

>! Strauss Center, supra n.51, at 4-9.
>? 88 Fed. Reg. 11,729.

°3 Jack Herrera, Fleeing for Your Life? There’s an App for That., TEXAS MONTHLY (Mar. 2, 2023),
https://www.texasmonthly.com/news-politics/cbp-app-asylum-biden-administration/.

4 See id.

°° See @ReichlinMelnick, TWITTER (Mar. 2, 2023)
https://twitter.com/ReichlinMelnick/status/163 1400369266872322.

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especially vulnerable to harm.*° The Departments completely ignore these well-documented
dangers, an extremely important aspect of the problem they seek to address.°’

It is alarming the Departments would allow CBP One—an inaccessible and cumbersome
platform with long wait times—to play such a central role in determining eligibility for asylum.
The Departments’ reliance on the platform demonstrates once more how deeply flawed, poorly
considered, and dangerous their proposal is.

F. The asylum bans would disparately harm Black, brown, and indigenous
asylum seekers and discriminate based on national origin.

The policies within the NPRM will have a disparate on asylum on refugees of color and on
refugees from Latin America, the Caribbean, and Africa.

The proposed restrictions apply only to people who seek asylum at the southwestern
border, where the vast majority of asylum seekers are people of color and people from Latin
American and the Caribbean countries.** It does not apply to people arriving by land at the northern
border, by sea, or by plane (where most asylum seekers are traveling with a visa), whose
demographics differ sharply from those of people entering the United States at the southwestern
border. During the period that the Trump transit ban was in effect, immigration court asylum denial
rates skyrocketed for many Black, brown, and indigenous asylum seekers at the southwestern
border. For example, asylum grant rates declined by 45 percent for Cameroonian asylum seekers,
32.4 percent for Cubans, 29.9 percent for Venezuelans, 17 percent for Eritreans, 12.9 percent for
Hondurans, 12 percent for Congolese (Democratic Republic of the Congo), and 7.7 percent for
Guatemalans, compared to the same time period the year before.°?

6 See, e.g., Surviving Deterrence: How US Asylum Deterrence Policies Normalize Gender-Based 21,
Oxfam America and Tahirih Justice Center (2022), https://www.tahirih.org/wp-
content/uploads/2022/10/Oxfam_ Tahirh Surviving-Deterrence English 2022.pdf (“[O]ur data show how
policies such as expulsions under Title 42, returns under [Remain in Mexico], and turnbacks contribute to
conditions that foster various forms of GBV at the US-Mexico border such as rape, human trafficking,
sexual assault, psychological trauma, and other abuses[.]’’).

°7 Cf. Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29, 43 (1983)
(stating it is arbitrary and capricious under the APA for an agency to fail to consider an important aspect
of the problem).

%8 See, e.g., John Gramlich, Monthly encounters with migrants at U.S.-Mexico border remain near record
highs, Pew Research Center (Jan. 13, 2023), https://www.pewresearch.org/fact-tank/2023/01/13/monthly-
encounters-with-migrants-at-u-s-mexico-border-remain-near-record-
highs/#:~:text=But™%20that%20is%20no0%20longer,%2C%20Nicaragua%2C%20Peru%20and%20 Venez
uela (noting that Mexico, Guatemala, El Salvador, and Honduras account for 37% percent of border
encounters and that there have been steep increases in the number of encounters with nationals of
Colombia, Cuba, Nicaragua, Peru, and Venezuela).

°° See Biden Administration Plan to Resurrect Asylum Ban Advances Trump Agenda 4-5, Human Rights
First (2023), https://www.pewresearch.org/fact-tank/2023/01/13/monthly-encounters-with-migrants-at-u-
s-mexico-border-remain-near-record-

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As stated supra Part II.F, the Departments’ reliance on CBP One also has a disparate impact
on Black asylum seekers due to its facial recognition technology and to indigenous asylum seekers
less likely to be able to access and use the app.

The NPRM also introduces nationality-based discrimination into asylum by providing an
exception for people who benefit from DHS’ new parole processes, which allow certain people
from Cuba, Haiti, Nicaragua, and Venezuela to enter or temporarily remain in the United States.
While this exercise of DHS’ parole authority provides a much-needed procedure for family
reunification, it is inappropriate and unfair to use it to determine who can apply for asylum. In the
context of the proposed bans, parole functions as a “legal pathway” expressly available only to
people from Cuba, Haiti, Nicaragua, and Venezuela.” Asylum procedures may not deny refugees
from other countries equal protection by treating them differently based on their nationality.°! The
Departments’ plan harnesses parole—an otherwise positive development—to do just that.

This discrimination based on race, ethnicity, and national origin is yet another reason that
the Departments’ bans are untenable and wrong and that they must be rescinded in their entirety.

G. The NPRM unequivocally violates United States law and international
humanitarian law.

In addition to the defects and shortcomings discussed above, the NPRM must be rescinded
in its entirety because it is fundamentally unlawful. The NPRM violates the plain meaning of
United States refugee law and the United States’ commitments under international refugee law.

The foundational texts of both U.S. and international refugee law are the 1951 United
Nations Convention Relating to the Status of Refugees (“1951 Convention”), which defined the
term refugee and delineated state parties’ obligations towards refugees, and the 1967 United
Nations Protocol Relating to the Status of Refugees (“1967 Protocol”), which gave the 1951
Convention universal application. In acceding to the 1967 Protocol, the United States committed
itself “to comply with the substantive provisions of Articles 2 through 34 of the [1951 Convention]
with respect to ‘refugees’ as defined in Article 1.2 of the [1967] Protocol.”

ehighs/#:~:text=But%20that%20is%20n0%20longer,“o2C%20Nicaragua%2C%20Peru%20and%20 Venez
uela.

6° See USCIS, Processes for Cubans, Haitians, Nicaraguans, and Venezuelans (Feb. 22, 2023),
https://www.uscis.gov/CHNV.

6! See, e.g., United States v. Windsor, 570 U.S. 744, 774 (2013) (“The liberty protected by the Fifth
Amendment's Due Process Clause contains within it the prohibition against denying to any person the
equal protection of the laws.”); Huynh v. Carlucci, 679 F. Supp. 61, 66 (D.D.C. 1988) (“Discrimination
on the basis of national origin is subject to strict scrutiny and can be sustained only if there is a close
relationship between the classification and promotion of a compelling interest, the classification is
necessary to achieve that interest, and the means or procedures employed are precisely tailored to serve
that interest.’’).

INS vy. Stevic, 467 U.S. 407, 416 (1984).

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These provisions include the requirement for a nondiscriminatory framework to determine
refugee status® and prohibitions on imposing penalties based on unauthorized entry,“ on expelling
a refugee without a proceeding in accordance with due process of law, and on expelling a refugee
to a territory “where his life or freedom would be threatened on account of his race, religion,
nationality, membership of a particular social group or political opinion.”

In 1980, Congress enacted the Refugee Act, which standardized refugee and asylum
procedures in the United States and aligned them with the 1951 Convention and 1967 Protocol.
As a contemporary commentator put it, the law was intended to “reconcile [American] rhetoric
with our law, our national immigration policy and our international treaty obligations so that we
could maintain a consistent posture towards the world as a nation with a strong humanitarian
tradition and a unique historic role as a haven for persons fleeing oppression.”®’ “Both House and
Senate sponsors [of the Refugee Act] emphasized that the purpose was to create a
nondiscriminatory definition of a refugee and to make United States law conform to the UN
Convention.”

For the reasons below, the NPRM is an affront to both the language and the principles of
U.S. and international humanitarian law.

1. By restricting asylum based on manner and place of entry, the NPRM
violates the plain language of the foundational statute of U.S. asylum law—
8 U.S.C. § 1158(a).

The Refugee Act provides at 8 U.SC. § 1158(a)(1) that “[a]ny alien who is physically
present in the United States or who arrives in the United States (whether or not a designated port
of arrival . . .) irrespective of such alien’s status, may apply for asylum in accordance with [this
statute].”© Both Article II] courts and the Board of Immigration Appeals (“BIA”) have
consistently interpreted this provision to mean that place and manner of entry may not be the basis
for the denial of an asylum application.”°

63 See Convention Relating to the Status of Refugees, art 4. July 28, 1951, 19 U.S.T. 6259 (“1951
Convention”’).

64 Td., art. 31.
5 Td., art. 32
6 Td., art. 33.

67 Deborah Anker, The Refugee Act of 1980: An Historical Perspective, 5 IN DEFENSE OF THE ALIEN 89,
89 (1982), https://www.jstor.org/stable/23 141008?read-
now=1 &refreqid=excelsior%3A 1060953608aa0bdd30d5d506e1 ff63 18&seq=l#page scan _tab_ contents.

68 Deborah E. Anker and Michael H. Posner, The Forty Year Crisis: A Legislative History of the Refugee
Act of 1980, 19 SAN DIEGO L.R. 9, 60 (1980) (citing S. Rep. No. 590, 96th Cong., 2d Sess. 1 (1980)).

® Refugee Act of 1980, § 208, Pub. L. 96-212, 94 Stat 102 (codified at 8 U.S.C. § 1158(a)(1)).

10 See, e.g., Matter of Pula, 19 I&N Dec. 467, 473 (BIA 1987), superseded in part by statute on other
grounds as stated in Andriasian v. INS, 180 F.3d 1033, 1043-44 (9th Cir. 1999) (“[Manner of entry]

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The NPRM clearly violates this provision by denying the possibility to apply for asylum
based on place and manner of entry, i.e., by barring all applications not filed at a port of entry
during an appointment scheduled on CBP One. The Departments’ attempt to support the legality
of the NPRM falls resoundingly flat.

The Departments’ discretion to regulate the asylum system does not extend to rules like
the NPRM, which violates the asylum statute. The Departments point to their history of
“exercis[ing] discretion, now expressly authorized by Congress [since 1996], to create new rules
governing the granting of asylum.””! The direct statutory authority they invoke requires that any
“limitations and conditions” be “consistent with [section 1158].””* The proposals are not consistent
with section 1158 and therefore cannot be justified using the Departments’ discretionary authority.

The Departments also cite examples of previous restrictions on asylum eligibility to
support their contention that they have discretionary authority to impose the bans in the NPRM.
These examples do not support that contention. To begin, the examples they cite do not directly
violate the plain language of section 1158 and primarily reflect restrictions contemplated by the
1951 Convention and the 1967 Protocol.’* Moreover, many of those restrictions were codified by
Congress as exceptions or bars to section 1158(a) and therefore have little bearing on the
Departments’ discretionary authority. The Trump administration cited these same examples in
defending its asylum bans, to which the Ninth Circuit Court of Appeals responded that “the
statutory bars in the INA do not separately conflict with explicit text in section 1158(a)””4 and that
“(t]he asylum bars in the INA and in the 1951 Convention appear to serve either the safety of those
already in the United States or . . . the safety of refugees.”’> The same is true here.

The Departments also list previous rulemaking that asserted broad discretion to limit the
availability of asylum. However, three of the six rules they list are proposed or interim final rules
issued by the Trump administration that were struck down as violations of section 1158.’° Thus,
these examples demonstrate the exact opposite of what the Departments attempt to show: the

should not be considered in such a way that the practical effect is to deny relief in virtually cases.”); East
Bay IIT, 993 F.3d at 669 (“Section 1158(a) provides that migrants arriving anywhere along the United
States’ borders may apply for asylum.”); Huang v. INS, 463 F.3d 89, 99 (2d Cir. 2006) (“[I]f illegal
manner of flight and entry were enough independently to support a denial of asylum, . . . virtually no
persecuted refugee would obtain asylum.”) (quoted in East Bay III, 993 F.3d at 671); Hussam F. v
Sessions, 897 F3d 707, 718 (6th Cir. 2018) (“[A]lthough the BIA may consider an alien’s failure to
comply with established immigration procedures, it may not do so to the practical exclusion of all other
factors.”’).

7 88 Fed. Reg. 11,734.

28 US.C. § 1158(a)(2)(C).

® See id.

™ East Bay III, 993 F.3d at 670.
® Td. at 674.

16 See 88 Fed. Reg. 11,735.

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government does not have limitless discretion to regulate the asylum system in order to further
ultra vires policies.

Simply put, the Departments have proposed a rule that is inconsistent with section 1158.
They do not show—and could not show—that they have discretion to enact regulations that are
inconsistent with the asylum statute.’”

The Departments attempt to skirt the violation of section 1158, by emphasizing that a
rebuttable presumption of ineligibility cannot violate section 1158 because it is “not a categorical
bar.”’8 The presumption is not comparable, they say, to the previous administration’s enjoined
manner of entry ban because “[t]he circumvention of orderly refugee processing would only be
relevant where the applicant cannot demonstrate [a] compelling reason why they did not avail
themselves of a growing number of legal pathways to the United States.””’ These distinctions do
not make a difference. The possibility of a rebuttal presumption does not make the manner of entry
ban consistent with the statute. The Departments’ proposal impermissibly conditions access to
asylum on manner of entry. All legal issues in an asylum matter—including categorical statutory
bars—are contestable. That does not mean that the Departments can craft restrictions, however
elaborate and circuitous, that violate the plain language of section 1158. Regardless of the
possibility of rebuttal, conditioning asylum eligibility on manner of entry is unlawful.

Furthermore, the Departments also rely on an alleged distinction in the INA between
limitations on applying for asylum and limitations on eligibility for a favorable grant of asylum.°*°
Section 1158(a), according to the Departments, enshrines only the right to apply for asylum, and
their proposal, they continue, is only a restriction on eligibility for a favorable grant, with which
section 1158(a) is not concerned. However, this distinction is illogical. The previous
administration unsuccessfully made the same argument in defending its manner of entry ban.*!
There, the Ninth Circuit rejected the idea that Congress would make such a distinction. As the
court stated, “[e]xplicitly authorizing a refugee to file an application because he arrived between
ports of entry and then summarily denying the application for the same reason borders on
absurdity. The consequences of denial at the application or eligibility stage are, to a refugee, the
same.” The notion that the statute makes the distinction the Departments put forward—and that

7 See 5 U.S.C. § 706(2)(A), (C) (permitting courts to hold unlawful and set aside agency action that is
“not in accordance with the law” or “in excess of statutory jurisdiction, authority, or limitations.”).

78 88 Fed. Reg. 11,735.
™ 88 Fed. Reg. 11,739.

80 See 88 Fed. Reg. 11,735 (“Section 208 draws a distinction between those permitted to apply for asylum
and those eligible to receive a grant of asylum.”).

8! See East Bay III, 993 F.3d at 670 (“Critical to the government's argument is that section 1158 splits
asylum applications (§ 1158(a)) and eligibility (§ 1158(b)) into two different subsections; therefore, the
government explains, Congress intended to allow DOJ to promulgate limitations on asylum eligibility
without regard to the procedures and authorizations governing asylum applications.”).

82 Td. (emphasis in original).

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such a distinction would support the legality of the rule—is no less absurd now than when the
Ninth Circuit issued its decision.

For these reasons, the manner of entry ban is plainly inconsistent with section 1158(a). The
Departments’ justifications are unavailing. The effect of the ban would be to unlawfully condition
asylum based on manner and place of entry, and thousands of refugees—including many similarly
situated to people BDS assists in presenting meritorious asylum claims—would be denied access
to protection.

2. By requiring refugees to apply for asylum in transit, the NPRM is for similar
reasons inconsistent with the asylum statute.

The NPRM’s transit ban is unlawful for similar reasons. The requirement that people
seeking asylum in the United States (except Mexican nationals) first apply for asylum in any
country through which they transit violates the asylum statute.

The Departments claim that their proposal does not conflict with existing restrictions in
section 1158. This is incorrect. The safe third country bar applies in cases where a refugee can be
removed “pursuant to a bilateral or multilateral agreement” to a country where the refugee’s life
or freedom would not be in danger on account of a protected characteristic and “where the
[refugee] would have access to a full and fair procedure for determining a claim to asylum or
equivalent temporary protection.”** The firm resettlement bar applies where a refugee “received|]
an offer of permanent resident status, citizenship, or some other type of permanent resettlement.”**

In all other cases, “the failure to apply for asylum in a country through which [a refugee]
has transited has no bearing on the validity of [the refugee’s] claim for asylum in the United
States.””®

The NPRM, however, makes asylum eligibility broadly dependent on whether or not a
refugee has applied for asylum while transiting to the United States (in any country of transit). It
is therefore unlawful. As with the manner of entry ban, the Departments rely heavily on the
possibility of rebutting the presumption of ineligibility to argue that its transit ban is consistent
with the statute. They reason that their proposal is not a ban because the presumption is rebutted
on a showing of “imminent and extreme threat to life or safety at the time of entry into the United
States.””°° But, just as with the manner of entry ban, the simple fact of conditioning eligibility based
on whether a refugee applied for asylum in transit is itself inconsistent with the statute. The
possibility of rebutting the presumption based on an imminent danger at the time of entry has
nothing to do with a refugee’s lawful choice to prefer to avail themselves of protection in the

83.8 U.S.C. § 1158(a)(2)(A).

848 C.F.R. § 208.15 (implementing 8 U.S.C. § 1158(b)(2)(vi)).
85 Fast Bay I, 994 F.3d at 982 (citing cases) (emphasis added).
86 88 Fed. Reg. 11,736.

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United States, a safe country with adequate asylum procedures that guarantees them the right to
apply.

Even if the transit ban were consistent with the statute, the Departments misrepresent the
safety of the countries through which refugees transit enroute to the United States, as well as the
adequacy of their asylum procedures. As discussed above, refugees face significant physical
danger in countries such as Mexico, Colombia, Guatemala, and Honduras, none of which can
guarantee a full and fair asylum procedure. In enjoining the Trump-era transit ban, the Ninth
Circuit stated that “the agencies’ conclusion ...ignores extensive evidence in the record
documenting the dangerous conditions in Mexico and Guatemala that would lead [refugees] with
valid asylum claims to pursue those claims in the United States rather than in those countries.”
The same is true here.

The proposed transit ban is unlawful because it is inconsistent with the asylum statute and
ignores the compelling and lawful reasons that a refugee would prefer to seek asylum in the United
States.

3. The NPRM violates the United States’ commitments under international
refugee law.

In addition to its incompatibility with U.S. refugee law, the NPRM violates various
provisions of the 1951 Convention and the 1967 Protocol, such as the ban on penalties based on
unauthorized entry, the ban on expulsion of refugees without due process of law, and the guarantee
of nondiscrimination in asylum proceedings. In determining that the Trump-era manner of entry
ban was unreasonable, the Ninth Circuit factored in provisions of the 1951 Convention and 1967
Protocol,*’ and the same reasoning applies here.

First, the NPRM violates Article 31 of the 1951 Convention by imposing a penalty on
asylum seekers based on unauthorized entry.8* The Departments make clear that at least one goal
of the NPRM is punitive: “[t]he proposed rule would also position the Departments to impose
consequences on certain noncitizens who fail to avail themselves of lawful, safe, and orderly means
for seeking protection in the United States or elsewhere.””®? That consequence is the denial of the
right to asylum and summary expulsion based on manner of entry or transit. UNCHR addressed
this type of penalty in a brief supporting an injunction against the Trump’s administration’s manner

87 See East Bay III 993 F.3d at 672 (“The Attorney General's interpretation of section 1158(a) is also
unreasonable, as the district court discussed, in light of the United States's treaty obligations.”).

88 1951 Convention, art. 31(1) (“The Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom
was threatened in the sense of article 1, enter or are present in their territory without authorization,
provided they present themselves without delay to the authorities and show good cause for their illegal
entry or presence.”). UNHCR has explained that the term “coming directly” “does not disenfranchise
refugees who have passed through, or even have been previously admitted to, another country.” Brief of
Amicus Curiae, UNHCR, O.A. v. Biden, No. 19-5272, Dkt. No. 1856344 at 19 (D.C. Cir. Aug. 13, 2020)
(quotations omitted).

8° 88 Fed. Reg. 11,735.

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of entry ban. As UNHCR explained, the drafters of the Protocol sought “to prohibit any penalties
imposed on refugees due to their unlawful entry.”°° UNHCR continued, “[t]he nature of the penalty
imposed [by the transit ban]—the categorical denial of asylum process . . . will likely result in the
return of some refugees to countries where they will be persecuted.”?! The Departments’ current
proposal creates exactly the same type of penalty and therefore violates the Protocol in the same
way.

Second, the NPRM violates Article 32 of the 1951 Convention by proposing to expel
refugees without due process of law?’—also a serious cause for concern under U.S. law. The
Departments’ scheme would add obstacles to the statutory procedure for expedited removal by (1)
depriving asylum seekers of immigration court review unless affirmatively requested, and (2)
removing their ability to request USCIS reconsideration of negative credible fear determinations.
This would strip the expedited removal process—which already suffers from serious procedural
deficiencies’>—of two important safeguards built into the statute creating the extraordinary form
of removal proceedings. It is especially concerning that the new credible fear interviews would
take place in the crushing environment of CBP custody—without access to counsel or an
opportunity to prepare. Given the hurdles placed before review of the determination, the NPRM
would result in summary expulsions without due process of law.

Third, the NPRM violates Article 3 of the 1951 Convention by discriminating in refugee
proceedings” for the reasons listed in the discussions of discrimination above. It will only bar
asylum for people entering the United States via the southwest border and, as such, will have a
discriminatory impact based on race, ethnicity, and national origin.?° By incorporating the Biden
administration’s parole scheme for certain countries, it will have a discriminatory impact based on

°° Brief of UNHCR, supra n.90, at 28.
°! Td. at 29.

2 1951 Convention, art. 32(2) (“The expulsion of such a refugee shall be only in pursuance of a decision
reached in accordance with due process of law.”).

3 See, e.g., “You Don’t Have Rights Here:” US Border Screening and Returns of Central Americans to
Risk of Serious Harm, Human Rights First (2014), https://www.hrw.org/report/2014/10/16/you-dont-
have-rights-here/us-border-screening-and-returns-central-americans-risk (“Research by Human Rights
Watch and others show that the CBP’s methods for interviewing migrants in expedited removal
procedures are seriously flawed.”); Sara Campos and Guillermo Cantor, Ph.D., Deportations in the Dark:
Lack of Process and Information in the Removal of Mexican Migrants 12, American Immigration Council
(2017),

https://www.americanimmigrationcouncil.org/sites/default/files/research/deportations in the dark.pdf
(“[A]s noted in some of the testimonies, immigration authorities often ignore these significant
requirements [to inform migrants of charges against them and the opportunity to review their sworn
statement.]’’).

°4 1951 Convention, art. 3 (“The Contracting States shall apply the provisions of this Convention to
refugees without discrimination as to race, religion or country of origin.”).

°5 See supra Part ILF.

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national origin.”° And the NPRM’s reliance on CBP One will have a discriminatory impact on
Black refugees, who may not be able to use the app due to faulty face recognition that does not
accept dark-skinned faces.”’ These discriminatory effects violate the 1951 Conventions.

For these reasons, the NPRM violates specific provisions of the United States’
commitments under international law, further demonstrating how incompatible the NPRM is with
a humane, fair, and lawful asylum system.

* * *

Starting from its euphemistic title, “Circumventing Lawful Pathways,” and all the way to
its end, the NPRM is a betrayal of the United States’ moral and legal obligations to respect the
right to asylum. Without any demonstrated benefit, the NPRM would deny asylum to thousands
of refugees regardless of the strength of their claims and on bases that are patently illegal.

The right to asylum is not and cannot be conditioned on manner and place of entry or on
whether an applicant has requested asylum in a transit country. It does not matter that the
Departments mask what amount to bans in the language of presumptions and rebuttals. The
Departments must rescind the NPRM in its entirety.

Sincerely,

/s/_ Kevin Siegel
Kevin Siegel
Staff Attorney, Civil Rights and Law Reform

/s/ Lucas Marquez
S. Lucas Marquez
Director, Civil Rights and Law Reform

6 See id.
°7 See supra Part ILE.

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NICARAGUA 2021 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY

Nicaragua has a highly centralized, authoritarian political system dominated by
President Daniel Ortega Saavedra and his wife, Vice President Rosario Murillo
Zambrana. Ortega’s Sandinista National Liberation Front party exercises total
control over the country’s executive, legislative, judicial, and electoral functions.
President Ortega awarded himself a fourth consecutive term in November elections
after arbitrarily jailing nearly 40 opposition figures, barring all credible opposition
political parties from participating, blocking legitimate international observation
efforts, and committing widespread electoral fraud. Independent observer groups
and international organizations characterized the electoral process as seriously
flawed, lacking credibility, and defined by historically low voter turnout. The
2021 elections expanded the ruling party’s supermajority in the National
Assembly, which previously allowed for changes in the constitution that extended
the reach of executive branch power and eliminated restrictions on re-election of
executive branch officials and mayors. Observers noted serious flaws in
municipal, regional, and national elections since 2008. Civil society groups,
international electoral experts, business leaders, and religious leaders identified
persistent flaws in the 2019 Caribbean regional and 2017 municipal elections and
noted the need for comprehensive electoral reform.

The Nicaraguan National Police is responsible for internal security. The army is
responsible for external security but also has some domestic security
responsibilities. Both report directly to the president, pursuant to changes in the
police and army code in 2014. Parapolice, which are nonuniformed, armed, and
masked units with tactical training and organization, act in coordination with
government security forces, under the direct control of the government, and report
directly to the national police. Civilian authorities maintained effective control
over police and parapolice security forces. There were credible reports that
members of the security forces committed numerous abuses.

Significant human rights issues included credible reports of: unlawful or arbitrary
killings, including extrajudicial killings; forced disappearances; torture and cruel,

Country Reports on Human Rights Practices for 2021
United States Department of State « Bureau of Democracy, Human Rights and Labex| p PC 024058
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inhuman, or degrading treatment or punishment by prison guards and parapolice;
harsh and life-threatening prison conditions; arbitrary arrest and detentions;
political prisoners; politically motivated reprisal against individuals located in
another country; serious problems with the independence of the judiciary; arbitrary
and unlawful interference with privacy; punishment of family members for
offenses allegedly committed by an individual; serious restrictions on free
expression and media, including threats of violence, unjustified arrests, censorship,
criminal libel suits against journalists; substantial interference with the rights of
peaceful assembly and freedom of association, including overly restrictive laws on
the organization, funding, and operation of nongovernmental organizations and
civil society organizations; severe restrictions on religious freedom; restrictions on
freedom of movement within the country and the right to leave the country;
inability of citizens to change their government peacefully through free and fair
elections; serious and unreasonable restrictions on political participation; serious
corruption; serious government restrictions on and harassment of domestic and
international human rights organizations; lack of investigation of and
accountability for gender-based violence; trafficking in persons; crimes involving
violence or threats of violence targeting ethnic minorities and indigenous
communities; crimes involving violence or threats of violence targeting lesbian,
gay, bisexual, transgender, queer and intersex persons; and the worst forms of child
labor.

The government did not take steps to identify, investigate, prosecute, or punish
officials who committed human rights abuses, including those responsible for at
least 355 killings and hundreds of disappearances during the prodemocracy
uprising of April 2018. The government did not address instances of widespread
corruption. President Ortega actively strengthened impunity for human rights
abusers who were loyal to him.

Police, parapolice, and individuals linked to the Ortega regime carried out a
campaign of harassment, intimidation, and violence toward perceived enemies of
the regime, such as former political prisoners and their families, farmworker
activists, prodemocracy opposition groups, human rights defenders, private-sector
leaders, and Catholic clergy.

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Section 1. Respect for the Integrity of the Person

a. Arbitrary Deprivation of Life and Other Unlawful or Politically
Motivated Killings

There were several reports that the government or its agents committed arbitrary or
unlawful killings. Human rights organizations and independent media alleged
some killings were politically motivated, an allegation difficult to confirm because
the government refused to conduct official inquiries.

Reports of killings were common in the north-central regions and the North
Caribbean Autonomous Region (RACN). Human rights groups said these killings
illustrated a continuation of a campaign of terror in the north-central and RACN
regions, perpetrated by parapolice groups to stamp out political opposition to the
ruling Sandinista National Liberation Front (FSLN) party. On March 29, unknown
assailants shot Ernesto Jarquin five times in the chest in the north-central town of
Mulukuku. Imprisoned in 2018 for participating in prodemocracy protests in
Mulukuku, Jarquin was released with other political prisoners under a 2019
amnesty law. The Nicaraguan National Police (NNP) and official media reported
Jarquin’s killing by focusing on the government’s previous allegations of Jarquin’s
involvement in homicide, illegal weapons possession, collusion to commit crimes,
and kidnapping in association with his participation in 2018 prodemocracy
protests. As of October no arrests had been made in the case.

On August 23, land invaders linked to the ruling FSLN party killed at least 13
indigenous persons. The attack happened near Musawas, in the Sauni As territory,
in a protected area of the Bosawas biosphere reserve. The attack included rape and
dismemberment. On September 8, police stated the attack stemmed from a quarrel
over an artisanal gold mining site and that police had identified 14 assailants and
captured three. Witnesses and indigenous rights defenders disputed the findings
and said police had arrested individuals other than those identified as perpetrators
by the community and had failed to address the root causes that lead to such
attacks.

There was no indication the government investigated crimes committed by police
and parapolice groups related to the 2018 prodemocracy uprising. In April 2018

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President Ortega and Vice President Murillo ordered police and parapolice forces
to suppress violence peaceful protests that began over discontent with a
government decision to reduce social security benefits. By late November 2018,
the ensuing conflict had left at least 355 persons dead; more than 2,000 injured;
thousands forced into hiding; hundreds illegally detained and tortured; and as of
September, more than 130,000 in exile in neighboring countries. Beginning in
August 2018, the Ortega government instituted a policy of “exile, jail, or death” for
anyone perceived as opposition, amended terrorism laws to include prodemocracy
activities, and used the justice system to prosecute civil society actors as terrorists,
assassins, and coup mongers. Police and the Public Prosecutor’s Office detained,
brought to trial, and imprisoned many members of the prodemocracy opposition.
Human rights organizations documented that the investigations and prosecutions
did not conform to the rule of law. The government continued to make no effort to
investigate several 2017 incidents of extrajudicial killings and torture in both the
North and South Caribbean Autonomous Regions. The army continued to deny its
involvement in cases perceived by human rights organizations as politically
motivated extrajudicial killings.

b. Disappearance

Starting on May 28, police detained at least 40 members of the opposition and civil
society leaders using a February change in the criminal procedural code that allows
for a detention period of up to 90 days during the public prosecutor’s initial
investigation, before presenting charges. While technically under custody of
police or prison authorities, the 40 detained leaders did not have access to legal
counsel or family visitations. Authorities did not reveal the location of these
detainees, and judicial authorities rejected habeas corpus writs in their favor.
National and international human rights organizations deemed the detention of
these political prisoners effectively a form of forced disappearance. After
authorities held them incommunicado for months, at least 25 of these political
prisoners were formally charged in August, at which time they were allowed
limited access to legal counsel and three 30-minute family visits.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or

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Punishment

Although the law prohibits such practices, government officials intentionally
carried out acts that resulted in severe physical or mental suffering for the purposes
of securing information, inflicting punishment, and psychologically deterring other
citizens from reporting on the government’s actions or participating in civic actions
against the government. Members of civil society and student leaders involved in
the protests that began in April 2018 were more likely than members of other
groups to be subjected to such treatment.

On July 6, authorities detained prodemocracy student leader Lesther Aleman
Alfaro without a warrant. The Public Prosecutor’s Office later announced it had
accused Aleman of treason under the Law for the Defense of the Rights of the
People to Independent Sovereignty and Self-Determination for Peace, or Law
1055, passed in December 2020. Prison authorities held Aleman incommunicado
in solitary confinement at the El Chipote detention center, with no access to legal
counsel or family visits, no access to sunlight, and with lights on 24 hours a day in
his cell. He endured multiple interrogations a day. After 58 days in detention, he
was briefly allowed to see a family member and a lawyer. Following Aleman’s
arraignment, his lawyer said he appeared severely underweight and under deep
psychological duress. Human rights groups characterized Aleman’s treatment by
prison authorities as psychological torture. Other political prisoners suffered
similar conditions while in detention, including several who had protective
measures in place from the Inter-American Commission of Human Rights.

Human rights organizations reported female prisoners were regularly subjected to
strip searches, degrading treatment, and rape threats while in custody of parapolice
forces, prison officials, and police. Prison officials forced female prisoners to
squat naked and beat them on their genitals to dislodge any supposedly hidden
items.

Impunity persisted among police and parapolice forces in reported cases of torture,
mistreatment, or other abuses. The NNP’s Office of Internal Affairs is charged
with investigating police suspected of committing a crime. The Office of the
Military Prosecutor investigates crimes committed by the army, under the
jurisdiction of the Office of the Military Auditor General. With complete control

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over the police, prison system, and judiciary branch, however, the FSLN governing
apparatus made no effort to investigate allegations that regime opponents were
tortured or otherwise abused.

Prison and Detention Center Conditions

Prison conditions were harsh and potentially life threatening. Overcrowding, poor
sanitation, difficulties obtaining medical care, and violence among prisoners
remained serious problems in prison facilities.

Physical Conditions: Prison conditions continued to deteriorate due to antiquated
infrastructure and increasing inmate populations. Despite new temporary holding
cells in the Directorate of Judicial Assistance, the rest of the prison system was in
poor condition. The government reported overcrowding in five of the seven
prisons for men, holding 15,333 prisoners with capacity for 12,600, or 22 percent
over capacity in 2020. The government did not provide updated figures for the
year. More than 1,000 of these inmates were held in the prison known as La
Modelo. Human rights organizations continued to be concerned about prison
overcrowding. Due to overcrowding, pretrial detainees often shared cells with
convicted prisoners, and juveniles shared cells with adults.

Many prisoners suffered mistreatment from prison officials and other inmates.
Human rights organizations confirmed that at least 16 men detained in the context
of the 2018 protests were subjected to solitary confinement in maximum-security
cells of La Modelo Prison, in some cases for months at a time. Political prisoners
held since the government’s crackdown that began in May were detained in
Directorate of Judicial Assistance temporary holding cells, known as El Chipote.
Relatives of the prisoners reported that at least four women were held in solitary
confinement in El Chipote since June.

Inmates also suffered from parasites, inadequate medical attention, frequent food
shortages and food contamination, contaminated water, and inadequate sanitation.
The COVID-19 pandemic compounded these conditions. The government failed
to take adequate measures to protect inmates from illness. Prison authorities
prohibited the delivery of health and hygiene kits provided by family members for
inmates to protect themselves from COVID-19, particularly in the case of political

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prisoners. Human rights groups reported that prison authorities randomly
fumigated prisons with inmates still inside their cells. Although sanitary
conditions for female inmates were generally better than those for men, they were
nevertheless unsafe and unhygienic. According to the most recently available
government report, the Human Rights Ombudsman’s Office received five
complaints related to prison conditions between January 2019 and September
2020, of which it resolved four and dismissed one as unsubstantiated. The Human
Rights Office did not make updated numbers publicly available for the year.

Conditions in jails and temporary holding cells were also harsh. Most facilities
were physically decrepit and infested with vermin; had inadequate ventilation,
electricity, or sewage systems; and lacked potable water.

The government continued to release common criminals outside of lawfully
prescribed procedures, telling them their release was “thanks to the president.”
Between January and October, the government released up to 2,700 prisoners.
Independent media and human rights organizations reported that following their
release, some of these individuals were responsible for at least two femicides and
one killing.

Administration: Although prisoners and detainees could submit complaints to
judicial authorities without censorship and request investigation of credible
allegations of inhuman conditions, authorities often ignored or did not process
complaints. The extent to which the government investigated allegations of poor
prison conditions was unknown. The government ombudsman could serve on
behalf of prisoners and detainees to consider such matters as informal alternatives
to incarceration for nonviolent offenders, although this generally did not occur.

The government restricted political prisoners’ access to visitors, attorneys, and
physicians. Staff members of human rights organizations, family members, and
other interested parties were not allowed access to the prison system or to prisoners
in custody.

Independent Monitoring: The government permitted the International
Committee of the Red Cross (ICRC) access to some prisoners but denied prison
visits by local human rights groups and media outlets. The government reportedly

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denied the ICRC access to 40 political prisoners detained since May 28, despite
ICRC requests to see those detainees. Nongovernmental organizations (NGOs)
generally received complaints through family members of inmates and often were
unable to follow up on cases until after the release of the prisoner due to lack of
access. The government denied all requests from local human rights organizations
for access to prison facilities.

d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention and provides for the right of any
person to challenge the lawfulness of his or her arrest or detention in court.
Human rights NGOs, however, noted hundreds of cases of arbitrary arrests by
police and parapolice forces, although parapolice have no authority to make
arrests. Human rights organizations reported police and parapolice agents
routinely detained and released government opponents within a 48-hour window,
beyond which the Public Prosecutor’s Office would have to request to extend
detention for up to 90 days to continue its investigation. Detentions of political
opponents mostly occurred without a warrant or formal accusation and for causes
outside the legal framework.

Arrest Procedures and Treatment of Detainees

The law requires police to obtain a warrant from a judicial authority prior to
detaining a suspect and to notify family members of the detainee’s whereabouts
within 24 hours, but this rarely happened in the context of arrests related to civil
unrest.

Police may hold a suspect legally for 48 hours before arraignment or release;
however, a February amendment to the criminal procedural code allows for the
Public Prosecutor’s Office to request an extension for 15 to 90 days if a judge
deems the case complex. A judge then must order the suspect released or
transferred to jail for pretrial detention. The suspect is permitted family member
visits after the initial 48 hours. A detainee has the right to bail unless a judge
deems there is a flight risk. The criminal code lists a number of crimes that may be
tried by a judge without a jury and that would not qualify for bail or house arrest
during the duration of the trial. Detainees have the right to an attorney

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immediately following their arrest, and the state provides indigent detainees with a
public defender. In several instances authorities denied having detainees under
custody in a specific jail, even to their family members or legal counsel. Police
routinely rejected complaints filed by prodemocracy opposition activists.

The government used money laundering laws, a foreign agents law, and a law for
the defense of sovereignty against political opponents. Human rights organizations
and civil society activists asserted that these laws constituted part of a larger
scheme by the ruling FSLN party to exert its own concept of sovereign security,
laid out in the 2015 Sovereign Security Law, which significantly broadened the
definition of state sovereignty and security, as a pretext to arrest protesters and
citizens it deemed in opposition to its goals.

