The Secure the Border Act (H.R. 2): Asylum-Related Reforms

The Secure the Border Act (H.R. 2): Asylum-Related Reforms

October 30, 2023
The Secure the Border Act (H.R. 2): Asylum-Related Reforms
On May 11, 2023, the House passed the Secure the Border
released from custody into the United States pending the
Act of 2023 (H.R. 2). The bill would, among other things,
outcome of their removal proceedings.
make significant changes to federal immigration laws with
respect to border security, asylum, and detention. On
Asylum
September 14, 2023, a companion bill was introduced in the
Section 101 of H.R. 2, Division B, would expand the
Senate (S. 2824). This In Focus examines H.R. 2, focusing
classes of aliens who are ineligible to pursue asylum.
specifically on provisions governing asylum, applicants for
Currently, under § 1158(a)(2), these ineligible aliens
admission, and parole.
include those who fail to file their applications within one
year of arrival in the United States (subject to exceptions);
Statutory Background
those who previously applied for asylum; and those who
may be removed under a “bilateral or multilateral
Asylum
agreement” to a “safe third country” to seek asylum.
Under 8 U.S.C. § 1158, any alien who is physically present
or arriving in the United States (whether or not at a U.S.
Section 101 would amend the statute to make an alien
port of entry) may apply for asylum, regardless of the
ineligible to apply for asylum if DHS determines the alien
alien’s status. To qualify for asylum, an applicant must
can be removed to a “safe third country” whether or not
show past persecution or a well-founded fear of future
there is a formal agreement with that country. Section 101
persecution on account of race, religion, nationality,
would also make an alien ineligible to pursue asylum if the
membership in a particular social group, or political
alien entered, attempted to enter, or arrived in the United
opinion.
States after transiting through at least one third country
(other than the alien’s country of citizenship, nationality, or
Applicants for Admission and Parole
last habitual residence). This “transit bar” would be subject
A separate statute, 8 U.S.C. § 1225(b), covers applicants for
to exceptions, including if the alien had applied for
admission. Under § 1225(b)(1), the Department of
protection in at least one third country and had been denied,
Homeland Security (DHS) may place an alien encountered
or if the alien was a victim of human trafficking.
at or near the border who is inadmissible for lack of valid
entry documents in expedited removal proceedings. If, after
For aliens placed in expedited removal proceedings, Section
being placed in proceedings, the alien indicates an intent to
102 would change the “credible fear of persecution”
seek asylum and shows a “credible fear of persecution,” the
standard. Currently, a “credible fear of persecution” is
alien is typically placed in formal removal proceedings
statutorily defined as “a significant possibility, taking into
before an immigration judge for consideration of the alien’s
account the credibility of the statements made by the alien
applications for asylum and related protections.
in support of the alien’s claim and such other facts as are
known to the officer, that the alien could establish
Section 1225(b) generally requires applicants for admission
eligibility for asylum.” Section 102 would define credible
who are either placed in expedited proceedings or placed
fear of persecution as a showing that “the alien more likely
directly in formal removal proceedings under § 1225(b)(2)
than not could establish eligibility for asylum under [8
to be detained. DHS has authority to release some aliens
U.S.C. § 1158], and it is more likely than not that the
from custody, including under § 1182(d)(5)(A), which
statements made by, and on behalf of, the alien in support
authorizes parole of applicants for admission into the
of the alien’s claim are true.”
United States temporarily “on a case-by-case basis for
urgent humanitarian reasons or significant public benefit.”
Section 103 would require an alien to either be physically
present in the United States or to have arrived at a U.S. port
In addition, § 1225(b)(2)(C) authorizes DHS to return an
of entry in order to apply for asylum. Section 1158(a)(1)
alien arriving by land from a foreign contiguous territory
currently allows any alien arriving in the United States to
(e.g., Mexico) to that territory pending the outcome of
pursue asylum regardless of manner of entry.
formal removal proceedings. This return authority applies
only to arriving aliens placed directly in formal removal
Section 104 would expand the categories of aliens who may
proceedings under § 1225(b)(2).
not be granted asylum. Under § 1158(b)(2), these categories
currently include, among others, those who have persecuted
The Secure the Border Act
others, have been convicted of a “particularly serious
The House-passed Secure the Border Act would change
crime,” have engaged in terrorist-related activities, or were
current laws governing who may apply for or qualify for
firmly resettled in another country before arriving in the
asylum, and it would limit the ability of arriving aliens to be
United States. The statute does not define a “particularly
serious crime,” but provides that “an alien who has been
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The Secure the Border Act (H.R. 2): Asylum-Related Reforms
convicted of an aggravated felony [as defined in 8 U.S.C.
experiencing persecution or torture. Currently, regulations
§ 1101(a)(43)] shall be considered to have been convicted
provide that an alien is considered to be firmly resettled if
of a particularly serious crime.”
the alien received an offer of permanent resident status,
citizenship, or some other type of permanent resettlement
Section 104 would add new categories of aliens barred from
from another country.
asylum, including, among others, aliens convicted of any
felony; misdemeanors related to false identification
