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Advance Travel Authorization (ATA) and the “CBP One” app

As we’ve discussed before in this blog, and as other human rights advocates have noted, asylum requires traveling to a border . Since you can only apply for asylum after you arrive in a country of refuge, freedom to travel from a place where you are subject to persecution to a country of refuge is a prerequisite for asylum.

But as we have also noted, including in comments earlier this year to the U.N. Office of the High Commissioner for Human Rights concerning the rights of migrants, governments including the US government have steadily increased their efforts to undermine the right to asylum by preventing  asylum seekers from traveling to their borders.

The latest step in this direction is the Advance Travel Authorization (ATA) system operated by U.S. Customs and Border Protection (CBP). Under this program, asylum seekers can request permission through the CBP One mobile app to travel to the US. CBP is already operating this system under a temporary “emergency” authorization from the Office of Management and Budget (OMB), but is seeking OMB approval to make it permanent.

As we explain in comments we submitted today to CBP :

Because the US has no jurisdiction and CBP has no statutory authority over travel by non-US citizens within or between other countries or their departure from other countries, and because whether or not a non-US citizen has requested or been granted “permission” from CBP has no bearing on their right to leave any other country or to travel within or between other countries by common carrier or otherwise, this collection of information is of no practical utility for any lawful activity of CBP or any US agency.

Do asylum seekers need permission from the US government to leave other countries where they are being persecuted, or to travel to the US?

No, they do not, as we explain in our comments to CBP :

The unstated but implied minor premise behind the Advance Travel Authorization (ATA) system is that the US has jurisdiction and CBP has authority to control “travel to the US”. But “travel to the US” consists, by definition, of activities outside US borders: travel within and between other countries and departures from other countries, including inter alia departures from foreign airports and seaports on foreign-registered aircraft and vessels…. We know of no treaty which confers extraterritorial US jurisdiction over, and no statute which grants CBP authority to control, foreign travel or foreign travelers outside US borders, merely on the basis of a claim that they intend at some later point in time to seek entry to the US…. US jurisdiction and CBP authority over travel and travelers are coterminous with US borders and with the entitlement to request asylum in the US. The point at which the US acquires jurisdiction and CBP acquires authority over a traveler is exactly the point at which they reach US territory and become eligible to request asylum in the US… Not all requests for asylum will be granted, of course. The US is not required to admit everyone who steps across the US border or lands at a US airport or seaport. The US can refuse to admit such an individual and can deport them if their request for asylum is denied, subject to the requirements of humanitarian and human rights treaties and customary international law including the prohibition on refoulement (deportation to a place of possible persecution). But the right to refuse admission on arrival in the US does not equate to extraterritorial US authority to interfere with, control, or require permission for departure from or travel within or between other countries, prior to arrival at a US border or the limits of US territory. If an individual wants to depart from some other country and travel through or between other countries to the US border or a US port of entry – whether by land, sea, or air, including by common carrier – and then request asylum in the US, at the risk of denial of asylum and deportation, the US has no jurisdiction over their movements until they reach the US. Neither CBP nor any US agency has the authority to take a single step outside the US to stop a traveler from approaching the US border or to interfere with their movements on foreign soil or in foreign airspace. Any such activity would be an interference with foreign sovereignty just as much as would any attempt by agents of a foreign government to interfere, within US borders, with the right of US citizens to move freely within the US or to leave the US.

There’s much more that’s wrong with the details of the CBP One app , but the fundamental problem lies in the effort to persuade asylum seekers and airlines that travelers need permission from CBP to travel to the US, and that airlines may refuse to transport asylum seekers who have not obtained an Advance Travel Authorization through the CBP app.

For asylum seekers, that can be a matter of lifetime persecution, or even of life or death:

If airlines or other common carriers refuse to transport them, or if they believe that airlines or common carriers will refuse to transport them, asylum seekers either remain in places where they are subject to persecution or resort to other, more dangerous, means of transport…. If CBP succeeds in its apparent intent to induce individuals not to try to travel to the US, and to induce airlines and other common carriers not to transport them without permission from CBP that they are unable to obtain, individuals who could have afforded an airline ticket to travel safely to the US and who might have been able to obtain asylum once they arrived in the US will be denied access to asylum. Some will be trapped in a lifetime of persecution or subjected to retaliation and greater persecution for seeking to flee. Other will die trying to reach the US.

If CBP doesn’t abandon its plans to make this illegal scheme permanent, there will be a second window  of opportunity for members of the public to submit comments to OMB before OMB makes its decision to approve or disapprove this use of the CBP One app.