Arbitrary Arrest: According to NGOs and other human rights groups, arbitrary
arrests occurred regularly, particularly of those the government deemed active
opposition members or participants in previous prodemocracy protests. The
government detained several members of the opposition for extended periods using
Law 1055 (Law for the Defense of the Rights of the People to Independence,
Sovereignty, and Self-Determination for Peace). The statute does not specify
sentencing guidelines, and the individuals were eventually charged under other
Statutes.

For example, the 40 political prisoners detained between May and November were
not allowed to choose their own legal counsel and were arbitrarily assigned a
public defender for their initial pretrial hearings. After holding the political
prisoners incommunicado for months, the government permitted most to choose
their own legal counsel and allowed family visits on three occasions. The law
allows for family visits ranging from every eight days to every 21 days. Family
visits were restricted to once a month only to highly dangerous prisoners. Prison
authorities held the political prisoners incommunicado for 50 to 80 days before
allowing them to see an attorney of their choice and receive limited family visits.
Their hearings were not public, and most lawyers did not receive a copy of the
court records prior to the trial. In an effort to impede access to legal counsel,
hearings for political prisoners were held inside the jail instead of a court of law,
outside of normal working hours. Judicial officials did not record the hearings or
give the defendant’s legal counsel a transcript of the hearings. Other prisoners also

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reported a lack of immediate access to an attorney or legal counsel and were not
afforded one during their detention.

In many cases police and parapolice detained persons who had participated in
prodemocracy protests in 2018 and 2019 but who were not currently participating
in any activity deemed illegal or in opposition to the ruling party. Police often
arrested these individuals without a warrant and occasionally entered private
homes or businesses without a court order. In several cases police raided and
ransacked the houses of those detained, also without court warrants. Many arrests
were allegedly made without informing family members or legal counsel. Reports
were common of armed, hooded men in plain clothes acting alone or together with
police to arrest and detain prodemocracy protesters. In several cases groups of
hooded men looted the homes of political opponents immediately after police left
the scene. Human rights organizations indicated that delays in the release of
prisoners after finishing prison terms led to many cases of arbitrary continuation of
a State of arrest. Police also committed irregular arrests and detentions under the
guise of investigations into armed opposition groups or other violent crimes in the
north-central regions of the country.

Pretrial Detention: Lengthy pretrial detention continued to be a problem. Many
opposition leaders and prodemocracy protesters were detained and held with no
charges and without following due process. Observers noted that in several
instances lengthy pretrial detention was intentional against specific protest leaders.
Observers attributed other delays to limited facilities, an overburdened judicial
system, judicial inaction, and high crime rates. No information was available on
the percentage of the prison population in pretrial detention or the national average
length of pretrial detention.

Detainee’s Ability to Challenge Lawfulness of Detention before a Court:
While the law provides detainees the ability to challenge the legality of their
detention before a court, the government generally did not allow those arrested
during protests to challenge in court the lawfulness of their arrests or detentions.
In cases of political opponents, judges regularly denied or ignored constitutional
protections for detainees, including habeas corpus.

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e. Denial of Fair Public Trial

The law provides for an independent judiciary, but the government did not respect
judicial independence and impartiality. The law requires vetting of new judicial
appointments by the Supreme Court of Justice, a process dominated by the
government. Once appointed, most judges submitted to political pressure and
economic inducements for themselves or family members that compromised their
independence. The 40 political prisoners arrested between May 28 and November
10 were subjected to closed pretrial hearings without access to their own lawyers
or notification of family members. The court arbitrarily assigned public defenders
for these detainees. Although the Public Prosecutor’s Office announced these
hearings afterwards, details were scarce. These detainees were held
incommunicado for up to 80 days without access to independent private legal
counsel or to family members. The justice system did not confirm the location of
these detainees. The cases of these detainees did not appear in an online system
for public access to legal cases. Five FSLN-aligned judges — Henry Morales, Nalia
Ubeda, Abelardo Alvir, Karen Chavarria, and Gloria Saavedra — oversaw the
pretrial hearings against these detainees. These judges routinely denied writs in
favor of the defendants and in some cases denied defendants and their lawyers
access to the accusations and other court documents before the hearings. After
holding them incommunicado for months, the government permitted most political
prisoners to choose their own legal counsel starting in August.

NGOs complained of delayed justice caused by judicial inaction and widespread
impunity, especially regarding family and domestic violence and sexual abuse. In
cases against political activists, judges at the bidding of the government handed
down biased judgments, including adding charges for crimes not presented by the
prosecutor’s office. Lawyers for political prisoners reported that judges routinely
dismissed defendants’ evidence and accepted prosecutors’ anonymous sources as
valid. In many cases trial start times were changed with no information provided
to one or both sides of the trial, according to human rights organizations.
Authorities occasionally failed to respect court orders.

Trial Procedures

The law provides the right to a fair and public trial. Changes to the law enacted in

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2017, however, allow judges to deny jury trials in a wider range of cases, deny bail
or house arrest based on unclear rules, and arbitrarily move a case from other
judicial districts to Managua, to the disadvantage of defendants, their families, or
their counsel. Defendants have the right to be fully and promptly informed of the
charges against them and the right to a fair trial, although this was not respected.
While the law establishes specific time periods for cases to come to trial, most
cases encountered long delays. Trials are public, except in some cases involving
minors or at the victim’s request. The law requires defendants must be present at
their trial, although this was not always respected.

The hearings for many political prisoners detained between May and September
did not conform to legal procedures. The defendants were detained without
warrants and were not afforded legal counsel of their choice or access to their
family members within 48 hours after their detention or during at least two initial
hearings. Their location was not publicly disclosed, judges dismissed or ignored
habeas corpus writs in their favor, hearings and trials were closed to the public and
held within the detention center, and, when they finally had access to their legal
counsel of choice, judicial and prison officials denied lawyers access to their
clients and refused to provide lawyers with the court documents before trial,
including the charges against their clients.

According to the constitution, defendants are presumed innocent until proven
guilty. Observers claimed, however, that the extension of time from 48 hours to up
to 90 days that a detainee can be held during a pretrial investigation posed an
undue presumption of guilt on defendants. In the case of the political prisoners
detained between May and November, Chief of Police Francisco Diaz told official
media that police had “enough proof to ensure that these terrorists, these vandals,
these coup-mongers face the consequences.” Diaz gave the interview when the
defendants were still awaiting trial and before any charges were confirmed. The
Public Prosecutor’s Office presented police officers as witnesses in hearings on
these charges. In her daily press briefings, Vice President Murillo frequently
referred to political prisoners as “terrorists” and “coup-mongers,” although the
prisoners were still awaiting trial.

Migration authorities confiscated the passports of at least 30 Nicaraguans at either
the international airport or at land border crossings, although the individuals had no

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formal charges pending against them. Officials provided no explanation other than
saying authorities higher up the chain of command had ordered migratory
restrictions against the individuals. Some human rights defenders saw this as a de
facto presumption of guilt without a formal accusation. The government also
prevented a civil society leader from returning to the country, without reason or
formal charge against the individual. Under the law defendants have the right to
legal counsel, and the state provides public defenders for indigent persons.
Defendants have the right to adequate time and facilities to prepare a defense, but
judges commonly failed to grant counsel’s access to the defendant. In several
instances related to prodemocracy protests, defendants were not allowed to name
their legal counsel, and the court appointed a public defender, which family
members and human rights organizations claimed was detrimental to the
defendant’s case. In many cases involving the government’s political opponents,
private defense lawyers were barred from meeting with defendants and trial times
were set outside of working hours in an effort to force the accused to accept a
public defender appointed by a biased judiciary. Additionally, several pretrial
hearings took place in detention centers rather than a courtroom, without notifying
defendants’ legal counsel. In at least one instance, lawyers who entered the
detention center to participate in the trial were threatened by a guard, who
wondered aloud whether the lawyers would be allowed to leave the prison after the
hearing. At least seven lawyers defending political prisoners were forced to flee
the country due to harassment and death threats against them. Although the
constitution recognizes indigenous languages, indigenous defendants were not
always granted court interpreters or translators. Under the law defendants may
confront and question witnesses and have the right to appeal a conviction.
Defendants may present their own witnesses and evidence in their defense;
however, some judges refused to admit evidence on behalf of the defense.
Defendants may not be compelled to testify or confess guilt. Nevertheless, many
defendants continued to be interrogated by police and prison guards while their
trials were in process.

Women’s rights organizations believed the court system continued to operate
under unofficial orders not to impose jail time or pretrial detention in domestic
violence cases. The policy reportedly applied only to domestic violence cases that
authorities considered mild.

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Political Prisoners and Detainees

Human rights NGOs characterized as political prisoners those detained in the
context of prodemocracy protests and those detained as part of the government’s
crackdown on the political opposition starting in May. The government does not
recognize political prisoners as an inmate category and considers all prisoners to be
common criminals. According to human rights organizations, the government
continued to hold more than 150 political prisoners as of September, with at least
20 of them in solitary confinement.

Political prisoners did not receive appropriate health care, including while
suffering COVID-19 symptoms. Several political prisoners were severely
undernourished, with no access to sunlight or appropriate health-care services.
Some political prisoners were denied access to medicine and medical treatment for
chronic illnesses.

Political prisoners were kept together with common criminals. Advocacy groups
reported that prison authorities instigated quarrels between the general prison
population and political prisoners by blaming political prisoners for any withheld
privileges, often resulting in violence. Human rights organizations received
several reports of political prisoners being beaten, threatened, held in solitary
confinement for weeks, and suffering from poor ventilation and poisoned or
contaminated food and water.

The government did not permit access to political prisoners by local human rights
groups.

Politically Motivated Reprisal against Individuals Located Outside the
Country

Groups of exiles in Costa Rica alleged political persecution by parapolice and
FSLN sympathizers who crossed the border to target exiles. Family members of
opposition exiles were surveilled and harassed in an attempt to force exiles to
return to the country and face arrest. In at least one instance, migration authorities
withheld documentation for a minor to exit the country in an effort to force the
exiled father to return to Nicaragua and face arrest. The Public Prosecutor’s Office
accused three exiled Nicaraguans of conspiring to undermine national integrity.

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In October 2020 the National Assembly approved the politically motivated
Cybercrimes Law, which establishes the government may use the international
extradition system to pursue Nicaraguans abroad who commit so-called
cybercrimes.

Civil Judicial Procedures and Remedies

Individuals and organizations may file suit in civil courts to seek damages for
alleged human rights violations, but authorities did not always respect court
decisions.

The lack of an effective civil law system resulted in some civil matters being
pursued as criminal cases, which were often resolved more quickly. In several
instances, individuals and groups appealed to the Inter-American Commission on
Human Rights (IACHR), which passed their cases to the Inter-American Court of
Human Rights. The government regularly dismissed or ignored orders from the
Inter-American Court of Human Rights, including orders to protect or release
certain political prisoners.

Property Seizure and Restitution

The government regularly failed to take effective action with respect to seizure,
restitution, or compensation of private property. These failures were exacerbated
by the social upheaval in 2018, in which groups of persons, including members of
the FSLN, illegally took over privately owned lands, with implicit and explicit
support by municipal and national officials. Some land seizures were politically
targeted and directed against specific individuals, such as business owners
traditionally considered independent or against the ruling party. In August the
government seized the house of independent journalist Patricia Orozco while she
was in exile, and police evicted her parents from the house. On September 7, the
government revoked a 2008 donation of property to the National Public
Accountant’s College. The revocation happened several days after the Public
Prosecutor’s Office summoned the coordinator of the college for questioning
regarding the government’s politically motivated money laundering case against a
foundation run by a presidential precandidate.

The Office of the Attorney General routinely either rejected requests to evict

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illegal occupants of real property or failed to respond to the requests altogether.
National and local police also routinely refused to evict illegal occupants of real
property. Police often took no action against violence perpetrated by illegal
occupants, while acting swiftly against any use of force by legitimate property
owners. The judicial system delayed final decisions on cases against illegal
occupants. Members of the judiciary, including those at senior levels, were widely
believed to be corrupt or subject to political pressure. When judges issued orders
in favor of landowners, enforcement of court orders was frequently subject to
nonjudicial considerations. In the face of government inaction, some landowners
were forced to pay squatters to leave their real property. As of September nine
NGOs still did not have a legal resolution or any type of compensation after the
National Assembly annulled their legal status and the government seized their
properties in 2018.

f. Arbitrary or Unlawful Interference with Privacy, Family, Home,
or Correspondence

The law prohibits arbitrary or unlawful interference with privacy, family, home,
and correspondence. The government, however, failed to respect these
prohibitions. In several trials against political opposition members, the Public
Prosecutor’s Office presented messages, emails, and documents exchanged
through private phones and computers, obtained by police through raids without
judicial warrants. FSLN grassroots organizations such as the Citizen Power
Councils colluded with parapolice or party loyalists to target the homes of
prodemocracy protesters. Without a warrant and under no legal authority, these
groups illegally raided homes and detained occupants. Police routinely stationed
police vehicles and officers outside the homes of opposition members, harassing
visitors and often prohibiting opposition members from leaving their houses.
These actions were widespread in large cities, particularly Managua, Matagalpa,
Esteli, Masaya, Rivas, Leon, and Jinotega.

The Ministry of Health continued to hold several buildings seized by the Interior
Ministry in 2018 from independent television station 100% Noticias and news
magazine Confidencial and nine NGOs when it annulled the legal status of the
media groups and NGOs. The ministry ordered the seized assets transferred to

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government ownership to create a Comprehensive Attention and Reparation Fund
for the Victims of Terrorism. The government carried out this de facto
confiscation without following due process or providing appropriate compensation
to the lawful owners. Police again raided the offices and television studio of
Confidencial on May 20, acting without a judicial warrant and seizing television
equipment, computers, and documents from the news outlet.

Domestic NGOs, Catholic Church representatives, journalists, and opposition
members alleged the government monitored their email and telephone
conversations. Church representatives also stated their sermons were monitored.
As part of a continuing social media campaign against prodemocracy protests,
ruling party members and supporters used social media to publish personal
information of human rights defenders and civil society members. Progovernment
supporters marked the houses of civil society members with derogatory slurs or
threats and then published photographs of the marked houses on social media. On
several occasions the markings were accompanied by or led to destruction of
private property. Although the law prohibits the use of drones, some members of
the opposition claimed FSLN supporters used drones to spy on their houses.

Inhabitants in northern towns, particularly in the departments of Nueva Segovia,
Jinotega, and Madriz, as well as the RACN and the South Caribbean Autonomous
Region (RACS), alleged repeated government interrogations and searches without
cause or warrant, related to supposed support for armed groups or prodemocracy
protests, while government officials claimed they were confronting common
criminals. Several opposition members who were former Contras claimed they
were regularly surveilled, stopped, and detained by police for questioning for
several hours, usually in connection with alleged contact with rearmed groups or
antigovernment protests. The individuals also said progovernment sympathizers
verbally threatened them outside their homes and surveilled and defaced their
houses.

The ruling party reportedly required citizens to demonstrate party membership to
obtain or retain employment in the public sector and have access to public social
programs.

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Section 2. Respect for Civil Liberties

a. Freedom of Expression, Including for Members of the Press and
Other Media

The law provides for freedom of expression, including for members of the press
and other media, but the government did not respect this right. Restrictions on
press freedom, the absence of an independent judiciary, and a nondemocratic
political system combined to inhibit freedom of expression, including for members
of media. Although the law provides that the right to information may not be
subjected to censorship, the government and actors under its control retaliated
against the press and radio and television stations by blocking transmissions,
impeding the import of ink and paper, and committing violence against journalists.
The government sought to control information on the COVID pandemic by
restricting news coverage and blocking independent media access to public health
briefings, as well as using government-aligned media to publish misinformation.

Freedom of Expression: The government used reprisals and Law 1055 to restrict
the ability of individuals to criticize the government. Persons who criticized the
government, the ruling party, or its policies were subjected to police and parapolice
surveillance, harassment, imprisonment, and abuse. Beginning in May, the
government used the law as a pretext to arrest and imprison presidential
candidates, independent journalists, civil society members, opposition leaders,
NGO workers, student leaders, human rights defenders, farmworker advocates, and
private-sector leaders who criticized the government. Progovernment supporters
considered the use of the national flag and the national colors of white and blue as
acts of defiance and attacked opposition activists flying the flag or national colors.

Freedom of Expression for Members of the Press and Other Media, Including
Online Media: Independent media were active and expressed a wide variety of
views, albeit mainly through online venues due to the government’s restrictions
and intimidation. In June and July, the government arrested five independent
journalists, including three presidential precandidates, and the general manager of
the country’s largest print daily newspaper on charges of “undermining national
integrity.” As of October the general manager and three of the journalists were

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awaiting trials while in prison, and two journalists remained under house arrest.
The Public Prosecutor’s Office summoned at least 32 journalists as part of an
investigation into alleged money laundering against the Violeta Barrios de
Chamorro Foundation, an NGO that supported independent media by offering
journalism training programs. In some cases the journalists had received seed
funding to pursue new digital startups or other forms of independent journalism.

At least 30 journalists fled into exile due to threats or summons from the Public
Prosecutor’s Office, which in the case of other independent journalists and political
opponents resulted in imprisonment.

Independent media outlets experienced vandalism, seizure of broadcast equipment,
cyberattacks, and criminal defamation charges. On August 13, after a public
complaint by the newspaper La Prensa that the Customs Office had withheld its
paper and printing material for months, police raided the newspaper’s headquarters
and detained the general manager, preventing him from accessing legal counsel
and detaining him for several weeks without bringing him before a judge. Police
held La Prensa journalists and staff for hours inside the newspaper’s offices and
allowed progovernment media to enter and film the police raid. Police later
announced the raid was part of an investigation into the newspaper for money
laundering and tax evasion. La Prensa, the last remaining daily print newspaper
with national distribution, moved to online-only content and dismissed half its
employees in September because of government persecution.

The government repeatedly denied broadcasting licenses and other permits for
independent media. Independent news outlets faced restrictions on speech, such as
not being permitted to attend official government events, being denied interviews
by government officials, and receiving limited or no direct access to government
information. Official media, however, were not similarly restricted. The
government published false COVID-19 data that minimized the spread of the
illness in the country. International reports and unpublished official documents
showed the government intentionally misled the public about the severity of the
pandemic to avoid an economic downturn.

Independent media faced official and unofficial restrictions, reprisals, and
harassment, but they were nonetheless successful in expressing a variety of views.
Journalists from many stations were threatened and harassed with the purpose of

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limiting their editorial independence. According to a September report by the
Violeta Barrios de Chamorro foundation titled Assault on Independent Press in
Nicaragua between December 2020 and June 2021, there were 1,176 assaults on
journalists while they performed their duties. Of those, 426 assaults were
perpetrated against female journalists and included sexual violence and threats of
rape.

Significant state influence, ownership, and control over the majority of media
outlets continued. National television was largely controlled either by business
associates of the president or directly owned and administered by his family
members. Eight of the 10 basic channels available were under direct FSLN
influence or owned and controlled by persons with close ties to the government.
Media stations owned by the presidential family generally limited news
programming and served as outlets for progovernment or FSLN propaganda and
campaign advertisements. On June 30, the governing authority for
telecommunications published a decree obliging all private cable stations to lock in
their broadcasts to official television and radio for emergency or special interest
messaging. This decree compounded the already established obligation for open-
air television and radio stations to do the same. This obligation was enforced every
time the president participated in a public event, even when it was a political party
event. Press and human rights organizations claimed the use of state funds for
official media, as well as biased distribution of government advertising dollars,
placed independent outlets at an extreme disadvantage.

Violence and Harassment: Journalists were subject to government violence,
harassment, and death threats. Four journalists remained in prison: three after they
indicated they would run as presidential candidates and one for expressing his
views on social media. Two others remained under house arrest. Since May more
than 30 journalists fled into exile with pending accusations against them from the
Public Prosecutor’s Office. At least 90 journalists had already fled following the
government’s crackdown on protesters in 2018. The Ministry of Health took
possession of offices belonging to television station 100% Noticias and news
magazine Confidencial, which had been closed and under police custody since a
2018 raid of those facilities.

Censorship or Content Restrictions: The government continued to arbitrarily

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penalize those who published items counter to the ruling party’s ideology. The
government restricted access to public events, obligated independent press to use
official media to cover presidential activities, and actively used troll farms to
amplify its own messaging or attack independent media websites. In November,
Meta (Facebook’s parent company) announced the removal of troll farms operated
by the government, implicating the telecommunications regulator TELCOR, the
Supreme Court of Justice, and the Social Security Institute.

Restrictions in acquiring broadcast licenses and equipment prevented media from
operating freely. Beginning in 2008, media outlets were unable to apply for new
broadcasting licenses while the General Law (Law 200) on Telecommunications
was under review in the National Assembly. The government extended the
validity of existing licenses indefinitely. Human rights groups and independent
media also reported that the failure to approve or deny Law 200 resulted in
uncertainty surrounding the purchase and import of goods related to broadcasting.
As a result, independent radio owners continued to defer long-term investments.

Some independent-media owners also alleged the government exerted pressure on
private firms to limit advertising in independent media, although other observers
believed the lack of advertising was the result of self-censorship by private
companies or a business decision based on circulation numbers. Many journalists
practiced self-censorship, fearing economic and physical repercussions for
investigative reporting on crime or official corruption. In addition media outlet
owners exercised self-censorship by choosing not to publish news that affected
public perceptions of the government or the FSLN.

Libel/Slander Laws: In February FSLN-aligned judge Jose Ernesto Martinez
found journalist David Quintana guilty on trumped-up slander charges after
Quintana was accused by a staff member of an official television station in 2020.
Another FSLN-aligned judge, Fatima Rosales, denied Quintana’s request for
appeal in April. In June a judge denied an appeal on behalf of independent radio
station director Kalua Salazar in a slander case brought against Salazar by FSLN
municipal workers. Slander and libel are both punishable by fines ranging from
120 to 300 times the minimum daily wage.

National Security: Human rights NGOs and civil society organizations argued

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the Sovereign Security Law exemplified the government’s failure to respect civil
liberties. Although not cited in specific cases, the law applies to “any other factor
that creates danger to the security of the people, life, family, and community, as
well as the supreme interests of the Nicaraguan nation.” The government used and
threatened further use of the Cybercrimes Law, which includes as online crimes
social media posts deemed dangerous by the regime and grants law enforcement
access to information systems and other data. On September 7, the Public
Prosecutor’s Office accused indigenous rights activist Amaru Ruiz of cybercrimes
after he reported extensively on social media about the killing of 13 indigenous
persons by individuals suspected by human rights groups to have ties to the
government. Penalties for online crimes include prison time and hefty fines,
disproportionate to the crimes as broadly defined by the law.

A police regulation restricts criticism of government policies and officials under
the guise of protecting national security.

Internet Freedom

There were credible reports that the government monitored private online
communications without appropriate legal authority and in some cases restricted or
disrupted access to the internet or censored online content. Independent media
reported the government provided logistical support for “troll farms” that routinely
carried out cyberattacks against opposition media websites and social media
accounts. Trolls and bots reportedly tracked opposition and progovernment social
media accounts to retaliate against users deemed opponents to the ruling party and
to amplify progovernment messaging.

Several NGOs claimed the government monitored their email and online activity
without appropriate legal authority. Paid government supporters used social media
and website commentary spaces to harass prominent members of civil society,
human rights defenders, and well known journalists.

As part of a continuing social media campaign against prodemocracy protests,
ruling party members and supporters used social media to publish personal
information of human rights defenders and civil society members. Civil society
members alleged government offices provided the information to penalize the free

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expression of opinions. Government supporters also used the personally
identifiable information to mark the houses of civil society members with either
derogatory slurs or threats, then published photographs of the marked houses on
social media.

Academic Freedom and Cultural Events

There were government restrictions on academic freedom, and many students,
academics, and researchers reported pressure to censor themselves.

Public universities continued to withhold the records of many university students
who participated in prodemocracy protests. In many cases students who went into
exile could not continue their studies abroad without their records. Entrances to
public universities remained under surveillance by progovernment guards or police
who regularly checked visitors and searched their belongings — a practice begun
after the prodemocracy protests of 2018.

Human rights NGOs and civil society groups reported authorities required students
in elementary and secondary public schools to participate in progovernment rallies
while schools were in session. Political propaganda for the ruling party was posted
inside public schools. Teacher organizations and NGOs alleged continuing FSLN
interference in the school system through the use of school facilities as FSLN
campaign headquarters, favoritism shown to members of FSLN youth groups or to
children of FSLN members, politicized awarding of scholarships, and the use of
pro-FSLN education materials. On September 8, the Public Prosecutor’s Office
issued an accusation against writer and former vice president Sergio Ramirez for
“committing acts that incite hatred and violence,” conspiring to “undermine
national integrity,” and money laundering. The Customs Office withheld
Ramirez’s latest novel, effectively banning it from entering the country in apparent
retaliation and intimidation against Ramirez for his public commentary in
international fora against the FSLN party, the president, and the vice president.

b. Freedoms of Peaceful Assembly and Association

The government restricted freedoms of peaceful assembly and association.

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Freedom of Peaceful Assembly

The government did not respect the legal right to public assembly, demonstration,
and mobilization. Prodemocracy marches and protests continued to be banned
during the year. Police and parapolice actively persecuted, harassed, and
occasionally impeded private meetings of NGOs, civil society groups, and
opposition political organizations. Police failed to protect peaceful protesters from
attacks; they also committed attacks and provided logistical support to other
attackers. Human rights organizations reported police stopped traffic for and
otherwise protected progovernment demonstrations.

Police routinely surrounded, surveilled, and threatened meetings of political parties
and civil society organizations. Police entered private meeting spaces to disrupt
gatherings of opposition parties and civil society organizations.

Freedom of Association

The law provides for freedom of association, including the right to organize or
affiliate with political parties; nevertheless, the Supreme Electoral Council and
National Assembly used their accreditation powers for political purposes. National
Assembly accreditation is mandatory for NGOs to receive funding, have bank
accounts, or legally employ workers. The Ministry of the Interior has oversight of
regulatory compliance by NGOs and provides certificates. Many NGOs that
worked on topics of democracy, human rights, and women’s issues complained the
ministry purposefully withheld certification to hinder their work and access to
funding.

Beginning in February, the government began enforcing the 2020 Foreign Agents
Law with far-reaching implications for entities and employees of entities receiving
funding from outside the country. The law requires anyone receiving funding from
foreign sources to register with the Ministry of the Interior and provide monthly,
detailed accounts of how funds are intended to be used. Additionally, NGOs need
to present their legal accreditation, subject to annual renewal by the ministry.
Many NGOs complained that the ministry purposefully withheld or delayed this
accreditation, which led to the loss of their legal status. Individuals who register as
foreign agents cannot participate in internal politics or run for elected positions for

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up to one year after being removed from the registry. Failure to register can lead to
fines, judicial freezing of assets, and the loss of legal status for associations or
NGOs. The Violeta Barrios de Chamorro Foundation decided to close before the
deadline to register to avoid being labeled a foreign agent. The government,
through the Public Prosecutor’s Office, accused the NGO, its staff, and the
beneficiaries of its grants of money laundering. Up to 142 individuals, including
vendors, consultants, staff, and 32 journalists, were summoned for the
investigation. Some NGO staff remained imprisoned during the government’s 90-
day investigation period. In June the government placed Cristiana Chamorro, the
foundation’s former executive director and a leading opposition presidential
precandidate, under house arrest on related accusations of money laundering.

c. Freedom of Religion

See the Department of State’s Jnternational Religious Freedom Report at
https://www.state.gov/religiousfreedomreport/.

d. Freedom of Movement and the Right to Leave the Country

The law provides for freedom of internal movement, foreign travel, emigration,
and repatriation, but the government did not always respect these rights. On July
16, the government denied Lesther Javier Aleman entry to the country despite
being a Nicaraguan citizen and showing a valid Nicaraguan passport. Aleman was
ordered to fly out of the country the same day. Aleman was the father of student
leader Lesther Aleman Alfaro, who was arrested on July 6 in a crackdown on the
opposition. The government strictly controlled the entry of persons affiliated with
some groups, specifically humanitarian and faith-based organizations. The
government may prevent the departure of travelers with pending legal cases; the
government used this authority against individuals involved in the political
opposition and media who had not been charged with any crimes. The law
requires exit visas for minors.

In-country Movement: Police consistently restricted the travel of opposition
members to cities other than their hometown. In many cases police restricted the
movement of political opponents outside their homes, although these individuals
did not have pending charges against them or judicially imposed restrictions on

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their movement.

Foreign Travel: Migration authorities confiscated the passports of at least 15
Nicaraguans who were trying to leave the country. Authorities told the individuals
that migration restrictions had been levied on them, although the individuals had
no formal accusations or charges against them.

Citizenship: On August 6, the ruling FSLN party used its control over
government agencies to revoke the Nicaraguan nationality of opposition leader
Carmella Rogers Amburn (also known as Kitty Monterrey) without due process.
The ruling party, however, issued citizenship to ideologically aligned foreigners
fleeing corruption charges in their countries, such as former Salvadoran president
Salvador Sanchez Ceren and several of his close family members, bypassing the
law and procedures.

e. Status and Treatment of Internally Displaced Persons

According to contacts and local media, hundreds of participants in the 2018
prodemocracy protests and others who ran afoul of the Ortega regime remained in
hiding to evade government persecution, including arbitrary arrest, detention, and
torture. These individuals reported being unable to find work or study due to fear
of government reprisals. As the root cause of this forced displacement, the
government did not promote the safe, voluntary, dignified return, resettlement, or
local integration of internally displaced persons. The government does not have
policies and protections for internally displaced persons in line with the UN
Guiding Principles on Internal Displacement.

f. Protection of Refugees

The government does not cooperate with the Office of the UN High Commissioner
for Refugees and other humanitarian organizations in providing protection and
assistance to refugees, returning refugees, asylum seekers, stateless persons, and
other persons of concern. The government has not provided updated information
on refugees or asylum seekers since 2015.

Access to Asylum: The law provides for the granting of asylum or refugee status,
and the government has established a system for providing protection to refugees.

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Only the executive branch or the country’s embassies abroad may grant asylum for
political persecution. The Nicaraguan National Commission for Refugees has not
met since 2015.

Durable Solutions: The government recognized 61 persons as refugees in 2015,
the most recent year for which information was available. By year’s end partner
agencies estimated there were more than 1,300 refugees or persons in refugee-like
situations in the country.

g. Stateless Persons

Registration of births in rural areas was difficult due to structural constraints, and
the government took no measures to address this, resulting in a number of de facto
stateless persons in the country (see section 6, Children).

Section 3. Freedom to Participate in the Political Process

While the law provides citizens the ability to choose their government in free and
fair periodic elections based on universal and equal suffrage and conducted by
secret ballot, the government restricted freedom of expression, peaceful assembly,
and association. Institutional fraud, among other obstacles, precluded
opportunities for meaningful choice.

Elections and Political Participation

Recent Elections: In November President Ortega awarded himself a fourth term
in office following a deeply flawed electoral process characterized by historically
low voter turnout. Ortega and his FSLN party cancelled the legal registration of all
credible opposition political parties, jailed opposition presidential candidates on
spurious charges, and committed blatant electoral fraud. Independent observer
groups and international organizations characterized the electoral process as not
credible. The government did not allow credible, independent electoral observers
into the country. The 2021 elections expanded the ruling party’s supermajority in
the National Assembly, which previously allowed for changes in the constitution
that extended the reach of executive branch power and the elimination of
restrictions on re-election for executive branch officials and mayors. On
November 12, a total of 25 member states of the Organization of American States

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(OAS) voted in favor of a resolution declaring the elections were “not free, fair or
transparent, and lack democratic legitimacy.”

The 2019 Caribbean regional and 2017 municipal elections were marred by
widespread institutional fraud and heavy security force presence.

Civil society groups expressed concerns over the lack of a transparent and fair
electoral process leading up to the 2021 national elections, the 2019 Caribbean
regional elections, and the 2017 municipal elections. Electoral experts, business
leaders, representatives of the Catholic Church, and civil society organizations
reported that a lack of accredited domestic or international observation, in addition
to the ruling party’s control over all aspects of the official electoral structure and
all branches of government, combined to impede holding free and fair elections.

Political Parties and Political Participation: The Supreme Electoral Council
(CSE) announced on May 18 that it had cancelled the legal status of the opposition
Democratic Restoration Party. On May 19, the CSE announced it cancelled the
legal status the Conservative Party. On August 6, the CSE revoked the legal status
of a third opposition party, Citizens for Liberty. The remaining political parties
were controlled by the Ortega regime, paving the way for Ortega to run unopposed
in the November elections. In 2020 the National Assembly passed a law that bars
anyone from running for office whom the government designated as a “traitor,”
defining the term so broadly that it could be applied to anyone who expressed
opposition to the ruling party. In June the ruling party used this law to jail at least
six individuals who had signaled they would run as opposition presidential
candidates.

The government used state resources for political activities to enhance the FSLN’s
electoral advantage in recent elections. Independent media, human rights groups,
and opposition parties reported the government used public funds to provide
subsidized food, housing, vaccinations, access to clinics, and other benefits directly
through either FSLN-led “family cabinets” (community-based bodies that
administer government social programs) or party-controlled Sandinista leadership
committee (CLS) systems, which reportedly coerced citizens into FSLN
membership while denying services to opposition members. The regime also made
party membership mandatory for an increasing number of public-sector employees.

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Observers noted government employees continued to be pressured into affiliating
with the FSLN and participating in party activities. During the year the
government pressured public servants to participate in mass public gatherings
including sports events, political rallies, and marches despite the dangers of
spreading COVID-19 via mass gatherings.

The FSLN also used its authority to decide who could obtain national identity
cards. Persons seeking to obtain or retain public-sector employment, national
identity documents, or voter registration were obliged to obtain recommendation
letters from CLS block captains. Those without identity cards were unable to vote
and had difficulty participating in the legal economy or conducting bank
transactions. Such persons also were subject to restrictions in employment, access
to courts, and land ownership. Civil society organizations continued to express
concern about the politicized distribution of identity cards, alleging this was one
way the FSLN manipulated past elections and that the CSE failed to provide
identity cards to opposition members while widely distributing them to party
loyalists.

Participation of Women and Members of Minority Groups: No laws limit
participation of women or members of minority groups, including persons with
disabilities; lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+)
persons; and indigenous persons, in the political process, and they did participate,
although observers noted most women in elected positions at the municipal and
national levels held limited power or influence in their respective bodies.

Section 4. Corruption and Lack of Transparency in
Government

The law provides criminal penalties for corruption by officials, although the
government did not implement the law effectively. There were numerous reports
of government corruption during the year, including in the police force, the CSE,
the Supreme Court, customs and tax authorities, and other government organs.
The Supreme Court and lower-level courts remained particularly susceptible to
bribes, manipulation, and political influence, especially by the FSLN. Companies
reported that bribery of public officials, unlawful seizures, and arbitrary

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assessments by customs and tax authorities were common. Municipal
governments and regional governments of the Caribbean Coast were also plagued
by corruption. The Managua municipal government reportedly engaged in corrupt
practices related to infrastructure projects.

A general state of permissiveness hindered the possibility of addressing the
problem effectively. A lack of strong institutions, a weak system of checks and
balances, and the regime’s absolute control of government institutions allowed for
corruption to continue with impunity.

Corruption: The Office of the Comptroller, responsible for combating corruption
within government agencies and offices, did not carry out a complete verification
of the government’s full financial statements. For example, the comptroller
maintained that Albanisa, a private company controlled by regime insiders that
imported and sold Venezuelan petroleum products, as well as associated revenue
under the Venezuela oil cooperation agreement, was not subject to audit because
the National Assembly did not approve the agreement. The Financial Analysis
Unit did not fully implement its mandate in prosecuting money laundering of
government officials and focused on investigating President Ortega’s political
opposition.

Executive branch officials continued to be involved in businesses financed by
economic and developmental assistance funds lent by the Venezuelan-led
Bolivarian Alliance for the Peoples of Our America (ALBA), all of it outside the
normal budgetary process controlled by the legislature. This included the
Nicaraguan Electric Transmission Enterprise, which funneled ALBA funding and
other oil-based assistance into privately owned businesses. Media reported that
companies linked to previous ALBA-funded contracts and with links to the
president’s family were tightly controlled by members of Ortega’s inner circle,
with little public oversight. Cases of mismanagement of these funds by public
officials were reportedly handled personally by FSLN members and President
Ortega’s immediate family, rather than by the government entities in charge of
public funds.

Section 5. Governmental Posture Towards International and
Nongovernmental Investigation of Alleged Abuses of Human

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Rights

The government imposed significant and increasing burdens on the limited number
of human rights organizations it allowed to operate in the country. The Nicaraguan
Center for Human Rights remained deprived of its legal status, hindering its ability
to investigate human rights abuses. The Nicaraguan Pro-Human Rights
Association continued to operate from exile in Costa Rica and focused more on the
Nicaraguan exile community. Other human rights organizations faced significant
harassment and police surveillance. Humanitarian organizations faced obstacles to
operating or denial of entry, and government officials harassed and intimidated
domestic and international NGOs critical of the government or the FSLN. Some
NGOs reported government intimidation created a climate of fear intended to
suppress criticism.

The government continued to prevent non-FSLN-affiliated NGOs and civil society
groups from participating in government social programs, such as Programa Amor,
which provides social protections to children and adolescents, and Hambre Cero, a
program that distributes livestock for smallholder production. The government
frequently used FSLN-controlled family cabinets and party-controlled CLSs to
administer these programs. Government programs purportedly created to provide
support for victims of the violence since 2018 benefited only FSLN party
members. Increased government restrictions on domestic NGOs’ ability to receive
funding directly from international donors seriously hindered the NGOs’ ability to
operate. In addition, increased control over the entry of foreign visitors or
volunteer groups into the country hindered the work of humanitarian groups and
human rights NGOs. The Swedish NGO We Effect discontinued its activities in
the country in December after 30 years of humanitarian aid work, citing difficulties
in complying with the foreign agents law. Some groups reported difficulties in
moving donated goods through customs and said government officials were rarely
cooperative or responsive to their complaints.

