As part of the Biden-Harris Administration’s work to prepare for the end of the Centers for Disease Control and Prevention’s Title 42 Public Health Order, which is expected on May 11, 2023, and return to processing all noncitizens under Title 8 immigration authorities, the Department of Homeland Security (DHS) and the Department of Justice have issued a joint Notice of Proposed Rulemaking (NPRM). The NPRM is designed to address the current and anticipated surge in migration throughout the hemisphere and further discourage irregular migration by encouraging migrants to use lawful, safe, and orderly processes for entering the United States and other partner nations, impose conditions on asylum eligibility for those who fail to do so, and support the swift returns of migrants who do not have valid protection claims. The public is invited to submit comments on the NPRM during a 30-day period that ends on March 27. Until May 11, the Title 42 order remains in effect, and individuals who attempt to enter the United States without authorization will continue to be expelled.
As a complement to this NPRM, DHS has taken significant steps to expand safe and orderly pathways for migrants to lawfully enter the United States. This includes: establishing country-specific and other available processes to seek parole for urgent humanitarian reasons or reasons of significant public benefit; expanding opportunities to enter for seasonal employment; putting in place a mechanism for all migrants to schedule a time and place to arrive in a safe, orderly and lawful manner at ports of entry via use of the CBP One mobile app; and expanding refugee processing in the Western Hemisphere.
As proposed in the NPRM, noncitizens who cross the southwest land border without authorization, and without having (1) availed themselves of existing lawful processes, (2) presented at a port of entry in compliance with the rule’s requirements, or (3) been denied asylum in a third country through which they traveled, would be presumed ineligible for asylum unless they meet certain limited exceptions. Noncitizens could rebut this presumption based on exceptionally compelling circumstances detailed below. Noncitizens who are subject to and do not rebut the rebuttable presumption would be eligible for protection from removal to a country where there is a reasonable possibility they will face persecution or torture. The rebuttable presumption may apply to migrants of any nationality who enter the United States at the southwest land border without authorization after traveling through at least one other country, but would not apply to unaccompanied minors. The rebuttable presumption is also time-limited, to address the urgent need to respond to and prevent the influx of migrants expected in the absence of a such a rule. It would apply only to those who enter the United States for 24 months after its effective date.
Noncitizens who cross the southwest land border of the United States without authorization after traveling through a third country would be presumed ineligible for asylum unless they, or a member of their family with whom they are traveling, meet at least one of three exceptions:
- They were provided authorization to travel to the United States pursuant to a DHS-approved parole process;
- They used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or
- They applied for and were denied asylum in a third country en route to the United States.
Unaccompanied children would also be excepted from the rebuttable presumption.
Rebutting the Presumption
Noncitizens could rebut this presumption of asylum ineligibility in exceptionally compelling circumstances, including if they demonstrate that, at the time of their unauthorized entry, they or a member of their family with whom they were traveling:
- Faced an acute medical emergency;
- Faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture or murder; or
- Were a victim of a severe form of trafficking, as defined in 8 CFR § 214.11.
Pursuant to the Immigration and Nationality Act, noncitizens who attempt to enter the United States without authorization and cannot establish a legal basis to remain in the United States may be subject to expedited removal. The rebuttable presumption provided for by the proposed rule would be evaluated by an asylum officer as part of the credible fear interview, subject to review by an immigration judge.
- If an asylum officer determines that the noncitizen is not subject to or has overcome the rebuttable presumption, the asylum officer’s credible fear determination would follow existing procedures, including the screening for eligibility for asylum, withholding of removal, and Convention Against Torture (CAT) protection under a significant possibility standard.
- If any asylum officer determines that the noncitizen is subject to and has not overcome the rebuttable presumption, the asylum officer’s screening would be limited to determining whether the noncitizen has demonstrated a reasonable possibility of persecution or torture. If a reasonable possibility of persecution or torture is established, the noncitizen will still be eligible to seek protection from removal to a country where they face persecution or torture by applying for statutory withholding of removal or protection under the CAT before an immigration judge.
For noncitizens, the rebuttable presumption will apply in expedited removal proceedings, as well as to asylum applications affirmatively filed with the Asylum Office or filed in immigration court proceedings as a defense to removal.
Noncitizens who are subject to and do not rebut the rebuttable presumption, but who establish a reasonable possibility of persecution or torture, will still be eligible to seek protection from removal to a country where they face persecution or torture by applying for statutory withholding of removal or protection under the CAT before an immigration judge.
To avoid separating members of a family traveling together, the NPRM proposes that if one family member is excepted from or rebuts the presumption, all family members will be similarly treated.
Noncitizens who are subject to the rebuttable presumption, do not rebut the presumption, and do not establish a reasonable fear of persecution or torture in the country of removal will be promptly removed.
Those ordered removed will be subject to at least a five-year bar to reentry and potential criminal prosecution if they subsequently re-enter without authorization. Those ordered removed also will be ineligible for the parole processes available to nationals of Cuba, Haiti, Nicaragua, and Venezuela.
Rescission of the Transit Ban and Entry Ban
The Departments are also proposing to rescind the Trump-era transit ban and entry ban, which – unlike this proposed rule – imposed categorical bars on eligibility for asylum and thus conflict with the approach taken in the proposed rule.
The proposed rule is an emergency measure that is intended to respond to the elevated levels of encounters expected after the lifting of the Title 42 Order. As such, it is designed to be temporary in duration, applying to those who enter the United States at the Southwest land border for 24 months following the rule’s effective date and subsequent to the lifting of the Title 42 order.
The proposed rule will be open to public comment in the Federal Register for 30 days.