February 22, 2023

The Department of Homeland Security (DHS) and the Department of Justice (DOJ) announced a proposed rule to incentivize the use of new and existing lawful processes and disincentivize illegal border crossings, by placing a new condition on asylum eligibility.

Under the proposed rule, individuals who do not apply for asylum in a country through which they traveled on their way to the United States, would be presumed ineligible for asylum in the United States unless they (or a member of their family with whom they are travelling): (1) were provided authorization to travel to the United States pursuant to a DHS-approved parole process; (2) 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 (3) applied for and were denied asylum in a third country en route to the United States. 

Individuals who cannot establish that they applied for asylum in another country en route to the United States and do not meet one of the exceptions above will be presumed ineligible for asylum and be subject to removal under Title 8 authorities, which carries a five-year bar to re-entry unless they meet the burden of overcoming this presumption. This may be done only in “exceptionally compelling circumstances” demonstrating that, “at the time of their unauthorized entry,” they (or a member of their family with whom they are travelling): (1) faced an acute medical emergency; (2) faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture or murder; or (3) were a victim of a severe form of trafficking. Unaccompanied children would also be excepted from the rebuttable presumption. 

The Biden Administration states that the new proposed rule is an emergency measure that is intended to respond to the elevated levels of encounters anticipated after the lifting of Title 42 authorities. This new asylum process is intended to be temporary and apply only to those individuals who enter the U.S. at the Southwest land border for 24 months following the rule’s effective date and subsequent to the lifting of the Title 42 order.

Finally, in the proposed rule, DHS reserves the right prior to the issuance of a final rule, to issue a temporary or interim final rule similar to this NPRM if the Title 42 public health Order is lifted or encounter rates rise significantly—even without the lifting of the Title 42 public health order—which is expected May 11, 2023.

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