Even though the government had been discussing the move for some time, it still comes as a shock to many. The Biden Administration has closed the southern border of the U.S. to new immigrants and severely restricted the ability for immigrants entering from the south to obtain asylum. In addition, penalties for those who violate the restrictions have been increased.
This is seen as a political move and will be challenged in the courts. In the meantime, it becomes more important than ever for those facing immigration challenges to contact an attorney as soon as possible once they reach the U.S.
Rule Triggered by the Number of Border Encounters
In theory, the new restrictions will only take effect in emergency situations when the number of “encounters” or arrests for illegal border crossings hits a level of 2,500 per day. As a practical matter, the number of daily arrests is approximately 3,500 per day, so the restrictions will become effective right away. They are supposed to continue until the number of arrests falls below 1,500 daily. That has not happened since 2020, so the rule is expected to remain in effect indefinitely.
However, because this numerical restriction makes it almost a permanent ban on immigration and asylum, this could provide solid arguments for finding the restrictions illegal in court challenges.
Three Goals Publicized by the Administration
The Fact Sheet summarizing the presidential proclamation and new interim rule lists three primary goals to be achieved by this action:
- Immigrants crossing the southern border will be ineligible for asylum unless they meet limited exceptions
- The standard used to screen for certain protection claims will be raised
- The ability to “quickly remove those who do not qualify for protection” will be increased
The rules focus on restricting asylum, but the presidential proclamation “temporarily suspends” the entry of noncitizens seeking to enter from the south unless they meet certain requirements. Lawful permanent residents and those who use a process such as the CBP One mobile app to enter the U.S. lawfully are not subject to the entry restrictions. In addition, officials will make exceptions for unaccompanied children and victims of a severe form of human trafficking.
Asylum Restrictions
During times when arrests at the border are at a high level—for the foreseeable future—then the new rules make people crossing the southern border without authorization ineligible for asylum unless they meet narrow qualifications. They must also demonstrate “exceptionally compelling circumstances” exist to justify a grant of asylum.
In fact, those crossing either by land or sea over the southern border of the U.S. will even be severely restricted in their ability to seek asylum in the first place. If someone caught crossing the border without authorization is processed for expedited removal, they must clearly make known an intent to apply for asylum or show or clearly express a fear of return to their country (or country of removal) or a fear of torture or persecution. Only then will they be referred for asylum screening to determine if the fears are credible. Immigration authorities will apply a “new, substantially higher standard,” the reasonable probability of persecution or torture standard, when noncitizens manifest fear and do not qualify for an exception to the Rule for withholding of removal and Convention Against Torture protections.
To qualify for asylum under these new rules, a person seeking asylum or someone they are traveling with must:
- Be under a threat to life or safety which is imminent and extreme
- Face an acute medical emergency
- Meet the definition of a “victim of a severe form of trafficking in persons”
Stronger Penalties for Those in Violation
If someone requests asylum and fails to prove a “reasonable probability of persecution or torture in the country of removal” they will be subject to swift removal. They will then be restricted from reentry for at least five years and could even face criminal prosecution. The goal is to “free up the asylum system for those with legitimate claims.” However, what constitutes a legitimate claim is not a cut and dried issue, which is one reason it is important to work with an experienced immigration attorney who understands how to satisfy standards set by immigration officials.
Those who do not request asylum also face more severe consequences such as extremely swift removal.
Odunlami Law Fights to Protect Rights and Opportunities for Immigrants
The restrictions on the southern border limit opportunities for immigrants, but at Odunlami Law, we focus our efforts on finding the best way forward regardless of the circumstances. If you have questions about asylum, removal, or other immigration issues, we urge you to contact us to find out how we can help.
