On March 27, 2023, the Center for Immigration Studies (CIS) submitted a public comment in response to a proposed rule by the Department of Homeland Security (DHS) and the Department of Justice (DOJ) to restrict asylum eligibility for certain migrants who fail to apply for protection in a third country they transited through en route to the United States. The rule would impose a regulatory presumption against asylum eligibility for any asylum applicant who entered the United States unlawfully without first receiving parole from DHS or scheduling their arrival at a port of entry using DHS’s new CBP One mobile phone app.
The proposal is a part of the Biden administration’s strategy to prepare for the end of its use of the Centers for Disease Control and Prevention’s Title 42 public health order. Officials expect migrant encounters in the border region to increase significantly once Title 42 is lifted, stating that “the current level of migratory movements and the anticipated increase in the numbers of migrants following the lifting of the Title 42 public health order threaten to exceed the capacity to maintain the safe and humane processing of migrants who have crossed the border without authorization to do so.” Accordingly, DHS and DOJ issued this proposed rule in order to encourage inadmissible aliens to enter the United States in accordance with the Biden administration’s new pathways rather than making the dangerous journey to the border.
While the departments acknowledged the massive increase in border encounters and resulting strain such mass illegal immigration has caused unsustainable strains to the government’s operational capacity in its justification for issuing the proposal, the departments notably excluded any intent to specifically deter illegal immigration into the United States, restrict the entry of inadmissible aliens, or otherwise discourage the submission of fraudulent asylum claims when describing the rule’s purpose. Further, as drafted, CIS believes that the rule will be largely ineffective at deterring mass asylum fraud or supporting the scheme Congress created to regulate immigration into the United States. Accordingly, CIS believes that the departments’ proposal is solely aimed at facilitating “orderly”, but unlawful, entries of inadmissible aliens and creating cover so the Biden administration can claim to the American public, which largely opposes the Biden administration’s non-enforcement policies, that the government is implementing some form of deterrence policy.
In the comment, CIS recommended that DHS and DOJ amend the regulation to close its wide and easy-to-exploit exceptions for aliens who fail to apply for protection in a third country (a country other than the United States and their country of origin). CIS also recommended that DHS raise the standard of proof for withholding of removal and deferral of removal screenings in all credible-fear screenings in order to better further “the Departments systemic goals of border security and lessen the impact on the immigration adjudication system overall”. Finally, CIS recommended that the departments issue a modified version of the deterrence policy on a permanent, rather than temporary, basis. CIS believes deterring asylum fraud supports the government’s long-term interests in securing the border, strengthening the integrity of the asylum system, and preserving government resources for cases that demonstrate the greatest need for protection in the United States.