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  6. DHS Myth vs. Fact: Asylum Proclamation and Rule

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In an effort to keep DHS.gov current, the archive contains outdated information that may not reflect current policy or programs.

DHS Myth vs. Fact: Asylum Proclamation and Rule

Release Date: November 9, 2018

Our system is currently overwhelmed by unchecked mass immigration, particularly at our Southwest border.

President Trump is using the authority granted to him by the Immigration and Nationality Act to manage and protect the integrity of our immigration system and our national sovereignty.

  • Section 212(f) of the Immigration and Nationality Act states plainly: "Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.”
  • Section 215(a) of the Immigration and Nationality Act similarly states: "Unless otherwise ordered by the President, it shall be unlawful for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe."

Q. Who would this rule apply to?

A. This rule would apply only prospectively to proclamations issued on or after the effective date of this rule.  It would not apply to a proclamation that specifically includes an exception for aliens applying for asylum, nor would it apply to aliens subject to a waiver or exception provided by the proclamation. The rule does not impact the statutory provisions regarding the care and custody of unaccompanied alien children set forth in the Homeland Security Act of 2002 (6 U.S.C. 279) and the Trafficking Victims Protection Reauthorization Act (8 U.S.C. 1232). 

(This paragraph has been updated to provide additional clarity that Unaccompanied Alien Children are subject to the IFR/Presidential Proclamation.)

Q. How does this uphold our nation’s values with regard to immigration?

A. The United States is a global leader when it comes to assisting individuals fleeing persecution—including refugees and asylum seekers. We accept far more refugees referred from the United Nation’s High Commissioner for Refugees than any other country in the world. From Fiscal Year 2008 to Fiscal Year 2017, the United States gave Lawful Permanent Resident status to 1,761,927 individuals, which is larger than twelve states, including the District of Columbia. We are a nation that believes in the rule of law.  The American people do not want an immigration system that allows for mass unchecked illegal immigration – we demand and deserve a secure border and an immigration system that benefits the American people.

Q. Are you shutting down the border?

A. No. Personnel at our Nation’s Ports of Entry must balance a variety of priority missions. These include facilitating legal trade and travel, preventing the entry of drugs and contraband, apprehending criminals and terrorists and assisting persons seeking to claim asylum.  Ports of entry are equipped to inspect individuals in a safe and orderly fashion, including examining whether there is a basis to admit an alien.  At Ports of Entry, the United States is able to expeditiously process those aliens who are admissible, while still providing an opportunity for those who may not be admissible to enter and seek protection.  Under the law, while individuals may be found inadmissible, their entry itself is not unlawful so long as they properly come to the ports of entry. 

Q. Under what authority is this action constitutional?

A.  In June, the Supreme Court upheld the President’s broad statutory authority to execute entry restrictions pursuant to section 212(f) of the Immigration and Nationality Act, including through the national security reviews required under that Proclamation.  The use of this provision to address immigration crisis like the one we are experience has received bipartisan support in the past.

Q. How will you ensure adherence to international law with regard to the rights of individuals to claim asylum?

A. This rule merely exercises the Attorney General’s and Secretary of Homeland Security’s statutory power to bar from eligibility for asylum aliens who are the subject of a President’s future 212(f) proclamations. The U.S. meets its obligations under the Refugee Convention and the Convention Against Torture through other forms of relief.  Individuals with legitimate claims of asylum can simply present at a port of entry to have their claims heard. 

Q. Are you going to deny asylum seekers at Ports of Entry?

A. No. If aliens arrive at a Port of Entry they remain eligible to seek asylum and may proceed through the existing credible-fear screening process.

Q. Are you planning to expand capacity at Ports of Entry?

A.  In anticipation of a large group arriving in the coming weeks, DHS is surging additional resources to support our ports of entry to assist in processing those individuals – and all others arriving at our ports of entry – as efficiently as possible.  But as mentioned before, DHS has a variety of priority missions at the ports of entry which require dynamic staffing and resource allocations to confront risk.  This will require CBP Field Office Directors to make determinations about how to allocate resources to counter drug, gang and terrorism activities, the facilitation of trade and travel and the handling of asylum claims. 

Q. Why is this an interim final rule and not a proposed rule?

A. Our asylum system is in crisis.  The Administrative Procedure Act’s pre-promulgation notice and comment requirement, or a delay in the effective date, could lead to an unprecedented surge of illegal migrants to the southern border to enter the United States before the rule took effect. 

Q.  What is the UN Convention Against Torture?

A. The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) requires signatory parties to take measures to end torture within their territorial jurisdictions, and not return persons to countries where they would likely be tortured. For purposes of the Convention, torture is defined as an extreme form of cruel and inhuman punishment committed under the color of law. Unlike asylum, the Convention guarantees even the worst alien terrorists and criminals protection from return.