Section 109 would clarify whether an asylum application is
documents, unlawful receipt of a federal public benefit, or
frivolous. Under § 1158(d)(6), an alien who knowingly files
possession or trafficking of a controlled substance; offenses
a frivolous asylum application is permanently barred from
related to criminal street gang activity; domestic violence-
receiving immigration benefits. The current governing
related crimes; and DUI-related offenses. Section 104
regulations provide that an application is frivolous only “if
would also specify factors that may be considered in
any of its material elements is deliberately fabricated.”
determining whether an alien’s criminal conviction
Section 109 would make an application frivolous if “it is so
constitutes a “particularly serious crime,” and would
insufficient in substance that it is clear that the applicant
provide that a felony or aggravated felony conviction is
knowingly filed the application solely or in part to delay
considered a particularly serious crime.
removal from the United States” or to seek other benefits
and relief from removal; or if “any of the material elements
As noted, an asylum applicant must show past or a well-
[of the application] are knowingly fabricated.”
founded fear of future persecution on account of a protected
ground. Section 104 would specify cases in which an alien
Applicants for Admission and Parole
would fail to meet that burden, including for example
Section 201 would amend § 1225(b) by stating that
claims based on personal animus or retribution, disapproval
applicants for admission who are placed in expedited or
or resistance to gangs, or being targeted for financial gain.
formal removal proceedings may be released from custody
only if they are granted parole as “expressly authorized”
Under § 1158(d)(2), DHS may grant work authorization to
under the proposed amendments to § 1182(d)(5)(A)
asylum applicants, and regulations allow renewal of work
(discussed below), or if they are returned to a contiguous
authorization pending consideration of asylum (including
territory pending the outcome of their cases. This section
any appeals). Section 105 would limit any grant, renewal,
would authorize DHS to return to a contiguous territory any
or extension of work authorization to a six-month period,
alien arriving on land from that territory pending the
and require termination immediately or shortly after a final
outcome of removal proceedings.
decision denying asylum. Currently, if asylum is denied,
work authorization generally does not terminate until its
Section 201 would also authorize DHS to prohibit (in whole
scheduled expiration date. Section 105 would also bar any
or in part) the entry of certain aliens (e.g., aliens who lack
alien who is ineligible for asylum or who entered or
valid entry documents) for a period of time if it is deemed
attempted entry outside a U.S. port of entry from receiving
necessary to achieve “operational control” of the border.
work authorization. There is no such bar under current law.
Section 701 would clarify DHS’s authority to parole
Section 107 would clarify the meaning of “political
applicants for admission under § 1182(d)(5)(A). Through
opinion” and “particular social group” for purposes of
regulations, the agency has interpreted its authority to grant
deciding whether an asylum applicant has shown
parole on a “case-by-case basis for urgent humanitarian
persecution on account of a protected ground. This
reasons or significant public benefit” broadly, including
clarification would amend the existing statute, which does
allowing release if “continued detention is not in the public
not define these terms, leaving it to the governing
interest” and the alien is not a security or flight risk. Section
administrative agency and the courts to interpret their
701 would more narrowly define “humanitarian reasons,”
proper meaning.
such as where the alien has a medical emergency or close
relative in the United States whose death is imminent, and
Section 107 also addresses discretionary determinations.
“significant public benefit” to include, among other things,
Currently, an alien who shows eligibility for asylum on the
where the alien has assisted U.S. law enforcement. Section
merits must still establish that he or she merits a favorable
701 would also authorize the granting of parole to certain
exercise of discretion. Section 107 would disallow a finding
designated categories, such as spouses or children of
that an alien merits a favorable discretion in certain cases
members of the armed forces who are beneficiaries of
(e.g., when the alien accrued more than a year of unlawful
approved visa petitions and certain Cuban nationals who are
presence in the United States, or failed to timely file
beneficiaries of approved visa petitions.
required income tax returns).
Section 701 would define “case-by-case basis”
Section 108 would clarify when an alien has been firmly
consideration as reviewing the facts in each individual case,
resettled in another country before coming to the United
and clarify that parole may not be granted based on a
States, thus barring asylum. For example, the alien would
person’s membership in a defined class. Section 701 would
be considered to have been firmly resettled if the alien had
limit the duration of parole to no more than one year, with
a “non-permanent but indefinitely renewable” legal
generally only one extension permitted. Currently, parole
immigration status; the alien could have applied for and
typically ends when the authorized parole period (usually
obtained an immigration status; or the alien had voluntarily
one or two years) expires or the parolee leaves the United
resided in the country for one year or more without
States, but DHS may renew the period of parole.
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The Secure the Border Act (H.R. 2): Asylum-Related Reforms

IF12522
Hillel R. Smith, Legislative Attorney

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