The Biden Administration’s Final Rule on Arriving Aliens Seeking Asylum

The Biden Administration’s Final Rule on Arriving Aliens Seeking Asylum

Legal Sidebari

The Biden Administration’s Final Rule on
Arriving Aliens Seeking Asylum
Updated May 15, 2023
In anticipation of increased migration at the U.S. Southwest border following the termination of a public
health order issued in response to the COVID-19 pandemic (known as the Title 42 order), the Department
of Homeland Security (DHS) and Department of Justice (DOJ) issued a final rule that would, for at least a
two-year period, make some aliens ineligible for asylum if they arrive at “the southwest land border or
adjacent coastal borders” without valid entry documents after having traveled through another country.
Some have argued that the rule bears resemblance to rules issued by DOJ and DHS during the Trump
Administration that were subject to legal challenge and blocked from implementation, but the agencies
argue that there are important distinctions that place the rule on stronger legal footing. This Legal Sidebar
examines the current statutory framework governing individuals arriving at the border seeking asylum, as
well as the final rule and prior executive branch policies restricting asylum access. The Sidebar also
considers arguments that the rule’s asylum limitations may violate international treaty obligations or
existing federal statute. The Sidebar concludes with options for Congress.
Background
Statutory Framework Governing Arriving Aliens Seeking Asylum
Under 8 U.S.C. § 1225(b)(1), aliens arriving at designated ports of entry, or who recently entered the
United States between ports of entry, without valid documents are subject to expedited removal. However,
if an alien placed in expedited removal proceedings indicates either an intent to seek asylum or a fear of
returning to a particular country, the alien is referred to an asylum officer for a “credible fear” interview.
This initial interview is not intended to fully assess the alien’s claims, but to determine whether there is a
“significant possibility” the alien could establish eligibility for one of three forms of humanitarian
protection: asylum, withholding of removal, or protection under the Convention Against Torture (CAT).
Executive Policies That Impact Asylum Seekers at the Borders
Over the years, executive branch officials have taken actions that made it more difficult for certain
arriving aliens to seek asylum in the United States. For instance, under a long-standing 2002 U.S.-Canada
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agreement and its implementing rule, non-Canadian nationals arriving at U.S. land ports of entry from
Canada (or who are in transit during removal from Canada) may not pursue asylum and related
protections in the United States (subject to certain exceptions). Instead, they must be returned to Canada
to seek protection there. (The U.S.-Canada agreement similarly applies to non-U.S. national asylum
seekers arriving in Canada from the United States.) In 2022, the United States and Canada agreed to
supplement the agreement by extending its provisions to cover aliens entering either country between
ports of entry on the northern border (including certain bodies of water) who present their claims within
14 days after such crossing. DHS and DOJ issued a final rule to implement this agreement in 2023.
In 2018 and 2019, during the Trump Administration, DHS and DOJ promulgated rules (now rescinded)
that made aliens arriving at the Southwest border, who either entered the United States unlawfully
between ports of entry or failed to seek protection in other countries through which they traveled,
ineligible for asylum. As discussed in other CRS products, these rules faced legal challenges and were
blocked from implementation. Additionally, in 2019, DHS entered into “asylum cooperative agreements”
with Guatemala, Honduras, and El Salvador that allowed DHS to transfer certain arriving asylum seekers
to those countries for consideration of their claims (of these, only the Guatemala agreement was actually
implemented). The Biden Administration later suspended the agreements in 2021. In March 2020, in
response to the COVD-19 pandemic, the Trump Administration, invoking authority under 42 U.S.C.
§ 265, directed immigration officials to expel aliens who lacked visas or other “proper travel documents,”
or who sought to enter the United States unlawfully between ports of entry, to Mexico or their countries
of origin. This policy, sometimes called the Title 42 order, was renewed periodically by both the Trump
and Biden Administrations, but the Biden Administration ended the Title 42 order on May 11, 2023.
Upon announcing the end of the Title 42 order, the Biden Administration announced new border policies
designed to “reduce irregular migration” and create “safe, orderly, and humane” processes at the border.
For example, DHS established processes for eligible Cuban, Haitian, Nicaraguan, and Venezuelan
(“CHNV”) nationals to enter and remain in the United States for up to two years through a grant of
parole. To qualify under the CHNV parole program, an alien must have a qualifying sponsor in the United
States, undergo security and health screening, and meet other eligibility criteria. The number of
individuals the United States will accept under the CHNV is 30,000 per month.
DHS also announced greater and “enhanced” use of expedited removal for inadmissible aliens at the
Southwest border. For example, after the termination of the Title 42 order, DHS has indicated that, for
single adults placed in expedited removal proceedings, credible fear interviews will take place while the
alien is in DHS custody. The agency has also stated that it is “increasing its holding capacity,” scheduling
credible fear interviews within 24 hours, and increasing the number of removal flights per week.
Additionally, DHS announced a “new mechanism” in which aliens of any nationality who are located in
Central or Northern Mexico, and who are seeking to enter the United States, may schedule appointments
for inspection at U.S. ports of entry along the Southwest border using “CBP One,” a mobile application.
DHS further announced a proposed rule that would make some aliens who fail to utilize “established
pathways to lawful migration” and seek protection in a country through which they traveled ineligible for
asylum. Following a notice-and-comment period that ended on March 27, 2023, DHS and DOJ, on May
10, 2023, finalized the proposed rule.
The Final Asylum Rule
Under the final rule, aliens entering the United States from Mexico at “the southwest land border or
adjacent coastal borders” (described as “any coastal border at or near the U.S.-Mexico border”) without
valid documents after traveling through a country on the way to the United States (other than country of
citizenship, nationality, or if stateless, last habitual residence) are subject to a “rebuttable presumption”

