As previewed in the January 5 border enforcement announcement to limit irregular migration and create additional safe and orderly processes, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) have issued a proposed rule to incentivize the use of new and existing lawful processes and disincentivize dangerous border crossings, by placing a new condition on asylum eligibility for those who fail to do so. These steps are being taken in response to the unprecedented western hemispheric migration challenges – the greatest displacement of people since World War II – and the absence of congressional action to update a very broken, outdated immigration system.
DHS continues to prepare for the lifting of the Centers for Disease Control and Prevention’s Title 42 Public Health Order, which is expected on May 11, 2023, and the return to processing all noncitizens under Title 8 immigration authorities. Until then, the Title 42 order remains in effect, and individuals who attempt to enter the United States without authorization will continue to be expelled.
“We are a nation of immigrants, and we are a nation of laws. We are strengthening the availability of legal, orderly pathways for migrants to come to the United States, at the same time proposing new consequences on those who fail to use processes made available to them by the United States and its regional partners,” said Secretary of Homeland Security Alejandro N. Mayorkas. “As we have seen time and time again, individuals who are provided a safe, orderly, and lawful path to the United States are less likely to risk their lives traversing thousands of miles in the hands of ruthless smugglers, only to arrive at our southern border and face the legal consequences of unlawful entry.”
“The Department of Justice is responsible for administering the Nation’s immigration courts and ensuring that claims are adjudicated expeditiously, fairly, and consistent with due process,” said Attorney General Merrick B. Garland. “This proposed rule will establish temporary rules concerning asylum eligibility in those proceedings when the Title 42 order is lifted. We look forward to reviewing the public’s comments on this proposed rule.”
Consistent with America’s history as a nation of laws and a nation of immigrants, this proposed rule ensures enforcement of U.S. immigration laws, lawful pathways, and access to asylum and other forms of humanitarian relief for those who need it.
Under the proposed rule, individuals who circumvent available, established pathways to lawful migration – including those new processes announced on January 5 as well as a newly-available mechanism for migrants from any nationality to schedule a time and place to arrive at a port of entry – and also fail to seek protection in a country through which they traveled on their way to the United States, would be subject to a rebuttable presumption of asylum ineligibility in the United States unless they meet specified exceptions. Individuals who cannot establish a valid claim to protection under the standards set out in the proposed rule will be subject to prompt removal under Title 8 authorities, which carries a five-year bar to reentry. The proposed rule will be open to public comment in the Federal Register for 30 days. Additional information is available in the fact sheet.
The proposed rule is an emergency measure that is intended to respond to the elevated levels of encounters anticipated 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 Biden-Harris Administration’s border enforcement measures, which couple expanded safe, orderly, and lawful processes and consequences for those who do not avail themselves of these orderly processes, are working to reduce irregular migration: January saw the lowest level of encounters between the ports of entry since February 2021. Following the new parole processes for nationals of Cuba, Haiti, Nicaragua, and expansion of the process for Venezuelans, encounters of Cubans, Haitians, Nicaraguans, and Venezuelans between ports of entry at the southwest border declined from a 7-day average of 1,231 on January 5, the date the new processes were implemented, to just 35 on January 31—a drop of 97 percent in just over three weeks. Encounters have remained at similarly low levels thus far in February.
For those who followed the lawful process, through February 17, more than 26,000 Cubans, Nicaraguans, and Haitians were thoroughly screened and vetted, and received travel authorization. Thousands of Venezuelans (for whom the program was launched in October 2022) have already arrived: 33,800 have been screened and vetted and received travel authorization from October through the end of January.
DHS and DOJ are taking these steps while continuing to call on Congress to modernize the U.S. immigration system, including asylum laws. DHS will continue to monitor developments on the southwest border and will accelerate or implement additional measures, as needed, consistent with applicable court orders.