Several domestic NGOs reported that the Ministry of the Interior purposefully
denied receipt of their compliance documentation and withheld or unduly delayed
providing certifications in order to revoke the legal status of NGOs. NGOs under
government investigation reported problems accessing the justice system and

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delays in filing petitions, as well as pressure from state authorities. Many NGOs
believed comptroller and tax authorities audited their accounts as a means of
intimidation. While legally permitted, spot audits were a common form of
harassment and often used selectively, according to NGOs. NGOs reported
difficulties in scheduling meetings with authorities and in receiving official
information due to a growing culture of secrecy. Local NGOs reported having to
channel requests for meetings with ministry officials and for public information
through the Ministry of Foreign Affairs. These requests were generally not
processed. NGOs also reported government hostility or aggression when
questioning or speaking with officials on subjects such as corruption and the rule
of law. Groups opposing the construction of a proposed interoceanic canal also
reported being harassed and placed under surveillance. Three members of the
Farmworker’s Movement opposing the canal were arrested, including a
presidential precandidate, and many more fled into exile.

The government enforced the law that requires any citizen working for
“governments, companies, foundations, or foreign organizations” to register with
the Interior Ministry, report monthly their income and spending, and provide prior
notice of how the foreign funds are intended to be spent. The law establishes
sanctions for those who do not register.

The United Nations or Other International Bodies: The government did not
allow the Office of the UN High Commissioner for Human Rights (OHCHR) or
IACHR to send working groups to monitor the human rights situation in the
country. The government did not cooperate with these groups, as noted in
OHCHR and IACHR reports.

The government continued to block the entrance of the OAS high-level
commission to help resolve the country’s sociopolitical crisis. The government did
not send a representative to any of the 2021 IACHR sessions. The attorney general
participated in a May IACHR hearing on protective measures awarded to the
human rights NGO CENIDH. The attorney general rejected any claims of
wrongdoing and stated the government was acting according to its laws. In several
instances progovernment supporters detained or harassed protesters protected by
IACHR precautionary measures.

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Government Human Rights Bodies: The Office of the Ombudsman for Human
Rights, led since 2019 by Darling Rios, a sociologist with no previous human
rights experience, and Adolfo Jarquin, also with no previous human rights
experience, was perceived as politicized and ineffective. In 2019 the UN Human
Rights Council demoted the Office of the Ombudsman for Human Rights from
category A to B for its lack of independence.

Section 6. Discrimination and Societal Abuses

Women

Rape and Domestic Violence: The law criminalizes all forms of rape of men or
women, regardless of the relationship between the victim and the accused.
Sentences for those convicted of rape range from eight to 12 years’ imprisonment.
The law criminalizes domestic violence and provides prison sentences ranging
from one to 12 years.

The government failed to enforce rape and domestic violence laws, leading to
widespread impunity and reports of increased violence from released offenders
emboldened by their release. The NGO Catholics for the Rights to Decide
reported that there were 46 femicides as of July, most of them committed after the
victims suffered sexual violence. The government continued to use FSLN-led
family cabinets and CLSs in mediation processes in cases of domestic violence.
Both processes were politicized and did not operate according to the rule of law.
The government employed limited public education, shelters, hotlines,
psychosocial services, and police training in nominal and unsuccessful attempts to
address the problem.

Observers reported a general increase in sexual crimes and violence against women
during the year; however, data were unreliable. NGOs working on women’s issues
reported that violence against women remained high and that police generally
understated its severity. The government did not coordinate with women’s rights
NGOs and actively blocked their operations and access to funding.

Sexual Harassment: The law prohibits sexual harassment, and those convicted
face one- to three-year sentences in prison, or three to five years if the victim is

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younger than 18. No information was available on government efforts to prevent
or prosecute complaints of sexual harassment.

Reproductive Rights: There were no reports of coerced abortion or involuntary
sterilization on the part of government authorities.

While there were no cultural barriers that adversely affected women’s access to
health-care services, rural women’s access to health care during pregnancy and
childbirth was hindered by long distances to appropriate health-care facilities in
scarcely populated areas with poor transportation infrastructure. Women in some
areas, such as the RACN and the RACS, lacked widespread access to medical care
or programs, and maternal death affected poor rural women more than their urban
counterparts. This also affected indigenous and Afro-descendant women in the
RACN and the RACS more than nonindigenous women in other regions. In
addition, adolescents often faced social stigma when seeking contraception
methods.

The government provided limited access to sexual and reproductive health services
for survivors of sexual violence. The Ministry of Health had a standing protocol
for the provision of health services to survivors of sexual violence, which included
the provision of emergency contraception within five days of the assault as well as
treatment of HIV or sexually transmitted diseases. Women’s rights organizations,
however, claimed the Ministry of Health did not always provide this treatment due
to fear of subverting the government’s strict prolife policy, directed by the
president and vice president. While no legal barriers impede adolescent girls’
access to education due to pregnancy or motherhood, economic hardships and a
lack of social safety nets to protect young mothers often impeded continued
education for pregnant girls or young mothers.

Discrimination: The law provides for gender equality in access to education,
labor rights, and civil rights. Nevertheless, women often experienced
discrimination in employment, obtaining credit, and receiving equal pay for similar
work, as well as in owning and managing businesses. While the government
enforced the law effectively in the public sector, women in positions of power
faced limitations, and their authority was limited compared with that of men. For
example, despite a law that requires equal participation of men and women in

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elected positions, male political party leaders often made decisions on public
policy without internal debate or input from female political leaders. Enforcement
was not effective in the private sector or the larger informal sector.

Systemic Racial or Ethnic Violence and Discrimination

Exclusionary treatment based on race, skin color, and ethnicity was common,
especially in higher-income urban areas. Darker-skinned persons of African
descent from the RACN and the RACS, along with others assumed to be from
those areas, experienced discrimination, such as being subjected to extra security
measures and illegal searches by police. Indigenous and other ethnic groups from
the RACN and the RACS alleged that discriminatory attitudes toward ethnic and
racial minorities were responsible for the lack of government resources devoted to
those regions. The government focused attention and resources on maintaining
political control over decision-making bodies in the regions where most indigenous
groups lived.

Indigenous Peoples

Indigenous persons constituted approximately 5 percent of the population and lived
primarily in the RACN and the RACS. Despite having autonomous governing
bodies, decisions affecting their lands, cultures, traditions, or the exploitation of
energy, minerals, timber, and other natural resources on their lands were largely
made or approved by national government authorities or by FSLN representatives.
Individuals from five major indigenous groups — the Miskito, Sumo/Mayangna,
Garifuna (of Afro-Amerindian origin), Creole, and Rama — the alleged government
discrimination through underrepresentation in the legislative branch.

NGOs and indigenous rights groups denounced the increasing number of killings
of indigenous persons at the hands of nonindigenous populations encroaching on
their lands in the RACN and the RACS, and they claimed the government failed to
protect the civil and political rights of indigenous communities. In August armed
gold miners attacked an artisanal gold mining site and killed up to 13 indigenous
persons in an effort to drive indigenous populations away from the site. The attack
occurred in the Sauni As territory in the Bosawas protected biosphere. During the
raid the attackers also raped two women and dismembered some of the bodies of

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their victims. Police announced the arrests of three of 14 individuals accused of
the crime, but many observers doubted the government’s narrative, particularly
because those arrested were indigenous persons, including a sibling of one of the
rape victims. Some observers alleged government and FSLN involvement in the
violence against Miskito populations in the RACN along the Coco River, either by
failing to defend indigenous populations or as accomplices to nonindigenous
groups invading indigenous lands. Indigenous groups continued to complain of
rights violations in connection with government plans to build an interoceanic
canal through their territory.

Indigenous persons from rural areas often lacked birth certificates, identity cards,
and land titles. While the government did not deny these rights if requested, it
favored FSLN party members over other constituents. Additionally, indigenous
groups alleged the government provided identity cards to outsiders who
encroached on indigenous lands in the RACS and the RACN, leading to
ovetrepresentation of FSLN-aligned, nonindigenous persons in regional governing
bodies. Most indigenous individuals in rural areas lacked access to public services,
and deteriorating roads hindered access to health care for many.

Indigenous women faced multiple levels of discrimination based on their ethnicity,
gender, and lower economic status. For example, indigenous women do not
receive medical attention, education, police protection, or representation in
government at the same level as nonindigenous women.

Throughout the year indigenous leaders alleged that regional and national
governments granted logging and mining concessions to private firms and to
government-affiliated businesses, such as ALBA-Forestal, without adequate
consultation of the indigenous community, and that logging and mining continued
in violation of national autonomy laws in the RACS and the RACN.

Children

Birth Registration: Citizenship is derived by birth within the country’s territory
and from one’s parents. Local civil registries register births within 12 months,
although many persons, especially in rural areas, lacked birth certificates.
Registration in rural areas was difficult due to structural constraints, and the

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government took no measures to address this, resulting in a growing number of de
facto stateless persons in the country. Persons without citizenship documents were
unable to obtain national identity cards and consequently could not vote and had
difficulty participating in the legal economy and conducting bank transactions.
Such persons also were subject to restrictions in employment, access to courts, and
land ownership.

Child Abuse: According to the criminal code, prison sentences for rape
committed against minors range from 12 to 15 years and for child abuse from
seven to 12 years. Government efforts were insufficient to combat child abuse and
sexual violence against minors. High rates of sexual violence against teenage girls
contributed to high rates of teenage pregnancy, according to UNICEF.

Child, Early, and Forced Marriage: The minimum legal age for marriage is 18
for men and women, or 16 with parental authorization. There were credible reports
of forced early marriages in some rural indigenous communities. UNICEF’s 20/9
State of the World’s Children, the most recent data available, reported 35 percent
of women 20 to 24 years of age were married or in a union by age 18, and 10
percent were married by age 15. No information was available on government
efforts to address or prevent forced and early marriage.

Sexual Exploitation of Children: The law prohibits sexual exploitation in
general and designates enticing children or adolescents to engage in sexual activity
as an aggravating condition. The government generally did not enforce the law
pertaining to child sex trafficking. Penalties include 10 to 15 years in prison for a
person who entices or forces any individual to engage in sexual activity and 19 to
20 years in prison for the same acts involving children or adolescents. The law
defines statutory rape as sexual relations with children ages 14 or younger.

The law also prohibits child pornography, and the government generally enforced
it. The penalty for inducing, facilitating, promoting, or using a minor for sexual or
erotic purposes is 10 to 15 years in prison.

The country was a destination for child sex tourism. The law imposes a penalty of
five to seven years in prison for those convicted of child-sex tourism.

International Child Abductions: The country is a party to the 1980 Hague

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Convention on the Civil Aspects of International Child Abduction. See the
Department of State’s Annual Report on International Parental Child Abduction at
https://travel.state.gov/content/travel/en/International-Parental-Child-

Abduction/for-providers/legal-reports-and-data/reported-cases.html.

Anti-Semitism

The country has a very small Jewish population. There were no known reports of
anti-Semitic acts.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at
https://www:.state.gov/trafficking-in-persons-report/.

Persons with Disabilities

The law requires persons with disabilities to have access to education, health
services, public buildings, and transportation, although this did not occur in
practice. Persons with disabilities faced severe problems accessing schools, public
health facilities, and other institutions. Children with disabilities attended schools
with nondisabled peers; specialized school materials were not readily available and
on occasion were blocked by the Ministry of Education. Anecdotal evidence
suggested that children with disabilities completed secondary education at a
significantly lower rate than other children. Public schools were rarely well
equipped, and teachers were poorly trained in providing appropriate attention to
children with disabilities. Police stations and public health-care facilities did not
have staff trained in sign language, making persons with hearing disabilities
dependent on caretakers. Many voting facilities were not accessible. Advocates
for persons with disabilities complained of a lack of accessible public
transportation. Some persons with disabilities reported taxi drivers often refused
them service due to the perceived extra burden on the driver to aid customers with
disabilities. Advocates for persons with disabilities claimed interpreters for the
deaf were not accessible at schools and universities, making it difficult for these
persons to obtain education. Government clinics and hospitals provided care for
veterans and other persons with disabilities, but the quality of care was generally

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poor.

Discrimination against persons with physical, sensory, intellectual, and mental
disabilities was widespread, despite being prohibited by law. Laws related to
persons with disabilities do not stipulate penalties for noncompliance, although
penalties may be issued under the general labor inspection code. The Ministry of
the Family, Ministry of Labor, and Human Rights Office are among government
agencies responsible for the protection and advancement of rights of persons with
disabilities. The government did not enforce the law effectively; did not mandate
accessibility to buildings, information, and communications; and did not make
information available on efforts to improve respect for the rights of persons with
disabilities. Advocacy organizations for persons with disabilities reported persons
with disabilities accounted for less than | percent of public-sector employees,
despite the legally mandated minimum representation of 2 percent. Further reports
indicated public institutions did not sufficiently coordinate with the Labor Ministry
to accommodate persons with disabilities in the workplace. While there were no
official reports of violence, harassment or intimidation against persons with
disabilities by government officials, there were several anecdotal reports of
violence and harassment. These incidents generally went unreported mainly
because victims did not want to face the burdensome process of filing a complaint.

HIV and AIDS Social Stigma

The law provides specific protections for persons with HIV or AIDS against
discrimination in employment and health services, but such persons continued to
suffer societal discrimination. An administrative resolution issued by the Ministry
of Health continued in effect, declaring that HIV/AIDS patients should not suffer
discrimination and making available a complaints office.

Acts of Violence, Criminalization, and Other Abuses Based on
Sexual Orientation and Gender Identity

LGBTQI+ groups reported discrimination, a lack of access to justice, and a lack of
response from police. The government and FSLN supporters frequently targeted
LGBTQI-+ participants in civil protests in particular, using online smear campaigns
and physical attacks in some cases. LGBTQI+ opposition members were

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particularly targeted with sexual violence by police, parapolice, and
progovernment supporters. The Observatory for Human Rights Violations Against
LGBTQI- Persons stated there were 43 attacks against LGBTQI-+ in the first six
months of the year, one-half against transgender women. LGBTQI-+ activists said
LGBTQI- political prisoners hid their orientation, fearing increased abuse from
prison guards. Reliable data on the breadth of such discrimination were not
available. No specific laws exist to punish hate crimes against LGBTQI+ persons.

Transgender women detained for participating in prodemocracy protests were
particularly harassed while in custody. They were held with male inmates, forced
to strip in front of their peers, and specifically harangued by guards. The law does
not recognize the right to gender identity self-determination, and as such the
penitentiary system is not required to separate inmates based on gender identity.
Celia Cruz, a political prisoner and transgender woman, was given amnesty and
released in April, although her trial continued and an appeals court ratified her
guilty sentence in June.

Although it does not mention sexual orientation and gender identity specifically,
the law states all persons are equal before the law and provides for the right to
equal protection. No laws specifically criminalize consensual same-sex sexual
conduct between adults. LGBTQI+ persons, however, continued to face
widespread societal discrimination and abuse, particularly in housing, education,
and employment. LGBTQI+ organizations continued to complain the law curtailed
the rights of LGBTQI+ households by defining families as necessarily headed by a
man and a woman; this definition particularly affected LGBTQI+ households’
access to social security, survivor benefits, and adoption rights.

Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for the right of all workers in the public and private sectors,
except for those in the military and police, to form and join independent unions of
their choice without prior authorization and to bargain collectively. The
government’s control of all major unions effectively nullified those rights. The
ruling party used its control over major unions to harass and intimidate workers in

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several sectors, including education, health care, the public sector, and free trade
zones. The constitution recognizes the right to strike, although it places some
restrictions. The law prohibits antiunion discrimination but does not provide for
measures to protect against rights violation. Burdensome and lengthy conciliation
procedures and government control of all major unions impeded workers’ ability to
call strikes. In smaller businesses where major unions were not present, the
government created parallel labor unions to confuse and diffuse efforts to organize
strikes or other labor actions. In addition, if a strike continues for 30 days without
resolution, the Ministry of Labor may suspend the strike and submit the matter to
arbitration.

Collective bargaining agreements last up to two years and are automatically
renewed if neither party requests its revision. Collective bargaining agreements in
the free trade zone regions, however, are for five-year periods. Companies in
disputes with their employees must negotiate with the employees’ union if one
exists. By law several unions may coexist at any one enterprise, and the law
permits management to sign separate collective bargaining agreements with each
union.

The government sought to foster resolution of labor conflicts through informal
negotiations rather than formal administrative or judicial processes. The law does
not establish specific fines for labor law violations, and penalties were
commensurate with those for other laws involving denials of civil rights, such as
discrimination. Although the law establishes a labor court arbitration process, it
was subject to long wait times and lengthy and complicated procedures, and many
labor disputes were resolved out of court.

Freedom of association and the right to collective bargaining were not respected,
and the government often intervened for political reasons. The government did not
effectively enforce the laws. Most labor unions were historically allied with
political parties, but in recent years the government reportedly dissolved unions
and fired workers not associated with the ruling FSLN. Independent labor experts
reported the Ministry of Labor denied or unduly delayed providing legal
recognition to unions that were not aligned with the FSLN.

Politically motivated firings continued to be a problem. Most of the doctors and

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university staff from the public sector fired for political reasons since 2018 had not
received severance pay as of September. Labor experts highlighted similar
instances of public-sector employees being fired without receiving severance pay.
FSLN party affiliation or letters of recommendation from party secretaries, family
cabinet coordinators, or other party officials were allegedly required from
applicants seeking public-sector jobs.

The government restricted the organizing of trade unions and teachers perceived to
be in opposition to the government.

There were no known documented instances of strikes being declared illegal.
Under the law, during a strike employers may not hire replacement workers, but
unions alleged this practice was common. Wildcat strikes — those without union
authorization — were historically common.

Employers interfered in the functioning of workers’ organizations and committed
other violations related to freedom of association and collective bargaining. Labor
leaders noted employers routinely violated collective bargaining agreements and
labor laws with impunity.

Official union federations were accused of protecting employer interests by
identifying and isolating workers who attempted to organize as well as frustrating
such attempts through arbitrary procedural barriers that delay approval processes.
Federations also permitted illegal firings of workers who tried to organize
themselves; the workers faced retaliation and permanent exclusion from jobs in the
free trade zones.

Many employers in the formal sector continued to blacklist or fire union members
and did not reinstate them. Many of these cases did not reach the court system or a
mediation process led by the Ministry of Labor. Employers often delayed
severance payments to fired workers or omitted the payments altogether.
Employers also avoided legal penalties by organizing employer-led unions lacking
independence and by frequently using contract workers to replace striking
employees. There were reports FSLN party dues were automatically deducted
from paychecks.

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b. Prohibition of Forced or Compulsory Labor

The law prohibits all forms of forced or compulsory labor. There was no
information available regarding government enforcement of these laws. Penalties
were commensurate with those for other analogous serious crimes, such as
kidnapping. Despite reported political will to combat human trafficking, including
labor trafficking, during the year the government did not take sufficient action to
address the scope of the problem and provided only limited information about its
law enforcement efforts.

Observers noted reports of forced labor, including of men, women, and children in
agriculture, construction, mining, street begging, and domestic servitude. Victim
identification, prosecution, and conviction remained inadequate, and victims’
family members were often complicit in their exploitation. Traffickers lured
residents of rural or border regions with the promise of high-paying jobs in urban
and tourist areas but then subjected them to sexual exploitation and forced labor.

Also see the Department of State’s Trafficking in Persons Report at
https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits the worst forms of child labor. The law establishes the minimum
age for employment at 14 and limits the workday for any individual between ages
of 14 and 18 to six hours and the workweek to 30 hours. Those between 14 and 16
must have parental approval to work or enter into a formal labor contract. The law
prohibits teenage domestic workers from sleeping in the houses of their employers.
It is illegal for minors to work in places the Ministry of Labor considers harmful to
their health or safety, such as mines, garbage dumps, and night entertainment
venues, and to undertake certain agricultural work. The government mostly
enforced the law in the formal sector, but enforcement was insufficient in the much
larger informal sector, where child labor was more prevalent. Legal penalties for
persons employing children in dangerous work were commensurate with those for
other analogous serious crimes, such as kidnapping.

The government used limited resources to concentrate on child labor violations in
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select sectors in narrow geographic areas, such as coffee-growing regions, and
gave only limited attention to the large informal sector. The government reported
having separated nine children from work between January 2019 and the first
semester of 2020.

The government signed thousands of cooperative agreements with employers to
prevent the hiring of minors and continued Programa Amor, which aimed to
eradicate child labor by reintegrating abandoned children into society. Information
on the program’s activities, funding, and effectiveness was unavailable, but
independent observers deemed it insufficient.

Laws to eliminate child labor were not fully implemented and lacked a consistent
mechanism to coordinate efforts to address child labor. The government also
divested resources from child labor prevention. Attendance in secondary schools
remained much lower than in primary schools, increasing the risk of older children
engaging in exploitative labor. The country made minimal advancement in efforts
to eliminate the worst forms of child labor.

Fifteen percent of children lacked birth certificates, which increased their risk for
human trafficking, including for the purposes of commercial sexual exploitation.

Child labor remained widespread. According to organizations that worked on
children’s rights, this likely increased to almost 320,000 children working in some
form of child labor. A common feature of child labor was the prevalence of unpaid
family work, and the National Institute of Development Information stated 80
percent of children and adolescents were unpaid workers.

Children engaged in the worst forms of child labor, including in commercial sexual
exploitation (see section 6). Most child labor occurred in forestry, fishing, and the
informal sector, including on coffee plantations and subsistence farms. Child labor
also occurred in the production of dairy products, oranges, bananas, tobacco, palm
products, coffee, rice, and sugarcane; cattle raising; street sales; garbage-dump
scavenging; stone crushing; gold mining and quarrying of pumice and limestone;
construction; marijuana and other drug production and trafficking; street
performing; domestic work; and transport. Persons with disabilities and children
were subjected to forced begging, particularly in Managua and near tourist centers.

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Children working in agriculture suffered from sun exposure, extreme temperatures,
and dangerous pesticides and other chemicals. Children working in the fishing
industry were at risk from polluted water and dangerous ocean conditions.

Also see the Department of Labor’s Findings on the Worst Forms of Child Labor
at https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings and the
Department of Labor’s List of Goods Produced by Child Labor or Forced Labor at
https://www.dol.gov/agencies/ilab/reports/child-labor/list-of-goods.

d. Discrimination with Respect to Employment and Occupation

The law and regulations prohibit discrimination regarding race, sex, gender,
disability, language, sexual orientation or gender identity, HIV or other
communicable disease status, or social status. The government did not deter such
discrimination because it did not effectively enforce the law and regulations.
Penalties for violations were commensurate with laws related to civil rights, such
as election interference.

Discrimination in employment took many forms. Although women generally had
equal access to employment, few women had senior positions in business and
worked in the informal sector in higher numbers than men; in the public sector or
in elected positions, an autocratic ruling political party limited women’s
independence and influence. In addition, women’s wages were generally lower
when compared with those of male counterparts, even for the same position and
work performed. Workplace challenges for persons with disabilities included
inadequate infrastructure, lack of educational opportunities, and a generally low
rate of public-services positions, despite a legal requirement that a certain
percentage be available to them. LGBTQI+ organizations reported that sexual
orientation and gender identity continued to be a basis for discriminatory behavior.

Workers who disagreed with government recommendations were fired, and only
those with a membership card of the ruling party were hired.

e. Acceptable Conditions of Work

Wage and Hour Laws: The law establishes a statutory minimum wage for 10
economic sectors. According to the Ministry of Labor, the average legal minimum

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wage covered only 35 percent of the cost of basic goods. The ministry, together
with workers’ unions aligned with the ruling party, agreed to a 3 percent wage
increase for the year. Public-sector employees received a 5 percent salary increase
in August. Free trade zone regions had a wage increase of 8 percent, prenegotiated
in a five-year agreement expected to expire in 2022. The salary increase remained
unchanged despite free trade zone representatives reporting unsteady industry
performance.

The minimum wage was generally enforced only in the formal sector, estimated to
be 20 percent of the economy. The Ministry of Labor is the primary enforcement
agency.

The standard legal workweek is a maximum of 48 hours, with one day of rest. The
law dictates an obligatory year-end bonus equivalent to one month’s pay,
proportional to the number of months worked. The law mandates premium pay for
overtime, prohibits compulsory overtime, and sets a maximum of three hours of
overtime per day not to exceed nine hours per week. Penalties for violations of
minimum wage and overtime laws were not commensurate with those for similar
crimes, such as fraud.

According to International Labor Organization guidelines, the number of labor
inspectors was insufficient for the size of the workforce, which included
approximately three million workers. The law allows inspectors to conduct
unannounced inspections and initiate sanctions for egregious violations.

Occupational Safety and Health: The National Council of Labor Hygiene and
Safety, including its departmental committees, is responsible for implementing
worker safety legislation and collaborating with other government agencies and
civil society organizations in developing assistance programs and promoting
training and prevention activities. According to labor contacts, the council was
inactive throughout the year. The government did not allocate adequate staff or
other measures to enable the Office of Hygiene and Occupational Safety to enforce
occupational safety and health (OSH) provisions. Penalties for violations of OSH
laws were commensurate with those for crimes such as negligence, but they were
infrequently enforced and only in the formal sector.
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OSH standards also were not widely enforced in an expanding large informal
sector, which represented 77 percent of employment and 88 percent of businesses,
according to 2016 reports from the Consultants for Business Development and the
Nicaraguan Foundation for Economic and Social Development. Although more
recent statistics on informality were not available, experts viewed this indicator as
necessarily rising because of sociopolitical unrest and the aftermath of the COVID-
19 pandemic. By law workers may remove themselves from situations that
endanger their health or safety without jeopardy to their employment. It was
unclear whether authorities effectively protected employees in such cases.

Informal Sector: The informal sector included the bulk of workers in street sales,
agriculture and ranching, transportation, domestic labor, fishing, and minor
construction. Legal limitations on hours worked often were ignored by employers,
who claimed workers readily volunteered for extra hours for additional pay.
Violations of wage and hour regulations in the informal sector were common and
generally not investigated, particularly in street sales, domestic work, and
agriculture, where children continued to work in tobacco, banana, and coffee
plantations. Compulsory overtime was reported in the private-security sector,
where guards often were required to work excessive shifts without relief.

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PANAMA 2021 HUMAN RIGHTS REPORT
EXECUTIVE SUMMARY

Panama is a multiparty constitutional democracy. In 2019 voters chose Laurentino
Cortizo Cohen as president in national elections that international and domestic
observers considered generally free and fair.

The country has no military forces. The Panama National Police is principally
responsible for internal law enforcement and public order, and the National Border
Service handles border security. The country also has a National Aeronaval
Service that is responsible for carrying out naval and air operations. Civilian
authorities maintained effective control over the security forces. There were
credible reports that members of security forces committed some abuses.

Significant human rights issues included credible reports of: serious problems with
the independence of the judiciary; serious restrictions on free expression and
media, including censorship and the existence of criminal libel laws; and serious
government corruption.

Impunity among security forces existed due to weak and decentralized internal
control mechanisms for conduct and enforcement. Corruption was a serious
problem in the executive, judicial, and legislative branches as well as in the
security forces. The law provides criminal penalties for corruption by officials, but
the government generally did not implement the law effectively.

Section 1. Respect for the Integrity of the Person

a. Arbitrary Deprivation of Life and Other Unlawful or Politically
Motivated Killings

There were no reports the government or its agents committed arbitrary or
unlawful killings.

Country Reports on Human Rights Practices for 2021
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b. Disappearance
There were no reports of disappearances by or on behalf of government authorities.

c. Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment

The constitution prohibits such practices, and there were no reports that
government officials employed them.

Impunity among security forces existed due to weak and decentralized internal
control mechanisms for conduct and enforcement, in addition to a culture of
corruption. Poor availability of data made the extent of impunity difficult to
gauge. The National Criminal Statistics Directorate was unable to provide
thorough data on the police’s internal affairs, as the government rarely made cases
of police abuse or corruption public. The Panama National Police’s internal affairs
office is responsible for enforcing conduct violations but was inefficient and
resisted efforts to modernize. National police authorities provided training and
information to officers to discourage involvement in narcotics trafficking and
corruption.

Prison and Detention Center Conditions

Prison conditions remained harsh due to overcrowding, insufficient internal
security, a shortage of prison guards, lack of potable water, and inadequate medical
services and sanitary conditions.

Physical Conditions: According to the Ministry of Government’s National
Directorate of the Penitentiary System (DGSP), as of October the prison system
held 19,169 prisoners in facilities with an intended capacity of 14,591. Pretrial
detainees shared cells with convicted prisoners due to space constraints. Prison
conditions for women were generally better than for men, but conditions for both
populations were poor. Several facilities were overcrowded, and several others
lacked adequate inmate security and medical care, basic supplies for personal
hygiene, and potable water.

Nongovernmental organizations (NGOs) with access to prisons reported that self-

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described evangelical pastors and gang leaders continued to tightly control the
pavilions inside the prisons. The NGOs reported perceived favoritism towards
evangelical inmates who appointed themselves “leaders of the prison pavilions.”
NGO representatives also reported that perceived corruption within the prison
system enabled these “leader” inmates to receive privileges, most likely requiring
the collaboration of police or civilian custodians. Other inmates had to secure
approval of these “leaders,” which often involved payment of bribes, to obtain
expedited transfers or access to their legal counselors.

Gang activity in prisons represented a daily threat to prisoner safety. NGO
representatives said prison security personnel and inmates’ relatives were likely
complicit in the smuggling of weapons. In March and April, cats and pigeons were
used to smuggle illicit substances into the Colon Nueva Esperanza prison. In April
and July, prison security agents caught drones entering the prisons’ perimeters
carrying either weapons, drugs, or cell phones. Authorities found a dog serving as
a message courier between gang members within the La Joya prison complex.

Despite various sanitary protocols implemented due to the pandemic, medical care
overall was inadequate due to lack of personnel, transportation, and medical
resources. As of August, the Ombudsman’s Office had received 377 complaints
against prisons, 223 of them for human rights violations due to lack of medical
care during the pandemic. Authorities transferred patients with serious illnesses to
public clinics, but there were constant difficulties in arranging inmate
transportation. During the year the DGSP adapted a truck to work as an ambulance
to serve the La Joya complex. Transfer of inmates depended on the availability of
police vehicles or the limited national ambulance system. Starting in February,
DGSP began its nationwide vaccination program, which included vaccines against
tuberculosis, hepatitis, measles, influenza, and COVID-19.

Administration: Authorities conducted investigations of credible allegations of
mistreatment.

Independent Monitoring: The government permitted prison monitoring by
independent nongovernmental observers. The Ombudsman’s Office prisons
officer conducted several unannounced visits without restrictions. Human rights
NGOs seeking access to prisons were required to send a written request to the

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DGSP 15 days in advance.
d. Arbitrary Arrest or Detention

The law prohibits arbitrary arrest and detention and provides for the right of any
person to challenge the lawfulness of his or her arrest or detention in court. The
government generally observed these requirements.

Arrest Procedures and Treatment of Detainees

The law requires arresting officers to inform detainees immediately of the reasons
for arrest or detention and of the right to immediate legal counsel. During the
pandemic there were several complaints of abuse of authority by police agents
detaining persons during the quarantine and curfew. Most complaints focused on
the verbal mistreatment of citizens at checkpoints.

Legal cases opened prior to the transition to the accusatory justice system (SPA)
continued to be processed under the previous inquisitorial system. Courts’ ruling
under the inquisitorial system in the Panama and La Chorrera judicial districts
were scheduled to close permanently in December. Both systems demonstrated
vulnerabilities to corruption, inefficiencies, and bureaucratic obstacles. Informality
in the judicial processes, such as sending documents through mobile messenger
platforms instead of official emails, became the norm for some lower-level court
judges, thus jeopardizing the transparency of the judicial process.

Under the SPA, bail exists but was rarely granted because of implementation of a
less costly provisional release system. Under the inquisitorial system, a bail
procedure exists for a limited number of crimes but was largely unused. Most bail
proceedings were at the discretion of the Prosecutor’s Office and could not be
initiated by detainees or their legal counsel. Bail was granted in high-profile
corruption cases, which prompted complaints by civil society that the Public
Ministry was administering “selective” justice.

The law prohibits police from detaining adult suspects for more than 48 hours but
allows authorities to detain minor suspects for 72 hours. Under the SPA, arrests
and detention decisions were made on a probable cause basis.

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Arbitrary Arrest: During the COVID-19 pandemic, individuals violating
curfews established nationwide were arrested but had access to legal
representation. They were released after paying the corresponding fine.

Pretrial Detention: According to official statistics, as of October approximately
37 percent of inmates had not been convicted. Full implementation of the SPA

structure nationwide decreased the number of pretrial detainees consistently since
2016.

e. Denial of Fair Public Trial

While the law provides for an independent judiciary, the lack of criminal
convictions for corruption reinforced widespread public opinion that the judicial
system was susceptible to corrupt internal and external influence.

Most allegations of manipulation of the justice system continued to be related to
the influence of political actors. Former president Ricardo Martinelli’s 2018
extradition from the United States to face illegal wiretapping charges resulted in an
August 2019 “not guilty” verdict, but an appeal by the prosecutors was admitted by
the Superior Court in November 2020. A new trial began in July; four of the six
plaintiffs withdrew from the case at that time. The trial ended on November 9 with
Martinelli’s acquittal, a decision decried by many prominent members of civil
society.

Unlike in accusatory system cases, court proceedings for cases in process under the
inquisitorial system were not publicly available. As a result, nonparties to
inquisitorial case proceedings did not have access to them until a verdict was
reached. Under the inquisitorial system, judges could decide to hold private
hearings and did so in high-profile cases. Consequently, the judiciary sometimes
faced accusations, particularly in high-profile cases, of procedural irregularities.
Since most of these cases had not reached conclusion, the records remained under
seal. Interested parties generally did not face gag orders, and because of this lack
of transparency, it was difficult to verify facts.

Trial Procedures

The law provides for the right to a fair and public trial, and the judiciary generally

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enforced this right. The law provides that all citizens charged with crimes enjoy
the right to a presumption of innocence. They have the right to be informed
promptly and in detail of the charges (with free language interpretation available
for non-Spanish-speaking inmates), to have a trial without undue delay, to have
counsel of their choice and adequate time and facilities to prepare a defense, to
refrain from incriminating themselves or close relatives, and to be tried only once
for a given offense. The accused may be present with counsel during the
investigative phase of proceedings.

By law the judicial branch is the only entity that schedules hearings within the
SPA, while the Penitentiary System is in charge of facilitating logistics for
detainees’ attendance at virtual in-person hearings. Detention centers faced
problems with virtual hearings due to lack of sufficient equipment and reliable
wireless connections to support many scheduled hearings, which created delays.
Following a change in SPA leadership in January, there were reports that some
courts unofficially transferred the authority to set dates for virtual hearings to the
Penitentiary System. This change led to reports of unfair administration of
justices, further delays or missed hearings, and a lack of accurate statistics on the
number of hearings conducted throughout the year.

The fully implemented SPA system stipulates that trials must be completed in less
than 12 months. Due to the pandemic, a Supreme Court decree in January
extended the term to 30 months. Judges may order detainees to be present during
the pretrial phase to provide or expand upon statements or to confront witnesses.
Trials are conducted based on evidence presented by the public prosecutor.
Defendants have the right to be present at trial and to consult with an attorney in a
timely manner, along with the right to enter into a plea deal. During the pandemic
many of these hearings were conducted virtually, but at times alleged technical
issues caused further delays in the hearings. Defendants have a right to appeal.
The Penitentiary System’s lack of equipment significantly reduced its capability to
conduct virtual hearings. Most prisons were limited in their capacity to hold
several hearings at once due a lack of available computers. Failure to hold a
hearing meant that the affected inmates had to wait months, on average, for a
rescheduled hearing. There were few if any hearings with multiple inmates.

The Public Defender’s Office continued to fail to initiate the formal process for

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early release of inmates in a timely fashion, despite written instructions from the
judicial branch. No disciplinary actions were taken.

Political Prisoners and Detainees
There were no reports of political prisoners or detainees.
Civil Judicial Procedures and Remedies

Citizens have access to the courts to bring lawsuits seeking damages for, or
cessation of, human rights violations, although most did not pursue such lawsuits
due to the length of the process. There are administrative and judicial remedies for
alleged wrongs, and authorities often granted them to citizens who followed
through with the process. A court may order civil remedies, including fair
compensation to the individual injured. Individuals or organizations that have
exhausted domestic remedies may submit petitions alleging human rights
violations to the Inter-American Commission on Human Rights.

f. Arbitrary or Unlawful Interference with Privacy, Family, Home,
or Correspondence

The law prohibits arbitrary interference with privacy, family, home, or
correspondence, and the government generally respected these prohibitions.

Section 2. Respect for Civil Liberties, Including

a. Freedom of Expression, Including for Members of the Press and
Other Media

The constitution provides for freedom of expression, including for members of the
press and other media. The government generally respected this right, but
journalists and media outlets noted a continuation of criminal and civil libel and
slander lawsuits, which they considered a threat to freedom of expression and
freedom of the press. In addition, media expressed concern with government and
private-sector attempts to withdraw paid advertisements — a significant source of
funding — when outlets published information that was unfavorable to them.

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Violence and Harassment: In April the Inter American Press Association issued
a report highlighting instances of police aggression against journalists covering
public protests. In 2020 National Assembly deputy Zulay Rodriguez sued
journalist Mauricio Valenzuela, of the online media outlet Foco Panama, in family
court on charges of gender-based violence, infringing the rights of a minor, and
attacking her personal liberty and integrity. Valenzuela reported Rodriguez’s
alleged involvement in trafficking gold. In September prosecutor Lorena Quiroz
officially filed the case, and it was subsequently approved by a family court judge.
The processing and admission of gender-violence charges (instead of libel and
slander) resulted in public complaints by social media users and civil society
organizations. The National Council on Journalism and the National Forum of
Journalists issued a press statement questioning the charges and raising concerns
regarding freedom of the press.

In April lawyer Ronier Ortiz, a member of former president Martinelli’s legal
defense team, publicly threatened Foco Panama for its negative coverage of
Martinelli. In response the Journalists Forum, National Council of Journalists, and
Panamanian Broadcasting Association issued a joint statement condemning direct
threats of violence against media, calling Ortiz’s statements “intolerable.” In June
journalist Flor Mizrachi received death threats after her investigative reporting
uncovered an unregistered COVID-19 vaccination clinic clandestinely
administering vaccines in the upscale neighborhood of Coco del Mar. Mizrachi
filed a report with the Attorney General’s Office, which opened an investigation
into the matter.