Q. How does the IFR and Proclamation comply with the Convention Against Torture?

A. Aliens claiming fear under the Convention Against Torture can still pursue their claims and are not affected by this rule. Similarly, the administration is acting in conformance with the Foreign Affairs Reform and Restructuring Act of 1998, which authorizes and directs agency heads to prescribe regulations to implement the obligations of the United States under the Convention Against Torture.

Q. How many aliens receive CAT protection?

A. Fewer than 1,000 aliens per year, of any nationality, receive CAT protection. 

Q. Who can claim asylum?

A. The Department of Homeland Security has incorporated into the credible fear screening process a check to see whether aliens are subject to the new 8 C.F.R. § 208.13(c)(3) mandatory bar to asylum eligibility—that is, aliens who are barred from receiving asylum because they are the subjects of an Immigration and Nationality Act § 212(f) or § 215(a)(1) order. Such aliens who are ineligible for asylum necessarily cannot establish a credible fear of persecution. 

Q. What has changed in the screening process?

A.USCIS officers will still determine whether aliens have a fear of persecution or torture for statutory withholding and CAT purposes. Aliens who are barred from receiving asylum under an Immigration and Nationality Act § 212(f) or § 215(a)(1) proclamation, however, must show a reasonable fear of persecution or torture to be further considered for statutory withholding or CAT protection.  In other words, such aliens cannot be further considered for statutory withholding or CAT protection by showing a mere credible fear of persecution or torture. 

Q. What training are you conducting for asylum officers?

A. On November 9, USCIS issued a new field guidance for asylum officers to adjudicate claims in accordance with the Interim Final Rule and Immigration and Nationality Act § 212(f) and § 215(a)(1) Presidential Proclamation.

Q. Are you building tents?

A. DHS and DoD are working closely together to advance the President’s border security mission. As has been reported for many months, DHS, HHS and DoD have been looking at locations and available avenues if the need for additional housing arises.  We have no announcement at this time on the construction of additional facilities for the detention of those who enter our country illegally. 

Q. Will this increase length of time an alien spends in detention?

A. Aliens are generally detained during the credible-fear screening process, but may be eligible for parole or release on bond if they establish a credible fear.  To the extent that the rule may result in lengthier interviews for each case, aliens’ length of stay in detention may increase. 

Q. Are these actions meant to be a deterrent?

A. The IFR and Proclamation are not intended to deter legitimate asylum seekers from seeking protection.  In fact we expect it will allow them to more expeditiously have their claims heard and adjudicated.  Taken together, the rule and the Presidential proclamation are meant to ensure that aliens seek protections in a legal and safe manner.

Q. Is this action in response to the caravan?

A. We have a broken immigration system that has precipitated an illegal immigration crisis at the Southern border.  The caravan is just the latest symptom of that problem. The Border Patrol apprehends hundreds of thousands of people each year – numbers any American would agree is unacceptable. Asylum seekers know they will be released into the United States and receive work permits while their often frivolous claims are adjudicated. They then disappear or fail to depart the country.

Q. Where are you going to detain aliens?

A. Once apprehended by U.S. Customs and Border Protection, DHS will transfer aliens to the appropriate detention center.

Q. Where are you going to detain family units once Family Residential Centers are full?

A. DHS is going to continue to maintain high standards of care for those in our care and abide by all applicable laws and regulations.  We are ascertaining whether additional resources will be necessary for detention. 

Q. Why are you taking this action?

A. In recent years, there has been a significant increase in the number and percentage of aliens who seek admission or unlawfully enter the United States and then assert an intent to apply for asylum or a fear of persecution.  The vast majority of such assertions for protection occur in the expedited-removal context, and the rates at which such aliens receive a positive credible-fear determination have increased in the last five years to nearly 90 percent.  Having passed through the credible-fear screening process, many of these aliens are released into the interior to join an overloaded immigration court system that takes years to bring cases to a final conclusion. Yet, many aliens who pass through the credible-fear screening thereafter do not pursue their claims for asylum.  In the last year we saw 89% of those claiming asylum from the norther triangle pass a credible fear screening.  However more than half never applied for asylum after being released or failed to show for their initial hearing.  Eventually, only 9% of those who applied for Asylum out of these countries actually qualified before a judge.  The bottom line is that a substantial number of applicants fail to appear for their final hearings before an immigration judge, or fail to comply with removal orders. Even when they appear for their hearings, only a very low rate are ultimately granted asylum.     

Q. Who does this rule benefit?

A. This rule positively affects the aliens with meritorious asylum claims by reducing frivolous claims and allowing meritorious cases be adjudicated more swiftly if the number of non-meritorious cases declined.  Aliens with meritorious claims can thus more quickly receive the benefits associated with asylum that they deserve.   

Q. Have you discussed this action with Mexico and the Northern Triangle?

A. The administration is in constant communication with our partners in the region regarding appropriate cooperative arrangements to prevent unlawful mass migration to the United States through the southern border. 

Last Updated: 02/05/2021
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