As the Biden administration moves to implement an immigration policy that would prohibit thousands from applying for asylum, advocates and legal groups are urging people to voice their opposition via a public comment platform.
Last week the administration said it will bar migrants from petitioning for asylum if they didn’t seek safe haven in another country while on their way to the U.S. border. The rule has prompted outrage from immigrant rights groups and legal experts who argue the move is akin to former President Trump’s extreme immigration policies.
On Friday critics of the White House’s efforts, including 16 advocacy groups that include more than 100 organizations, launched a public comment tool to ensure the Department of Homeland Security and Department of Justice hear from people who are against the policy.
“President Biden doesn’t have to go forward with the asylum ban, and we are mobilizing the public to speak out against this terrible misstep,” said Bilal Askaryar, the interim campaign manager of #WelcomeWithDignity, a coalition of immigrant rights and legal organizations. “The proposed asylum ban does nothing to alleviate the humanitarian need at the border, will be a boon for cartels, and earn the President no points with anti-immigrant xenophobes.”
As required by the Administrative Procedure Act, which governs how federal agencies roll out and develop regulations, the government must allow for a public comment period that is at least 30 days long. The public comment can be longer or shorter depending on the proposal.
How much of an effect can public comment have?
Advocates and legal experts said these comments can make a difference and involve more than just “checking a box” as part of routine procedure.
Thomas McGarity, a professor and administrative law expert at the University of Texas at Austin School of Law, said the government must respond to those comments if presented with them.
“At the end of the day, the law is — at the federal level at least — is that, in finalizing that rule, the agency must address those comments that pass a threshold of materiality,” he said. “If they're raising a genuine issue, and the resolution of that issue would affect the outcome of the rule, then the agency has to provide some response to that comment.”
That’s different from the Texas Legislature, where committees can advance proposed legislation once public comment ends (Committees can also leave legislation pending and reconvene later). But Texas lawmakers aren't required to address direct opposition to a proposal.
Askaryar and others with the Welcome With Dignity campaign provide a suggestion on their public comment tool of how the public can address the issue but urge commentors to make their submissions unique to compel the government to address each concern.
The group also points to the way public comment recently influenced the change of a separate immigration rule.
“For example, this rule published in September contains nearly 100 pages of the government’s anonymized summarizations and responses to comments submitted by the public, including descriptions of where they made changes to the rule in response to public comments,” the petition states.
What’s the timeline on the Biden proposal?
The Biden administration stated last week the new asylum rule is being proposed to help curb an anticipated increase in unauthorized immigration before a controversial measure known as Title 42 ends in May. That policy allows federal border agents to immediately expel asylum seekers at the border and has been in effect since 2020.
Khadijah Silver, a senior staff attorney at Lawyers for Good Government and part of the coalition, said that if public comment works the way it is supposed to, the administration won’t be able to implement the new rule by May.
“If they get cogent arguments as to why they should change the rule as written, and they take the proper time to consider those arguments, there is no way they are getting this done by May 11th,” Silver said. “Having read the rule in its entirety and having read their rationale and having read all of the cases, and that the law that they refer to, I anticipate that they'll have a lot to respond to.”
Silver said public comment has had an impact on previous proposals they’ve worked on, including the Affordable Care Act, access to medication and to issues relating to trans health. Silver is hopeful the same will happen next month when the public comment period on the asylum proposal ends.
“When you have people in the administration who are open to working with advocates to improve a rule, then you can see tremendous changes occur in the world when they read comments written by directly impacted stakeholders,” added Silver. “We need to be hearing from folks right at the border as to how this really will play out.”
Silver said that if stakeholders “are really, really mad, they can write during the 15 or 30 days post-publication, pre-effective date, and pressure the administration to put the rule on ice — as has been done many times in the worlds of healthcare administrative law, technology administrative law, and employment administrative law.”
Got a tip? Email Julián Aguilar at jaguilar@kera.org.You can follow Julián on Twitter @nachoaguilar.
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