In August, Annette Planells, cofounder of the NGO Independent Movement
(MOVIN), received anonymous threats via third parties following the NGO’s
publication of alleged corruption schemes in the National Assembly. MOVIN is
the founder and funder of Foco Panama.

Libel/Slander Laws: The law criminalizes defamation, and penalties include
fines, imprisonment, or both. The case related to the 2020 civil court-ordered
seizure of Corprensa’s assets remained in the courts awaiting a ruling. Corprensa
was overdue on posting financial bail of more than one million dollars for a 2012
libel and slander lawsuit brought by former president Perez-Balladares. Corprensa
had been appealing the case for eight years.

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Internet Freedom

The government did not restrict or disrupt access to the internet or censor online
content, and there were no credible reports that the government monitored private
online communications without appropriate legal authority.

Academic Freedom and Cultural Events
There were no government restrictions on academic freedom or cultural events.
b. Freedoms of Peaceful Assembly and Association

The law provides for the freedoms of peaceful assembly and association, and the
government generally respected these rights.

c. Freedom of Religion

See the Department of State’s Jnternational Religious Freedom Report at
https://www.state.gov/religiousfreedomreport/.

d. Freedom of Movement and the Right to Leave the Country

The law provides for freedom of internal movement, foreign travel, emigration,
and repatriation, but due to the COVID-19 pandemic, the government issued
several resolutions limiting movements nationwide. Limitations included strict
quarantine rules and long curfews. In July the Supreme Court of Justice ruled
unconstitutional all Ministry of Health decrees forbidding movement based on
gender, date, and national identification numbers. The ruling was significant for
the transgender, nonbinary, and gender nonconforming communities as well as for
persons with disabilities, who were most directly affected by the strict movement
restrictions imposed in 2020.

e. Status and Treatment of Internally Displaced Persons

Not applicable.

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f. Protection of Refugees

The government cooperated with the Office of the UN High Commissioner for
Refugees (UNHCR) and other humanitarian organizations in providing protection
and assistance to refugees, asylum seekers, stateless persons, and other persons of
concern.

International organization and NGO partners reported that there continued to be
barriers to integration of asylum seekers and refugees, including, but not limited to,
lack of work opportunities and barriers preventing children in these populations
from attending school.

Access to Asylum: The law provides for asylum or refugee status, and the
government has established a system for providing protection to refugees. Despite
the lifting of movement restrictions, the Panamanian National Office for Attention
to Refugees (ONPAR) received a significantly reduced number of asylum and
refugee applications. ONPAR reduced its backlog of asylum cases from nearly
20,000 to 11,000, but most cases were dismissed or asylum seekers had left the
country. Admission and approval rates for asylees remained extremely low during
the year (less than | percent). ONPAR processed initial asylum applications.
Once a case is approved for consideration, the application is referred to the
National Commission for Refugees, an interagency committee that decides the
final status of every case. This committee meets only a few times a year and
adjudicates fewer than 50 cases annually. The entire process could take up to three
years. Those initially admitted into the process by ONPAR may obtain work
authorization, but the waiting period also normally took a year and did not
guarantee final approval.

The government approved and implemented a protocol for identification, referral,
and attention for minors requiring international protection; however, the
institutional protocol for protecting minors who migrate was pending
implementation approval.

The government continued to manage camps in the Darien and Chiriqui Provinces
that provide food, shelter, and medical assistance to migrants. Conditions in the
camps remained difficult. At least one camp did not have regular access to potable

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water and at times had unsanitary conditions due to the unprecedented increase of
refugees, asylum seekers, and migrants. Authorities reported continued migration
from Brazil, Chile, Cuba, Haiti, Venezuela, as well as from South Asia and Africa.
Nearly all the migrants entered by foot through the Darien Gap, a roadless expanse
of jungle on the eastern border with Colombia. International organizations
reported an increase in acts of violence against migrants during their trek through
the Darien Gap, including sexual assaults, robberies, and killings, prompting
authorities to permanently assign three Public Ministry officials to document
criminal complaints from migrants.

ONPAR did not have a permanent presence at migrant camps in the Darien region;
persons who wished to request asylum had to approach the National Border
Service, an international organization, or an NGO to request protection and then
meet with an ONPAR representative, creating barriers to access and delays.

According to UNHCR and its NGO implementing partners, thousands of persons
in the country needed international protection. These included persons in the
asylum and refugee process, persons denied refugee status, and persons who did
not apply for refugee status due to lack of knowledge or fear of deportation.

Employment: Refugees recognized by authorities have the right to work, but
recognized refugees complained that they faced discriminatory hiring practices.
To prevent such discrimination, ONPAR removed the word “refugee” from
recognized refugees’ identification cards. By law ONPAR continued to assist
applicants admitted to the refugee process with obtaining temporary work permits.
Temporary work permits are valid for one year but may be renewed as many times
as needed, until the National Commission for Refugees issues a final resolution on
a case.

Access to Basic Services: Education authorities sometimes denied refugees
access to education and refused to issue diplomas to others if they could not
present complete certified school records from their country of origin. The
Ministry of Education continued to enforce the government’s 2015 decree
requiring schools to accept students in the asylum process at the grade level
commensurate with the applicants’ prior studies. A UNHCR survey conducted
during the year found that school-age refugee children often did not have the

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financial resources or tools to take advantage of opportunities for virtual education.
As a result of the long wait times to be entered into the asylum system, many
applicants encountered difficulties accessing basic services such as health care,
financial services, and appropriate housing.

Durable Solutions: The law allows persons legally recognized as refugees or with
asylum status who have lived in the country for more than three years to seek
permanent residency.

g. Stateless Persons

The government continued to work with Colombia to recognize approximately 200
stateless persons on the border.

Section 3. Freedom to Participate in the Political Process

The law provides citizens the ability to choose their government in free and fair
periodic elections held by secret ballot based on universal and equal suffrage. In
October citizens protested against the National Assembly’s proposed electoral
reforms, which several members of civil society had criticized as politically
motivated mechanisms that could increase corruption and clientelism.

Elections and Political Participation

Recent Elections: In May 2019 voters chose Laurentino Cortizo Cohen as
president in national elections that independent observers considered generally free
and fair. Elected at the same time were national legislators, mayors, local
representatives, and council members. A group of international observers from the
Organization of American States, the EU, electoral NGOs, regional electoral
authorities, and the diplomatic corps considered the elections fair and transparent.

Political Parties and Political Participation: The law requires new political
parties to meet strict membership and organizational standards to gain official
recognition and participate in national campaigns. Political parties must obtain the
equivalent of 2 percent of total votes cast to maintain legal standing. When the
year began, there were six registered political parties, but three new political
movements also received the Electoral Tribunal’s official recognition. The three

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new parties were Realizando Metas (Realizing Goals), led by former president
Martinelli; Movimiento Otro Camino (Another Path Movement), led by the 2019
third runner-up, Ricardo Lombana; and Partido Alternativa Independiente Social
(Alternative Social Independent Party, or PAIS), led by members of the
evangelical community.

Participation of Women and Members of Minority Groups: No laws limit
participation of women or members of minority groups in the political process, and
they did participate.

Section 4. Corruption and Lack of Transparency in
Government

The law provides criminal penalties for corruption by officials, but the government
generally did not implement the law effectively. Corruption remained a serious
problem in the executive, judicial, and legislative branches as well as in the
security forces.

Corruption: In March the Public Ministry filed charges against 25 individuals
accused of using $43 million in public funds to purchase the Editora Panama
America newspaper group. In April the Public Ministry filed charges against two
former presidents, Ricardo Martinelli and Juan Carlos Varela, and three former
ministers, Demetrio “Jimmy” Papadimitriu, Frank De Lima, and Jaime Ford, for
corruption related to the Odebrecht case. As of October the courts had not made a
decision in either case.

In June a major scandal broke nationwide when journalists found a private clinic
administering Pfizer vaccines for an alleged fee of $200. COVID-19 vaccines
(Pfizer and AstraZeneca) were solely managed — purchased, guarded, and
administered — by the Ministry of Health. In December the Public Ministry
pressed criminal charges against two individuals involved in the case. Separately,
former president Ernesto Perez Balladares publicly admitted to being vaccinated
prior to national availability along with 10 members of his family at his residence.
Meanwhile, the rest of the country, including President Cortizo, awaited their turn
as dictated by the ministry’s strict guidelines on age, health conditions, and place
of residence. The Public Ministry did not open investigations into the matter or

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file charges for abuse of authority or corruption.

Corruption and lack of accountability continued in the police force. The public
forces lacked an impartial investigative body for internal investigations. The
absence of clear standard operating procedures allowed for discretion by agents on
a case-by-case basis. The lack of periodic audits over operations to oversee
efficiency, efficacy, accountability, and transparency contributed to the problem.
In September authorities arrested a corporal and two agents from the Institutional
Protection Service in a counternarcotics sting that revealed a network of
individuals trafficking drugs from Colombia.

As of October investigations continued in the 2020 case involving weapons and
weapons-trafficking charges against more than 25 individuals, most of whom were
high-level security officials during the previous government. The charges involved
the illegal distribution to the officials of legally imported weapons, some
designated “weapons of war.” The Public Security Affairs Directorate, the office
within the Security Ministry that regulates and licenses firearms, was associated
with corruption in the past, and at least two former officer directors were facing
charges, with one of them implicated in the case. Some defendants filed legal
proceedings before the Supreme Court alleging courts’ restrictions to their right to
defense by lower courts. As of October the court had not ruled on the writ of
mandamus.

There were no developments in the 2020 Public Ministry investigations of national
government institutions allegedly overpaying for ventilators and purchasing used
ventilators to treat COVID-19 patients.

Section 5. Governmental Posture Toward International and
Nongovernmental Investigation of Alleged Abuses of Human
Rights

Several domestic and international human rights groups generally operated without
government restriction, investigating and making public their findings on human
rights cases.

Government Human Rights Bodies: The ombudsman, elected by the National

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Assembly, heads an office with legal but nonbinding authority. The Ombudsman’s
Office refers cases to the proper investigating authorities and files cases before the
Public Ministry. In a national television interview in August, the ombudsman
publicly complained that the government refused to dedicate sufficient resources
for human rights purposes (investigations, information gathering, infrastructure,
and more professional staff and training, among others.) The Ministry of Economy
and Finance reduced the 2022 Ombudsman’s Office budget to $5.6 million, an
amount like its 2012 budget. The ombudsman’s executive team said the reduction
would diminish the entity’s capacity to oversee human rights issues in the
management of prisons and migrant camps; investigate reports of gender violence
and discrimination against persons with disabilities, members of ethnic groups, as
well as lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+)
persons; and sustain staffing of three of its 14 offices and maintain its vehicle fleet.

Section 6. Discrimination and Societal Abuses

Women

Rape and Domestic Violence: The law criminalizes rape of men or women,
including spousal rape, and stipulates prison terms of five to 10 years. Rapes
continued to constitute most sexual crimes investigated by the National Police
Directorate of Judicial Investigation. In April the Supreme Court found National
Assembly member Arquesio Arias, a Guna Yala native, not guilty in both of his
2020 charges for sexual assault, alleging a “lack of evidence.” Arias was a
physician in his indigenous comarca (a legally designated semiautonomous area)
and was denounced by several Guna Yala women for sexual misconduct and
abuse. Arias returned to his legislative seat on July 1. The law against gender
violence stipulates stiff penalties for harassment, gender-based violence, and both
physical and emotional abuse. For example, the law states that sentencing for
femicide is 25 to 30 years in prison, whereas penalties for other forms of homicide
range from 10 to 20 years in prison. The law was not effectively enforced.
Officials and civil society organizations agreed that domestic violence continued to
be a serious problem.

As of October the Public Ministry reported 13,013 new cases of domestic violence
nationwide, including 12 attempted femicides and 16 femicides. The province of

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Panama Oeste and the Ngabe Bugle comarca led the numbers with four femicides
each, followed by the Panama Province with three cases. In August, Panama
City’s deputy mayor Judy Meana pressed charges against her partner for domestic
violence. The alleged abuser was detained for several hours. The judge released
him while requiring that the accused release his passport to the court, appear before
the court’s office every Monday, Wednesday, and Friday, and adhere to a
restraining order from Meana. The prosecutor filed an appeal, but the judge upheld
the decision.

From January through August, the National Institute for Women’s Affairs
continued to operate its hotline to give legal guidance to victims of domestic
violence and extended its services to include mental health services for women
facing stress as a result of the COVID-19 pandemic. Hours of operation were
reduced from 24/7 to 9 a.m. to 5 p.m. due to a shortage of professional staff to
support the hotline. Ifa caller were at risk during the call, the operator would
make a connection with the Specialized Unit for Domestic and Gender Violence
within the police department. After professional staff returned to in-person work
in September, the hotline services were discontinued due to staffing limitations.
The institute continued to work under a budget that did not allow for victim
services and assistance.

Sexual Harassment: The law prohibits sexual harassment in cases of employer-
employee relations in the public and private sectors and in teacher-student relations
but not between colleagues. Violators face a maximum three-year prison sentence.
The extent of the problem was difficult to determine because convictions for
sexual harassment were rare, pre-employment sexual harassment was not
actionable, and there was a lack of formal reports (only 16 cases had been reported
as of September).

Investigations at the Public Ministry continued in the 2020 case of a National
Aeronaval Service (SENAN) female pilot who filed a criminal complaint for
sexual harassment against her immediate supervisor. Both the man accused of the
harassment and the victim were transferred to other departments and given new
duties. For months during the year, many restrooms for women at SENAN
remained locked due to the pending case. In these cases, women needed to obtain
a key from a specific office to access their restrooms. Restrooms for men

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continued to be open and unlocked at all times.

Reproductive Rights: There were no reports of coerced abortion or involuntary
sterilization on the part of government authorities.

The law permits medical professionals to perform abortions only if the fetus, the
mother, or both are in danger, or, in some very limited cases, if the pregnancy is
the result of rape.

The government provided sexual and reproductive health services for survivors of
sexual violence, including emergency contraception.

Discrimination: The law prohibits discrimination based on gender, and women
enjoyed the same legal status and rights as men, but the law was not enforced. For
example, SENAN permitted female pilots to fly only as copilots, while male
newcomers with less seniority were allowed to fly as principal pilots without
restrictions. The law recognizes joint property in marriages. The law does not
mandate equal pay for men and women in equivalent jobs. Some employers
continued to request pregnancy tests, although it is an illegal hiring practice. The
law puts restrictions on women working in jobs deemed hazardous.

Systemic Racial or Ethnic Violence and Discrimination

Minority groups were generally integrated into mainstream society. Prejudice was
directed, however, at recent legal immigrants, the Afro-Panamanian community,
and indigenous Panamanians.

The Afro-Panamanian community continued to be underrepresented in
governmental positions and in political and economic power. Areas where many
Afro-Panamanians lived lagged in terms of government services and social
investment. The government’s National Secretariat for the Development of Afro-
Panamanians focused on the socioeconomic advancement of this community.

As of August, the Ombudsman’s Office had received six complaints of racism.
Five of the complaints involved the use of traditional African costumes at work
sites. The sixth report concerned a public school that barred a student’s use of hair
braids. After the ombudsman contacted the school principal regarding the matter,

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the student was allowed to attend his virtual classes in braids.

The law prohibits discrimination in access to public accommodations such as
restaurants, stores, and other privately owned establishments. Lighter-skinned
individuals continued to be overrepresented in management positions and jobs that
required dealing with the public, such as bank tellers and receptionists.

Indigenous Peoples

The law affords indigenous persons the same political and legal rights as other
citizens, protects their ethnic identity and native languages, and requires the
government to provide bilingual literacy programs in indigenous communities.
Despite the law’s requirement, the government failed to assign funds necessary for
completion of the bilingual literacy project. Indigenous persons have the legal
right to take part in decisions affecting their lands, cultures, traditions, and the
allocation and exploitation of natural resources. Nevertheless, they continued to be
marginalized in mainstream society. Traditional community leaders governed
comarcas for five of the country’s seven indigenous groups.

Several of the groups faced internal governance problems, since they either did not
have legally elected authorities, or the government delayed the recognition of their
duly elected authorities. This complicated the receipt of government funds,
including those allotted to combat the spread of COVID-19. During the year the
government issued an executive degree regulating elections in the Ngabe Bugle
comarca, which had been on stand-by since 2017.

The government unofficially recognized eight other traditional indigenous
government authorities, on the basis that these eight regions were traditionally
organized indigenous settlements and territories that were excluded from the
constitution when the original comarcas were designated in 1938. The traditional
government authorities are organized under a national coordinating body for
indigenous affairs, the National Coordinator of Indigenous Peoples. In August the
coordinating body stated that high-level government authorities had ignored their
meeting requests, which they considered discriminatory, since the government held
meetings with other ethnic groups and associations. The coordinating body also
expressed concern that the government was stalling full implementation of the

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Indigenous Peoples Development Plan.

Officials from various government entities continued to meet with traditional
organized authorities from indigenous communities, many of whom requested
recognition of their land via collective titles. No collective land titles were granted
during the year, however, and land conflicts continued to arise. Several Embera
communities in Darien Province claimed that illegal settlers continued to enter
their lands during the COVID-19 pandemic, despite the nationwide movement
restrictions, and that their complaints went unaddressed. The Supreme Court of
Justice ruled the Naso comarca constitutional, and the legal process for its creation
was underway. In June the Bri Bri people submitted a demand to the Supreme
Court for protection of their human rights, requesting that the court overturn the
denial of their application for collective title to their lands.

The Barro Blanco dam project, opposed by the Ngabe Bugle peoples, continued to
operate unhindered. There were no plans by the government to halt dam
operations.

Although the law is the ultimate authority in indigenous comarcas, many
indigenous peoples had not received sufficient information to understand their
rights. Additionally, due to the inadequate educational system available in the
comarcas, many indigenous peoples were unaware of or failed to use available
legal channels.

Societal and employment discrimination against indigenous persons was
widespread. Employers frequently denied indigenous workers basic rights
provided by law, such as a minimum wage, social security benefits, termination
pay, and job security. Laborers on the country’s agricultural plantations (most of
whom were indigenous persons) continued to work in overcrowded and unsanitary
conditions. The Ministry of Labor conducted limited oversight of working
conditions in remote areas.

Access to health care continued to be a significant problem for indigenous
communities, primarily due to poor infrastructure and lack of personnel and
supplies. During the year the Embera health and sanitary infrastructure collapsed
under the increased influx of migrants emerging from Colombia. The Ngabe

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Bugle people closed the Interamerican Highway on several occasions, demanding
significant improvements to their comarca’s road system. Deficiencies in the
educational system deepened at all levels during the COVID-19 pandemic.
Although the public school system remained operational through virtual education,
the comarcas typically had very limited access to internet and radio signals. These
technological barriers prevented indigenous students from accessing educational
opportunities.

Children

Birth Registration: The law provides citizenship for all persons born in the
country, but parents of children born in remote areas sometimes had difficulty
obtaining birth registration certificates.

Child Abuse: Child abuse is illegal. The law has several articles pertaining to
child abuse and its penalties, which depend on the type of abuse and range from six
months to 20 years’ imprisonment if the abuse falls under a crime that carries a
higher penalty. Public Ministry statistics as of September reported that 3,660
children were victims of different types of abuse; the Public Ministry believed
these crimes were underreported. The Ministry of Social Development maintained
a free hotline for children and adults to report child abuse and advertised it widely.
The ministry provided funding to children’s shelters operated by NGOs.

In February the Women’s, Children and Youth Commission of the National
Assembly revealed the results of a study commissioned in 2019 of children’s
shelters nationwide. The 700-page report, which was not made public but was
widely discussed by legislators, allegedly revealed widespread abuse, including
sexual abuse, negligence, lack of supply of medications, and administrative
irregularities in the shelters investigated. These shelters were managed by NGOs,
supervised by the National Secretariat for Children, Adolescents, and Family
Affairs (SENNIAF), and operated with government funding.

In late August, SENNIAF announced that between May and July, it filed eight
criminal complaints for alleged abuse in shelters, in response to a legislator who
alerted the media about receiving anonymous complaints detailing additional abuse
cases in SENNIAF-supervised shelters. As of September, the Public Ministry had

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opened 27 cases, charged 13 individuals, and convicted three others.

Child, Early, and Forced Marriage: The minimum legal age for marriage is 18.
The government prohibits early marriage even with parental permission.

Sexual Exploitation of Children: The law prohibits the commercial sexual
exploitation, sale, and offering for prostitution of children, in addition to child
pornography. Officials from the Ministry for Public Security prosecuted cases of
sexual abuse of children, including within indigenous communities. Ministry
officials believed commercial sexual exploitation of children occurred, including in
tourist areas in Panama City and in beach communities, although they did not keep
separate statistics. As of September, there were no cases reported nationwide of
child sexual tourism.

International Child Abductions: The country is a party to the 1980 Hague
Convention on the Civil Aspects of International Child Abduction. See the
Department of State’s Annual Report on International Child Abduction at
https://travel.state.gov/content/travel/en/International-Parental-Child-
Abduction/for-providers/legal-reports-and-data/reported-cases.html.

Anti-Semitism

Jewish community leaders estimated there were 15,000 Jews in the country. There
were no known reports of anti-Semitic acts.

Trafficking in Persons

See the Department of State’s Trafficking in Persons Report at
https://www.state. gov/trafficking-in-persons-report/.

Persons with Disabilities

Persons with disabilities faced difficulty accessing education, health services,
public buildings, and transportation on an equal basis with others. Government
information and communication is not provided in accessible formats, and there is
no law requiring such access. The law mandates that persons with disabilities have
access to education and health services, including rehabilitation and therapies,

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public transportation, public and private buildings, sports and cultural events, and
jobs without discrimination. In practice, however, accessibility was limited.

Private schools started reopening in June, but public schools remained closed
during the year due to the pandemic. Public schools taught via the public SerTV
radio and television stations. Only occasionally did the Ministry of Education
facilitate sign language interpretation for students with hearing disabilities during
classes taught on television. Schools did not address other disabilities during home
and virtual schooling.

Most of Panama City’s bus fleet remained wheelchair inaccessible. Public buses in
the rest of the country were small and not adapted for persons with disabilities.

The Panama City Metro elevators remained closed for most of the year, according
to NGO representatives. A lack of ramps further limited access to older stations,
although Metro Line 2 had ramp access.

HIV and AIDS Social Stigma

The law prohibits discrimination against persons with HIV and AIDS in
employment and education. Discrimination, however, continued to be common
due to ignorance of the law and a lack of mechanisms for ensuring compliance.
LGBTQI-+ individuals with HIV or AIDS reported mistreatment by public health-
care workers.

Employees are not obligated to disclose their condition to the employer, but if they
do so, the employer must keep the information confidential. Employers may be
fined for not keeping an employee’s medical condition confidential. The

government was not active in preventing discrimination against persons with HIV
and AIDS.

There were fewer public HIV/AIDS medical treatments and supplies available,
since most medical resources were dedicated to fighting COVID-19. The
University of Guatemala funded stigma-free “friendly clinics” for LGBTQI+
COVID-19 patients, but activists reported that staff members in these clinics were
not friendly to their visitors.

During the year there was only one appointment per month at the Ministry of

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Health’s facilities for the HIV viral load test. Pregnant women who needed the test
were prioritized for appointments over members of the LGBTQI+ community.

Acts of Violence, Criminalization, and Other Abuses Based on
Sexual Orientation and Gender Identity

During the COVID-19 pandemic, LGBTQI+ persons reported harassment by
public-health officials, but there were no public reports of police harassment
during the year.

In June, LGBTQI+ activists organized two Pride Month parades in Panama City.
Early in the month, the private Museum of Liberty and Human Rights raised the
Pride flag, but days later it was vandalized by a group of “profamily” and anti-
same-sex marriage activists during a protest outside the museum. Part of the
museum’s board decided not to raise the flag again. As a result, five board
members submitted their resignations to the board’s president in protest. The
Canal Museum also raised the Pride flag but later took it down upon receiving a
government request citing a law that stipulate only the Panamanian flag can be
flown in government buildings. The Canal Museum 1s a joint private-public
venture and received public funding.

The law does not prohibit discrimination based on sexual orientation. There was
societal discrimination based on sexual orientation and gender identity, which
often led to denial of employment opportunities. Same-sex marriage continued to
be prohibited by law. As of October the Supreme Court had not ruled on the 2016
class-action lawsuit requesting the article of the family code that refers to marriage
as “the union of a man and a woman,” and thus forbids same-sex legal unions, be
declared unconstitutional. Panamanian same-sex couples who were married
abroad were not allowed to legally register their marriage. In September the
Supreme Court did not admit a writ of mandamus filed by a local law firm against
the Civil Registry’s decision not to register the same-sex marriage of a Panamanian
citizen and his Colombian spouse held in Colombia in 2017.

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Section 7. Worker Rights

a. Freedom of Association and the Right to Collective Bargaining

The law provides for private-sector workers to form and join independent unions,
bargain collectively, and conduct strikes. Public-sector employees may organize to
create a professional association to bargain collectively on behalf of its members,
even though public institutions are not legally obliged to bargain with the
association. Members of the national police are the only workers prohibited from
creating professional associations. There were 14 public-worker associations
registered. The National Federation of Public Servants (FENASEP), an umbrella
federation of 31 public-sector worker associations, traditionally fought to establish
rights similar to those of private-sector unions. The law prohibits antiunion
discrimination and requires reinstatement of workers terminated for union activity
but does not provide adequate means of protecting this right.

Unions and associations are required to register with the Ministry of Labor. If the
ministry does not respond to a private-sector union registration application within
15 calendar days, the union automatically gains legal recognition, provided the
request is submitted directly with the supporting documentation required. In the
public sector, professional associations gain legal recognition automatically if the
Ministry of Government does not respond to registration applications within 30
days. According to FENASEP leaders, most associations were approved, although
some cases were denied for political reasons. According to official sources, the
Ministry of Labor approved applications for the formation of two private-sector
unions and one public-sector association during the year.

The law allows arbitration by mutual consent, at the request of employees or the
ministry, in cases of collective disputes at privately held companies. It allows
either party to appeal if arbitration is mandated during a collective dispute at a
public-service company. The Ministry of Labor Board of Appeals and
Conciliation has the authority to resolve certain labor disagreements within the
private sector, such as internal union disputes, enforcement of the minimum wage,
and some dismissal issues. For example, the Ministry of Labor, as a mediator in
biennial minimum wage negotiations between unions and businesses in 2019,
announced a minimum wage increase of 3.3 percent when negotiations failed.

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Government regulations on union membership place some restrictions on freedom
of association. The constitution mandates that only citizens may serve on a
union’s executive board. In addition, the law requires a minimum of 40 persons to
form a private-sector union (either by a company across trades or by trade across
companies) and allows only one union per business establishment. The
International Labor Organization criticized the 40-person minimum as too large for
workers wanting to form a union within a company. Many domestic labor unions,
as well as the public and private sectors, reiterated their support for keeping the
figure at 40 individuals, since having a greater number of participants can
strengthen a union’s influence.

In the public sector, professional associations represent the majority of workers.
The law stipulates only one association may exist per public-sector institution and
permits no more than one chapter per province. At least 50 public servants are
required to form a professional association. No law protects the jobs of public-
sector workers in the event of a strike. FENASEP contended there was no political
will to allow all public servants within ministries to form unions, because this
could eliminate positions for political appointees.

The law prohibits federations and confederations from calling strikes. Individual
professional associations under FENASEP may negotiate on behalf of their
members, but the Ministry of Labor can order compulsory arbitration. According
to the labor code, the majority of private-sector employees must support a strike,
and strikes are permitted only if they are related to improvement of working
conditions, a collective bargaining agreement, repeated violations of legal rights, or
support for another workers strike on the same project (solidarity strike). In event
of a strike, at least 20 to 30 percent of the workforce must continue to provide
minimum services, particularly public services defined by law as essential, such as
transportation, sanitation, mail delivery, hospital care, telecommunications, and
provision of necessary food.

Strikes in essential transportation services are limited to those involving public
passenger services. The law prohibits strikes by Panama Canal Authority
employees but allows professional associations to organize and bargain
collectively on issues such as schedules and safety and provides arbitration to
resolve disputes. The Canal Authority is an autonomous entity, independent of the

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national government and as such is subject to its own labor regulation.

The Ministry of the Presidency Conciliation Board is responsible for resolving
public-sector worker complaints. The board refers complaints it cannot resolve to
an arbitration panel, which consists of representatives from the employer, the
professional association, and a third member chosen by the first two. If the dispute
cannot be resolved, it is referred to a tribunal under the board. Observers,
however, noted that the Ministry of the Presidency had not named the tribunal
judges. The alternative to the board is the civil court system, but those procedures
can take more than three years and usually result in negative outcomes for the
employee. While Supreme Court decisions are final, labor organizations may
appeal cases in international human rights courts.

The government did not consistently enforce the law in the formal sector and was
less likely to enforce the law in most rural areas (see section 6, Indigenous
Peoples). Throughout the year the administration continued to dismiss public
workers, mostly without citing a legal basis and all without paying negotiated
employment benefits such as paid vacation leave or severance pay. According to
reports, these firings were due to the change in government and not the COVID-19
pandemic. An estimated 80,000 public workers had been dismissed since the start
of President Cortizo’s administration in 2019. In August FENASEP presented a
lawsuit to the Supreme Court for noncompliance with Decree 466 of 2020, which
prohibits employees from being fired during the state of emergency imposed due to
the pandemic. In the lawsuit FENASEP also claimed that workers were not paid
for months after being called back to work during the pandemic.

The government and employers generally respected freedom of association.
Penalties for violations were commensurate with those for similar offenses.

b. Prohibition of Forced or Compulsory Labor

Although the law prohibits all forms of human trafficking, including forced labor
of adults and children, the penal code stipulates that a trafficking offense must
include movement, which is inconsistent with international protocols. The law
establishes criminal penalties commensurate with those for other similar serious
crimes.

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The government enforced the law in the formal sector. The Ministry of Labor
investigated human trafficking for the purpose of forced labor, granted residency
and work permits for foreign trafficking victims, and provided additional food and
hygiene support to trafficking victims during the pandemic. Authorities prosecuted
and convicted fewer perpetrators of labor exploitation and identified fewer
potential forced labor victims, compared with previous years. In July the Public
Ministry sentenced a person to 23 years in prison for the crimes of trafficking in
persons (sexual servitude), kidnapping, and extortion. The convicted person was
also disqualified from exercising public functions for five years after completing
the prison term.

Forced labor occurred, mainly with sexual exploitation of adults and children.
Labor traffickers reported using debt bondage, false promises, exploitation of
migratory status, lack of knowledge of the refugee process and irregular status,
restrictions on movement, and other indicators of forced labor. Migrant workers
without work permits were vulnerable to forced labor. There also were reports of
forced child labor (see section 7.c.).

Also see the Department of State’s Trafficking in Persons Report at
https://www.state.gov/trafficking-in-persons-report/.

c. Prohibition of Child Labor and Minimum Age for Employment

The law prohibits all the worst forms of child labor. Minors younger than 16 may
work no more than six hours per day or 36 hours per week, while children ages 16
and 17 may work no more than seven hours per day or 42 hours per week.
Children younger than 18 may not work between 6 p.m. and 8 a.m. The law
prohibits employment of children younger than 14, and children who have not
completed primary school may not begin work until 15. The law allows children
ages 12 to 15 to perform light work in agriculture if the work is outside regular
school hours. The law also allows a child older than 12 to perform light domestic
work and stipulates that employers must ensure the child attends school through
primary school. The law neither defines the type of light work children may
perform nor limits the total number of light domestic work hours children may
perform. The law prohibits children younger than 18 from engaging in hazardous
work but allows children as young as 14 to perform hazardous tasks in a work-

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training facility, in violation of international standards.

The government inconsistently enforced the law; criminal penalties were
commensurate with those for similar crimes but were not enforced in all sectors.
Children were exploited in forced labor, particularly domestic servitude, and
subjected to sex trafficking and sexual exploitation. After the government
prosecuted and convicted its first child-labor case in September 2020, it started

investigating a second case and provided social services to 1,500 child victims and
children at risk of child labor.

Child labor occurred. According to the observations of a well known NGO on
child labor, before the pandemic, child labor was centered in the agricultural
sector, but pandemic movement restrictions forced children and adolescents to also
become street vendors in urban areas. Children worked in agriculture, where they
could be subjected to hazardous work. Children from indigenous and Afro-
descendent communities were most vulnerable to the worst forms of child labor.

d. Discrimination with Respect to Employment and Occupation

The law prohibits discrimination based on race, sex, religion, political opinion,
citizenship, disability, social status, and HIV status. The law does not prohibit
discrimination based on sexual orientation or gender identity. Although the
country is a member of the International Equal Pay Coalition, which promotes pay
parity between women and men, a gender wage gap continued to exist, and no law
mandates equal pay for equal work. The law puts restrictions on women working
in jobs deemed hazardous.

The government did not effectively enforce the law, and penalties were not
commensurate with those for similar crimes. Despite legal protections,
discrimination in employment and occupation occurred with respect to race, sex,
disability, and HIV-positive status. During the job interview process, applicants,
both citizens and noncitizens, must complete medical examinations, including

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HIV/AIDS testing. The law requires all laboratories to inform applicants that an
HIV test will be administered, but private-sector laboratories often did not comply.
It was common practice for private-sector human resources offices to terminate
applications of HIV-positive citizens without informing the applicant. While
private laboratories often informed law enforcement of HIV-positive migrants, the
National Migration Service did not engage in deportation procedures based
specifically on a migrant’s HIV status. NGOs noted that during job interviews,
women were often asked if they were married, pregnant, or planned to have
children. It was common practice for human resources offices to terminate the
applications of women who indicated a possibility of pregnancy in the near future
(see section 6, Women). Persons with disabilities continued to face discrimination
in hiring and accessing the workspace.

e. Acceptable Conditions of Work

Wage and Hour Laws: The law provides for a national minimum wage only for
private-sector workers. The wage was above the poverty line. Public servants
received lower wages than their private-sector counterparts, but salaries were
above the poverty line. Most workers formally employed in urban areas earned the
minimum wage or more. According to some reports, the pandemic eliminated as
much as 50 percent of formal jobs in the private sector.

The law establishes a standard workweek of 48 hours, provides for at least one 24-
hour rest period weekly, limits the number of hours worked per week, provides for
premium pay for overtime, and prohibits compulsory overtime. There is no annual
limit on the total number of overtime hours allowed. If employees work more than
three hours of overtime in one day or more than nine overtime hours in a week,
excess overtime hours must be paid at an additional 75 percent above the normal
wage. Workers have the right to 30 days of paid vacation for every 11 months of
continuous work, including those who do not work full time.

Occupational Safety and Health: The Ministry of Labor is responsible for
setting health and safety standards. Standards were generally current and
appropriate for the industries in the country. The law requires employers to
provide a safe workplace environment, including the provision of protective
clothing and equipment for workers. Equipment was often outdated, broken, or

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lacking safety devices, due in large part to fear that replacement costs would be
prohibitive. After the beginning of the pandemic, all workplaces were required to
establish a health committee to enforce the mandatory health standards established
by the Ministry of Health.

The Ministry of Labor generally enforced the law in the formal sector. The
inspection office consists of two groups: the Panama City-based headquarters
group and the regional group. The number of inspectors and safety officers was
sufficient to enforce wage, hour, and safety regulations adequately in the formal
sector. As of September, the ministry conducted 8,551 safety inspections, an
increase of 110 percent from the same period in 2020. Penalties were not
commensurate with those for similar violations. Employers often hired employees
under short-term contracts to avoid paying benefits that accrue to long-term
employees. Employers in the maritime sector also commonly hired workers
continuously on short-term contracts but did not convert them to permanent
employees as required by law. The law states that employers have the right to
dismiss any employee without cause during the two-year tenure term. As a result,
employers frequently hired workers for one year and 11 months and subsequently
dismissed them to circumvent laws that make firing employees more difficult after
two years of employment. This practice is illegal if the same employee is rehired
as a temporary worker after being dismissed, although employees rarely reported
the practice.

In workplaces 83 accidents were registered. Construction was the most dangerous
sector for workplace accidents, accounting for 82 percent of all accidents
registered. In some cases, equipment was outdated, broken, or lacking safety
devices, and in other cases the employee failed to wear appropriate personal
protective equipment. In February a construction worker died after falling from
the 26th floor of a building under construction. The Public Ministry is charged
with investigating these incidents. The most hazardous sectors were construction,
agriculture, and mining.

Informal Sector: According to official sources, in September 2020, 53 percent of
the working population worked in the informal sector, and some earned well below
the minimum wage. The informal sector grew substantially over the past two years
due to massive job dismissals in the formal sector because of the COVID-19

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pandemic.

In August 2020 the government reformed the law to promote the creation and
development of micro, small, and medium-sized enterprises. These reforms
assisted the National Authority for Micro, Small, and Medium Sized Businesses to
institute policies to help formalize the economy, including the creation of soft
loans and policies to help employers pay required social security fees to
employees.

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As of: May 08, 2023
Received: March 27, 2023
PUBLIC SUBMISSION Status: Posted
Posted: March 29, 2023
Tracking No. lfr-eg5p-zvje
Comments Due: March 27, 2023
Submission Type: Web

Docket: USCIS-2022-0016
Circumvention of Lawful Pathways

Comment On: USCIS-2022-0016-0001
Circumvention of Lawful Pathways

Document: USCIS-2022-0016-12324
Comment Submitted by International Refugee Assistance Project

Submitter Information
Email: asiddiqi@refugeerights.org
Organization: International Refugee Assistance Project

General Comment
Please see the attached. The International Refugee Assistance Project (IRAP) submits this comment in
opposition to the Department of Homeland Security (DHS) and Department of Justice (DOJ)’s Notice of
Proposed Rulemaking and Request for Comment on Circumvention of Lawful Pathways, CIS No. 2736-22,
Docket No: USCIS 2022-0016, A.G. Order No. 5605-2023, 88 Fed. Reg. 11704, published in the Federal
Register on February 23, 2023.

