Think Immigration: The CBP One App Is Not Enough

AILA welcomes this blog post from Diversity, Equity, and Inclusion Committee Law Student Scholarship Brenda Macias, part of a series intended to highlight the important ways in which diversity, equity, and inclusion inform immigration law and policy. More information about AILA’s DEI Committee and its important work is available on AILA’s website.

A year ago, the Biden Administration issued a new regulation that relies heavily on a problematic application called CBP One. The regulation severely limits access to asylum and puts asylum seekers at risk. Even if you set aside how the rule violates international and domestic laws, the lack of available CBP One appointments forces asylum seekers to remain in unsafe conditions in Mexico. Additionally, the application itself has serious accessibility issues preventing entire segments of migrants from seeking an appointment at all.

The Circumvention of Lawful Pathways rule (CLP), also known as the asylum transit ban, went into effect on May 11, 2023, as the Title 42 public health order provisions were lifted. In short, under the CLP, migrants who are not able to avail themselves of an existing lawful process, those who do not present themselves at a port of entry with an appointment made through the CBP One application, and those who were not denied asylum in a third country, are all presumed ineligible for asylum. If a migrant is subject to the presumption, they can rebut it by demonstrating that at the time they entered, they or a family member faced an acute medical emergency, faced an extreme and imminent threat to their life or safety, or were a victim of trafficking. Proving that it was not possible to make an appointment on the app because of “a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle,” is one of few exceptions to the presumption of ineligibility.

Lack of sufficient CBP One Appointments Leaves Asylum Seekers in Danger

There are only eight ports of entry open to process CBP One appointments: San Ysidro and Calexico in California; Nogales in Arizona; El Paso, Eagle Pass, Laredo, Hidalgo, and Brownsville in Texas. Currently, CBP processes 1,450 appointments per day – an increase from the initial 1,000.

The appointments available at each port of entry vary depending on their resources and infrastructure and are offered 21 days in advance. This means that if someone is able to secure an appointment, they will have to wait in Mexico for at least 21 days. In reality, due to the lack of appointments and the application’s accessibility issues, migrants seeking an appointment usually wait much longer.

A February 2024 report from the Strauss Center for International Security and Law estimates that between 2,000 to 2,500 migrants are currently living in shelters, hotels, or rented rooms in Matamoros, Tamaulipas, the Mexican city outside the Brownsville port of entry. Migrants in Matamoros have waited up to six months to receive a CBP One appointment. Doctors Without Borders reported a 70% increase in cases of sexual violence against migrants in the area. In Tijuana, Baja California, migrants reside in shelters and motels and many times cross between ports of entry into Jacumba, California a small community east of San Ysidro, where approximately 200 migrants wait for CBP processing at any given time.

Migrants have made about 5 million appointment requests per month on the CBP One application between January 2023 and February 2024. However, since January 2023, through the end of March 2024, only about 547,000 individuals have been able to successfully schedule an appointment. While the number of requests does not indicate the number of individuals requesting appointments, it is clear that there are simply not enough appointments to satisfy the need.

The CBP One Application Remains Inaccessible to Many

When the CBP One application launched, it faced considerable criticism for language availability and facial recognition difficulties for Black asylum applicants. In March, members of Congress sent a letter to Secretary of Homeland Security Alejandro Mayorkas calling for improvements to the CBP One application, including expanding the number of languages available on the application, improving translations, and accommodating the application for people with different levels of literacy. Moreover, they called for an increase in appointment availability, citing the dangers asylum seekers are facing in Mexico while waiting for an appointment. They also called for the removal of the rebuttable presumption of asylum ineligibility imposed under the CLP rule and for the release of data on rebuttal success rates.

While some of the application’s previous failures have been addressed, the application’s interface is still a barrier to many. While the facial recognition difficulties appear to have been fixed, language access difficulties remain. The application is still only offered in English, Spanish, and Haitian Creole, preventing speakers of other languages from accessing the application and scheduling appointments. Finally, the application is inaccessible to migrants with disabilities, those who are blind, deaf, have mobility impairments, or intellectual disabilities.

Conclusion

The CLP rule and its reliance on the CBP One application have severely limited access to asylum and have put asylum seekers in terrible danger. It forces asylums seekers to wait in Mexico for months for an appointment. It increases the likelihood that migrants will risk crossing between ports of entry due to long appointment wait times. When asylum seekers are unable to properly present their asylum claim because they must first schedule an appointment or overcome a presumption of ineligibility, they are put at risk of having to return to the very places where they are fleeing persecution.

Ideally, the CLP rule would be rescinded, which would remove the central role the CBP One application currently plays in our asylum system. Regardless, for as long as the CBP One application is in use, the Biden Administration must address the lack of appointments and the application’s accessibility issues.

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AILA members, we have a number of related resources and trainings for your information! Here is one: Practice Alert: Regulatory Changes Due to the Asylum Transit Ban, and a recent roundtable is linked here. Also, visit AILA’s featured issue page on border processing and asylum.

Brenda Macías López
JD/MALAS Candidate 2024
University of New Mexico School of Law

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