The Biden Administration’s Proclamation and Rule, Securing the Border, and DHS Operational Constraints

The Biden Administration’s Proclamation and Rule, Securing the Border, and DHS Operational Constraints

INSIGHTi

The Biden Administration’s Proclamation and
Rule, Securing the Border, and DHS
Operational Constraints
June 20, 2024
Citing record high levels of enforcement encounters at the Southwest land border (SWB), President Biden
signed a Presidential Proclamation on June 3, 2024, that suspends and limits the entry of certain migrants
at the southern border with no legal basis for admission. On the same day, the Department of Homeland
Security (DHS) and the Department of Justice (DOJ) issued a joint interim final rule (IFR) restricting
asylum eligibility for migrants subject to the proclamation’s suspension of entry.

The proclamation’s suspension of entry, which took effect at 12:01 a.m. on June 5, 2024, will remain in
effect until 14 days after there has been a seven-day average of less than 1,500 enforcement encounters
per day between points of entry (POEs). After this initial suspension, if the number of encounters rises to
an average of 2,500 per day over a seven-day period, the suspension will be applied again following the
same formula for its lifting and resumption.

The proclamation does not apply to noncitizen U.S. nationals, lawful permanent residents,
unaccompanied children, victims of a severe form of trafficking in persons, noncitizens with valid visas
or lawful permission to enter, or noncitizens who arrive at a POE for a prescheduled appointment. It also
does not apply to any noncitizen permitted by a DHS U.S. Customs and Border Protection (CBP) officer
to enter “based on the totality of the circumstances, including consideration of significant law
enforcement, officer and public safety, urgent humanitarian, and public health interests at the time of the
entry or encounter that warranted permitting the noncitizen to enter;” and noncitizens likewise permitted
to enter “due to operational considerations” at the time of the entry or encounter.

Noting that “the border security and immigration systems of the United States are unduly strained at this
time,” the rule responds to the high levels of enforcement encounters at the SWB since 2021, especially
between land POEs. In FY2023, CBP recorded 2,475,669 migrant encounters at the SWB, the highest
number on record, successively topping previous records set in FY2021 and FY2022. These numbers
include encounters of individuals crossing into the United States unlawfully between POEs (by CBP’s
U.S. Border Patrol [USBP]), as well as with those without valid documents at POEs (by CBP’s Office of
Field Operations [OFO]). The majority of encounters at the SWB historically have been by USBP.
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The IFR states that DHS’s current resources are insufficient for the number of USBP encounters, and that
they are unable to “predictably and swiftly deliver consequences to most noncitizens who cross the border
without a lawful basis to remain.” The IFR specifies that while the proclamation is in effect, three changes
to asylum processing will hold: migrants will largely be ineligible for asylum (with exceptions); they will
not be questioned about their intent to apply for humanitarian protection or fear of persecution as is
standard, but rather must express or manifest such fear; and, to be considered for alternative forms of
protection (i.e., withholding of removal and protection under the Convention Against Torture), they will
have to clear a higher standard than normally applied to those seeking humanitarian protection.

Using publicly available monthly CBP data for January 2021 through April 2024, CRS calculated the
average daily encounters by dividing the total number of encounters each month by the number of days in
the month (See Figure 1). In every month during that period, average daily encounters were greater than
the suspension threshold (2,500 encounters), with the exception of January 2021 (2,430 average daily
encounters). December 2023 marked the highest daily average number of encounters (8,335) during this
period, 3.4 times the amount in January 2021.

Within that 40-month span, average daily encounters per month nearly always registered at least double
the suspension threshold. Average daily encounters fell below 5,000 in only eight months, including three
of the four months in calendar year 2024.

Figure 1. Average Daily Encounters by USBP, Southwest Land Border
CY2021-CY2024(YTD)
(figure is interactive in the HTML version of this Insight)

Source: CRS calculation of average daily encounters based on CBP monthly encounters data using Office of Homeland
Security Statistics (OHSS), Immigration Enforcement and Legal Processes Monthly Tables; see “CBP SW Border
Encounters by Agency and Sector of Field Office,”

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https://www.dhs.gov/sites/default/files/2024-06/24-0607_ohss_immigration-enforcement-and-legal-processes-tables-
february-2024.xlsx; and CBP, Nationwide Encounters https://www.cbp.gov/newsroom/stats/southwest-land-border-
encounters (for March-April 2024).

Despite the new procedures, logistical and operational factors likely will continue to make it challenging
for DHS to process, detain, and remove migrants. Prior to the proclamation, USBP holding capacity was
already strained—current capacity in facilities along the SWB is approximately 20,000. It is unclear that
this capacity will be sufficient to hold migrants for expedited removal, including the time needed for
credible fear screenings, where applicable. Generally, DHS has relied on its discretion to process, on a
case-by-case basis, migrants for formal removal proceedings, where applications for protection are
adjudicated by an immigration judge and there is no credible fear screening. Migrants processed for
formal removal are typically released from custody with a Notice to Appear to await their proceedings. In
some cases, it may be faster for CBP to process migrants for formal removal than to hold them while they
undergo a credible fear process.

Another operational constraint for DHS is the removal process itself. Due to the changing composition of
nationalities of those encountered, there are substantial numbers of individuals who are likely not going to
be returned to their home countries in the near future. This is due to the inability of the United States to
effectuate removal because of a lack of cooperation with source country governments as well as the
increase in migrants from places outside the Western Hemisphere. This increase has been an ongoing
obstacle to removal, and some have argued that it is an added incentive to attempt entry between POEs.
The short- and long-term impacts of the new proclamation and rule on the levels of enforcement
encounters remain to be seen.

Author Information

Audrey Singer

Specialist in Immigration Policy

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
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