IRAP strongly opposes all aspects of the NPRM except for its proposed rescission of the prior rules establishing
bars to asylum that are currently subject to court orders. IRAP urges the administration not to finalize this NPRM
with the exception of the rescission of the Trump-era rules, and to stop punishing refugees who enter at the U.S.
southern border. Instead, the administration must devote resources to humane asylum processing and just
adjudications. IRAP welcomes the opportunity to discuss this Comment with you further. If you have any
questions, please reach out to Sunil Varghese at policy@refugeerights.org.

Attachments
IRAP Comment - Circumvention of Lawful Pathways Proposed Rule

CLP_PC_031200
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March 27, 2023

Submitted via: https://www.regulations.gov.

Daniel Delgado Lauren Alder Reid
Acting Director Assistant Director,
Border and Immigration Policy OΊce of Policy, EOIR
OΊce of Strategy, Policy, and Plans U.S. Dep’t of Justice
U.S. Dep’t of Homeland Security telephone (703) 305-0289
telephone (202) 447-3459

Re: Notice of Proposed Rulemaking and Request for Comment on
Circumvention of Lawful Pathways

Dear Acting Director Daniel Delgado and Assistant Director Lauren Alder Reid:

The International Refugee Assistance Project (IRAP) respectfully submits this
comment in opposition to the Department of Homeland Security (DHS) and
Department of Justice (DOJ)’s Notice of Proposed Rulemaking and Request for
Comment on Circumvention of Lawful Pathways, CIS No. 2736-22, Docket No:
USCIS 2022-0016, A.G. Order No. 5605-2023, 88 Fed. Reg. 11704 (“the NPRM” or
“the Proposed Rule”), published in the Federal Register on February 23, 2023.

IRAP strongly opposes all aspects of the NPRM except for its proposed rescission of
the prior rules establishing bars to asylum that are currently subject to court
orders. See 88 Fed. Reg. 11727-28.

The International Refugee Assistance Project and its Interest in the Issue

The International Refugee Assistance Project (IRAP) provides comprehensive legal
services to refugees and displaced persons. Since our establishment, we have
provided legal assistance to thousands of displaced persons seeking legal pathways
from conΉict zones to safe countries.

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IRAP’s goal is to ensure that available services and legal protections go to those who
are most in need. Our clients include LGBTI individuals, religious minorities subject
to targeted violence, survivors of sexual and gender-based violence, children with
medical emergencies for which local treatment is not available, and interpreters
being targeted by the Islamic State, militias, and the Taliban in retaliation for their
work with the United States and NATO.

Of particular relevance to the NPRM, IRAP works with Derechos Humanos
Integrados en Acción (DHIA), a Mexican non-governmental organization, to provide
daily services to migrants in Ciudad Juárez seeking legal information and
representation. Until January 2023 and the rollout of the CBP One application, IRAP
represented individual clients in Ciudad Juárez seeking to enter the United States
via Title 42 Exemptions. IRAP continues to provide legal information and assistance
to migrants in Ciudad Juárez who are struggling to use CBP One, amid the
application’s many glitches and complications. IRAP also screens clients for
eligibility for other pathways to enter the United States and provides legal
representation as appropriate. Finally, IRAP intends to provide clients with legal
advice and legal information about how to lawfully enter the United States to seek
asylum after Title 42’s anticipated end in May 2023.

The Agencies’ Notice of Proposed Rulemaking

The agencies propose to create substantial barriers to many, if not most, asylum
seekers’ ability to access the U.S. asylum system enshrined in statute by Congress.
In general, all refugees seeking to enter the United States by land at the southern
border with Mexico would be presumed ineligible to seek asylum unless they could
demonstrate, to the government’s satisfaction, that they had applied for and been
denied asylum in one of the countries they transited through, or they were
successful in making an appointment to present themselves at a port of entry using
the CBPOne application.1 See 88 Fed. Reg. 11704. Only a “narrow set” of refugees
who seek to present themselves at a port of entry but are unable to make an
appointment using CBPOne due to “serious obstacle[s]” such as “illiteracy”, would

1
While much of the agencies’ discussion concerns the existence of the parole programs for certain
migrants from Cuba, Haiti, Nicaragua, and Venezuela (“CHNV parole programs”), those programs
require accepted individuals to Ήy into the United States, 88 Fed. Reg. 1249-1250 (2023), and so by
deΈnition, do not provide protection to refugees who seek to enter the United States by land.

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be exempt from the presumption.2 Id. at 11723 & n.173. Unaccompanied minors
would also be exempt from the presumption. Id. at 11707.

For refugees subject to the presumption, all are to be presumed ineligible for
asylum in the United States unless they can “demonstrat[e] exceptionally
compelling circumstances,” such as an “[a]cute medical emergency,” “an imminent
and extreme threat to their life or safety,” or that they were a victim of “a severe
form of traΊcking.” Id. at 11723. They bear the burden to prove such
circumstances by a preponderance of the evidence. Id. This showing must be
made both at the beginning of the credible fear interview (CFI) before an asylum
oΊcer, and, for those cases that are permitted to proceed to aΊrmative or
defensive asylum application merits proceedings, before the adjudicator
considering the merits. Id. at 11707.

In addition, for asylum seekers who are barred from asylum under the
presumption, the rule would heighten the legal standard they must meet to
demonstrate that they may be entitled to protection under the Convention Against
Torture or withholding of removal. SpeciΈcally, such individuals must demonstrate
a “reasonable possibility” that they will su·er persecution or torture at the CFI
screening, rather than a “signiΈcant possibility,” to be placed in removal
proceedings. Id. at 11742. In addition, under the NPRM, negative CFI
determinations of individuals subjected to the ban will be reviewed by an
immigration judge only at the express request of the individual, no longer as a
matter of course. Id. at 11744.

The agencies identify several purposes that they state motivate their proposed rule,
speciΈcally: (1) an anticipated “unmanageable Ήow of migrants” at the U.S. southern
border when the Title 42 restrictions are lifted, and as a result, a concern that
federal and local border infrastructure will be overwhelmed and immigration court
backlogs will grow; (2) a concern about “putting migrants’ lives at risk” by policies
that incentivize the use of smugglers and human traΊckers to cross the border; (3)
a concern that increasing existing immigration backlogs harm individuals with
“meritorious” claims by delaying positive resolution of their cases and reward
2
The NPRM does not explain the circumstances under which such individuals would be permitted to
enter at a port of entry, and so presumably it contemplates that such individuals would have no
choice but to enter without inspection between ports of entry.

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individuals with “non-meritorious” claims who are able to remain in the United
States while their cases are pending; and (4) a desire to urge migrants “to seek
protection in third countries in the region.” Id. at 11705, 11707, 11737.

The agencies state that they are proposing a “temporary” 2-year rule, but are
soliciting comments on whether the rule should be in place for more or less time;
they intend to have their new regulatory regime in place when Title 42 ends; and
they may rely on an interim Έnal rulemaking while the notice and comment
rulemaking process is underway. Id. at 11727.

IRAP opposes the NPRM on the following grounds:

IRAP’s Opposition to the NPRM

I. The Agencies Have Failed to Adequately Explain Their Reasoning

The NPRM rests on several explicit or implicit premises, which are not suΊciently
explained or supported by the evidence the agencies have identiΈed.

a. The Agencies Have Not Adequately Explained Their Basis for
Believing that a “Surge” in Border Crossings is Imminent

First, the NPRM rests on the premise that the end of Title 42 will lead to an
“unmanageable Ήow of migrants'' at the southern border that will overwhelm the
federal government’s ability to “safely, humanely, and eΊciently administer the
immigration system, including the asylum system.” Id. at 11707, 11729. The
agencies do not, however, provide data showing that the federal government is
currently overwhelmed, notwithstanding the NPRM’s repeated discussion of
historically high rates of border encounters by the agencies. Rather, they cite
internal government data that the agencies say shows some CBP facilities were at
or over capacity earlier this Έscal year. Id. at 11714. But the agencies concede that
their data is from before the Cuba, Haiti, and Nicaragua parole programs went into
e·ect, and they say these programs were highly “success[ful]” in reducing the
number of individuals seeking to enter the U.S., id. at 11711. As such, it is not at all
clear whether any CBP facilities are currently at capacity.

4
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To predict what may happen in the future, the agencies rely on a single internal
projection by DHS, Έnding that “encounter numbers may increase to 11,000-13,000
per day” when Title 42 ends, absent policy changes. Id. at 11728-29 & n.189
(emphasis added) (citing “DHS Post-Title 42 Planning Model generated on January 6,
2023”); see also id. 11705, 11731, 11746. But this projection also relies on data from
before the CHNV parole programs went into e·ect, such that it does not reΉect the
government’s current capacity with far fewer people seeking to enter the United
States. Moreover, the agencies provide no information about the data or
assumptions DHS relied upon in making its projection, as would be necessary to
allow commenters to assess the validity of the projection. Nor do the agencies
identify all the outputs generated by the DHS Post-Title 42 Planning Model; they
concede that the 11,000-13,000 number is in the “upper bounds” of the model’s
outputs, id. at 11705 n.11 & 11706, but they fail to provide the other predictions the
model made that would allow the public to consider reasonable alternatives.

In short, the agencies do not suΊciently identify the problem the NPRM purports to
solve. The explanation of why the federal government will be unable to meet the
demands placed on it in the immediate aftermath of Title 42 lifting absent this new
policy proposal is noticeably lacking. The agencies’ failure is particularly striking
given that they justify the NPRM as a “temporary” measure that is speciΈcally
designed to respond to a “unique” time-limited situation. Id. at 11730.

b. The Agencies Have Not Adequately Explained their Basis for
Believing that Viable Alternatives Exist for Asylum Seekers

i. CHNV Parole Programs

The NPRM rests on the premise that refugees seeking protection from persecution
have viable alternatives to entering the United States without inspection. The
agencies concede that a deterrence-only policy is not suΊcient to meet their goals,
and providing “lawful processes for individuals who intend to migrate” is a “critical
component to reducing migratory Ήows.” Id. at 11713. To that end, the agencies
describe three di·erent processes, incorrectly assuming each is a viable alternative
for asylum seekers without suΊcient explanation.

5
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First, the agencies identify the CHNV parole programs as one “lawful pathway”
refugees can use in lieu of approaching the southern border by land. At the
threshold, those pathways are limited to nationals of four countries. Moreover, as
the agencies recognize, those pathways are limited to individuals who have a
passport, have a Έnancial sponsor in the United States, and are able to pay for their
airfare to the United States. In short, the design of the parole pathways all but
ensures that the most vulnerable refugees, forced to Ήee without time to prepare
documents and resources, are categorically excluded. Finally, even with respect to
those who are able to qualify for the program, the agencies o·er no information as
to how many applicants have applied and how quickly the monthly cap of 30,000
individuals from all four countries has been Έlled.

Notably, the agencies state that Venezuelan, Nicaraguan, and Cuban nationals are
expected to comprise a “signiΈcant part” of the increased number of individuals
seeking to cross the border after Title 42 ends. See id. at 11731; see also id. at
11712. In doing so, they essentially concede that the parole programs—speciΈc to
these nationals—are insuΊcient to meet their need for refuge in the United States.

ii. The Agencies Have Not Adequately Explained Their Basis
for Believing that Asylum is Meaningfully Available in
Transit Countries

The agencies also assume that seeking asylum in a transit country is a viable option
for many refugees. The agencies’ data fails to support their assumption. In
particular, the agencies focus on the increasing number of asylum applications
received in Mexico and Costa Rica, see id. at 11721-22, but not on whether those
applications result in access to meaningful protection in those countries for
individuals who need it.

For example, with respect to Mexico—the country through which all individuals will
necessarily transit if they are approaching the southern border by land—the
agencies rely on media accounts to suggest that most of the refugee cases Έled in
2021 were approved, see id. at 11721 n.145. But the Mexican government’s publicly
available data shows otherwise: Mexico’s overburdened asylum system has too few
resources to meet the current demand for its services and its backlog is rapidly

6
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growing.3 The Mexican Commission for Refugee Assistance (COMAR) limited staΊng
and geographic presence mean that many refugees are simply unable to access it.
And Mexico requires individuals to apply for asylum within 30 days of their entry to
the country, so if individuals are unable to quickly access the system, they will be
barred through no fault of their own.

iii. The Agencies Have Not Adequately Explained Their Basis
for Believing that CBP One Is a Functional System That
Will Enable Asylum Seekers to Access the Border

Finally, the agencies assume that CBP One is or will be a meaningful mechanism by
which asylum seekers can access the southern border. See id. at 11707. But CBP
One was designed for a much narrower purpose and it has repeatedly failed in the
face of the new demands placed on it.4 Technological problems that refugees have
encountered when trying to use CBP One have been well-documented and include
issues such as the lack of proper functionality for people with darker skin tones.5
But the NPRM myopically fails to address any of the issues currently plaguing CBP
One, incorrectly assuming that most migrants have smartphones, third parties can
assist migrants in accessing CBP One, and the “very narrow” exception for
individuals who are unable to accept the app for speciΈc reasons cures any
remaining concerns. See id. at 11720, 11723 n.173.

Moreover, among the current problems with CBP is the extremely limited number
of appointments available each day. While the agencies vaguely assert that the
government will “expand implementation” of the application after Title 42 is lifted,
they fail to provide any information related to the number of appointments that
they will make available each day, as would be necessary to enable commenters to
the NPRM to assess whether appointments will even begin to meet the need.

3
A detailed discussion on this issue based, in part, on data obtained from the Mexican Commission
for Refugee Assistance (COMAR) follows below in Section III.f.

4
An in-depth discussion of the inadequacies of CBP One follows below in Section III.f.
5
See e.g., “CBP One Is Riddled With Flaws That Make the App Inaccessible to Many Asylum Seekers,”
Immigration Impact, American Immigration Council, February 28, 2023, available at:
https://immigrationimpact.com/2023/02/28/cbp-one-app-Ήaws-asylum-seekers/.

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Despite vague statements that narrow categories of people who are unable to
access or use CBP One,6 the NPRM provides no process or explanation on how
these individuals would access a port of entry without an appointment. See id. at
11720. Based on IRAP’s observations of the current implementation of CBP One,
they cannot. This virtually guarantees that asylum seekers who cannot access CBP
One will have no choice but to enter without inspection between ports of entry,
likely with the assistance of smugglers, and putting themselves at grave risk. This
outcome runs expressly counter to the agencies’ stated goals of increasing the
safety of migrants, reducing their dependence on smugglers, and reducing the
number of people entering between ports of entry given the associated strain on
limited CBP resources.

c. The Agencies Have Not Adequately Explained Their About-Face
on Legal Standards

The NPRM is premised on the idea that the vast majority of asylum claims are not
meritorious, and that those cases can be e·ectively weeded out at the threshold of
the process by imposing more stringent standards – for example, by requiring
asylum seekers subjected to the ban to prove that they fear a “reasonable
possibility” of persecution or torture. But as the government recently recognized in
the context of the Credible Fear and Asylum Processing Interim Final Rule, the
higher standard is not e·ective at screening out “non-meritorious” claims. Id. at
11746 (citing 87 FR 18078, 18092). The government’s abrupt about-face today is not
based on new data, but rather the lack of evidence that the reasonable probability
standard is not e·ective in the context in which it is currently used, see id. at
11746-47 (information available when the government made its prior
determination).

Moreover, the agencies’ premise runs counter to IRAP’s extensive experience
representing and assisting asylum seekers at the U.S. southern border. Based on
IRAP’s experience, we believe that asylum seekers who would ultimately prevail on
the merits will be screened out by the NPRM’s asylum ban. To take an illustrative
client example: a Salvadoran woman who has been a victim of rape repeatedly in

6
“due to language barrier, illiteracy, signiΈcant technical failure, or other ongoing and serious
obstacle” will be exempted from the rebuttable presumption if they arrive at ports of entry without
an appointment,

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Mexico by gangs because of her family relationships, whom Mexican authorities
have been unwilling to assist, and who had been in hiding for 6 months prior to
entering the U.S. because she could not safely travel to the U.S.-Mexico border until
mere days prior to her entry.7 Under current law, this client would not be barred
from asylum because of the dangers she faced in Mexico, whether she applied for
and received asylum or any other status in the United States.8 However, under the
NPRM, if she is unable to access an appointment through CBP One – as has been
the case for most of IRAP’s clients – this same woman is unlikely to meet the
requirement of an “imminent and extreme” threat to life and safety if she were to
attempt to access asylum at the U.S.-Mexico border because she had been in hiding
for six months and therefore the threat may not be “imminent” under the NPRM.
See id. at 11707 n.27 (the “imminent” requirement cannot be satisΈed by “a prior
threat that no longer poses an immediate threat”). And so, if the NPRM becomes
law, this woman would be denied the chance to even present an asylum claim that
today she would likely win.

II. The Agencies’ Stated Purposes are Not Reasonably Related to the
Results of the Proposed Rule

Among the goals the agencies identiΈed in promulgating the NPRM were to
promote the safety of migrants and lessen reliance on smugglers across the border
and maximize government capacity, which they say is strained when CBP must
search for individuals between ports of entry. But the rule is all but certain to
ensure that migrants who would otherwise seek to present themselves at a port of
entry will have no choice but to cross between ports when they are unable to make
an appointment using CBP One. This will increase reliance on smugglers, and
greatly increase the risks to migrants. And CBP will, according to the agencies, need
to divert resources away from processing at ports of entry to patrolling between
ports of entry.

Another of the goals identiΈed by the agencies is to increase the percentage of
“meritorious” asylum claims. While IRAP strongly disputes the agencies’ premise for

7
These facts are representative of fact patterns that IRAP has seen present in our clients’ cases but
have been edited in their details to avoid directly identifying any particular client.
8
See 8 C.F.R. § 208.15(b) for the standard for the Έrm resettlement bar to asylum.

9
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the reasons described, supra, even if the goal were valid, the agencies’ NPRM is
designed to have the opposite e·ect. SpeciΈcally, the NPRM privileges asylum
seekers who have applied for asylum and been denied in another country. Such
individuals will not be subject to the asylum ban, while nearly all other asylum
seekers at the border will be banned. As a result, and given the design and
purpose of the NPRM, individuals who have been denied asylum elsewhere will be
much more likely to have their asylum cases adjudicated on the merits. While
many of these individuals likely will ultimately prevail in U.S. courts even if they
were unsuccessful in other countries, the likely result of this rule privileging claims
already denied in other countries over claims that have not been previously
adjudicated will be an increase in the portion of claims the U.S. government Έnds
“non-meritorious.”

III. The Agencies Have Failed to Consider the Full Impact of the NPRM

a. The NPRM is contrary to Congress’s intent when it created the
current asylum system

Congress intentionally designed the asylum system to create a minimal burden at
the initial, rapid screening stage. In May 1939, the St. Louis sailed from Germany
carrying over 900 predominantly Jewish refugees in search of safety. The United
States did not allow the passengers to land. According to the Holocaust Memorial
Museum, 254 passengers aboard the ship turned away from our shores were killed
in the Holocaust.

In 1948, a collection of nations riddled with shock and guilt over all that had
transpired and animated by the promise of “never again” drafted the Universal
Declaration of Human Rights. Among them, Articles 13 and 14 state plainly and
powerfully that “everyone has the right to freedom of movement and residence
within the borders of each State,” the “right to leave any country, including his own”
and the corresponding right “to seek and to enjoy in other countries asylum from
persecution.”9

9
Universal Declaration of Human Rights, Articles 13-14 (1948).

10
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In 1951, the United Nations Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons took place and convening parties drafted and
signed the Convention relating to the Status of Refugees. With pen to paper guided
by the horrors of the persecution of Jewish, LGBTQIA+, Roma, disabled, and
countless other persons, the participating drafters produced the following
deΈnition of a refugee:

Any person who as a result of events occurring before 1 January 1951 and
owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion, is outside the country of his nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country; or
who, not having a nationality and being outside the country of his former
habitual residence as a result of such events, is unable or, owing to such fear,
is unwilling to return to it.

In 1967, the temporal and geographical limitations of the Convention’s deΈnition
were removed in recognition of the unfortunate reality that the mass displacement
and persecution of the Holocaust and World War II would not remain a singular
aberration in human history. The United States ratiΈed the 1967 protocol, binding
us to this centerpiece of international refugee protection.

Finally, and most relevantly, in 1980, the United States enshrined the international
law refugee deΈnition into its domestic law by passing the Refugee Act of 1980. As a
result, under U.S. law, a person seeking asylum would henceforth be expected to
meet the refugee deΈnition and, crucially, could do so by arriving at the border and
asking to be screened at a port of entry or by entering without prior inspection and
then declaring their fear of persecution.

All of this brings us to 2023. For all of the ways this NPRM emphasizes the
importance of “lawful” pathways, it at best misses and at worst intentionally seeks
to undo the fact that in both international and domestic U.S. law, asylum itself is a
lawful pathway—and one that already has an extensive body of law composed of
statutes, case law, and regulations. Moreover, the manner of entry is “only one of a
number of factors which should be balanced in exercising discretion [to grant
asylum], and the weight accorded to this factor may vary depending on the facts of

11
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a particular case” as held by the Board of Immigration Appeals, explicitly
withdrawing previous precedent “insofar as it suggests that the circumvention of
orderly refugee procedures alone is suΊcient to require the most unusual showing
of countervailing equities.”10 The NPRM falls short of the Department of Justice’s
own precedent, short of U.S. domestic law, short of our international obligations,
and well short of the promise to ‘never again’ be complicit in acts like turning away
the passengers of the St. Louis. The U.S. Government cannot cite eΊciency and
order to justify the abrogation of the rights of individuals Ήeeing persecution to
seek asylum.

b. The agencies failed to consider that the CHNV parole programs
are inaccessible to many, if not most, refugees

The Proposed Rule incorrectly assumes that CHNV parole processes are a viable
pathway for individuals to lawfully enter the United States to pursue their asylum
claims. These parole processes have requirements that are often incongruent with
the lived reality of most refugees. For example, the requirement for a valid,
unexpired passport alone already disqualiΈes a signiΈcant percentage of refugees.
Although there are some carve-outs for expired Venezuelan passports, the need for
exceptions only proves that the reality of migration and the experiences that lead
people to need to seek asylum are incompatible with such documentation
requirements. In January 2023, IRAP spoke with numerous Haitian nationals who
were interested in pursuing the parole program but realized they were not eligible
because they did not have passports and could not obtain passports due to the
same fears and security risks that had driven them to Ήee and seek asylum in the
Έrst place.

The nationality-speciΈc programs referenced above also require a sponsor residing
in the United States. This requirement is unrealistic and unrelated to the fact that
individuals seeking asylum are facing dangers and threats to their safety, and only
serves to impose another bar that would disqualify countless people. The agencies
suggest that these pathways increase the accessibility of humanitarian protection
but by including a Έnancial sponsorship component, the agencies are creating a

10
Matter of Pula, 19 I&N Dec. 467, 473 (BIA 1987) (distinguishing and withdrawing from Matter of
Salim) (emphasis added).

12
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class and resource stratiΈcation as to who receives refugee protection in the United
States. Moreover, the tie back to sponsors already residing in the United States
perpetuates the existing inequities in who is able to get to the United States, who is
able to successfully navigate the legal system of seeking asylum, and who is able to
reach the Έnancial stability required by this sponsorship component. Whether in
terms of language access, Έnancial resources, access to counsel, or many other
facets, there is no way in which such reliance upon the CHNV parole processes is
going to “increase accessibility” to anything for anyone in an equitable way.

c. The agencies failed to adequately consider the substantial
accessibility issues plaguing CBP One

The NPRM provides that the asylum ban will not apply to noncitizens who
demonstrate that they were unable to access the CBP One application for speciΈc
reasons. See 88 FR 11704, 11720. The NPRM is silent, however, on how an individual
would demonstrate such inaccessibility and how an adjudicator would determine
whether it was “truly not possible” for the individual to access or use the
application.

The NPRM also fails to explain how individuals seeking an exception from the
asylum ban would actually be processed upon presenting at a Port Of Entry (POE).
While the NPRM’s text strongly suggests that such individuals will be turned away
from ports of entry and left with no choice but to enter without inspection, the
NPRM’s text fails to make this explicit. The NPRM contemplates that the exception
analysis will be done at the CFI stage (as well as at the merits stage), but it fails to
consider the practicality of this approach. Are translators readily available for those
with language barriers whom the NPRM speciΈcally contemplates will be covered by
the exception? Will individuals be forced to linger in CBP detention while
interpreters for indigenous languages are found? Does an individual qualify for the
exception if they do not have a phone/smart device? The Proposed Rule fails to
address any of these important questions.

Simply put, CBP One lacks the technological capacity necessary for the widespread
use envisioned by the NPRM, let alone play its role as asylum gatekeeper at the
border, as envisioned in the NPRM. CBP One was “not created for the purposes of
data collection,” but to bring overlapping CBP services together on di·erent CBP

13
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mobile apps.11 For instance, documents obtained by the American Immigration
Council (“AIC”) show that, when announcing the CBP One’s oΊcial launch, CBP
noted the app’s “limited capabilities” - those being its narrow abilities to be utilized
for the Form I-94 and to make appointments scheduling inspections of perishable
cargo. Id. AIC’s documents also show that the original plans of the application (the
“Capability Roadmap”) did not include its use for processing individuals at ports of
entry. Id. The limited purposes for which CBP One was intended and designed
compared to the purposes proposed in the NPRM justiΈably cause alarm.

Perhaps unsurprisingly given its origins, individuals attempting to use CBP One are
already encountering signiΈcant issues that prevent them from accessing the
border.12 IRAP’s clients and communities we serve at the border in Ciudad Juárez
have reported many technical issues, including error messages (appearing in
English regardless of the language selected for CBP One access), frequent need to
change the password and update the application, the application crashing
unexpectedly, inability to upload Έles, and issues with facial recognition, especially
for people with darker skin tones. These discriminatory and technological issues
have made it extremely diΊcult, if not impossible, for at-risk asylum seekers to
complete the registration process.

IRAP sta· at the border have directly witnessed the technical failures of the
application. For example, members of a Venezuelan family with darker skin were
unable to complete their registration because CBP One’s facial recognition did not
pick up the image of all three family members (father, mother, and child). The
family experienced persecution in Venezuela and were forced to Ήee after the child
was shot and severely injured. While in Mexico, the mother was kidnapped and

11
American Immigration Council. Government Documents Reveal Information about the
Development of the CBP One App. February 28, 2023
(https://www.americanimmigrationcouncil.org/FOIA/government-documents-reveal-information-abo
ut-development-cbp-one-app).
12
See, e.g., Melissa del Bosque. “Facing Bias: CBP’s Immigration App Doesn’t Recognize Black Faces,
Barring Thousands from Seeking Asylum,” The Border Chronicle, February 7, 2023
(https://www.theborderchronicle.com/p/facing-bias-cbps-immigration-app); “U.S. Border Protection
App Causes Tech Headaches for Asylum Seekers,” February 1, 2023
(https://www.marketplace.org/shows/marketplace-tech/u-s-border-protection-app-causes-tech-head
aches-for-asylum-seekers/).

14
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sexually assaulted, and the child has been unable to receive medical treatment for
the gunshot injury. The family has been unable to obtain an appointment since the
app was rolled out and continues to wait in dangerous conditions in Mexico despite
months of e·orts to enter the United States lawfully. Id.

Notably, the CBP One system does not account for the amount of time that a
person has been waiting to access the port of entry, or the number of times
that they have tried and failed to obtain an appointment. Rather, CBP One is a
roulette system where vulnerable migrants must rush to their mobile phones
every day once the system opens at 11:00 a.m. EST and test their luck by trying
to obtain an appointment.13 Due to the very limited number of appointments
available, only a limited number of lucky individuals (or bots) receive an
appointment and therefore the opportunity to enter the United States.

CBP One’s appointment process also fails to take into account the vulnerability
of the migrant and the urgency of their need to access the port of entry. In
order to make an appointment, a person must certify that they or someone
traveling with them meets the broad vulnerability criteria, which include:
physical or mental illness, disability, no access to safe shelter in Mexico, or
having been threatened or harmed while in Mexico. The application does not
ask for any details about vulnerabilities, and there is no opportunity for anyone
to provide such detail via the app. As a result, CBP One is incapable of
prioritizing the scheduling of cases based on the gravity of a person’s situation
in Mexico and how urgently they need protection in the U.S.

For example, a single adult traveler who was a victim of a robbery in Mexico
but is no longer in danger relies on the same mechanism for making an
appointment as a single mother traveling with young children who are Ήeeing
cartel members and who currently are unable to obtain urgent medical care for
the children in Mexico. But the notable di·erence between these two
individuals is that the single traveler who is not in danger is much more likely
to obtain an appointment than the family because the family must use the
facial recognition technology for each member of the family unit, which takes

13
Though the time has been subject to change in the last several months, furthering confusion and
frustration at the border.

15
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more time, and all but ensures that the limited appointments available will be
taken by the time the family Έnishes the process.

Vulnerable families are also at a signiΈcant disadvantage because appointments for
family units (as opposed to for individuals) are practically nonexistent. CBP has
claimed that the app’s recent update in late February makes it easier for families to
secure appointments, but IRAP has observed that vulnerable families are forced to
wait for appointments indeΈnitely.14 The example of “Claudia”15, one of IRAP’s
clients, is illustrative of the broader issues IRAP has observed. “Claudia” is a
Salvadoran woman traveling with her two young children who Ήed her country after
her husband and siblings were murdered by gang members in her home. They
urgently need protection in the U.S. because while in Mexico, the gang members
became aware of their location and began to make death threats. Additionally, both
of her children su·er from medical conditions and mental health symptoms as a
result of the trauma they endured in El Salvador, and they are unable to access
proper medical care in Mexico. “Claudia” attempted to make an appointment
together with her children for three months through the CBP One app. Every time
that she selected a time slot available, the app notiΈed her that there was no
availability for three individuals. She decided to register by herself and was able to
Έnd an appointment. When she approached the border with her children, hoping
that CBP oΊcials would allow them to enter the U.S., she was told that only she
would be allowed to enter because the children were not registered. After ruling
out the option of leaving her children behind, “Claudia” returned to the shelter with
the children. Despite needing urgent protection in the U.S., they are still unable to
get an appointment together.

The proliferation of bots and auto clickers - software that automates the CBP One
application process in milliseconds - have made the process even more arbitrary

14
Andrea Castillo, “Asylum Seekers Face Decision to Split Up Families or Wait IndeΈnitely Under New
Border Policy,” Los Angeles Times, February 24, 2023
(https://www.latimes.com/politics/story/2023-02-24/asylum-seeking-families-consider-separation-sh
ortage-mobile-app-appointments).
15
Name changed to protect conΈdentiality.

16
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and stacked the odds against the most vulnerable refugees.16 It is now impossible
for those without auto clickers to obtain an appointment through CBP One. Id.
Autoclickers have made it impossible for humans to compete with, often leading to
the application crashing, and they add an additional element of unfairness for
individuals attempting to use CBP One who are unaware of autoclickers’ existence
or simply do not have smartphones capable of downloading these types of
line-skipping apps. Id.

Prior to the launch of CBP One as the main channel to seek protection in the
U.S., trusted legal aid organizations, like IRAP, were able to Ήag urgent cases to
CBP by submitting Title 42 requests on behalf of migrants. For example, in
November 2022, IRAP sta· identiΈed 25 vulnerable families and submitted Title
42 exemptions on their behalf; every exemption was granted and the families
were able to enter and receive protection in the U.S. Since January 2023, IRAP
sta· have identiΈed dozens of migrants, who need urgent protection but have
not been able to get an appointment through the app. For instance, “Rose”17, a
Haitian woman and IRAP client was eight months pregnant with twins and
su·ering from diabetes. She Ήed Haiti after gang members forced her out of
her house and attempted to assault her sexually. While in Mexico, “Rose” was
unable to access specialized medical care for her high-risk pregnancy.
Additionally, she lived in a house with water damage and a mold infestation,
posing signiΈcant health risks given her pregnancy. IRAP sent an email to CBP
via the same channel used for Title 42 exemption requests before the launch of
CBP One, explaining her urgent situation and requesting an exemption to Title
42. IRAP received no response to its request.

In sum, CBP One does not allow, and was not created for, vulnerable asylum
seekers to access the U.S. asylum system. It does not serve this purpose, nor was it
designed to be used at anything close to the scale that the agencies contemplate.
Even use at the current scale has led the application to crashing, fraud,
discriminatory practices, and auto-clicking/bots/third-party markets targeting
refugees. The agencies have utterly failed to consider any of these issues.
16
Stephania Corpi Arnaud, “Once a Ticket Scalpers’ Tool, Auto Clickers Now Help Migrants Enter the
U.S.,” February 23, 2023 (https://restofworld.org/2023/auto-clicker-migrants-us-mexico/).

17
Name changed to protect conΈdentiality.

17
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d. The agencies failed to adequately consider that the NPRM will
increase CBP detention times

Conditions for migrants in Customs and Border Protection’s detention facilities
have been broadly documented as insuΊcient and, too often, dangerous. Even
though the 2009 CBP Security Policy and Procedures Handbook describes CBP
holding cells as small concrete rooms “not designed for sleeping,”18 people are
regularly held in these facilities sometimes for several nights— a period that we can
expect only to increase under the NPRM due to the need for increased screening.
The agency has admitted to the limitations of its detention facilities and, in 2015,
issued its National Standards on Transport, Escort, Detention and Search (TEDS),
which determined that detention in CBP facilities should “generally” last no longer
than 72 hours, and that “every e·ort must be made to hold detainees for the least
amount of time required for their processing.”19 IRAP sta· have observed that
migrants being paroled into the United States remain in CBP custody generally for
at least 24 hours, and often for longer. An OΊce of Inspector General (OIG)
investigation in 2022 focused on El Paso Border Patrol facilities found that 87% of
people detained from October to November 2021 spent longer than 72 hours in
Border Patrol custody.20

It is commonly understood and has been consistently reported that CBP facilities
are unΈt for long-term detention due to unsanitary conditions, extremely low
temperatures, lack of proper food and other suboptimal conditions.21 Detainees

18
CBP Security and Procedures Handbook, HB 1400-02B, August 13, 2009
(https://info.publicintelligence.net/CBP-SecurityHandbook.pdf).
19
CBP National Standards on Transport, Escort, Detention and Search, October 2015
(https://www.cbp.gov/sites/default/Έles/assets/documents/2020-Feb/cbp-teds-policy-october2015.p
df).
20
El Paso Sector Border Patrol Struggled With Prolonged Detention and Consistent Compliance with
TEDS Standards, Department of Homeland Security, OΊce of the Inspector General, OIG-22-57,
August 9, 2022 (https://www.oig.dhs.gov/sites/default/Έles/assets/2022-08/OIG-22-57-Aug22.pdf).
21
See, e.g., “In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding
Cells,” Human Rights Watch, February 28, 2018
(https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigr
ation-holding-cells); Hannah CritchΈeld, “Border Patrol Burritos are Making People Sick, Doctors Say,”
Phoenix New Times, January 14, 2020

18
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are forced to sleep on the Ήoor or concrete furniture without mats or suΊcient
covers.22 Furthermore, CBP facilities are often unsanitary, and it has been reported
that detainees have limited to no access to showers and personal hygiene supplies
while in custody.23

Treatment of people in CBP custody is widely reported as punitive and inhumane.
In 2019, OIG learned as part of their investigations into conditions at CBP facilities
in Texas that some detainees had been held in these facilities in “standing-room
only conditions for days or weeks.” In July 202l, OIG issued a memorandum
describing how CBP consistently failed to show that it conducted required medical
screenings or consistent welfare checks to detainees.24 The Freedom of Information
Act (FOIA) documents obtained by Human Rights Watch in 2021 identiΈed over 160
misconduct and abuse incidents against asylum applicants at the hands of oΊcers,
particularly CBP oΊcers and agents.25

Lack of access to counsel in CBP custody and other detention facilities will pose a
serious barrier to fair asylum processing under the rule. IRAP attorneys have
consistently heard from their clients being paroled into the United States through
Title 42 exemptions that CBP oΊcers do not provide them with thorough
information about their legal rights, or that they are issued documents, such as

(https://www.phoenixnewtimes.com/news/burritos-border-patrol-ice-migrants-sick-asylum-arizona-c
asa-alitas-11425176).
22
Brief for the American Immigration Council and the American Immigration Lawyers Association as
Amici Curiae at 4-5, Las Americas Immigrant Advocacy Center, et al v. Chad Wolf, et al, 507 F.Supp.3d 1
(D.D.C. 2020).
23
Guillermo Cantor, “Hieleras (Iceboxes) in the Rio Grande Valley Sector,” American Immigration
Council Special Report, December 2015
(https://www.americanimmigrationcouncil.org/sites/default/Έles/research/hieleras_iceboxes_in_the_
rio_grande_valley_sector.pdf).
24
“CBP Needs to Strengthen its Oversight and Policy to Better Care for Migrants Needing Medical
Attention,” Department of Homeland Security, OΊce of the Inspector General, OIG-21-48, July 20,
2021 (https://www.oig.dhs.gov/sites/default/Έles/assets/2021-07/OIG-21-48-Jul21.pdf).
25
“‘They Treat You Like You Are Worthless’: Internal DHS Reports of Abuses by US Border OΊcials,”
Human Rights Watch, October 21, 2021
(https://www.hrw.org/report/2021/10/21/they-treat-you-you-are-worthless/internal-dhs-reports-abu
ses-us-border-oΊcials).

19
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Notices to Appear or Orders of Supervision, that are not explained to them at all or
in a language that they do not understand while in CBP custody.

This is particularly problematic in the context of legal services providers who are
not permitted to enter Border Patrol facilities or provided with a mechanism to
contact their clients while detained there. Asylum seekers detained in CBP facilities
are not able to make phone calls, including to counsel they might have retained
before their crossing. Without access to counsel or proper legal information, even
those who still qualify for asylum under the NPRM will likely not be able to access
such relief. Because of the lack of access to counsel at CBP facilities, asylum
seekers with imminent threats to their life or safety, who should be able to rebut
the presumption under the rule, are likely to be deported back to Mexico due to
erroneous information being provided by Border Patrol oΊcers and lack of
suΊcient, compassionate, and accessible screening of their vulnerabilities.