5 thoughts on “ Advance Travel Authorization (ATA) and the “CBP One” app ”

Interview with Edward Hasbrouck, spokesperson for the Identity Project, on RT en Español, “La aplicación para trámites migratorios ‘CBP One’ complica el proceso con fallos y restricciones” ((November 28, 2023):

https://esrt.press/video/490326-aplicacion-tramites-migratorios-cbp-one-fallos

Travel Authorization Decision documents take up to 30 days to be issued while some take only minutes or hours. Do you have any idea about that?

On November 16, 2023, OMB approved this collection of information on an “emergency” basis for an additional six months, with that approval expiring May 31, 2024, unless extended:

https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=202311-1651-002

“Approved under emergency processing for six months. CBP is in the process of undergoing normal processing to update this ATA collection, and has previously issued a 60-day notice that includes information about expanding eligibility to additional countries. CBP will incorporate the inclusion of Ecuador and other changes in its 30-day notice for public comment under normal processing.”

On May 23, 204, CBP asked OMB for an extension of approval for this collection of information: https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=202404-1651-005

CBP included a response to the comments of the Identity Project with its request to OMB, but that response is self-contradictory, ignores some of the issues we raised, and misstates others.

“CBP One Mobile Application Violates the Rights of People Seeking Asylum in the United States” (Amnesty International, May 9, 2024):

https://www.amnesty.org/en/latest/news/2024/05/cbp-one-mobile-application-violates-the-rights-of-people-seeking-asylum-in-the-united-states/

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The Haitian Times

Bridging the gap

DHS resumes process of advanced travel authorization for Biden humanitarian parole program

The Department of Homeland Security (DHS) has announced the resumption of advanced travel authorizations for beneficiaries of the humanitarian parole program, also known as the Biden Program.

NEW YORK — The Department of Homeland Security (DHS) has announced the resumption of advanced travel authorizations for beneficiaries of the humanitarian parole program, also known as the Biden Program.

This parole program, which provides a safe and orderly pathway for certain individuals from Cuba, Haiti, Nicaragua, and Venezuela (CHNV) to enter the United States for urgent humanitarian reasons, was paused on Aug. 2 due to allegations of fraud.

A news alert posted on the U.S. Citizenship and Immigration Services (USCIS) site Friday read: “ As part of an internal review, DHS has implemented updated safeguards to the CHNV processes, incorporating rigorous enhanced vetting in the supporter application process.” 

DHS encourages beneficiaries to continue monitoring their USCIS account for updated information regarding their advanced travel authorizations (ATAs). “Individuals with a valid, unexpired ATA are permitted to travel,” the news alert said.

Launched in January 2023, this initiative reflects the Biden administration’s commitment to expanding lawful immigration pathways and reducing the risks associated with irregular migration.

It allows up to 30,000 individuals per month from the four countries to travel to the U.S. under parole, provided they have a U.S.-based financial supporter filing a form I-134A on their behalf and they pass rigorous vetting and background checks. As of August over 138,000 Haitians have benefited from the program, according to data from the U.S. Homeland Security.

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• Electronic System For Travel Authorization

Electronic System for Travel Authorization

ESTA is an automated system that determines the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP) . Authorization via ESTA does not determine whether a traveler is admissible to the United States. U.S. Customs and Border Protection officers determine admissibility upon travelers’ arrival. The ESTA application collects biographic information and answers to VWP eligibility questions. ESTA applications may be submitted at any time prior to travel, though it is recommended that travelers apply as soon as they begin preparing travel plans or prior to purchasing airline tickets.

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Travel Documents

If you wish to return to the United States lawfully after traveling outside the United States, you generally must have a:

• Valid entry document, such as a Permanent Resident Card (Green Card) or nonimmigrant visa; or
• Valid and unexpired travel document.

The type of document you need varies depending on your immigration status (including lawful permanent resident status) or if you have a pending immigration benefit request.

You generally need to apply for and obtain a travel document before you leave the United States. Before planning travel, please consider USCIS processing times . If you have an urgent need to travel outside the United States, see our Expedite Request and  Emergency Travel  pages for additional information.

File  Form I-131, Application for Travel Document , to request travel documents, including:

• Advance parole document for noncitizens in the United States seeking to return after temporary travel abroad (including advance permission to travel for Commonwealth of the Northern Mariana Islands (CNMI) long-term residents);
• Refugee travel document;
• Reentry permit; or
• Temporary Protected Status travel authorization.

If you are already outside the United States and need to return, but do not have your reentry permit, Green Card, advance parole document, or Temporary Protected Status travel authorization document because it was lost, stolen, or destroyed, see Form I-131A, Application for Carrier Documentation.

NOTE:  If you file Form I-131, Application for Travel Document, to request an advance parole document to authorize your return to the United States after temporary travel abroad and  you depart the United States before we issue your advance parole document, we will consider your Form I-131 application abandoned unless you were previously issued an advance parole document that remains valid for the entire time you are outside the United States.

