Council and AILA submit Comments on the Biden Administration's Final Rule Restricting Access to Humanitarian Protections at the U.S./Mexico Border

On October 7, 2024, the Department of Justice (DOJ) and the Department of Homeland Security (DHS) published a joint final rule, "Securing the Border." This rule finalized an interim final rule that had been published in June, which implemented a proclamation issued by President Biden that barred noncitizens from asylum eligibility if they entered without advance permission into the U.S. at the southern border during "emergency border circumstances." These circumstances are triggered when the number of border encounters reach a certain threshold.

The final rule incorporated two important changes to this policy as a result of an amendment made to the initial proclamation by President Biden on September 30, 2024. Those changes are: extending the required time period that border encounters must remain below 1,500 in order to trigger a discontinuation of the emergency border circumstances and including unaccompanied children from non-contiguous countries, which were excluded previously, when calculating the number of border encounters. The final rule also requested comment about a proposed geographic expansion and indefinite implementation of the Circumvention of Lawful Pathways (CLP) rule, which is currently set to expire in May 2025 and applies a presumption of asylum ineligibility on individuals who enter without advance permission at the southern border when emergency border circumstances are not in effect.

The American Immigration Council and the American Immigration Lawyers Association (AILA) submitted a joint comment sharing their concerns that these changes would constitute a significant departure from the laws enacted by Congress and lead to more asylum seekers being wrongfully returned to harmful and dangerous conditions.

Specifically, the comment reiterated the Council and AILA's concerns that both rules conflict with immigration law--Congress clearly established that the manner of a noncitizen’s entry into the U.S. should not impact their ability to seek asylum. Under the application of the Securing the Border interim final rule, AILA’s member practitioners saw people seeking asylum being erroneously deported to danger and denied statutorily required fear screenings or asylum hearings by U.S. border officers. The comment also noted that the modifications proposed by the final rule would result in the bar on asylum eligibility remaining in place under nearly all conditions. An analysis of border encounters for the past six years show daily averages were below 1,500 per month only 14 percent of the time.

The comment also urged DOJ and DHS not to impose a geographic and temporal expansion of the CLP rule, which would apply the presumption against asylum eligibility indefinitely and to asylum seekers from additional nationalities who have severely limited options to seek asylum in other countries.

The Council and AILA recommended that DOJ and DHS instead immediately create and maintain a publicly accessible database listing all dates and periods of time the final rule's bar on asylum is in effect and expand the alternative pathways available to asylum seekers to lawfully enter the United States.