We are concerned that, in order to meaningfully apply the NPRM, detention in CBP
facilities would increase and exceed 72 hours. The conditions of CBP facilities lead
to sleep deprivation, poor health, and further traumatization that directly a·ect the
ability of asylum seekers to meaningfully assert their rights. Instead of addressing
the underlying suboptimal conditions of these facilities, the NPRM increases
reliance on these facilities for the processing of asylum seekers. The U.S.
government should not rely on the expansion of these facilities to further
implement this rule, as there is extensive evidence that the basic human needs of
detainees are not being met. Therefore, these facilities should not be used to hold
detainees for any form of vulnerability assessment, including assessments of
“exceptionally compelling circumstances” that rebut their presumption of asylum
ineligibility under this rule.

e. The agencies failed to adequately consider the additional
burdens the NPRM would impose on asylum oΊcers and
immigration judges

The NPRM would further burden the immigration system by imposing di·erent
standards and factors to review in asylum cases, which would exacerbate current
backlogs and delays and increase the chances for error. For example, the NPRM
would require adjudicators to perform new legal assessments of other countries’

20
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asylum processes. The NPRM does not explain how immigration adjudicators are
to treat a denial of asylum in a third country, and speciΈcally, whether a previous
denial of asylum and all related records are to become part of the immigration case
Έle and part of the merits determination. If so, an adjudicator would need to
examine evidence that was previously submitted in the country of transit and
records of proceedings in order to make a determination on the credibility and
materiality of the case before them in the United States. Obtaining such Έles would
take additional time and resources, as would making complex determinations on
laws and regulations of other countries. Additionally, credible fear interviews and
judicial reviews of credible fear decisions provide insuΊcient time to make these
complex inquiries. Imposing this resource-intensive and highly-nuanced
assessment would prolong asylum and credible fear proceedings, contributing to
the very backlogs that the NPRM is purportedly designed to lessen.

f. The agencies failed to adequately consider the substantial
limitations of Mexico’s asylum system

The NPRM would require asylum seekers subject to the presumption to show an
asylum denial from a third country they transited through before arriving at the
U.S. border. As most asylum seekers presenting at the southern border are
non-Mexicans who travel through Mexico to reach the U.S., thousands of migrants
will presumably Έle for, or be forced to Έle for, asylum in Mexico, a country whose
asylum system is already overburdened due to limited resources, lack of funding,
and an increasing caseload they are struggling to keep up with. If the NPRM were
to go into e·ect, it would put even more pressure on a system that is already
straining to function making it an ineΊcient and nonviable alternative for migrants
seeking to apply for asylum.

In Mexico, migrants can only apply for asylum before the Mexican Commission for
Refugee Assistance. COMAR is the entity responsible for adjudicating asylum claims
and determining refugee status in Mexico. Thus, its decisions have signiΈcant
implications for the lives and safety of asylum seekers and refugees in Mexico.
However, the agency has long been criticized for its growing backlog of cases, lack
of resources, and overall inability to provide adequate services to asylum seekers.

21
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COMAR is already overwhelmed with the enormous number of applications it has
received over the past decade which has led to long delays in the processing and
adjudication of applications. Between 2014 and 2019, Mexico registered a 3,190%
increase in the number of asylum applications it received - from 2,137 in 2014 to
70,310 in 2019.26 After a slight dip in 2020 due to COVID-19, the number ballooned
again in 2021 to 129,780 applications. Id. Of these nearly 130,000 applications
received, only 38,099 were processed. Id. Furthermore, in January 2023 alone,
Mexico received 12,863 asylum applications - a 120% increase compared to January
2022 and a 97% increase compared to January 2021. Id. It is expected that the
NPRM will cause asylum applications Έled in Mexico to skyrocket even more, a
scenario that the country simply does not have the capacity to handle.

As the backlog of unresolved claims continues to increase, the time asylum seekers
are waiting to receive a decision continues to increase as well. Under Mexican law,
COMAR must evaluate an application and issue a decision within 45 business days
from the date the process started. However, reports show that some asylum
seekers wait over two years for COMAR to resolve their claims.27 This backlog is
particularly problematic given the barriers asylum seekers face in accessing work
and government services during their waiting periods, such as lack of access to
humanitarian visas. Furthermore, Mexican law stipulates that asylum seekers must
remain in the state where they Έled their asylum application. If they fail to present
themselves for two consecutive weeks before COMAR, their asylum process
automatically ends.28 This means migrants are forced to remain in states where
they receive little to no support, living conditions at shelters are often abysmal, and
jobs are diΊcult or impossible to get. Given that the NPRM requires that migrants

26
Data obtained from the Mexican Commission for Refugee Assistance (COMAR), “La Comar en
Números,” January 2023
(https://www.gob.mx/comar/articulos/la-comar-en-numeros-327441?idiom=es).

27
Rachel Schmidke, “A New Way Forward: Strengthening the Protection Landscape in Mexico,”
Refugees International, November 12, 2020
(https://www.refugeesinternational.org/reports/2020/11/9/a-new-way-forward-strengthening-the-pr
otection-landscape-in-mexico).
28
“Mexican Asylum System for U.S. Immigration Lawyers F.A.Q.,” AsylumAccess, November 2019
(https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-La
wyers.pdf).

22
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receive a denial before attempting to seek asylum in the U.S., many refugees will be
forced to wait for an indeΈnite amount of time in dangerous situations until they
receive a decision from COMAR.

COMAR is also severely underfunded as Mexico’s government has limited Έnancial
resources to allocate towards the country’s asylum system. Over the years, its
minuscule budget has not been able to keep pace with its mushrooming caseload.
In 2019, although the number of asylum applications more than doubled compared
to the previous year, COMAR’s budget was reduced from $1.3 million to $1 million.29
In 2020 and 2021, the budget was increased to roughly $2 million, but according to
COMAR oΊcials, this amount was insuΊcient even for basic operational expenses.
Id. If the NPRM goes into e·ect and no additional resources are allocated to
COMAR, the agency will Έnd itself in a dire situation, one that will ultimately result
in asylum seekers having to wait even longer to have their claims processed.

Another problem resulting from COMAR’s lack of suΊcient funding is that there are
only 10 locations across the country, most of which are understa·ed and
overwhelmed, further restricting the agency’s ability to handle its growing caseload.
Reports from Mexican attorneys with whom IRAP collaborates in Ciudad Juárez
(CDJ) indicate that there is only one person in the CDJ COMAR oΊce charged with
adjudicating applications for refugee protection in Mexico, and the Mexican
government has expressed no intention to increase staΊng. COMAR operations
also have yet to recover from setbacks experienced during the COVID-19 pandemic
when they had to reduce in-oΊce sta· capacity to process claims. As a result, they
temporarily suspended their 45-day timeline for processing meaning there is no
longer a time limit to process claims.30 The reduction in sta· and the suspension of
the 45-day limit coupled with the likely e·ects of the proposed rule will only lead to
high burnout rates, sta· turnover, and further addition to the backlog and time it
takes for cases to be resolved.

29
“Mexico: Asylum Seekers Face Abuses at Southern Border,” Human Rights Watch, June 6, 2022
(https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border).
30
Ariel G. Ruiz Soto, “One Year After the U.S.-Mexico Agreement: Reshaping Mexico’s Migration
Priorities,” Migration Policy Institute, June 2020
(https://www.migrationpolicy.org/research/one-year-us-mexico-agreement).

23
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Additionally, none of COMAR’s oΊces are located at any airport or border crossing,
further creating barriers for refugees to easily access the system31– particularly
given that Mexican law requires asylum seekers to apply within 30 days of their
arrival in Mexico absent extenuating circumstances beyond their control.32 Instead,
many COMAR oΊces are situated in some of the country’s poorest and most
dangerous states. For instance, the busiest COMAR oΊce is located in Tapachula,
Chiapas where approximately 70% of refugee status claims are made. Id. Reports
indicate that sta· at the Tapachula oΊce have had trouble keeping up with the
demand for appointments where crowds of people seeking asylum gather outside
the oΊce early in the morning to wait in line. Id. In August 2021, COMAR tried to
establish an online appointment system, however, within a few weeks,
appointments were booked through the end of the year. And, according to media
reports, people began to take advantage of desperate asylum seekers by selling
appointments for hundreds of dollars.33 This is just one of the countless examples
that showcase the NPRM’s misguided reliance on the Mexican asylum system to
justify excluding asylum seekers from even seeking protection in the United States.
The NPRM would only add to these deΈciencies and further weaken an already
dysfunctional system.

Mexico’s asylum system is struggling to keep up with the increase in hemispheric
migration over the past decade and lacks the necessary resources to e·ectively
process and manage the increasing number of asylum applications. There is simply
not enough sta·, funding, or infrastructure to handle the already growing caseload

31
“Mexico: Asylum Seekers Face Abuses at Southern Border,” Human Rights Watch, June 6, 2022
(https://www.hrw.org/news/2022/06/06/mexico-asylum-seekers-face-abuses-southern-border).
32
Amparo en Revision 353/2019 of the Mexican Supreme Court, Oct. 16, 2019
(https://www.refworld.org/cases,MEX,60be49fb4.html); Amparo en Revision 6268/2019 of the
Mexican Supreme Court, June 2, 2020
(https://www2.scjn.gob.mx/ConsultaTematica/PaginasPub/DetallePub.aspx?AsuntoID=261293);
“Mexican Asylum System for U.S. Immigration Lawyers FAQ,” Asylum Access, Nov. 2019
(https://asylumaccess.org/wp-content/uploads/2019/11/Mexican-Asylum-FAQ-for-US-Immigration-La
wyers.pdf).
33
“Las Citas en la Comar Tienen un Costo y no Tenemos el Dinero: Haitianos,” Diario del Sur, March
24, 2023
(https://www.diariodelsur.com.mx/local/la-citas-en-la-comar-tienen-un-costo-y-no-tenemos-el-diner
o-haitianos-7264038.html).

24
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and the proposed rule will only further strain the Mexican asylum system while
punishing asylum seekers themselves for its shortcomings. The expected new
surge of applications as a result of the proposed rule would likely overwhelm a
system that is already struggling to operate under less-than-optimal conditions.
Ultimately, Mexico’s asylum system is not ready for the inevitable inΉux of asylum
seekers it faces in the coming months and years if the NPRM were to go into e·ect.
This fatal Ήaw in the NPRM will prevent it from meeting any of the agencies’ stated
purposes and force refugees into harm's way.

g. The agencies failed to adequately consider the additional
burdens the NPRM would impose on organizations providing
direct services, like IRAP

The agencies’ failure to explain many of the key details of how the NPRM would
work in practice harms IRAP’s ability to engage in its mission-driven programming
to assist individuals in need of humanitarian assistance. IRAP provides direct legal
services to clients at the border as well as remote know-your-options presentations
to migrants and asylum seekers in Ciudad Juárez, Mexico regarding Title 42,
nationality-based parole programs, and the credible fear process in the United
States. Without concrete information as to how the NPRM will be implemented,
IRAP will be unable to adequately advise its clients, partner organizations, and the
communities it serves.

For example, the NPRM proposes that individuals be required to use the CBP One
application to request appointments to present at the border, but it fails to provide
any insight into how the agencies plan to Έx the many problems with CBP One that
refugees are currently encountering. The NPRM provides insuΊcient details on
questions such as, will more appointments per day be available than currently are
available? Will the application require information about a person’s claim for
protection and/or the urgency of their protection needs in Mexico as a precursor to
obtaining an appointment?

To provide another example, IRAP currently has a client who only speaks the
indigenous language Mixteco. As a result, the client is unable to navigate CBP and
has therefore been unable to make an appointment. The NPRM suggests that
asylum seekers in this situation would be able to qualify for an exception, but it fails

25
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to provide any additional information that would be of any use to asylum seekers
or their legal representatives. Notably, the NPRM leaves unclear whether this client
would have an option to present themself at a port of entry without using the app,
or if the only way they could enter the United States would be without
inspection—putting their life in peril. More generally, the limited information in the
NPRM is insuΊcient to determine whether a client’s failed e·orts to make an
appointment using CBP One are likely to be considered “suΊcient” to justify
requesting an exception from the presumption or whether they would be expected
by the U.S. government to endure further hardship or danger in Mexico before
qualifying for the exception.

And to provide yet another example, under the NPRM it is unclear how the
government will evaluate claims of “imminent and extreme” threats. How
immediate must the threat be? Is it enough to have been threatened with murder
the night before one presents at the border? The week before? The month before?
It is also unclear how severe the threat to life or safety must be - the examples
provided in the NPRM include “rape, kidnapping, torture or murder”, but what
about severe beatings?

To take an illustrative example from IRAP’s direct services work: a Haitian man and
his brother Ήed to the Dominican Republic after their family was directly targeted
by a local gang. They remained in the Dominican Republic until members of the
same gang who had targeted their family in Haiti found them in the neighboring
country. The brothers then Ήed to Chile but were attacked at gunpoint by a group
of men believed to be part of the same gang and had to Ήee once more to Mexico,
where one of the brothers was diagnosed with prostatitis, a painful and distressing
disorder of the prostate gland, but could not access treatment.34 Under the NPRM,
the violence and threats experienced in two transit countries would apparently not
meet the rebuttable presumption’s requirements of an “imminent and extreme”
threat to life and safety. As written, if the NPRM becomes law, the brothers would
likewise be denied even the opportunity to present an asylum claim despite facing
signiΈcant threats to their lives in more than one transit country. Furthermore, the
signiΈcant medical need of the brother after arriving in Mexico does not appear to

34
These facts are representative of fact patterns that IRAP has seen present in our clients’ cases but
they have been edited in their details to avoid directly identifying any particular client.

26
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qualify as an “acute medical emergency” for the alternative basis for rebutting the
presumption.

The answers to these and other questions about how the NPRM is to be
implemented are necessary for IRAP to understand how the Proposed Rule would
apply to its clients and the communities it serves.

V. The Agencies Have Deprived the Public of Adequate Notice of
their Proposed Rule and Adequate Opportunity to Comment

a. The Agencies Failed to SuΊciently Explain Their Proposal, as
Needed to Enable the Public an Adequate Opportunity to
Comment

For all of the reasons described the agencies’ failure to explain the data underlying
their premises and failure to explain how the NPRM would be implemented in
practice deprives interested commenters like IRAP of notice of what the agencies
intend to do and why. Commenters like IRAP are thereby deprived of their right to
an adequate opportunity to comment.

b. The 30-day Comment Window is InsuΊcient to Enable a
Meaningful Opportunity to Comment

The limited 30-day window the agencies provided the public to comment is
insuΊcient. Executive Order 12866 requires agencies to “…a·ord the public a
meaningful opportunity to comment on any proposed regulation, which in most
cases should include a comment period of not less than 60 days.” Executive Order
13563 likewise directs agencies to “...a·ord the public a meaningful opportunity to
comment through the Internet on any proposed regulation, with a comment period
that should generally be at least 60 days.”

The agencies purport to justify the truncated 30-day comment period for this
proposed regulation by relying on their desire to have the rule in place by the time
Title 42 expulsions end on May 11th, 2023 but do not even attempt to explain why
refusing to give the public and stakeholders adequate time to analyze the proposed
rule furthers that goal.

27
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The Centers for Disease Control (CDC) announced its intention to end Title 42
nearly a year ago, in April 2022. The agencies essentially appeal to their own
foot-dragging to justify depriving the American public and relevant stakeholders of
a meaningful opportunity to respond to a complicated 153-page rule that will inΉict
immense human su·ering.

The implications of this rule are vast. The agencies devised this rule with the intent
of drastically limiting access to the asylum system. The agencies’ notice takes little
time to assess or even acknowledge the massive humanitarian, legal, and economic
burdens of this rule and even goes so far as to solicit that analysis from
commenters.

VI. The Agencies Failed to Consider Reasonable Alternatives

a. Agencies Failed to Consider An Extremely Limited Duration
Proposal

For the reasons discussed, the NPRM’s proposed system should never go into
e·ect. Even a single day of the Proposed Rule preventing asylum seekers from
accessing safety in the United States will cause grave harm and violate U.S. law.
Nonetheless, the length of the NPRM (a minimum of two years), is incongruent and
disproportionate with its stated purposes. Such a lengthy draconian measure goes
beyond addressing “this urgent and extreme situation” in which it is “particularly
diΊcult to precisely predict” what will happen in the aftermath of Title 42. See id. at
11705-06; see also id. at 11708 (“rule is justiΈed” due to concerns about “the
possibility of a surge in irregular migration” after Title 42 ends).

As laid out above, the agencies have not provided suΊcient information to
accurately identify the “problem” they are trying to address. However, if the
agencies are trying to prepare contingency plans in advance of the rollback of Title
42, the NPRM’s duration should more appropriately be extremely limited, as
opposed to indeΈnite. A more temporary measure would cause much less harm
than the NPRM.

28
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To the extent the agencies contend that their proposal is necessary to respond to
“unique” circumstances that are directly tied to the end of Title 42, see 85 Fed. Reg.
11725 n.176, 11744, 11746; but see supra (explaining that this premise is
unfounded), they should have considered as a reasonable alternative an
extraordinarily limited timeframe of perhaps up to 30 days. Such a timeframe
would enable the agencies to actually observe what impact the end of Title 42 has
on the number of people seeking to access the United States via the southern
border and to address any sharp changes requiring changes to government
capacity in the region. At the same time, a shorter timeframe will ensure that a
system that is contrary to the letter and spirit of United States law, and that ignores
the reality of the lack of genuine options confronting people in humanitarian need,
does not become enshrined as the new status quo. Should the agencies consider
such a time-limited alternative, they could also consider ways to remedy the denials
of rights anticipated in even that 30-day period in a way likely to cause signiΈcantly
less human su·ering than the NPRM’s contemplated long-term implementation.

b. Agencies Failed to Consider Whether to Expand Pathways

The agencies rely on the changes to migration patterns after the CHNV parole
programs took e·ect to argue that new pathways combined with punitive
measures are highly successful. See, e.g., 85 Fed. Reg. 11706. And the agencies
concede that punitive measures alone are not suΊcient. Id. at 11713. But the
agencies conspicuously fail to consider whether new and/or expanded pathways
uncoupled with punitive measures are suΊcient to alleviate the number of people
seeking to enter at the U.S. southern border, even though the e·ectiveness of
pathways alone would explain the “success” of the CHNV and Ukraine parole
programs.

Given that the agencies anticipate that the need for protection is likely to be
signiΈcantly greater than that provided by the existing parole programs and other
existing pathways, see supra, one reasonable alternative would be to create

29
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additional legal pathways or expand the existing ones. In particular, the agencies
should consider expanding pathways targeted at assistance for the most vulnerable
individuals with immediate protection needs who, as explained supra, are not
served by the CHNV parole programs.

c. Agencies Failed to Consider Allowing Migrants to Present Without
An Appointment

The agencies have deΈned the NPRM to presumptively apply to individuals who
present at a port of entry and are inspected by an immigration oΊcer. See id. at
11723 (deΈning “enters the United States at the southwest land border”). To avoid
being subject to the presumption, such individuals must Έt within the “narrow set
of cases in which it was truly not possible for the noncitizen to access or use the
DHS system due to language barrier, illiteracy, signiΈcant technical failure, or other
ongoing and serious obstacle.” Id. at 11723 & n.173. Moreover, separate and apart
from the legal impediments to this group obtaining asylum, there is nothing in the
NPRM that discusses how the agencies plan to process such individuals at ports of
entry without a CBP One appointment, leaving them no choice but to enter without
inspection.

The agencies’ proposal actively undermines several of their stated goals–most
notably, reducing the dangers to migrants, reducing migrants’ reliance on
smugglers, and reducing the burdens on federal government infrastructure which
occur when CBP oΊcers must be redistributed. See 88 Fed. Reg. 11707, 11715. An
obvious and reasonable alternative is to ensure that migrants who seek to present
themselves at ports of entry and who are unable to obtain appointments using CBP
One are encouraged to do so, as has historically been the case. At a minimum,
such individuals should not be presumptively deemed ineligible for asylum where
the only behavior that the agencies seek to deter is their inability to obtain an
appointment through a glitchy smartphone app, perhaps because they are part of a
family unit, or have a darker complexion, or do not have access to an auto-clicker.

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VII. IRAP Agrees With the Agencies’ Proposal to Formally Rescind the
Enjoined Trump-Era Rules

IRAP welcomes the agencies’ proposal to formally rescind the Trump-era rules
severely limiting access to asylum that have been held unlawful and enjoined by
various courts. See 88 Fed. Reg. 11727. These rules were unlawful and wrong when
Έrst promulgated and they remain so now. Moreover, the government now
recognizes that these approaches were ine·ective at achieving their stated aims,
because, for example, they added signiΈcant complexity to asylum processing and
thus led to further delays and backlogs. See id. at 11744. Finally, IRAP agrees with
the agencies’ assessment that no reliance interests would be impacted by the
rescission of the rules because they have been enjoined for years. See id. at 11728.

VIII. Conclusion

IRAP strongly opposes the Proposed Rule as it is illegal, inhumane, and
discriminatory. The NPRM is riddled with insuΊcient explanations and fails to
consider reasonable alternatives. It violates the existing statutory framework and
mandate of the agencies to protect and provide a fair asylum process. It will deny
access to protection to many of the most vulnerable and send refugees back to
places of persecution and torture.

IRAP urges the administration not to Έnalize this NPRM with the exception of the
rescission of the Trump-era rules, and to stop punishing refugees who enter at the
U.S. southern border. Instead, the administration must devote resources to
humane asylum processing and just adjudications. IRAP welcomes the opportunity
to discuss this Comment with you further.

Sincerely,

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Laurie Ball Cooper
U.S. Legal Services Director, International Refugee Assistance Project (IRAP)
650 Massachusetts Avenue NW, Suite 600
Washington, DC 20001

Linda B. Evarts
Senior Supervising Attorney
U.S. Litigation Department, IRAP
One Battery Park Plaza, 33rd Floor
New York, NY 10026

Sunil Varghese
Policy Director, IRAP
650 Massachusetts Avenue NW, Suite 600
Washington, DC 20001

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As of: May 08, 2023
Received: March 27, 2023
PUBLIC SUBMISSION Status: Posted
Posted: March 29, 2023
Tracking No. lfr-hkpg-167b
Comments Due: March 27, 2023
Submission Type: Web

Docket: USCIS-2022-0016
Circumvention of Lawful Pathways

Comment On: USCIS-2022-0016-0001
Circumvention of Lawful Pathways

Document: USCIS-2022-0016-12343
Comment Submitted by American Gateways

Submitter Information
Email: ednay@americangateways.org
Organization: American Gateways

General Comment
March 27, 2023

American Gateways respectfully submits the attached comments in response to the Notice of Proposed
Rulemaking regarding Circumvention of Lawful Pathways, which was published by U.S. Citizenship and
Immigration Services, the Department of Homeland Security; and the Executive Office for Immigration Review,
Department of Justice on February 23, 2023 (RIN 1615-AC83 / 1125-AB26 / USCIS Docket No. 2022-0016 /
A.G. Order No. 5605-2023).

Thank you for the opportunity to submit comments. Please do not hesitate to contact me via phone at 512-279-
0879 or via email at Ednay@americangateways.org to provide further information.

Sincerely,

Edna Yang
Co-Executive Director
American Gateways

Attachments
American Gateways Comments to Proposed Rule - Circumvention of Lawful Pathways

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Comments Submitted by American Gateways RE: Joint Notice of Proposed Rulemaking
(NPRM) by U.S. Citizenship and Immigration Services, Department of Homeland Security;
the Executive Office for Immigration Review, Department of Justice: Circumvention of
Lawful Pathways; RIN 1615-AC83 / 1125-AB26 / USCIS Docket No. 2022-0016/ A.G. Order
No. 5605-2023 (published in the Federal Register on February 23, 2023).

American Gateways provides much needed legal representation for indigent immigrants in Central
Texas. Our mission is to champion the dignity and human rights of immigrants, refugees, and
survivors of persecution, torture, conflict, and human trafficking through exceptional legal services
at low or no cost, education, and advocacy. Our agency began in 1987 as the Political Asylum
Project of Austin and was founded to provide legal representation to Central American immigrants
fleeing persecution and seeking asylum in the United States. Over the past thirty-three years,
American Gateways has become an indispensable legal services provider for low-income asylum
seekers and immigrants in Central Texas.

American Gateways opposes the notice of proposed rulemaking regarding Circumvention of
Lawful Pathways (the “Proposed Rule”), published by the Department of Homeland Security
(DHS) and Department of Justice (DOJ) (collectively, the “Departments”) on February 23, 2023,
and requests that the Departments promptly rescind the Proposed Rule. American Gateways
describes below how some of the proposed changes will impact our organization and our clients,
and the reasons for our opposition. Omission of any proposed change from these comments should
not be interpreted as tacit approval. American Gateways opposes all aspects of the Proposed Rule
that would erode the due process rights of asylum seekers or otherwise impede—in any way—the
ability of individuals who have suffered persecution to access humanitarian protection in the
United States. At the same time, American Gateways expresses heightened concern regarding the
disproportionate harms that will befall certain asylum seekers—namely, detained and pro se
asylum seekers—if the Proposed Rule is not withdrawn. The Departments propose to implement
a presumption of ineligibility for asylum upon certain noncitizens arriving at the U.S. southern
border who (1) did not seek asylum in a country of transit or (2) did not obtain an appointment to
present at the border using a mobile phone application known as “CBP One.” The proposed
changes will prevent current and future asylum seekers from accessing protection they merit under
domestic and international law, result in the return of many asylum seekers to harm, without
allowing them their legal right to seek protection under the asylum law. The proposed rule also
leaves others in the United States without stable protection. Rather than “align with the
[Immigration and Nationality Act] and Congress’s general intent to create an asylum and
protection system that adjudicates claims both expeditiously and fairly,” 88 Fed. Reg. 11704,
11746, the Proposed Rule would only result in lower rates of representation, poorly prepared
filings, due process violations, higher denial rates, and the more rapid deportation of refugees back
to the persecution from which they fled.

I. GENERAL COMMENTS

A. The shortened comment period does not provide adequate time for meaningful
participation in the rulemaking process.

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Although the Administrative Procedures Act (“APA”) does not prescribe a minimum time period
for comments, agencies must afford interested persons a reasonable and meaningful opportunity
to participate in the rulemaking process. See 5 U.S.C. § 553(c) (“After notice required by this
section, the agency shall give interested persons an opportunity to participate in the rule making
through submission of written data, views, or arguments. . . .”). Furthermore, Executive Order
12866 provides that the public’s opportunity to comment “in most cases should include a comment
period of not less than 60 days.” Exec. Order No. 12866, 58 Fed. Reg. 51735, 51740 (Oct. 4, 1993).
Despite having had the Proposed Rule “reviewed . . . as a ‘significant regulatory action’ under . . .
Executive Order [13563],” 88 Fed. Reg. 11704, 11748, the Departments have deviated from the
customary 60-day comment period, instead allowing the public only 30 days to submit comments
to the Proposed Rule.

American Gateways objects to the shortened 30-day comment period. As discussed herein, the
Proposed Rule contains several substantial changes to regulations governing asylum and
withholding of removal that would have a detrimental impact on immigrants seeking asylum and
other forms of humanitarian protection.1 For example, the Proposed Rule would introduce a new
condition on asylum eligibility, in the form of a presumption of ineligibility for asylum for certain
noncitizens who enter the United States at the southwest land border, thereby rendering it more
difficult for asylum seekers to meet the conditions for asylum eligibility. The Proposed Rule would
only allow noncitizens to rebut this presumption if they are able to demonstrate “exceptionally
compelling circumstances by a preponderance of the evidence,” a heightened evidentiary burden
that is very difficult to meet and will likely impose unduly harsh consequences on pro se asylum
seekers. The public should be afforded adequate time to meaningfully consider and respond to the
complex revisions proposed by the Department.

The Departments have offered no fitting justification for shortening the comment period. The
Departments’ sole proffered defense is that they are issuing the Proposed Rule with this 30-day
comment period “because they seek to be in a position to finalize the proposed rule, as appropriate,
before the Title 42 Public Health Order is lifted.”2 88 Fed. Reg. 11704, 11708. While the
Departments cite the termination of the Title 42 policy in May 2023 as a justification to curtail the
public’s right to comment on the proposed rule, this reasoning is specious especially given that the
administration itself sought to formally end Title 42 nearly a year ago and has had ample time to
prepare for the end of the policy. The lack of sufficient explanation for shortening the comment
period signals that the Departments have improperly prejudged the issues and intend to implement
the Proposed Rule without having provided interested persons with a meaningful opportunity to
participate. At the same time, the shortened comment period suggests that the Departments desire

1
American Gateways uses the term “asylum seekers” throughout these comments to refer to individuals seeking
asylum, as well as those seeking statutory withholding of removal or withholding under the Convention Against
Torture.
2 The Departments argue that the “lifting of the Order could occur as a result of several different litigation and
policy developments, including the vacatur of the preliminary injunction entered in Louisiana v. CDC, No. 22–cv–
885, 2022 WL 1604901 (W.D. La. May 20, 2022), appeal pending, No. 22–30303 (5th Cir.); the lifting of the stay
entered by the Supreme Court in Arizona v. Mayorkas, No. 22A544, 2022 WL 17957850 (U.S. Dec. 27, 2022); or ‘the
expiration of the Secretary of HHS’ declaration that COVID–19 constitutes a public health emergency,’ 86 FR at
42829.” 88 Fed. Reg. 11704, 11708. The Departments further argue that “[t]he termination of the Secretary of HHS’
declaration that COVID–19 constitutes a public health emergency is expected to occur on May 11, 2023,” based on a
recent announcement of such intent by the Executive Office of the President’s Office of Management and Budget. Id.

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not to improve the efficiency or quality of procedures governing asylum and withholding of
removal, but to push through their divisive political agenda in disregard of public comments.

American Gateways therefore respectfully requests that, if the Proposed Rule is not withdrawn,
the comment period be extended for at least an additional 30 days consistent with Executive Order
12866.

B. The Proposed Rule fails to engage in a cost/benefit analysis, as required by law.

Executive Orders 12866 and 13563 require agencies to assess all costs and benefits of regulatory
changes, including both quantifiable and qualitative factors, and choose the regulatory alternative
that maximizes net benefits.3 The Departments acknowledge that the Office of Information and
Regulatory Affairs of the Office of Management and Budget (“OMB”) has “reviewed” the
Proposed Rule as a “significant regulatory action” within the meaning of Executive Order 12866.
88 Fed. Reg. 11704, 11748. Yet, the Proposed Rule contains no meaningful assessment of costs,
benefits, and regulatory alternatives. Instead, the Departments list a single purported cost to
migrants of the Proposed Rule—briefly noting that ineligibility for asylum under the presumptive
condition “would entail a loss of the benefits of asylum, although [such migrants] would continue
to be eligible for statutory withholding of removal and withholding under the CAT,” id. at 11748—
and a cost to the Departments, noting that the Proposed Rule “would require additional time for
asylum officers, during fear screenings, to inquire into the applicability of the presumption and
whether the presumption has been rebutted,” id.

The Departments cannot discharge their obligation to fully assess costs and benefits of the
proposed regulatory changes by simply disregarding the real harms that would flow from the
Proposed Rule, especially for detained and pro se asylum seekers. Moreover, the Department’s
evident implication that a new presumption of asylum ineligibility for noncitizens who did not
seek asylum in a country of transit or did not obtain an appointment to present at the border will
have virtually no further impact on asylum seekers beyond their loss of a path to citizenship and
inability to petition for certain family members to join them in the United States is absurd. Most
pro se asylum seekers struggle to understand and adequately prepare for asylum application
procedures, and they would face significant challenges retaining counsel or even pro se legal
assistance when faced with the significantly increased likelihood of expedited removal.
Furthermore, given the speed at which expedited removal takes place, there is rarely an opportunity
to collect evidence or even merely consult with an attorney, family member, or friend before the
decision is made.

Agencies may “propose or adopt a regulation only upon a reasoned determination that the benefits
of the intended regulation justify its costs.” Exec. Order No. 12866 § 1(b)(6) (1993). Rather than
engage in a cost-benefit analysis, as the law requires, the Departments simply assert that a

3
See Exec. Order No. 12866 § 1(b)(6) (1993), https://www.archives.gov/files/federal-register/executive-
orders/pdf/12866.pdf (“Each agency shall assess both the costs and the benefits of the intended regulation and,
recognizing that some costs and benefits are difficult to quantify, propose or adopt a regulation only upon a reasoned
determination that the benefits of the intended regulation justify its costs.”); Exec. Order No. 13563,
https://obamawhitehouse.archives.gov/the-press-office/2011/01/18/executive-order-13563-improving-regulation-
and-regulatory-review (supplementing and reaffirming the mandate in Executive Order 12866 that agencies “must
take into account benefits and costs, both quantitative and qualitative” when implementing regulations).

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presumption of asylum ineligibility for certain noncitizens will present benefits in the form of
“improved relationships with, and enhanced opportunities to coordinate with and benefit from the
migration policies of, regional neighbors; large-scale reductions in strains on limited national
resources; preservation of the Departments’ continued ability to safely, humanely, and effectively
enforce and administer the immigration laws; and a reduction in the role of exploitative
transnational criminal organizations and smugglers.” 88 Fed. Reg. 11704, 11748. But this listing
of purported benefits improperly discounts obvious costs to the Proposed Rule. Executive Orders
cannot be so easily circumvented. Indeed, the Proposed Rule would effectively operate as an
asylum ban for individuals based on factors that do not relate to their fear of return and would
result in asylum denials for all who are unable to establish that they qualify for the extremely
limited exceptions to the presumption of asylum ineligibility. Its use in expedited removal will
require asylum seekers—many of whom have suffered persecution and violence and undergone a
harrowing journey to reach safety—to prove that the rule does not apply to them in a credible fear
interview shortly after arrival in the United States, while detained and with little to no access to
counsel, likely without knowledge of how the rule works or what they need to prove.

American Gateways acknowledges that the Proposed Rule is only at the public comment stage of
the rule-making process. However, the Departments’ utter failure to consider a host of relevant
factors and indifference toward the harmful impact their proposal would have on individuals
seeking humanitarian protection are incurable deficiencies. If the Departments were to consider
all aspects of the issue, as they are required to do under Executive Orders 12866 and 13563, they
cannot possibly conclude that any purported benefits of the Proposed Rule outweigh its
tremendous costs. Rather than push forward with a proposal that is doomed for judicial
invalidation, the Departments should rescind the Proposed Rule.

C. The Proposed Rule, if made final, would violate the Administrative Procedure Act.

Under the Administrative Procedure Act (APA) (5 U.S.C. §§ 551-559), courts are authorized to
“hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary,
capricious, an abuse of discretion or otherwise not in accordance with the law; (B) contrary to
constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right . . . .” 5 U.S.C. § 706(2)(A)-(C). The Proposed
Rule contravenes or is otherwise inconsistent with several provisions of the governing statute,
infringes upon due process rights, is not the product of reasoned decision-making, and is otherwise
arbitrary and capricious. If implemented in its current form, the Proposed Rule would be subject
to judicial invalidation on multiple grounds.

For example, several provisions of the Proposed Rule are contrary to constitutional rights because
they infringe upon the due process rights of asylum seekers. The presumption of asylum
ineligibility, coupled with the high burden asylum seekers must meet to show they can overcome
this presumption—i.e., by showing they sought asylum in a country of transit, or obtained an
appointment to present at the border using CBP One—would substantially interfere with asylum
seekers’ ability to obtain counsel and a full and fair hearing on their claims for relief. Throughout
its comments, American Gateways highlights some of the constitutional violations that would flow
from the Proposed Rule.

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Additionally, the Proposed Rule, as well as the separate provisions thereof, is arbitrary and
capricious. The arbitrary-and-capricious standard requires that an agency “examine the relevant
data and articulate a satisfactory explanation for its action, including a ‘rational connection
between the facts and the choice made.’” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States,
371 U.S. 156, 168 (1962)). When reviewing an agency’s proffered explanation, courts “must
‘consider whether the decision was based on a consideration of the relevant factors and whether
there has been a clear error of judgment.’” Id. at 43 (quoting Bowman Transp., Inc. v. Arkansas-
Best Freight Sys., Inc., 419 U.S. 281, 285 (1974)). Further, courts require that an agency provide
the “essential facts upon which the administrative decision was based,” United States v.
Dierckman, 201 F.3d 915, 926 (7th Cir. 2000) (quoting Bagdonas v. Dep’t of Treasury, 93 F.3d
422, 426 (7th Cir. 1996)), and explain the justification for its determinations with actual evidence
beyond a “conclusory statement,” Allied-Signal, Inc. v. Nuclear Reg. Comm’n, 988 F.2d 146, 152
(D.C. Cir. 1993). In general, an agency decision is arbitrary and capricious

if the agency has relied on factors which Congress has not intended
it to consider, entirely failed to consider an important aspect of the
problem, offered an explanation for its decision that runs counter to
the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency
expertise.
Id. In other words, agency actions are subject to invalidation where an agency fails to adequately
explain its decision, fails to consider relevant factors, including the policy effects of its decisions,
fails to adequately explain illogical actions, or reaches a conclusion that contradicts the underlying
record. What counts as “relevant” is context specific, but the U.S. Supreme Court has previously
instructed that agency decision-making on immigration matters “must use an approach that is tied
to the purposes of the immigration laws or the appropriate operation of the immigration system.”
Judulang v. Holder, 565 U.S. 42, 132 S. Ct. 476, 478 (2011).

Here, the Departments propose a rule that is so plainly contrary to the “purposes of the immigration
laws” and the “appropriate operation of the immigration system” that it is necessarily arbitrary and
capricious. The Departments claim that the Proposed Rule is “designed to improve the overall
functioning of the immigration system and to improve processing of asylum applications.” 88 Fed.
Reg. 11704, 11736. The Departments do not sufficiently explain how any of the proposed
changes—which will largely vet out meritorious claims and harm asylum seekers, without
resulting in greater efficiency—support these stated purposes (which are, at best, conclusory).
Moreover, the Departments entirely fail to consider several important aspects of the problems they
claim to address, and they do not balance concerns of adjudicatory efficiency and deterrence
against the rights of individuals seeking humanitarian protection or the country’s international
obligations to afford such protection.