Travel outside of the United States may have severe immigration-related consequences.

Admission or parole into the United States is not guaranteed even if you have the appropriate documents. You are still subject to immigration inspection or examination at a port of entry to determine whether you may be admitted or paroled into the country and whether you are eligible for the immigration status you seek.

Additional cautions for people in certain circumstances are summarized below.

If you are a nonimmigrant

If you have been admitted as a nonimmigrant and have filed Form I-539, Application to Extend/Change Nonimmigrant Status , to change to a different nonimmigrant status, we generally will consider your Form I-539 abandoned if you leave the United States before we make a decision on your application, though there are some exceptions.  Having an advance parole document does not prevent abandonment of the change of status application. When you return to the United States, you are likely to be denied admission if your current status has expired.

If you have a pending Green Card application

In general, if you are applying for adjustment of status (a Green Card) and leave the United States without the appropriate travel documentation (for example, an advance parole document), you may not be allowed to reenter the United States when you return. Even if you are allowed to reenter, you may be found to have abandoned your pending application for adjustment of status.

If you have unlawful presence or a removal order

If you have accrued unlawful presence while in the United States or have a removal order, then you may be found inadmissible if you seek admission after a departure from the United States, even if you have a travel document.  We follow the Board of Immigration Appeals decision in Matter of Arrabally and Yerrabelly , which held that travel on advance parole does not constitute a “departure” for purposes of triggering the 10-year unlawful presence bar under Immigration and Nationality Act (INA) § 212(a)(9)(B)(i)(II) for applicants for adjustment of status. We also apply this analysis to INA § 212(a)(9)(B)(i)(I) and to individuals with TPS who travel on TPS travel authorization.  For more information, please see  Section 212(a)(9) of the Immigration and Nationality Act (INA) and the Unlawful Presence and Inadmissibility page. 

Advance parole allows you to travel back to the United States without applying for a visa. A transportation company (airlines) can accept an advance parole document instead of a visa as proof that you are authorized to travel to the United States. An advance parole document does not replace your passport.

Please note that having an advance parole document does not guarantee that you will be allowed to reenter the United States. At the airport or border, a U.S. Customs and Border Protection (CBP) officer will make the final decision about whether to allow you to reenter the United States.

Advance parole is most commonly used when someone has a pending:

• Form I-485, Application to Register Permanent Residence or to Adjust Status : If you depart the U.S. while your Form I-485 is pending without first obtaining advance parole, USCIS will deny your case unless you fit into a narrow exception for people with certain nonimmigrant statuses.
• Form I-589, Application for Asylum and for Withholding of Removal : If you are an asylum applicant and you intend to travel outside the United States and return, you must apply for and receive advance parole. If you leave the United States without first obtaining advance parole, we will assume that you have abandoned your asylum application.

For information on how to apply for advance parole, go to our Form I-131, Application for Travel Document page.

USCIS issues refugee travel documents to people with refugee or asylum status and to lawful permanent residents who obtained their Green Cards based on their refugee or asylee status.

You must have a refugee travel document to return to the United States if you:

• Have refugee or asylee status but are not a lawful permanent resident (Green Card holder); or
• Are a derivative asylee or refugee.

If you do not obtain a refugee travel document before you leave the U.S., you may be unable to re-enter the United States or you may be placed in removal proceedings before an immigration judge.

For information on how to apply for a refugee travel document, go to our Form I-131, Application for Travel Document page.

Permanent or conditional residents should apply for a re-entry permit if they will be outside the United States for one year or more. While it is valid, a re-entry permit allows you to apply for admission to the U.S. without having to obtain a returning resident visa from a U.S. Embassy or Consulate. Go to our Form I-131, Application for Travel Document page for information on how to apply.

Travel authorization for Temporary Protected Status (TPS) beneficiaries allows you to travel back to the United States and, if you are eligible, be inspected and admitted into TPS. A transportation company (such as an airline) can accept a TPS travel authorization document instead of a visa as proof that you are authorized to travel to the United States. A TPS travel authorization document does not replace your passport.

Please note that having a TPS travel authorization document does not guarantee that you will be allowed to reenter the United States. At the airport or border, a U.S. Customs and Border Protection (CBP) officer will make the final decision about whether to allow you to reenter the United States.

If we are still adjudicating your application for TPS and you wish to travel outside the United States, you may request advance parole.

For information on how to apply for TPS travel authorization, go to our Form I-131, Application for Travel Document , page.

Carrier documentation allows an airline or other transportation carrier to board permanent residents who have temporarily been outside the United States and whose Green Card or re-entry permit has been lost, stolen or destroyed. If you are a permanent resident in this situation, you may need to file a Form I-131A. Go to the Form I-131A, Application for Travel Document (Carrier Documentation) for more information.