The Center for Immigration Studies (CIS) submitted a public comment to respond to the Department of Homeland Security’s (DHS) and Department of Justice’s (DOJ) final rule (titled, “Securing the Border”) that will update its restriction on asylum eligibility for aliens who enter the United States across the southern border unlawfully while President Biden’s 212(f) proclamation is in effect. President Biden’s proclamation is a watered-down version of a 2018 Trump order that was intended to deter asylum abuse by barring aliens who enter the United States between ports of entry (illegally) from asylum eligibility. Biden designed the proclamation, however, to only be in effect at times Border Patrol encounters at the southern border reach 2,500 individuals per day.
President Biden issued an updated proclamation on September 27, 2024, to replace his original June 3, 2024, proclamation. This update strengthened the entry restriction by requiring that encounters between POEs must remain below 1,500 for 28 consecutive calendar days before the 14-calendar-day waiting period is triggered, rather than seven days. Biden also amended the proclamation to require DHS to include unaccompanied alien children (UACs) when calculating the number of encounters for the purposes of the proclamation. Accordingly, DHS and DOJ issued this “Securing the Border” final rule to align the regulatory restriction with the changes made in the president’s September 27 proclamation.
In its comment, CIS rebutted critics’ comments that the asylum restriction violates federal law and the United States’s nonrefoulement commitments under the Convention Relating to the Status of Refugees (also known as the 1951 Refugee Convention) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). CIS explained that neither treaty is “self-executing”, and therefore only domestic law controls their implementation. The Immigration and Nationality Act explicitly authorizes the departments to issue additional restrictions to asylum eligibility via regulation.
CIS also urged the departments to strengthen the final rule by applying the bar to aliens who illegally enter the United States between ports of entries at any time, rather than only when President Biden’s 212(f) proclamation is in effect. The policy (as currently written) would permit as many 912,135 illegal entrants per year without triggering the asylum restriction, a rate CIS views as impermissibly high. This total does not include those who are excluded from the rule’s threshold, including inadmissible aliens who arrive at ports of entry — with or without a CBP One appointment.
CIS explained that the departments have the authority to issue this bar to eligibility without a nexus to any 212(f) proclamation because Congress explicitly authorized the secretary and attorney general to establish additional limits on asylum eligibility.
Moreover, CIS explained why the “manifestation of fear” standard, which instructs immigration officers to refer aliens to asylum officers for a credible fear screening if they “manifest” a fear of return, is both appropriate and lawful. Previous Customs and Border Protection policy required immigration officers to ask each alien subject to expedited removal if they had a fear of persecution or torture via use of the Form I-867A and Form I-867B.
CIS also supported the departments’ decision to include the number of UAC encounters when calculating whether the numerical threshold of border encounters has been met if the departments decide to maintain the numerical threshold. Because of their unique and acute vulnerabilities, the arrival of UACs imposes serious demands on the departments’ resources and capabilities. Excluding UACs from the numerical threshold may also recklessly create an additional pull factor for the continued smuggling of minors across the southern border.
CIS also supported the departments’ proposal to increase the geographic applicability of the Circumvention of Lawful Pathways (CLAP) rule to include coastal borders. CIS believes that excluding coastal borders will perversely encourage dangerous maritime migration to the United States for the purpose of avoiding the rule’s asylum restrictions. We recommended that, in addition to expanding the geographic applicability of the CLAP rule, the departments should also rescind its easy-to-exploit exceptions and make the CLAP rule permanent. The rule is set to expire in May 2025.
Finally, CIS strongly recommended that the departments implement additional deterrence policies to stem the border crisis and curb asylum fraud. Without effective deterrence policies in place, DHS will continue to recklessly threaten public safety and national security while undermining the overall integrity of the immigration system.