For example, the Departments propose a new presumption of asylum ineligibility for noncitizens
who enter the country from the southern border and who (1) did not apply for and receive a formal
denial of protection in a transit country; and (2) entered between ports of entry at the southern
border or entered at a port of entry without a previously scheduled appointment through the CBP
One mobile application, subject to extremely limited exceptions. Although the Departments

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loosely suggest that this procedure would be both desirable and necessary in order to more
effectively screen out unmeritorious (i.e., frivolous) claims and alleviate burdens on immigration
court dockets, they do not actually pinpoint any interests that would be furthered by denying
asylum applicants the right to a hearing. Even if this presumption would enhance efficiency (which
it will not), the Departments also completely fail to consider that allowing the summary denial of
asylum applications will result in the deportation of thousands of refugees entitled to protection
under domestic and international law. The Departments make no attempt to explain how the
proposed process comports with fundamental notions of fairness or the constitutional and statutory
right to a full and fair hearing. The Departments also fail to adequately evaluate the impacts of this
provision on pro se applicants, detained applicants, and other particularly vulnerable groups. In
essence, the Departments propose to penalize asylum seekers for their lack of familiarity with U.S.
immigration law. There is no basis in U.S. tradition or law for imposing such harsh sanctions
absent evidence of knowingly fraudulent conduct. The Departments offer no effective explanation
for this change in policy, no explanation for how the policy will conserve resources, and no
assessment of its devastating implications, particularly for asylum seekers who could be rendered
permanently ineligible for any benefits under the INA simply because they cannot afford to retain
an attorney to help them articulate their claim—or do not have enough time to do so, given the
severe restrictions placed upon them by the application of this new presumption at the credible
fear interview stage.

D. If the Proposed Rule is not withdrawn, it should not have any retroactive
applicability.

The Proposed Rule is wholly silent on the issue of retroactive applicability. To avoid any doubt
concerning the retroactive applicability of the Proposed Rule, the Departments should at the very
least make an affirmative pronouncement that the Proposed Rule will definitively not apply
retroactively. Indeed, if the Proposed Rule becomes final and effective, it should not apply to
anyone whose latest entry into the United States was prior to the effective date(s) of the rule.
Alternatively, any final rule should specifically identify the individuals and claims to which the
Proposed Rule, and any provisions thereof, would apply.

Section 551 of the Administrative Procedures Act (APA) sets forth clear standards for rulemaking.
According to subsection 5, “‘rule making’ means agency process for formulating, amending, or
repealing a rule,” 5 U.S.C. § 551(5), which is what the Departments seek to do. Subsection 4,
however, requires that any such rulemaking have a future effect. The APA defines a “rule” to mean
“the whole or a part of an agency statement of general or particular applicability and future effect
designed to implement, interpret, or prescribe law or policy or describing the organization,
procedure, or practice requirements of an agency.” 5 U.S.C. § 551(4) (emphasis added). “The only
plausible reading of the italicized phrase is that rules have legal consequences only for the future.”
Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 216 (1988). This meaning is bolstered by the
remainder of the definition, which goes on to say that a rule “includes the approval or prescription
for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices,
facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or
practices bearing on any of the foregoing.” 5 U.S.C. § 551(4) (emphasis added). Indeed, the
government’s own authority on interpretation of the APA—the Attorney General’s Manual on the

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Administrative Procedure Act4 (a guide given great weight by courts and used by agencies in
adjusting their procedures to the requirements of the APA)—notes that “‘rule’ includes agency
statements not only of general applicability but also those of particular applicability applying either
to a class or to a single person. In either case, they must be of future effect, implementing or
prescribing future law.”5

Simply put, “[r]etroactivity is not favored in the law.” Bowen, 488 U.S. at 208. “Thus,
congressional enactments and administrative rules will not be construed to have retroactive effect
unless their language requires this result.” Id.; see also Criger v. Becton, 902 F.2d 1348, 1353 (8th
Cir. 1990) (“[L]aws are to have prospective effect only, unless the law-making entity has indicated
otherwise.”). Retroactivity is disfavored because the due process clause “protects the interests in
fair notice and repose that may be compromised by retroactive legislation.” Landgraf v. USI Film
Prods., 511 U.S. 244, 266 (1994); Hem v. Maurer, 458 F.3d 1185, 1190 (10th Cir. 2006). “It is
well established that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings.” Reno v. Flores, 507 U.S. 292 (1993) (citing Yamataya v. Fisher, 189 U.S. 86, 100-
01 (1903) (“[T]his Court has never held, nor must we now be understood as holding, that
administrative officers, when executing the provisions of a statute involving the liberty of persons,
may disregard the fundamental principles that inhere in ‘due process of law’ as understood at the
time of the adoption of the Constitution.”)). “[A]liens who have once passed through our gates,
even illegally, may be expelled only after proceedings conforming to traditional standards of
fairness encompassed in due process of law.” F.L.B. v. Lynch, 180 F. Supp. 3d 811, 819 (W.D.
Wash. 2016) (quoting Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953)).

Retroactivity will necessarily infringe upon due process rights if the Proposed Rule, or any
provision thereof, is applied to claims of asylum seekers whose latest entry into the United States
was before the effective date(s) of the proposed changes. The Supreme Court has repeatedly
warned against retroactive legislation, because it “would impair rights a party possessed when he
acted, increase a party’s liability for past conduct, or impose new duties with respect to transactions
already completed.” Landgraf, 511 U.S. at 280. If the result of legislation “attaches new legal
consequences to events completed before its enactment[,]” courts should be guided by “familiar
considerations of fair notice, reasonable reliance, and settled expectations.” Id. at 269-70. This
same principle must be followed here.

Consistent with addressing due process concerns, the Departments should specify that the
Proposed Rule does not have any retroactive effect. As the Departments admit, in FY 2022, EOIR
hired 104 Immigration Judges for a total of 634 and completed a record 312,486 cases. Yet the
number of cases pending before the immigration courts has risen to nearly 1.8 million, as the courts
were unable to keep pace with the incoming volume. 88 Fed. Reg. 11704, 11715. Applying the
Proposed Rule to pending claims would jeopardize the safety and security of nearly two million
people, whose cases would be thrown into a state of uncertainty. Such uncertainty would, without
doubt, increase the burden on immigration courts and judges as asylum seekers and their
representatives attempt to reconcile the effects of the new rules on their own cases. Moreover,
applying the Proposed Rule to those who last entered the United States prior to the effective date(s)

4 Tom C. Clark, U.S. Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act (photo.
reprint 1973) (1947), https://archive.org/details/AttorneyGeneralsManualOnTheAdministrativeProcedureActOf1947.
5
Id. at 13.

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would undermine reliance interests and add to the uncertainty while the inevitable litigation pends.
At the very least, the Departments should specify to whom each of the new provisions would apply
so that all individuals who might be impacted by the Proposed Rule are on notice of the
Departments’ intentions and can, as appropriate, challenge any attempt at retroactive application.

II. SPECIFIC COMMENTS

A. The Proposed Rule’s introduction of a presumption of asylum ineligibility for certain
noncitizens emphasizes efficiency at the expense of due process.

American Gateways acknowledges that Immigration Courts are faced with a tremendous backlog
of cases and that the Departments endeavor to increase the speed and efficiency of proceedings.
Yet, in several respects, the Proposed Rule prioritizes efficiency over fairness, thereby threatening
the due process rights of asylum seekers.

“‘It is well established that the Fifth Amendment entitles aliens to due process of law in deportation
proceedings.’” Demore v. Kim, 538 U.S. 510, 523 (2003) (quoting Reno v. Flores, 507 U.S. 292,
306 (1993)). Indeed, for over a century, the Supreme Court has repeatedly affirmed that the “Due
Process Clause applies to all persons within the United States, including aliens, whether their
presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678,
679 (2001). As early as 1896, the Court held that due process rights applied to an individual
detained for unauthorized entry into the United States. See Wong Wing v. United States, 163 U.S.
228, 238 (1896). Less than a decade later, the Court reaffirmed that immigrants in removal
proceedings are guaranteed due process rights, including the right “to be heard upon the questions
involving [the] right to be and remain in the United States.” Yamataya v. Fisher, 189 U.S. 86, 101
(1903); see also Mathews v. Diaz, 426 U.S. 67, 77 (1976) (Fifth Amendment protects all persons
“from deprivation of life, liberty, or property without due process of law”) (citations omitted);
Plyler v. Doe, 457 U.S. 202, 210 (1982) (same).

It is similarly well settled that due process requires: (1) notice and (2) an opportunity to be heard.
See, e.g., Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950) (“‘The fundamental
requisite of due process of law is the opportunity to be heard.’ This right to be heard has little
reality or worth unless one is informed that the matter is pending and can choose for himself
whether to appear or default, acquiesce or contest.”) (internal citations omitted). In the immigration
context, due process requires that “[a]n alien who faces deportation is entitled to a full and fair
hearing of his claims.” Agyeman v. INS, 296 F.3d 871, 877 (9th Cir. 2002) (internal quotation
marks and citation omitted); see also Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (“[A]n
alien who faces deportation is entitled to a full and fair hearing of [her] claims and a reasonable
opportunity to present evidence on [her] behalf.”); Bah v. Keisler, 249 F. App’x 876, 879 (2d Cir.
2007) (“Due process in the asylum context requires that an applicant receive a full and fair hearing
that provides a meaningful opportunity to be heard.”) (citing Li Hua Lin v. U.S. Dep’t of Justice,
453 F.3d 99, 104-05 (2d Cir. 2006)); Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002)
(failure to allow the petitioner to present oral testimony constitutes a denial of right to due process).

The civil rather than criminal nature of removal proceedings does not diminish this due process
right:

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Though deportation is not technically a criminal proceeding, it visits a great hardship on
the individual and deprives him of the right to stay and live and work in this land of
freedom. That deportation is a penalty . . . cannot be doubted. Meticulous care must be
exercised lest the procedure by which he is deprived of that liberty not meet the essential
standards of fairness.

Bridges v. Wixon, 326 U.S. 135, 154 (1945). Procedural due process rights have also animated
statutory rights that apply to immigration proceedings. Section 240 of the Immigration and
Nationality Act (INA) delineates the contours of a fair hearing and enumerates the rights that apply
to persons in removal proceedings. The INA provides that an “Immigration Judge shall administer
oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses.”
8 U.S.C. § 1229a(b)(1). Moreover, “the alien shall have a reasonable opportunity to examine the
evidence against the alien, to present evidence on the alien’s own behalf, and to cross-examine the
witnesses presented by the Government.” Id. § 1229a(b)(4)(B). The INA’s implementing
regulations also require a hearing. The BIA has acknowledged that “[a]t a minimum, . . . the
regulations require that an applicant for asylum and withholding take the stand, be placed under
oath, and be questioned as to whether the information in the written application is complete and
correct.” Matter of Fefe, 20 I. & N. Dec. 116, 118 (BIA 1989).

It is critical that asylum seekers be given an opportunity to understand the procedure they are
facing, to obtain counsel, and to present all evidence in support of their claim in a full merits
hearing. Under the Proposed Rule, asylum seekers could be deported without an asylum hearing
if they do not pass their fear screenings. See generally 88 Fed. Reg. 11704, 11724-25. The
Proposed Rule will be implemented during the expedited removal process, where asylum seekers
are swiftly deported without a day in court if they do not pass their fear screenings. Id. (“Although
the rebuttable presumption would apply to any noncitizen who is described in proposed 8 CFR
208.33(a)(1), it would most frequently be relevant for noncitizens who are subject to expedited
removal under section 235(b)(1) of the INA, 8 U.S.C. 1225(b)(1).”).

During the threshold fear interview, asylum seekers will be required to show that the ban does not
apply to them or, if it does, that they can rebut the presumption of ineligibility by proving they fall
within one of the Rule’s exceptions. Id. This will be impossible for many given that these
screenings typically occur over the phone while asylum seekers are detained, with little or no
access to counsel. Language barriers, abusive and dangerous conditions of confinement, acute
trauma, and lack of knowledge of the requirements of this complex rule would make it extremely
challenging for asylum seekers to overcome this ban in preliminary screenings. Many would be
unable to prove to an asylum officer that they should not be banned from the right to apply for
asylum by the rule. Those who cannot rebut the presumption will then be forced to meet a “more
likely than not” standard just to be able to present a claim to lesser protections in the form of
withholding of removal or CAT protection. Id.

For those forced to undergo this credible fear screening while in detention, the obstacles to due
process are so high as to render success unachievable for most, regardless of the merits of their
asylum claim. Asylum seekers will be forced through their fear interviews while in government

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custody in notoriously difficult and abusive conditions,6 without prior knowledge as to the rule’s
details or workings, and only a few hours or days away from the dangers and horrors of their flight.
Even if legal service providers are able to obtain the ability to provide brief orientation or
consultation services prior to a credible fear interview, there will be no meaningful access to
representation for asylum seekers navigating this complex process.

The severe consequences asylum seekers would face as a result of implementation of the Proposed
Rule’s presumption of asylum ineligibility, especially at the expedited removal stage, cannot be
understated. American Gateways has witnessed the problems with credible fear interviews
firsthand. Indeed, American Gateways has observed several credible fear interview denials where
the asylum officer did not follow the law, cut off the applicant’s answers to questions, mocked the
applicant, or had an interpreter in a language the applicant did not fully understand. Given the
reality that Immigration Judges routinely rubberstamp asylum officers’ determinations, there is an
unacceptable chance that justice will be miscarried. Further, while asylum applicants who reach
the Immigration Judge review stage have a right to counsel, Immigration Judges often limit the
participation of legal counsel at the review hearing. Often, Immigration Judges do not allow
attorneys to ask additional clarifying questions or make legal arguments to support asylum seekers’
claims. Most Immigration Judge reviews last less than five minutes, and in many instances the
Immigration Judges do not ask for any clarification or additional testimony from applicants.

For example, Ms. C was a detained asylum seeker who was fleeing persecution based on the
murder of her husband who was a police officer. He was targeted because he was a police officer
who investigated gang activity. After he was killed, Ms. C began to receive threats and was
attacked. She fled because she feared that she would be killed if she remained in her home country.
She was given a negative credible fear interview finding. She requested an Immigration Judge
review. The review before the Immigration Judge took minutes. He affirmed the decision of the
asylum officer. American Gateways intervened and requested a reinterview for Ms. C based on
the legal error in the asylum officer’s decision and the cursory and insufficient review by the
Immigration Judge. The Asylum Office granted Ms. C an additional interview where she was
represented by American Gateways. She was interviewed for nearly two hours and her attorney
was able to provide legal arguments on her behalf. Because of this additional advocacy and

6 See, e.g., Catherine E. Shoichet, “The Death Toll in ICE Custody Is the Highest It’s Been in 15 Years,” CNN,
September 30, 2020, https:// www.cnn.com/2020/09/30/us/ice-deaths-detention-2020/index.html; Joel Rose, “ACLU
Calls on DHS to Close ICE Detention Centers, Citing High Cost of Empty Beds,” NPR, April 28, 2021,
https://www.npr.org/2021/04/28/991679868/aclu-calls-on-dhs-toclose-ice-detention-centers-citing-high-cost-of-
empty-beds; Laura Wilson, “Violence Against Women and Girls in ICE Custody,” Global Rights for Women,
September 21, 2020, https://globalrightsforwomen.org/featured/violence-against-women-and-girlsice-custody;
Caitlin Dickerson, Seth Freed Wessler, and Miriam Jordan, “Immigrants Say They Were Pressured into Unneeded
Surgeries,” New York Times, September 29, 2020, https://www.nytimes.com/2020/09/29/us/ice-hysterectomies-
surgeries-georgia. html; Ian Urbina, “The Capricious Use of Solitary Confinement against Detained Immigrants,”
Atlantic, September 6, 2019, https:// www.theatlantic.com/politics/archive/2019/09/ice-uses-solitary-confinement-
among-detained-immigrants/597433; and Noah Lanard, “Guards Pepper-Spray Protesting Asylum Seekers at an ICE
Detention Center,” Mother Jones, June 25, 2020, https://www. motherjones.com/politics/2020/06/guards-pepper-
spray-protesting-asylum-seekers-at-an-ice-detention-center.

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representation, the Asylum Office overturned its initial decision in Ms. C’s credible fear interview
and allowed her to move forward with her asylum claim.

In another instance, a detained American Gateways client was given a negative credible fear
interview determination for lack of nexus between her feared harm and a protected ground. Due
to American Gateways’ representation during the request for review by an Immigration Judge, the
client was able to prove up nexus on at least two protected grounds and was issued a notice to
appear. She ultimately prevailed in her case. In several other instances, American Gateways’
attorneys have helped clients overcome adverse credibility findings during their interview that
were largely the result of poor interpretation, false assumptions, or missed questions. In other
instances, American Gateways’ staff have been able to overturn negative credible fear interview
determinations where the asylum officer did not evaluate the applicant for eligibility for protection
under the Convention Against Torture.

These due process violations would be magnified if the administration pursues its reported plan to
conduct credible fear interviews within days of asylum seekers’ arrival in Customs and Border
Protection (CBP) custody, where dire conditions and lack of access to counsel would exacerbate
the due process nightmare. The Trump administration similarly conducted credible fear interviews
in CBP custody through the Prompt Asylum Claim Review (PACR) and Humanitarian Asylum
Review Process (HARP) programs, which the Biden administration ended.7 Resurrecting this
policy and imposing the asylum ban in these fear screenings would be a due process fiasco.

Asylum seekers detained in CBP custody have frequently reported8 being provided insufficient or
inedible food and water; lack of access to showers and other basic hygiene; and inability to sleep
because of overcrowding, lack of adequate bedding, cold conditions, and lights that are kept on all
night. For asylum seekers subjected to PACR and HARP, positive credible fear determinations
plummeted9: according to a January 2021 United States Government Accountability Office report,

7 “Executive Order on Creating a Comprehensive Regional Framework to Address the Causes of Migration, to
Manage Migration throughout North and Central America, and to Provide Safe and Orderly Processing of Asylum
Seekers at the United States Border.” The White House. The United States Government, February 4, 2021.
https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-creating-a-
comprehensive-regional-framework-to-address-the-causes-of-migration-to-manage-migration-throughout-north-and-
central-america-and-to-provide-safe-and-orderly-processing/.
8 See, e.g., Human Rights Watch. “‘They Treat You Like You Are Worthless’: Internal DHS Reports on Abuses
by US Border Officials.” Human Rights Watch, 21 Oct. 2021, https://www.hrw.org/report/2021/10/21/they-treat-you-
you-are-worthless/internal-dhs-reports-abuses-us-border-officials; Human Rights First. “Family Detention at Berks
County Residential Center.” Human Rights First, 1 Dec. 2022, https://humanrightsfirst.org/wp-
content/uploads/2022/12/Final-Berks-Factsheet-12.1.2022_FINAL-1.pdf; Human Rights Watch. “‘The Freezer’
Abusive Conditions for Women and Children in US Immigration Holding Cells.” Human Rights Watch, 28 Feb. 2018,
https://www.hrw.org/report/2018/02/28/freezer/abusive-conditions-women-and-children-us-immigration-holding-
cells.
9 Human Rights First. “A Pretense of Protection: The Dangerous Impact of the U.S. ‘Remain in Mexico’ Policy.”
Human Rights First, Jan. 2023, https://humanrightsfirst.org/wp-content/uploads/2023/01/PretenseofProtection-
21.pdf.

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only 18 percent of individuals in PACR and 30 percent in HARP passed their screenings, as shown
in the figure below.10

This is compared to 40 percent nationwide (excluding HARP and PACR) during the same period.12

The following examples from the American Gateways experience highlight the impacts of
detention on asylum seekers and the ways in which the Proposed Rule would lead to magnified
due process violations for detained asylum seekers in particular:

x American Gateways has worked with a number of indigenous Kichwa speakers from
Ecuador at the Hutto detention center. After months of difficulty in locating an interpreter
that the detained women needed, American Gateways was able to locate one interpreter
who speaks the correct dialect, which the women could understand. Coordinating a time
when the interpreter is available that also corresponds to the rigid schedule at the detention
center (so as not to conflict with numerous counts and other meetings at the facility) has
often been difficult. Many of these women have family and community support in the U.S.
and would be able to find representation and interpretation services much more easily if
they were not detained and each of these women are asylum seekers who have suffered a
great deal of trauma. Detention has exacerbated their trauma and also made them feel more
isolated, due to the inability to communicate effectively with American Gateways, with
ICE, with the Asylum Office, and with the Immigration Court.
x American Gateways represented an unaccompanied minor, Miss K, from Sierra Leone who
had been incorrectly placed in adult detention at Hutto. She was 17 years old and spoke
only Krio. Finding an appropriate interpreter was incredibly difficult and it also became
clear that ICE and the contractors at the detention center were communicating (or
attempting to communicate) with her in English despite the fact that she did not understand
English. Several medical authorizations and other documents were explained to Miss K in
English. Despite not understanding what she was signing, she did so out of fear. Once
American Gateways was able to obtain a Krio interpreter (of which there are very limited

10 U.S. Government Accountability Office. “Central America: Regional Development Plan Includes Strategies
to Address Migration, but Implementation Challenges Remain.” GAO-21-144, U.S. Government Accountability
Office, Feb. 2021, https://www.gao.gov/assets/gao-21-144.pdf.
11 Id.
12 Id.

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numbers), American Gateways was able to review the documents she signed with her and
discovered that she did not understand that she had consented to medical procedures,
including a dental exam. Detention made communicating with Miss K more difficult
because there were limited options for Krio interpreters. American Gateways had to
prepare her asylum case via a phone interpreter when that interpreter was available. She
should have been released, and correctly identified as an unaccompanied minor thus
limiting her detention, but the language barrier was something that prevented this in the
first place.

x American Gateways became very involved in the asylum cases of several women from
East Africa because Immigration Judges were requiring proof of female genital mutilation
(FGM) in order to grant these women asylum. However, the medical staff at Hutto would
not perform the exams needed to prove FGM. American Gateways had to coordinate with
an outside clinic and ICE to get the exams performed, but this proved to be burdensome.
Detention only creates substantial barriers to these types of efforts, and pro se respondents
would have little to no chance of prevailing on FGM-based claims when detention facilities
refuse access to necessary medical exams.

Detention thus severely raises the hurdles asylum seekers already face in obtaining legal counsel,
locating interpreters who speak the asylum seeker’s language or dialect, or even collecting any
other resources—such as documents or medical proof—that could assist the asylum seeker with
overcoming the presumption of asylum ineligibility during credible fear screenings. It is
undeniable that these barriers raise grave due process concerns under the Fifth Amendment.

Furthermore, American Gateways emphasizes that the Proposed Rule fails to recognize the
significant due process concerns raised by the various parole processes that have already been
implemented and from which the Departments claim to draw “lessons” in drafting the Proposed
Rule—i.e., the Uniting for Ukraine (“U4U”) and Venezuela parole processes, as well as the
processes for Cubans, Haitians, and Nicaraguans, under which DHS imposed new consequences
for those who cross the border without authorization in the form of returns to Mexico. 88 Fed. Reg.
11704, 11706. These parole programs have been criticized as allowing only small numbers of
migrants into the United States, and having a disproportionately negative impact on low-income
individuals who may not be able to find sponsors as required under the programs. For example, up
to 30,000 “qualifying nationals” per month from Cuba, Nicaragua, Haiti and Venezuela have been
allowed “to reside legally in the United States for up to two years and to receive permission to
work here during that period” pursuant to the parole process created for migrants of those
nationalities.13 But as the Departments themselves acknowledge, the number of daily encounters
prior to announcement of these processes was 928 for Cuban, Haitian, and Nicaraguan nationals
alone, and over 1,100 for Venezuelan nationals—on average more than 740,220 per year, or
61,685 per month. See 88 Fed. Reg. 11704, 11706. Moreover, the parole process for Haitians

13 Lavers, M. K. (2023, January 6). Advocacy groups criticize new Biden immigration policies. Washington
Blade: LGBTQ News, Politics, LGBTQ Rights, Gay News. https://www.washingtonblade.com/2023/01/05/advocacy-
groups-criticize-new-biden-immigration-policies/.

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ignores the fact that Haiti lacks a functioning government, creating severe obstacles for Haitian
migrants attempting to obtain passports in the first instance.14

B. The Proposed Rule’s exceptions to the “rebuttable presumption” will be impossible
to navigate for pro se asylum seekers.

The Proposed Rule creates a complex system to bypass the rebuttable presumption, which includes
demonstrating by the “preponderance of the evidence” that “exceptionally compelling
circumstances exist.” 88 Fed. Reg. 11704, 11723. The Proposed Rule specifically lists a number
of “per se grounds for rebuttal” of the presumption: acute medical emergency, imminent and
extreme threat to life or safety (such as rape, kidnapping, torture, or murder), and satisfying the
legal definition of a “victim of a severe form of tracking in persons.” Id.

Navigating this added layer to our already complex asylum system will be particularly problematic
given the application of the rebuttable presumption to the credible fear interview stage. Under this
Proposed Rule, the asylum officer determines whether the asylum seeker has rebutted this
presumption. Id. at 11724 (“For each noncitizen referred to an asylum officer for a credible fear
interview, the asylum officer would first determine if the noncitizen is covered by and fails to rebut
the presumption of ineligibility”). If they have not, they receive a negative fear determination for
their asylum claim. Id. The asylum officer will then determine whether the asylum seeker
established a “reasonable possibility” of persecution or torture—a standard that is higher than the
credible fear standard and more difficult to meet.15 They will likely navigate this rebuttable
presumption alone, as asylum seekers very rarely have attorney representation at this stage.

Asylum seekers face a difficult time obtaining representation for their initial asylum office
“hearing.” Legal representation rates among noncitizens in removal proceedings generally are low.
As of 2016, only 37% of individuals appearing before immigration courts secured legal
representation.16 Immigrants in detention were the least likely to obtain representation—only 14%
had legal counsel.17 Access to counsel is often outcome-determinative. Represented detainees are
ten-and a-half times more likely than their pro se counterparts to win their cases.18 The disparities
are similarly high for asylum seekers (both detained and non-detained). In Fiscal Year (FY) 2020,

14 “Passport rush blamed on US policy stalls adoptions in Haiti.” Associated Press, February 10, 2023,
https://apnews.com/article/biden-politics-united-states-government-caribbean-haiti-
f98a84e03e56e2702fb6880ec1825f0f (noting that the “U.S. policy change has unleashed a rush for passports at Haiti’s
main immigration office,” and that “the ensuing demand for Haitian passports has overwhelmed Haiti’s passport office
in the capital, Port-au-Prince, where people with appointments cannot squeeze through the aggressive crowd or secure
new appointments.”).
15 American Immigration Council. “Asylum in the United States.” Accessed March 26, 2023.
https://www.americanimmigrationcouncil.org/research/asylum-united-states.
16 Ingrid Eagly & Steven Shafer, Access To Counsel In Immigration Court, Am. Immigration Council (Sept. 28,
2016), https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.
17 Eagly, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court. Since 2000,
representation rates for detained individuals have ranged between roughly 10% and 30%. According to some
estimates, the rates leveled off between 2015 and 2017 at about 30%. See TRAC Immigration, Who Is Represented in
Immigration Court? (Oct. 16, 2017), https://trac.syr.edu/immigration/reports/485/.
18 Eagly, https://www.americanimmigrationcouncil.org/research/access-counsel-immigration-court.

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the overall asylum denial rate rose for the eighth straight year to 71.6%.19 The denial rate for
unrepresented asylum seekers was a staggering 82.3% (versus 68.9% for represented asylum
seekers).20 During the first quarter of FY 2020, less than 27% of asylum requests were granted in
immigration court—a 36.6% decline from FY 2016.21 The asylum grant rate for Central American
migrants has declined even more steeply to 13.3%—a 50% decline from FY 2016.22 For those
caged in detention facilities, where myriad barriers frustrate efforts to access counsel and basic
legal information, circumstances are even more dire. Because noncitizens appearing before
immigration courts have no right to government-appointed counsel, pro se respondents must often
confront the complex process of drafting filings, filling out forms, and presenting arguments to a
judge with little to no legal, technical, or linguistic guidance. As a result, thousands of detained
immigrations without legal representation rely on legal services organizations like American
Gateways for pro se legal assistance.

Furthermore, even if they somehow proceed past the credible fear interview stage to a full asylum
adjudication, pro se respondents face significant challenges in appearing before immigration
courts without counsel. Most individuals in removal proceedings do not speak English and have
little, if any, familiarity with U.S. immigration law, which courts have described as “a maze of
hyper-technical statutes and regulations that engender waste, delay, and confusion,” including
among immigration lawyers.23 Applications for relief must be submitted in English, or they will
be deemed abandoned and the respondent ordered removed. Without the assistance of counsel,
few individuals—many of whom are torture or trauma survivors who suffer from post-traumatic
stress disorder or other mental health ailments—can successfully complete required legal forms,
much less complete them within the required time constraints. Given this, it is imperative that
asylum seekers be given an opportunity to obtain counsel and present all evidence in support of
their claims in full merits hearings before Immigration Judges.

The Biden administration faces a very real challenge at the southern border. This region is where
the most vulnerable asylum seekers arrive, including those who do not have access to a plane ticket
to fly to the United States through the newly established parole programs. However, the Proposed
Rule is not the answer to these challenges. This Proposed Rule adds unnecessary complexity to

19 TRAC Immigration, Asylum Denial Rates Continue To Climb (Oct. 28, 2020),
https://trac.syr.edu/immigration/reports/630/ (asylum was granted in just 26.3% of cases; in an additional 2.1% of
cases, some other form of relief (e.g., statutory withholding of removal or withholding of removal under CAT) was
granted when asylum itself was denied); see also TRAC Immigration, Record Number of Asylum Cases in FY 2019
(Jan. 8, 2020), https://trac.syr.edu/immigration/reports/588/ (reporting asylum denial rate of 69% in FY 2019).
20 TRAC Immigration, Asylum Denial Rates Continue to Climb, supra note 19. Between FY 2019 and FY 2020,
the percentage of unrepresented asylum seekers increased from 15.6% to 20%. Id. This decrease in representation is
one of several factors that have contributed to the increase in denial rates.
21 Human Rights First, Grant Rates Plummet As Trump Administration Dismantles U.S. Asylum System, Blocks
and Deports Refugees, Fact Sheet, 2 (June 2020),
https://www.humanrightsfirst.org/sites/default/files/AdministrationDismantlingUSAsylumSystem.pdf. USCIS has
not released data for the first quarter of FY 2020. As of FY 2019, the asylum grant rate for affirmative asylum claims
adjudicated before USCIS was 30.7%—a decline of 28.8% since FY 2016. Id.
22 Id. at 1; see also TRAC Immigration, Asylum Denial Rates Continue to Climb, supra note 19 (reporting that
denial rates for asylum seekers from Honduras, Guatemala, and El Salvador in FY 2020 were 87.3%, 85.8%, and 85%,
respectively).
23 Drax v. Reno, 338 F.3d 98, 99 (2d Cir. 2003).

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the asylum process that will become insurmountable barriers to asylum, especially to those who
do not have legal counsel.

C. The Proposed Rule’s presumption of asylum ineligibility would disparately harm
black, brown, and indigenous asylum seekers.

The Proposed Rule discriminates against asylum seekers based on manner of entry and transit and
will have a racially disparate impact on asylum seekers from Africa, the Caribbean, and Latin
America. The proposed ban, which applies only to people who seek protection at the southern
border, will disproportionately harm people of color who do not have the resources or ability to
arrive in the United States by plane.

The United States and other countries employ visa regimes to prevent low income people of color
from reaching their countries’ territories to seek asylum while often allowing access to people from
wealthier and predominantly white nations.24 Imposing a ban on refugees seeking safety at the
southwest border will, like the Trump third-country transit ban, disproportionately harm people of
color who must undertake an often difficult and dangerous journey to arrive in the United States
by way of the southern border. During the period that the Trump transit ban was implemented,
immigration court asylum denial rates skyrocketed for many Black, Brown, and Indigenous
asylum seekers requesting safety at the southern border.25 For instance, asylum grant rates declined
by 45 percent for Cameroonian asylum applicants, 32.4 percent for Cubans, 29.9 percent for
Venezuelans, 17 percent for Eritreans, 12.9 percent for Hondurans, 12 percent for Congolese
(DRC), and 7.7 percent for Guatemalans from December 2019 to March 2020, compared to the
year before the third-country transit asylum ban began to affect refugee claims, according to data
analyzed by Syracuse University’s Transactional Records Access Clearinghouse.

Additionally, as discussed below, requiring asylum seekers to use CBP One to seek asylum at the
border disparately harms Black asylum seekers due to racial bias in its facial recognition
technology26 and is inaccessible to many Indigenous, African, and other asylum seekers due to
language barriers. This proposed asylum ban will significantly thwart the Biden administration’s
stated commitment to racial justice and equity.27

The ban also builds in nationality-based discrimination in access to asylum, as it largely bans
asylum for people who do not enter the United States via limited parole initiatives or previously
scheduled appointments at ports of entry while simultaneously only affording limited access to

24 Women’s Refugee Commission. “Visa Regimes: A Threat to Migrants’ Access to Safety and Asylum.” June
2022. Accessed March 26, 2023. https://www.womensrefugeecommission.org/wp-content/uploads/2022/06/Visa-
Regimes-A-Threat-to-Migrants-Access-to-Safety-and-Asylum.pdf.
25 Human Rights First. “The Asylum Ban: Ending the Ban and Protecting Asylum Seekers.” January 2023.
Accessed March 26, 2023. https://humanrightsfirst.org/wp-
content/uploads/2023/01/AsylumBanFactsheet_final2.pdf.
26 Melissa del Bosque, “Facial recognition bias frustrates Black asylum applicants to US, advocates say,” The
Guardian, February 8, 2023.
27 “Executive Order on Further Advancing Racial Equity and Support for Underserved Communities Through
The Federal Government,” EO 13985, February 16, 2023, https://www.whitehouse.gov/briefing-room/presidential-
actions/2023/02/16/executive-order-on-further-advancing-racial-equity-and-support-for-underserved-communities-
through-the-federal-government/ (accessed March 26, 2023).

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parole initiatives for certain nationalities.28 For instance, while there are currently limited parole
initiatives for some nationalities, there are no similar parole initiatives for people from Guatemala,
Honduras, and El Salvador—and recent reporting has indicated the Biden administration plans to
wield the asylum ban against these nationalities.29

D. The Proposed Rule’s presumption of asylum ineligibility raises concerns regarding
domestic and international refugee and asylum law obligations.

As a signatory to the 1967 Protocol of the 1951 Convention Relating to the Status of Refugees (the
“1967 Protocol”),30 the United States has obligations under international law to afford protections
to individuals who have a well-founded fear of being persecuted in their home country.
Furthermore, when Congress passed the Refugee Act in 1980, thereby incorporating those
obligations into domestic law, it made its intentions abundantly clear: The purpose was to enforce
the “historic policy of the United States to respond to the urgent needs of persons subject to
persecution in their homelands.”31

The Proposed Rule, in its totality, contravenes this congressional intent and U.S. law governing
asylum access, expedited removal procedures, and prohibitions on the return of refugees to
persecution and torture. In purporting to protect the United States from asylum seekers, the
Proposed Rule turns the presumption in favor of extending protections to asylum seekers on its
head. The Departments’ attempt to dismantle the asylum system is unlawful and indefensible.

As a historical matter, the United States played a lead role in drafting the Refugee Convention in
the aftermath of World War II. By later acceding to the Refugee Protocol, the United States
promised to abide by the Convention’s legal requirements. These requirements include non-
discriminatory access to asylum, the prohibition against returning refugees to persecution, and the
prohibition against imposing improper penalties on people seeking refugee protection based on
manner of entry. The U.N. Refugee Agency (UNHCR) previously warned, with respect to the
Trump administration’s entry and transit bans, that such asylum bans are not consistent with
fundamental protections of refugee law, including the right to seek asylum, the principle of non-
refoulement, and the prohibition against penalties for irregular entry. By denying asylum where an
individual has not used certain limited migration pathways, the Proposed Rule attempts to
unlawfully use the existence of lawful pathways as a justification to deny access to asylum at the

28 Human Rights Watch. “Biden’s New Plan No Help for Desperate Venezuelan Refugees.” Human Rights
Watch, 28 Oct. 2022, https://www.hrw.org/news/2022/10/28/bidens-new-plan-no-help-desperate-venezuelan-
refugees.
29 NBC News. “Biden to block migrants with Trump-era Stephen Miller tactic.” NBC News, 8 Mar. 2022,
https://www.nbcnews.com/politics/immigration/biden-block-migrants-trump-era-stephen-miller-tactic-rcna71282.
30 The 1967 Protocol incorporates Articles 2 through 34 of the 1951 Refugee Convention, making those
provisions binding on countries that have acceded to the 1967 Protocol, including countries like the United States that
have not acceded to the Convention itself. See Protocol Relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S.
267, https://www.refworld.org/docid/3ae6b3ae4.html (hereinafter the 1967 Protocol); Convention Relating to the
Status of Refugees, July 28, 1951, 189 U.N.T.S. 137, https://www.refworld.org/docid/3be01b964.html (hereinafter
the 1951 Refugee Convention).
31 Refugee Act of 1980, § 101(a), Pub. L. No. 96–212, 94 Stat. 102 (1980) (hereinafter the 1980 Refugee Act).

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border.32 UNHCR, IOM, and UNICEF recently warned that the provision of safe pathways “cannot
come at the expense of the fundamental human right to seek asylum.”33

Furthermore, the Refugee Act of 1980, which incorporated these principles of the 1967 Protocol
into domestic U.S. law, provides any person arriving at a U.S. border the right to seek asylum,
regardless of the person’s status or manner of entry. Specifically, 8 U.S.C. 1158 provides that
people may apply for asylum regardless of manner of entry into the United States. It also delineates
limited exceptions where an asylum seeker may be denied asylum based on travel through another
country, but these restrictions only apply where an individual was “firmly resettled” in another
country (defined to mean the person was eligible for or received permanent legal status in that
country) or if the U.S. has a formal “safe third country” agreement with a country where refugees
would be safe from persecution and have access to fair asylum procedures. The statute prohibits
the administration from issuing restrictions on asylum that are inconsistent with these provisions.
8 U.S.C. 1231 codified the prohibition against returning refugees to countries where they face
persecution.

