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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 will expire after May 11, 2023, and to return to processing all noncitizens under Title 8 immigration authorities, the Department of Homeland Security (DHS) and the Department of Justice have issued a final rule to incentivize the use of lawful pathways. The final rule 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; imposing conditions on asylum eligibility for those who fail to do so; and supporting the swift return of migrants who do not have valid protection claims.
As a complement to this final rule, 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 significant public benefit; expanding opportunities to enter for seasonal employment; putting in place a mechanism for 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.
Under the final rule, noncitizens who cross the southwest land border or adjacent coastal borders without authorization after traveling through another country, and without having (1) availed themselves of an existing lawful process, (2) presented at a port of entry at a pre-scheduled time using the CBP One app, or (3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions. Noncitizens can rebut this presumption based on exceptionally compelling circumstances detailed below. Noncitizens in expedited removal who are subject to and do not rebut the rebuttable presumption would be screened for whether there is a reasonable possibility they will face persecution or torture in the designated country of removal. The rebuttable presumption may apply to migrants of any nationality who enter the United States at the southwest land border or adjacent coastal borders 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 following the lifting of the Title 42 public health Order in the absence of a such a rule. It would apply only to those who enter the United States during the 24 month period after the rule’s effective date.
Noncitizens who cross the southwest land border or adjacent coastal borders of the United States without authorization after traveling through a third country will be presumed ineligible for asylum unless they, or a member of their family with whom they are traveling, meet one of three exceptions:
Unaccompanied children are exempted from the rebuttable presumption.
Noncitizens can rebut the 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:
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 established by the final rule would be evaluated by an asylum officer as part of the credible fear interview, subject to review by 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.
To avoid separating members of a family traveling together, the final rule establishes that if one family member is exempted 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.
The Departments are also rescinding the Trump-era transit ban and entry ban, which – unlike this new final rule – imposed categorical bars on eligibility for asylum and thus conflict with the approach taken in this final rule.
The final 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 and adjacent coastal borders during the 24-month period following the rule’s effective date and subsequent to the lifting of the Title 42 order. The rule’s presumption will continue to apply to these noncitizens after the end of that 24-month period.
The final rule incorporates a small number of changes from the proposed rule that are responsive to comments received. These changes do not alter the purpose or structure of the rule. The changes from the proposed rule are:
The final rule also includes a few other clarifications and non-substantive changes.
DHS.gov
An official website of the U.S. Department of Homeland Security