In a move that has been anticipated for some time, the Biden Administration issued a proclamation and rules that prohibit the entry of many noncitizens via the southern border of the U.S., severely restrict the ability of immigrants entering the U.S. on the southern border to seek asylum, and that impose more severe consequences for those who cross the border without authorization. The new rules take effect when “border encounters” for illegal crossings from Mexico hit a level of 2,500 per day, and since the arrest level has been higher than that for more than three years now, that means the rules will take effect immediately and are likely to remain in effect for some time.
According to the Administration, the new rules will have three primary effects: they will make most immigrants entering over the southern border ineligible for asylum, they will raise the standards used to screen for protection claims, and they will “speed up” the government’s “ability to quickly remove those who do not qualify for protection.” The new rules make it even more crucial for immigrants to consult an immigration attorney for assistance as soon as they are on U.S. soil.
Eligibility for Asylum
During periods of “high border encounters,” individuals who cross the southern U.S. border either via land or sea without authorization or in violation of the law will be generally considered ineligible for asylum, but there are exceptions. To qualify for asylum, an applicant must demonstrate “exceptionally compelling circumstances” and show that they meet one of the exceptions.
A noncitizen must prove that they or a member of their family traveling with them are either:
- Dealing with “an acute medical emergency”
- Facing an “imminent and extreme threat to life or safety” (Examples include “threat of rape, kidnapping, torture, or murder”), or
- Victims of “a severe form” of human trafficking
In addition to restricting eligibility for asylum, the rules limit the procedural ability to seek asylum. If an immigrant is processed for expedited removal, they can only be referred for screening with an Asylum Officer if they “manifest or express” either a fear of return, fear of persecution or torture, or the intent to seek asylum. In other words, they must clearly express a need or desire for asylum right away or the opportunity to seek asylum will not be available later.
Suspension of Entry
The closing of the southern border to noncitizens does not apply to lawful permanent residents, those with a valid visa or other lawful permission to enter the U.S., and those who use a “Secretary-approved process” to enter the U.S. “at a port of entry in a safe and orderly manner.” The example given is the CBP One mobile app.
Additionally, unaccompanied children and “victims of a severe form of human trafficking” are also not affected by the suspension and limitation on entry.
Consequences of Violations
In addition to restricting entry and limiting access to asylum, the new rules impose harsh penalties for violations. For instance, those who express fear or an intent to apply for asylum but who “do not establish a reasonable probability of persecution or torture” will be removed and banned from reentry for at least five years. They could also face criminal prosecution.
Those who cross the border without authorization who are not screened for asylum will be subject to removal within days or even hours.
Legal Challenges
The American Civil Liberties Union and other organizations have expressed an intent to file lawsuits to challenge the restrictions. It remains to be seen whether these challenges will stop or reduce the enforcement of the new provisions. As of right now, the new restrictions are scheduled to remain in effect until the border apprehension level drops below 1,500 per day. The level hasn’t been seen since July 2020, during the height of the COVID pandemic. Currently, the level is about 3,500 per day. Because the numerical limits make it unlikely the restrictions will be lifted, critics are likening the restrictions to a complete ban, and this could provide grounds for a successful legal challenge.
Immigration Attorneys Work to Protect Rights and Seek the Best Opportunities
With opportunities for removal relief and asylum limited by the new rules, it becomes more important than ever to take advantage of opportunities for relief as quickly and effectively as possible. An experienced immigration attorney can help those in vulnerable situations find the best path forward. For immediate assistance or further information, contact Glinsmann Immigration today.
