CIS Submits Formal Comment on Watered-Down Biden Administration Asylum Regulation

Submission explains the strategy's flaws and offers alternatives to improve border security

By Elizabeth Jacobs on July 11, 2024

The Center for Immigration Studies (CIS) submitted a public comment on July 8, 2024, to respond to the Department of Homeland Security’s (DHS) and Department of Justice’s (DOJ) interim final rule that will restrict asylum eligibility from aliens who enter the United States across the southern border unlawfully while President Biden’s 212(f) Proclamation is in effect. The president’s proclamation is a watered-down version of a 2018 Trump order that was intended to deter asylum abuse by barring illegal entrants from asylum eligibility. President Biden’s proclamation, however, will only be in effect at times Border Patrol encounters at the southern border reach 2,500 individuals per day.

In the comment, CIS rebutted critics’ comments that the asylum restriction violates federal law and the United States’ 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.

Moreover, CIS explains that the bar is consistent with the asylum statutes, noting that the Immigration and Nationality Act (INA) specifically authorizes the attorney general and secretary of Homeland Security to create additional conditions for asylum eligibility through regulation. DHS may also lawfully apply this bar at the credible fear stage because the INA specifically requires asylum officers conducting credible fear screenings to determine whether an “alien could establish eligibility for asylum under section 1158 of this title [governing asylum eligibility]”, which would by extension include the application of the bars to asylum eligibility.

Screening for statutory withholding of removal and withholding or deferral of removal under the CAT regulations is not required by the INA by regulation. The Departments’ IFR does not make any changes to CAT eligibility, aside from raising the screening standard for these claims.

CIS also recommended that the departments strengthen the proposal by applying the bar to aliens who illegally enter the United States between ports of entries at any time, rather than only when 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. 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. Section 208 of the INA created separate standards governing the ability to apply for asylum (governed by INA § 208(a)) vs. an alien’s ability to receive asylum (governed by INA § 208(b)). The IFR impacts aliens’ eligibility to receive asylum.

Finally, CIS strongly recommended that DHS implement additional policies to stem the border crisis and curb asylum fraud and abuse. 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.