But the central function of this Proposed Rule is to limit asylum eligibility at the southern border
based on a person’s manner of entry or transit, their ability to access technology, and/or the number
of appointments that DHS decides to make available on a given day. The presumption of asylum
ineligibility that arises from this function directly contravenes the principle of non-discriminatory
asylum access codified by the 1980 Refugee Act. The Proposed Rule, which conditions access to
asylum on manner of entry and transit, would result in the return of refugees to danger and
unequivocally contravenes these provisions of U.S. law.

Indeed, this central premise of the Rule recalls similar bans issued by the Trump administration,
which were repeatedly struck down by federal courts.34 During the time it was in place, the Trump-
era rule that banned asylum seekers based on their manner of transit resulted in migrants with
strong claims to asylum being rapidly deported to their persecutors, and separated countless
families when refugees barred from asylum under the rule obtained lesser protections that did not
allow them to apply for family members abroad. These harms will inevitably recur under the
Proposed Rule.

32 See generally Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the
Executive Office for Immigration Review (EOIR) on Circumvention of Lawful Pathways | Human Rights Watch.
“Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the Executive Office for
Immigration Review (EOIR) on Circumvention of Lawful Pathways,” March 24, 2023.
https://www.hrw.org/news/2023/03/24/comment-proposed-rule-department-homeland-security-dhs-and-executive-
office.
33 “UNHCR, IOM and UNICEF Welcome New Pathways for Regular Entry to the US, Reiterate Concern over
Restrictions on Access to Asylum,” Joint statement by UNHCR, IOM, and UNICEF, October 14, 2022,
https://www.unhcr.org/en-us/news/press/2022/10/63497be44/unhcr-iom-and-unicef-welcome-new-pathways-for-
regular-entry-to-the-us-reiterate.html (accessed March 26, 2023).
34 O.A. et al. v. Donald J. Trump et al. and S.M.S.R. et al. v. Donald J. Trump et al., No. 1:18-cv-02718-RDM,
Memorandum Opinion, (D.D.C. Aug. 2, 2019),
https://www.caircoalition.org/sites/default/files/Memo%20Opinion%20Dkt.%2092.pdf (accessed March 26, 2023);
Capital Area Immigrants’ Rights Coal. v. Trump, Civil Action No. 19-2117 (TJK) and Civil Action No. 19-2530
(TJK), (D.D.C. June 30, 2020), https://casetext.com/case/capital-area-immigrants-rights-coal-v-trump (accessed
March 26, 2023); East Bay v. Barr, No. 19-cv-04073-JST, (N.D. Cal. February 16, 2021),
https://www.aclu.org/cases/east-bay-v-barr?document=pi-order (accessed March 26, 2023).

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The Proposed Rule also violates specific congressional intent concerning asylum seekers. In 1996,
Congress created the expedited removal process through the Illegal Immigration Reform and
Immigrant Responsibility Act (IIRIRA). Under this process, asylum seekers placed in expedited
removal who establish a credible fear of persecution must be referred for full asylum adjudications.
The Proposed Rule attempts to unlawfully circumvent the credible fear screening standard
established by Congress, which was intended to be a low screening threshold. The government is
required to refer asylum seekers in expedited removal for full asylum adjudications if they can
show a “significant possibility” that they could establish asylum eligibility in a full hearing. The
Proposed Rule attempts to eviscerate this standard by first requiring asylum seekers to prove to an
asylum officer by a preponderance of evidence that they can rebut the presumption of asylum
ineligibility, and then requiring those who cannot overcome the presumption to meet a higher fear
standard before being permitted to seek protection. This provision is inconsistent with U.S. law.

In addition, the Proposed Rule violates the Refugee Convention’s prohibition against imposing
improper penalties on asylum seekers based on their irregular entry into the country of refuge. The
Departments explicitly note that the asylum ban would inflict “consequences” on people seeking
asylum—a blatant attempt to punish people based on their manner of entry into the United States.
These consequences could include the denial of access to asylum, deportation to harm, family
separation, and deprivation of a path to naturalization. With respect to the Trump administration’s
entry ban, UNHCR has stated that “[n]either the 1951 Convention nor the 1967 Protocol permits
parties to condition access to asylum procedures on regular entry.”35

The Proposed Rule’s implementation of a presumption of asylum ineligibility for many
noncitizens entering the U.S. from the southern border violates these key provisions of U.S. law
and treaty commitments. Indeed, similar Trump administration asylum bans targeting refugees at
the border based on manner of entry and transit were vacated and enjoined by federal courts for
violating these provisions of U.S. law, as discussed throughout these comments. In 2021, when
the Biden administration first considered adopting an asylum ban, legal counsel for the White
House warned that it could be struck down as illegal for the same reason that federal courts struck
down the Trump administration bans. Nonetheless, the Departments have decided to proceed with
this patently illegal policy.36

Finally, the Proposed Rule will, in effect, shift to other countries the responsibility for adjudicating
asylum claims, providing appropriate reception arrangements, and granting international

35 See generally Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the
Executive Office for Immigration Review (EOIR) on Circumvention of Lawful Pathways | Human Rights Watch.
“Comment on the Proposed Rule by the Department of Homeland Security (DHS) and the Executive Office for
Immigration Review (EOIR) on Circumvention of Lawful Pathways,” March 24, 2023.
https://www.hrw.org/news/2023/03/24/comment-proposed-rule-department-homeland-security-dhs-and-executive-
office.
36 Camilo Montoya-Galvez, “U.S. Officials Clashed over Asylum Restriction, and Its Legality, Before Biden
Proposed It,” CBS News, March 1, 2023, https://www.cbsnews.com/news/immigration-biden-asylum-restrictions-
legality/ (accessed March 26, 2023).

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protection.37 This is true regardless of whether the individual is pursuing protection in the United
States. The Proposed Rule would have a potential significant negative impact on those individuals,
particularly in cases where they lack a reasonable connection or link to those States but do have
one to the United States.38

The Proposed Rule’s conditionality based on transit vitiates the right to seek asylum and the core
principle of non-refoulement.39 First, such conditionality amounts to a unilateral, de facto transfer
of responsibility for adjudication to another state without the necessary safeguards in place, and
second, the conditionality goes beyond the exhaustive exclusion framework contemplated in the
1951 Convention and its 1967 Protocol.40

Asylum seekers should ordinarily be processed in the state in which they seek asylum.41 As a
limited exception to this general rule, states may enter into an agreement with another state to
facilitate the transfer of asylum seekers.42 While international law does not prevent states from
entering into responsibility-sharing arrangements which allocate responsibility for adjudicating
asylum claims between them, it does require protections to ensure that the individual’s rights are
upheld.43 Any transfer of people who may be in need of international protection from one country
to another must ensure that asylum seekers receive the protection guaranteed to them by the 1951
Convention, including but not limited to, the protection from refoulement articulated in Article
33.44

E. The Proposed Rule’s presumption of asylum ineligibility for asylum seekers who did
not obtain an appointment to present at the border using CBP One raises equal access
concerns.

The Proposed Rule introduces an entirely new concept into the U.S. asylum system—it renders
asylum at the southern border contingent on migrants’ ability to access and properly utilize a
mobile phone app prior to their arrival. All asylum seekers attempting to enter the United States
between ports of entry and those arriving at ports who are subject to the new transit grounds of
ineligibility will be ineligible for asylum unless they made an advance appointment to present at
the port of entry using the CBP One app.

Requiring access to technology to secure asylum access fails to account for gaps in technology,
language access, and economic disparities between groups of migrants attempting to use the app
while fleeing harm. The result will be an asylum system that leaves behind those with fewer
resources, often those in the greatest need.

37 See generally United Nations High Commissioner for Refugees (UNHCR), “Comments of the United Nations
High Commissioner for Refugees on the Proposed Rule: Circumvention of Lawful Pathways” (20 March 2023),
accessed March 26, 2023, https://www.refworld.org/pdfid/6417e6674.pdf.
38 Id.
39 Id.
40 Id.
41 Id.
42 Id.
43 Id.
44 Id.

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Furthermore, the CBP One app in its limited roll-out has already proven extremely flawed: users
have reported frequent glitches and appointments that fill up before they can access them; and the
facial recognition technology is racially disparate in application, often rejecting photos of migrants
with darker skin.45

CBP One is an extremely flawed government tool for requesting an appointment at a port of entry
and is inaccessible to many asylum seekers due to financial, language, technological, and other
barriers. It clearly discriminates against Black and Indigenous asylum seekers, and has very limited
appointment slots such that requiring asylum seekers to use the application essentially turns asylum
access into a lottery. The Proposed Rule attempts to establish CBP One as the only mechanism to
request asylum at the southern border and seeks to punish those who cannot wait indefinitely in
danger while they attempt to schedule an appointment.

The rule requires asylum seekers at the southwest border to schedule appointments through the
CBP One app and would generally deny asylum to refugees who arrive at a border port of entry
without a previously scheduled appointment and were not denied protection in a transit country.
CBP One is impossible for many asylum seekers to access or use,46 including those who do not
have the resources to obtain a smartphone, access to Wi-Fi, or the ability to navigate the app. The
app is not available in most languages—including Indigenous languages—and all error messages
are in English, effectively barring many asylum seekers from using the app. It also disparately
harms Black asylum seekers47 due to racial bias in its facial recognition technology, which has
prevented many from obtaining an appointment. Asylum seekers who can access and navigate the
app are still often unable to schedule appointments due to extremely limited slots and are forced
to remain in dangerous conditions indefinitely. Requiring asylum seekers to use CBP One at the
southwest border also raises concerns that the system will be used for illegal metering (based not
on wait time but on luck, technology skills, or resources to secure an appointment—turning asylum
access in effect into a lottery).

Requiring asylum seekers to schedule an appointment through CBP One has already resulted in
horrific violence and death, including the murder of a 17-year-old Cuban child in Mexico who was
required to wait weeks for an appointment.48

F. If the Proposed Rule is to apply at all, it should not apply at the credible fear interview
stage; asylum seekers should be given the opportunity to have an asylum hearing
before the Immigration Judge.

45 Herrera, J., Solomon, D., Articles, V., Holley, P., Cantu, R., Hooks, C., Hardy, M., Oldershausen, S. V.,
Scudder, C., Sharpe, P., Ross, R., O’Neal, S., & McCarthy, W. (2023, March 2). Fleeing for Your Life? There’s An
App for That. Texas Monthly. https://www.texasmonthly.com/news-politics/cbp-app-asylum-biden-administration/.
46 Leutert, Stephanie, and Caitlyn Yates. “Asylum Processing at the U.S.-Mexico Border: February 2023.”
Strauss Center for International Security and Law. The University of Texas at Austin, February 2023.
https://www.strausscenter.org/wp-content/uploads/Feb_2023_Asylum_Processing.pdf.
47 Bosque, Melissa del. “Facial Recognition Bias Frustrates Black Asylum Applicants to US, Advocates Say.”
the Guardian, February 8, 2023. https://www.theguardian.com/us-news/2023/feb/08/us-immigration-cbp-one-app-
facial-recognition-bias.
48 Herrera, Jack, Dan Solomon, View Articles, Peter Holley, Ryan Cantu, Christopher Hooks, Michael Hardy, et
al. “Fleeing for Your Life? There’s An App for That.” Texas Monthly, March 2, 2023.
https://www.texasmonthly.com/news-politics/cbp-app-asylum-biden-administration/.

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The asylum ban would apply in the fundamentally flawed expedited removal process as well as in
full asylum adjudications before USCIS and the immigration court. As mentioned above,
expedited removal is the process that allows the U.S. government to deport people arriving at the
border without ever seeing an Immigration Judge if they do not express fear or do not pass a
“credible fear” screening interview where they must show a significant possibility that they could
establish asylum eligibility in a full hearing.

In expedited removal, asylum seekers covered by the Proposed Rule would be required to gather
the evidence and arguments necessary to “rebut the presumption of ineligibility” (in other words,
prove they fall within one of the few exceptions to the rule). Those who fail to do so would be
automatically subject to a higher screening standard (in violation of 8 U.S. Code § 1225 governing
credible fear interviews) and would face deportation to danger if they cannot pass the screening.
Even those who do pass would be subject to the presumption of ineligibility in an immigration
hearing and if barred from asylum would only be eligible for lesser forms of protection known as
Withholding of Removal or Convention Against Torture (CAT) protection. These protections do
not provide a pathway to citizenship, are subject to revocation at any time, and do not allow people
to petition for their spouses and children.

The Proposed Rule will also apply to immigrants in full asylum hearings before USCIS and the
immigration court. In these proceedings, asylum seekers would be denied asylum if they cannot
rebut the presumption of ineligibility, resulting in the deportation of many refugees and leaving
others with only lesser forms of protection available to them.

Asylum seekers who are banned by the rule during their credible fear interviews would have to
meet a heightened screening standard in order to access immigration court hearings and would be
subject to deportation if they cannot pass the screening. As discussed above, the Proposed Rule’s
attempt to illegally elevate the credible fear standard established by Congress violates the statute
and congressional intent in setting a low screening threshold.

Even when an applicant who applies for asylum affirmatively is able to develop a full evidentiary
record before an asylum officer, it is still extremely difficult to prevail on meritorious claims. For
detained applicants, it is even harder to prevail on a meritorious claim before an asylum officer.
Detained applicants are much more likely to be unrepresented and rarely have the ability to develop
evidence before the asylum officer. In these cases, it is even more critical that applicants have the
opportunity to present their claims at a full evidentiary hearing before an Immigration Judge.

Ultimately, to ensure that asylum seekers due process rights are protected, they must receive full
hearings in front of Immigration Judges—not just a de novo record review. Eliminating the full
hearing does not properly balance efficiency and fairness considerations especially, as noted
above, for detained and other pro se litigants. If the Departments want to increase efficiency, then
they should place all applicants in Section 240 removal proceedings instead of expedited removal
proceedings, which are only compounding the existing backlog of cases. Placing applicants whose
defensive asylum applications are denied by USCIS into full Section 240 proceedings will also
remedy the disparate treatment of defensive cases and affirmative cases, the latter of which are
referred to Immigration Court for a full hearing if denied by USCIS.

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Travel.State.Gov > Travel Advisories > Mexico Travel Advisory
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Mexico Travel Advisory
Travel Advisory
See State Summaries C K
Travel Advisory Levels
October 5, 2022

Last Updated: Reissued with updates to health
information

See state summaries and advisory levels below for
information on your specific travel destination. Some areas of
Mexico have increased risk of crime and kidnapping.

Country Summary: Violent crime – such as homicide,
kidnapping, carjacking, and robbery – is widespread and
common in Mexico. The U.S. government has limited ability
to provide emergency services to U.S. citizens in many areas Information for
of Mexico, as travel by U.S. government employees to certain Vaccinated
areas is prohibited or restricted. In many states, local Travelers
emergency services are limited outside the state capital or
major cities.

U.S. citizens are advised to adhere to restrictions on U.S. The CDC's latest
government employee travel. State-specific restrictions are guidance on
included in the individual state advisories below. U.S. international travel
government employees may not travel between cities after for vaccinated
dark, may not hail taxis on the street, and must rely on people can be
dispatched vehicles, including app-based services like Uber, found here .
and regulated taxi stands. U.S. government employees should
avoid traveling alone, especially in remote areas. U.S.
government employees may not drive from the U.S.-Mexico
border to or from the interior parts of Mexico, except daytime
travel within Baja California and between Nogales and Assistance for
Hermosillo on Mexican Federal Highway 15D, and between U.S. Citizens
Nuevo Laredo and Monterrey on Highway 85D.

Read the country information page for additional information U.S. Embassy
on travel to Mexico. Mexico City
Paseo de la Reforma
Do Not Travel To: 305
Colonia Cuauhtemoc
Colima state due to crime and kidnapping. 06500 Ciudad de
CLP_PC_033467
Mexico Travel Advisory
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 272 of 283
Guerrero state due to crime. Mexico
Mexico
Michoacan state due to crime and kidnapping.
Sinaloa state due to crime and kidnapping Telephone
Tamaulipas state due to crime and kidnapping. Emergency
Zacatecas state due to crime and kidnapping. U.S. Citizen Services:
From Mexico 800-681-
9374 or 55-8526-2561.
Reconsider Travel To: From the United States
1-844-528-6611
Baja California state due to crime and kidnapping.
Fax
Chihuahua state due to crime and kidnapping.
Email
Durango state due to crime. Contact Form
Guanajuato state due to crime and kidnapping. Website
Jalisco state due to crime and kidnapping. U.S. Embassy Mexico
City
Morelos state due to crime.
Sonora state due to crime and kidnapping.

Exercise Increased Caution When Traveling To:
Mexico Map
Aguascalientes state due to crime.
Baja California Sur state due to crime.
Chiapas state due to crime.
Coahuila state due to crime.
Hidalgo state due to crime.
Mexico City due to crime.
Mexico State due to crime.
Nayarit state due to crime.
Nuevo Leon state due to crime and kidnapping.
Oaxaca state due to crime.
View Larger Map
Puebla state due to crime and kidnapping.
Queretaro state due to crime.
Quintana Roo state due to crime and kidnapping.
San Luis Potosi state due to crime and kidnapping.
Search for Travel
Advisories
Tabasco state due to crime.
Country or area
Tlaxcala state due to crime.
Veracruz state due to crime.

Exercise Normal Precautions When Traveling To:

Campeche state
Yucatan state

Visit our website for Travel to High-Risk Areas.

If you decide to travel to Mexico:

Review the U.S. Embassy's webpage on COVID-19.
Visit the CDC’s web page on Travel and COVID-19.
Keep traveling companions and family back home
informed of your travel plans. If separating from
CLP_PC_033468
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 273 of 283
your travel group, send a friend your GPS location.
If taking a taxi alone, take a photo of the taxi number
and/or license plate and text it to a friend.
Use toll roads when possible and avoid driving alone
or at night. In many states, police presence and
emergency services are extremely limited outside the
state capital or major cities.
Exercise increased caution when visiting local bars,
nightclubs, and casinos.
Do not display signs of wealth, such as wearing
expensive watches or jewelry.
Be extra vigilant when visiting banks or ATMs.
Enroll in the Smart Traveler Enrollment Program
(STEP) to receive Alerts and make it easier to locate
you in an emergency.
Follow the Department of State
on Facebook and Twitter.
Follow the U.S. Embassy on Facebook and Twitter.
Review the Country Security Report for Mexico.
Mariners planning travel to Mexico should check for
U.S. maritime advisories and alerts, which include
instructions on reporting suspicious activities and
attacks to Mexican naval authorities.
Prepare a contingency plan for emergency situations.
Review the Traveler’s Checklist.
Visit the CDC page for the latest Travel Health
Information related to your travel.

Aguascalientes state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Aguascalientes state.

Baja California state – Reconsider Travel

Reconsider travel due to crime and kidnapping.

Transnational criminal organizations compete in the border
area to establish narco-trafficking and human smuggling
routes. Violent crime and gang activity are common.
Travelers should remain on main highways and avoid remote
locations. Of particular concern is the high number of
homicides in the non-tourist areas of Tijuana. Most homicides
appeared to be targeted; however, criminal organization
assassinations and territorial disputes can result in bystanders
being injured or killed. U.S. citizens and LPRs have been
victims of kidnapping.

U.S. government employees must adhere to the noted
restrictions:

Mexicali Valley: U.S. government employees
should avoid the Mexicali Valley due to the
heightened possibility of violence between rival
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cartel factions. The boundaries of the restricted area
are: to the east, the Baja California/Arizona and Baja
California/Sonora borders; to the south, from La
Ventana (on Highway 5) due east to the Colorado
River; to the west, Highway 5; and to the north,
Boulevard Lazaro Cardenas/Highway 92/Highway 1
to Carretera Aeropuerto, from the intersection of
Highway 1 and Carretera Aeropuerto due north to
the Baja California/California border, and from that
point eastward along the Baja California/California
border.

Travelers may use Highways 2 and 2D to transit between
Mexicali, Los Algodones, and San Luis Rio Colorado during
daylight hours. Travelers may also use Highways 1 and 8 to
transit to and from the Mexicali Airport during daylight hours.
Travel on Highway 5 is permissible during daylight hours.

There are no other travel restrictions for U.S. government
employees in Baja California state. These include high-traffic
tourism areas of border and coastal communities, such
as Tijuana, Ensenada, and Rosarito.

Baja California Sur state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Baja California Sur state, which includes tourist
areas in: Cabo San Lucas, San Jose del Cabo, and La Paz.

Campeche state – Exercise Normal Precautions

Exercise normal precautions.

There are no restrictions on travel for U.S. government
employees in Campeche state.

Chiapas state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Chiapas state, which includes tourist areas
in: Palenque, San Cristobal de las Casas, and Tuxtla
Gutierrez.

Chihuahua state – Reconsider Travel

Reconsider travel due to crime and kidnapping.

Violent crime and gang activity are common. Most homicides
are targeted assassinations against members of criminal
organizations. Battles for territory between criminal groups
have resulted in violent crime in areas frequented by U.S.
citizens and U.S. government employees, including
restaurants and malls during daylight hours. Bystanders have
been injured or killed in shooting incidents. U.S. citizens and
LPRs have been victims of kidnapping.

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U.S. government employee travel is limited to the following
areas with the noted restrictions:

Ciudad Juarez: U.S. government employees may
travel to the area of Ciudad Juarez bounded to the
east by Bulevar Independencia; to the south by De
los Montes Urales/Avenida Manuel J
Clouthier/Carretera de Juarez; to the west by Via
Juan Gabriel/Avenida de los Insurgentes/Calle
Miguel Ahumada/Francisco Javier Mina/Melchor
Ochampo; and to the north by the U.S.-Mexico
border. Direct travel to the Ciudad Juarez
airport (officially called Abraham Gonzalez
International Airport) and the factories located along
Bulevar Independencia and Las Torres is permitted.
Travel to San Jeronimo is permitted only through the
United States via the Santa Teresa U.S. Port of
Entry; travel via Anapra is prohibited.

U.S. government employees may only travel from Ciudad
Juarez to Chihuahua City during daylight hours via Federal
Highway 45, with stops permitted only at the Federal Police
station, the Umbral del Milenio overlook area, the border
inspection station at KM 35, and the shops and restaurants on
Federal Highway 45 in the town of Villa Ahumada.

Chihuahua City: U.S. government employees may
travel at any time to the area of Chihuahua City
bounded to the north by Avenida Transformación; to
the east by Avenida Tecnológico/Manuel Gómez
Morin; to the west by the city boundary; and to the
south by Route 16/Calle Tamborel.
Nuevo Casas Grandes Area (including Nuevo
Casas Grandes, Casas Grandes, Mata Ortiz,
Colonia Juarez, Colonia LeBaron, and
Paquime): U.S. government employees may only
travel to the Nuevo Casas Grandes area during
daylight hours through the United States, entering
Mexico at the Palomas U.S. Port of Entry on New
Mexico Route 11 before connecting to Mexico
Federal Highway 2, and subsequently Federal
Highway 10, to Nuevo Casas Grandes. Employees
are permitted to stay overnight in the cities of Nuevo
Casas Grandes and Casas Grandes only.
Ojinaga: U.S. government employees must travel to
Ojinaga via U.S. Highway 67 and enter through the
U.S. Port of Entry in Presidio, Texas.
Palomas: U.S. government employees must travel to
Palomas via U.S. highways through the U.S. Port of
Entry in Columbus, New Mexico.

U.S. government employees may not travel to other areas of
Chihuahua, including Copper Canyon.

Coahuila state – Exercise Increased Caution

Exercise increased caution due to crime.

Violent crime and gang activity occur in parts of Coahuila
state.

CLP_PC_033471
Mexico Travel Advisory
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 276 of 283
U.S. government employees must adhere to the following
travel restrictions:

Zaragoza, Morelos, Allende, Nava, Jimenez, Villa
Union, Guerrero, and Hidalgo municipalities:
U.S. government employees may not travel to these
municipalities.
Piedras Negras and Ciudad Acuña: U.S.
government employees must travel directly from the
United States and observe a curfew from midnight to
6:00 a.m. in both cities.

There are no other restrictions on travel for U.S. government
employees in Coahuila state.

Colima state – Do Not Travel

Do not travel due to crime and kidnapping.

Violent crime and gang activity are widespread. Most
homicides are targeted assassinations against members of
criminal organizations. ௗShooting incidents between criminal
groups have injured or killed bystanders. U.S. citizens and
LPRs have been victims of kidnapping.

Travel for U.S. government employees is limited to the
following areas with noted restrictions:

Manzanillo: U.S. government employee travel is
limited to the tourist and port areas of Manzanillo.
Employees traveling to Manzanillo from Guadalajara
must use Federal Toll Road 54D during daylight
hours.

U.S. government employees may not travel to other areas of
Colima state.

Durango state – Reconsider Travel

Reconsider travel due to crime.

Violent crime and gang activity are common in parts of
Durango state.

U.S. government employees must adhere to the following
travel restrictions:

West and south of Federal Highway 45: U.S.
government employees may not travel to this region
of Durango state.

There are no other restrictions on travel for U.S. government
employees in Durango state.

Guanajuato state – Reconsider Travel

Reconsider travel due to crime and kidnapping.

Gang violence, often associated with the theft of petroleum
and natural gas from the state oil company and other
suppliers, occurs in Guanajuato, primarily in the south and
CLP_PC_033472
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 277 of 283
central areas of the state. Of particular concern is the high
number of murders in the southern region of the state
associated with cartel-related violence. U.S. citizens and LPRs
have been victims of kidnapping.

U.S. government employees must adhere to the following
travel restrictions:

Areas south of Federal Highway 45D: U.S.
government employees may not travel to the area
south of and including Federal Highway 45D,
Celaya, Salamanca, and Irapuato.

There are no other restrictions on travel for U.S. government
employees in Guanajuato state, which includes tourist areas
in: San Miguel de Allende, Guanajuato City,
and surrounding areas.

Guerrero state – Do Not Travel

Do not travel due to crime.

Crime and violence are widespread. Armed groups operate
independently of the government in many areas of Guerrero.
Members of these groups frequently maintain roadblocks and
may use violence towards travelers. U.S. citizens and LPRs
have been victims of kidnapping in previous years.

Travel for U.S. government employees is limited to the
following area with the noted restrictions:

Taxco: U.S. government employees must use
Federal Highway 95D, which passes through
Cuernavaca, Morelos, and stay within downtown
tourist areas of Taxco. Employees may visit Grutas
de Cacahuamilpa National Park during the day with
a licensed tour operator.

U.S. government employees may not travel to other areas of
the state of Guerrero, including to tourist areas
in Acapulco, Zihuatanejo, and Ixtapa.

Hidalgo state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Hidalgo state.

Jalisco state – Reconsider Travel

Reconsider travel due to crime and kidnapping.

Violent crime and gang activity are common in parts of
Jalisco state. In Guadalajara, territorial battles between
criminal groups take place in tourist areas. Shooting incidents
between criminal groups have injured or killed innocent
bystanders. U.S. citizens and LPRs have been victims of
kidnapping.

U.S. government employees must adhere to the following
travel restrictions:
CLP_PC_033473
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 278 of 283
Jalisco-Michoacan border and Federal Highway
110: U.S. government employees may not travel to
the area between Federal Highway 110 and the
Jalisco-Michoacan border, nor travel on Federal
Highway 110 between Tuxpan, Jalisco, and the
Michoacan border.
Federal Highway 80: U.S. government employees
may not travel on Federal Highway 80 south of
Cocula.
State Highway 544: U.S. government employees
may not travel on State Highway 544 between
Mascota and San Sebastian del Oeste.

There are no other restrictions on travel for U.S government
employees in Jalisco state which includes tourist areas
in: Guadalajara Metropolitan Area, Puerto Vallarta
(including neighboring Riviera Nayarit), Chapala,
and Ajijic.

Mexico City (Ciudad de Mexico) – Exercise Increased
Caution

Exercise increased caution due to crime.

Both violent and non-violent crime occur throughout Mexico
City. Use additional caution, particularly at night, outside of
the frequented tourist areas where police and security patrol
more routinely. Petty crime occurs frequently in both tourist
and non-tourist areas.

There are no restrictions on travel for U.S. government
employees in Mexico City.

Mexico State (Estado de Mexico) – Exercise Increased
Caution

Exercise increased caution due to crime.

Both violent and non-violent crime occur throughout Mexico
State. Use additional caution in areas outside of the frequented
tourist areas, although petty crime occurs frequently in tourist
areas as well.

There are no restrictions on travel for U.S. government
employees in Mexico State.

Michoacan state – Do Not Travel

Do not travel due to crime and kidnapping.

Crime and violence are widespread in Michoacan state. U.S.
citizens and LPRs have been victims of kidnapping.

Travel for U.S. government employees is limited to the
following areas with the noted restrictions:

Federal Highway 15D: U.S. government
employees may travel on Federal Highway 15D to
transit the state between Mexico City and
Guadalajara.
Morelia: U.S. government employees may travel by
air and by land using Federal Highways 43 or 48D
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from Federal Highway 15D.
Lazaro Cardenas: U.S. government employees
must travel by air only and limit activities to the city
center or port areas.

U.S. government employees may not travel to other areas of
the state of Michoacan, including the portions of
the Monarch Butterfly Reserve located in Michoacan.

Morelos state – Reconsider Travel

Reconsider travel due to crime.

Violent crime and gang activity are common in parts of
Morelos state.

There are no restrictions on travel for U.S. government
employees in Morelos state.

Nayarit state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout Nayarit
state.

There are no restrictions on travel for U.S
government employees in Nayarit state, including
tourist areas in: Riviera Nayarit (including Nuevo
Vallarta, Punta Mita, Sayulita, and Bahia de
Banderas), and Santa Maria del Oro.

Nuevo Leon state – Exercise Increased Caution

Exercise increased caution due to crime and kidnapping.

Criminal activity and violence may occur throughout the state.
U.S. citizens and LPRs have been victims of kidnapping.

There are no restrictions on travel for U.S. government
employees in Nuevo Leon state.

Oaxaca state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence occur throughout the state.

U.S. travelers are reminded that U.S. government employees
must adhere to the following travel restrictions:

Isthmus region: U.S. government employees may
not travel to the area of Oaxaca bounded by Federal
Highway 185D to the west, Federal Highway 190 to
the north, and the Oaxaca-Chiapas border to the east.
This includes the cities of Juchitan de Zaragoza,
Salina Cruz, and San Blas Atempa.
Federal Highway 200 northwest of Pinotepa: U.S.
government employees may not use Federal
Highway 200 between Pinotepa and the Oaxaca-
Guerrero border.

There are no restrictions on travel for U.S. government
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Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 280 of 283
employees to other parts of Oaxaca state, which include
tourist areas in: Oaxaca City, Monte Alban, Puerto
Escondido, and Huatulco.

Puebla state – Exercise Increased Caution

Exercise increased caution due to crime and kidnapping.

Criminal activity and violence may occur throughout the state.
U.S. citizens and LPRs have been victims of kidnapping.

There are no restrictions on travel for U.S. government
employees in Puebla state.

Queretaro state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Queretaro state.

Quintana Roo state – Exercise Increased Caution

Exercise increased caution due to crime and kidnapping.

Criminal activity and violence may occur in any location, at
any time, including in popular tourist destinations. Travelers
should maintain a high level of situational awareness, avoid
areas where illicit activities occur, and promptly depart from
potentially dangerous situations. U.S. citizens and LPRs have
been victims of kidnapping.

While not directed at tourists, shootings between rival gangs
have injured innocent bystanders. Additionally, U.S. citizens
have been the victims of both non-violent and violent crimes
in tourist and non-tourist areas.

There are no restrictions on travel for U.S. government
employees in Quintana Roo state, which include tourist areas
in: Cancun, Cozumel, Isla Mujeres, Playa del
Carmen, Tulum, and the Riviera Maya. However,
personnel are advised to exercise increased situational
awareness after dark in downtown areas of Cancun, Tulum,
and Playa del Carmen, and to remain in well-lit pedestrian
streets and tourist zones.

San Luis Potosi state – Exercise Increased Caution

Exercise increased caution due to crime and kidnapping.

Criminal activity and violence may occur throughout the
state. U.S. citizens and LPRs have been victims of
kidnapping.

There are no restrictions on travel for U.S. government
employees in San Luis Potosi state.

Sinaloa state – Do Not Travel

Do not travel due to crime and kidnapping.

Violent crime is widespread. Criminal organizations are based
in and operating in Sinaloa. U.S. citizens and LPRs have been
CLP_PC_033476
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 281 of 283
victims of kidnapping.

Travel for U.S. government employees is limited to the
following areas with the noted restrictions:

Mazatlan: U.S. government employees may travel
to Mazatlan by air or sea only, are limited to the
Zona Dorada and historic town center, and must
travel via direct routes between these destinations
and the airport and sea terminal.
Los Mochis and Topolobampo: U.S. government
employees may travel to Los Mochis and
Topolobampo by air or sea only, are restricted to the
city and the port, and must travel via direct routes
between these destinations and the airport.

U.S. government employees may not travel to other areas of
Sinaloa state.

Sonora state – Reconsider Travel

Reconsider travel due to crime and kidnapping.

Sonora is a key location used by the international drug trade
and human trafficking networks. Violent crime is widespread.
U.S. citizens and LPRs have been victims of kidnapping.

U.S. government employees must adhere to the following
travel restrictions:

Travel between Hermosillo and Nogales: U.S.
government employees may travel between the U.S.
Ports of Entry in Nogales and Hermosillo during
daylight hours via Federal Highway 15 only.
Travelers should exercise caution and avoid
unnecessary stops as security incidents, including
sporadic, armed carjackings, have been reported
along this highway during daylight hours.
Puerto Peñasco: U.S. government employees may
travel between Puerto Peñasco and the Lukeville-
Sonoyta U.S. Port of Entry during daylight hours via
Federal Highway 8 only.
San Luis Rio Colorado, Cananea, and Agua
Prieta: U.S. government employees may travel
directly from the nearest U.S. Port of Entry to San
Luis Rio Colorado, Cananea, and Agua Prieta but
may not go beyond the city limits.
Triangular region near Mariposa U.S. Port of
Entry: U.S. government employees may not travel
to the triangular region west of the Mariposa U.S.
Port of Entry, east of Sonoyta, and north of Altar
municipality.
Nogales: U.S. government employees may not travel
to the area north of Avenida Tecnologico, west of
Bulevar Luis Donaldo Colosio (Periferico), and east
of Federal Highway 15D (Corredor Fiscal) and the
residential areas to the east of Plutarco Elias Calles.
U.S. government employees may not use taxi
services in Nogales.
Eastern and southern Sonora (including San
Carlos Nuevo Guaymas and Alamos): U.S.
CLP_PC_033477
Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 282 of 283
government employees may not travel to areas of
Sonora east of Federal Highway 17, the road
between Moctezuma and Sahuaripa, and State
Highway 20 between Sahuaripa and the intersection
with Federal Highway 16. U.S. government
employees may travel to San Carlos Nuevo Guaymas
and Alamos; travel to Alamos is only permitted by
air and within city limits. U.S. government
employees may not travel to areas of Sonora south of
Federal Highway 16 and east of Federal Highway 15
(south of Hermosillo), as well as all points south of
Guaymas, including Empalme, Guaymas, Obregon,
and Navojoa.

U.S. government employees may travel to other parts of
Sonora state in compliance with the above restrictions,
including tourist areas in: Hermosillo, Bahia de Kino, and
Puerto Penasco.

Tabasco state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Tabasco state.

Tamaulipas state – Do Not Travel

Do not travel due to crime and kidnapping.

Organized crime activity – including gun battles, murder,
armed robbery, carjacking, kidnapping, forced
disappearances, extortion, and sexual assault – is common
along the northern border and in Ciudad Victoria. Criminal
groups target public and private passenger buses, as well as
private automobiles traveling through Tamaulipas, often
taking passengers and demanding ransom payments.

Heavily armed members of criminal groups often patrol areas
of the state and operate with impunity particularly along the
border region from Reynosa to Nuevo Laredo. In these areas,
local law enforcement has limited capacity to respond to
incidents of crime. Law enforcement capacity is greater in the
tri-city area of Tampico, Ciudad Madero, and Altamira, which
has a lower rate of violent criminal activity compared to the
rest of the state.

U.S. citizens and LPRs have been victims of kidnapping.

Travel for U.S. government employees is limited to the
following areas with the noted restrictions:

Matamoros and Nuevo Laredo: U.S. government
employees may only travel within a limited radius
around and between the U.S. Consulates in Nuevo
Laredo and Matamoros, their homes, the respective
U.S. Ports of Entry, and limited downtown sites,
subject to an overnight curfew.
Overland travel in Tamaulipas: U.S. government
employees may not travel between cities in
Tamaulipas using interior Mexican highways. Travel
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Case 4:18-cv-06810-JST Document 181-3 Filed 06/23/23 Page 283 of 283
between Nuevo Laredo and Monterrey is limited to
Federal Highway 85D during daylight hours with
prior authorization.

U.S. government employees may not travel to other parts of
Tamaulipas state.

Tlaxcala state – Exercise Increased Caution

Exercise increased caution due to crime.

Criminal activity and violence may occur throughout the state.

There are no restrictions on travel for U.S. government
employees in Tlaxcala state.

Veracruz state – Exercise Increased Caution

Exercise increased caution due to crime.

Violent crime and gang activity occur with increasing
frequency in Veracruz, particularly in the center and south
near Cordoba and Coatzacoalcos. While most gang-related
violence is targeted, violence perpetrated by criminal
organizations can affect bystanders. Impromptu roadblocks
requiring payment to pass are common.

There are no restrictions on travel for U.S. government
employees in Veracruz state.

Yucatan state – Exercise Normal Precautions

Exercise normal precautions.

There are no restrictions on travel for U.S. government
employees in Yucatan state, which include tourist areas
in: Chichen Itza, Merida, Uxmal, and Valladolid.

Zacatecas state – Do Not Travel

Do not travel due to crime and kidnapping.

Violent crime, extortion, and gang activity are widespread in
Zacatecas state. U.S. citizens and LPRs have been victims of
kidnapping.

Travel for U.S. government employees is limited to the
following areas with the noted restrictions:

Zacatecas City: U.S. government employee travel is
limited to Zacatecas City proper, and employees may
not travel overland to Zacatecas City.
U.S. government employees may not travel to other
areas of Zacatecas state.

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CLP_PC_033479

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Motion (2023-06-23)

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