DHS & DOJ Announce Additional Barriers to Seeking Asylum at the U.S. Border

May 11, 2023

Yesterday, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Justice (DOJ) announced controversial new regulations that will go into effect once the provisions under Title 42, which allow the U.S. government to turn away asylum seekers based on public health concerns, expire on Thursday, May 11, 2023.

Under the new rules, migrants fearing return to their home countries who unlawfully cross the southern border of the U.S. to seek asylum will now face a strong presumption that they are not eligible for asylum if they did not pursue a “lawful, safe, and orderly pathway to the United States,” regardless of the merits of their asylum claim and/or if they did not avail themselves of asylum or other protection “in another country through which they travel” on the way to the United States. DHS and DOJ point to several options as alternative “lawful” pathways. Much like the expiring Title 42 provisions, this new rule would circumvent established U.S. law (in accordance with international treaties) which requires asylum seekers to be on U.S. soil when requesting such protection and does not require that such applicant arrive in the U.S. with travel authorization or other permission.

The presumption of ineligibility for asylum will not apply if a noncitizen “received appropriate authorization to travel to the United States to seek parole; presented at a port of entry, pursuant to a pre-scheduled time and place using the CBP One app; 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 applicable exception.” In addition, the presumption will not apply to unaccompanied children or individuals who sought asylum in at least one other country and were denied. Otherwise, individuals would need to demonstrate “exceptionally compelling circumstances” to overcome their presumption of ineligibility for asylum.

The American Immigration Lawyers Association President, Jeremy McKinney, immediately released a comment explaining how harmful this new policy will be to asylum seekers: “Given the complex and unprecedented challenges at the southern border, the Biden Administration finds itself walking a tightrope between effective border management and meaningful humanitarian protection. While many of the Administration’s actions, such as opening legal channels to seek safety and reunite with loved ones, strike that balance, this asylum rule is wildly out of bounds. The new regulation will likely deny tens of thousands of people any opportunity to meaningfully seek protection. Our immigration laws—and our values—guarantee the right to seek asylum regardless of how someone enters the country. This departure from our laws and values is unacceptable under any circumstances.

Please contact us at Landau, Hess, Simon, Choi & Doebley if you have any questions about your asylum eligibility. To schedule a consultation with one of our attorneys, please proceed to our Consultation Request Form.

Written by: Andrew A. Fuller


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