On June 4, 2024, President Joe Biden signed a Presidential Proclamation that imposes severe restrictions on the entry of noncitizens at the southern border. The Proclamation, issued pursuant to Immigration and Nationality Act sections 212(f) and 215(a), imposes a suspension and limitation on entry of noncitizens who cross the U.S. border between ports of entry and are apprehended by immigration officers within 100 miles of the southern border. The suspension on entry began at 12:01 a.m. ET on June 5, 2024, and will apply until 14 calendar days after there has been a consecutive calendar-day average of less than 1,500 encounters over a 7-day period. But the suspension will continue to apply, or be re-implemented after it has been lifted, if there is a 7-day average of 2,500 encounters or more. Note that apprehensions during the Biden administration have never fallen below this level, so practically speaking it is likely that these heightened restrictions will be in effect for the foreseeable future.
This proclamation is accompanied by an interim final rule from the Departments of Justice (DOJ) and Homeland Security (DHS) that restricts asylum eligibility for those noncitizens who enter outside of ports of entry along the southern border, including southern coastal borders. The rule creates three key changes to the asylum process:
- During the time that the Proclamation is in effect, individuals who enter the United States irregularly along the southern border are ineligible for asylum unless they demonstrate by a preponderance of the evidence that "exceptionally compelling circumstances exist;"
- DHS officers will no longer ask each noncitizen specific questions as to whether they have a fear of return and instead will only provide general information about the asylum process and refer a noncitizen for a credible fear interview (CFI) if the person affirmatively expresses a fear of return; and
- During the CFI, an individual who establishes that they warrant an exception to the asylum restriction will be screened for a "reasonable probability of persecution," a higher credible fear standard than that imposed by the Circumvention of Lawful Pathways rule.
The rule also indicates that the restrictions on asylum eligibility, like the suspension and limitations on entries, will be discontinued when southern border encounters fall below the levels proscribed by the Proclamation, but will come back into effect if encounters rise again.
It is important to note that the suspension and limitation on entry and related asylum restriction measures will not apply to noncitizens who use the CBP One mobile app to enter the United States at a port of entry. In addition, the Proclamation and rule will not apply to unaccompanied children, trafficking victims, and individuals with exceptionally compelling circumstances such as a medical emergency.
If you have any questions on this, feel free to give our office a call.