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that they are ineligible for asylum unless they (or a member of their family with whom they are traveling)
meet one of the following exceptions:
1. they were authorized to travel to the United States under a DHS-approved parole process
(e.g., the CHNV parole program);
2. they arrived for inspection at a port of entry at a prescheduled time and place through use
of the CBP One App; or arrived at a port of entry without a prescheduled time and place,
but can show that it was not possible to access or use the app due to language barrier,
illiteracy, significant technical failure, or other ongoing and serious obstacle; or
3. they applied for asylum or other protection in a country through which they had traveled
and received a final decision denying that application (but not including a determination
by the foreign government that the alien abandoned the claim).
The presumption is rebutted if an alien shows, by a preponderance of the evidence, that, at the time of
entry, “exceptionally compelling circumstances” warrant an exception to the rule. These circumstances
include cases where the alien (or a member of the alien’s family with whom the alien is traveling) faced
an “acute medical emergency”; faced an “imminent and extreme threat to life or safety” (e.g., imminent
threat of rape, kidnapping, torture, or murder, but not general threats of violence); or met the definition of
“victim of a severe form of trafficking in persons” as defined in federal regulations. The presumption is
also rebutted in other exceptionally compelling circumstances as determined by immigration officials,
including if an alien in removal proceedings has an accompanying (or following to join) spouse or child,
and is eligible for withholding of removal or CAT protection and would be granted asylum but for the
presumption. Additionally, unaccompanied children are not subject to the presumption.
The presumption applies to all asylum adjudications (affirmative and defensive) as well as during credible
fear screenings. However, following credible fear interviews, aliens found ineligible for asylum due to the
presumption may be able to pursue withholding of removal and CAT protection during their removal
proceedings if they establish a “reasonable possibility” of persecution or torture if they are returned to
their home country.
Applicability to Credible Fear Screenings
The rule requires asylum officers (AOs) conducting credible fear screenings to determine whether an
asylum seeker is subject to the presumption. If the alien is either not subject to or has rebutted the
presumption, the AO would follow the standard credible fear screening procedures already in place and
consider the alien’s potential eligibility for asylum, withholding of removal, and CAT protection under the
“significant possibility” standard. Generally, if the AO concludes that an alien has a credible fear of
persecution or torture, the alien is placed in formal removal proceedings before an immigration judge (IJ)
and may apply for asylum, withholding of removal, or CAT protection in those proceedings.
If the alien is subject to the presumption of asylum ineligibility and fails to provide a sufficient rebuttal,
the AO will issue a negative credible fear finding based on the alien’s asylum ineligibility and then
determine whether the alien has shown a “reasonable possibility” of persecution or torture (a higher
standard than the “significant possibility” standard) in order to assess potential eligibility for withholding
of removal and CAT protection.
If the alien shows a reasonable possibility of persecution or torture, the alien will be placed in formal
removal proceedings before an IJ. During those proceedings, the alien would be able to apply for asylum,
withholding of removal, and CAT protection, and the IJ would be able to review the applicability of the
presumption to the alien’s asylum application.
If the AO finds that the alien has not shown a reasonable possibility of persecution or torture, the alien is
to have an opportunity to request an IJ’s review of the AO’s negative credible fear finding, including

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whether the alien is covered by or has rebutted the presumption. Depending on the outcome of the IJ’s
review, the case would either be returned to DHS for the alien’s removal; or the alien might be transferred
to formal removal proceedings for consideration of asylum, withholding, or CAT protection, including
review of whether the alien is barred from asylum.
Scope and Duration
The rule’s presumption of asylum ineligibility applies to aliens entering the United States, without
authorization, from Mexico “at the southwest land border or adjacent coastal borders” (1) between May
11, 2023, and May 11, 2025; (2) subsequent to the termination of the Title 42 order; and (3) after travel
through a country (other than country of citizenship, nationality, or if stateless, last habitual residence)
that is a party to the 1951 U.N. Convention Relating to the Status of Refugees (Refugee Convention) or
the 1967 United Nations Protocol Relating to the Status of Refugees (Refugee Protocol). DHS and DOJ
have requested comments on whether, and the extent to which, the rule should also apply to aliens who
arrive anywhere in the United States by sea.
After May 11, 2025, the rule is to continue to apply to covered aliens during their formal removal
proceedings and in any subsequent asylum applications (but not applications filed after May 11, 2025, by
covered aliens who entered the United States as minors and who apply for asylum as principal
applicants). DHS and DOJ say they intend to review the rule before its scheduled termination date and
decide whether to modify, extend, or maintain the scheduled sunset date.
Legal Considerations
Initially, when the Biden Administration’s asylum rule was proposed, some Members of Congress and
immigration advocacy groups argued that it would violate international treaty and federal statute by
making certain arriving aliens barred from asylum. This section explores each of those arguments in turn.
International Treaty Obligations
The United States is a party to the 1967 Refugee Protocol. The Refugee Protocol incorporates Articles 2
through 34 of the Refugee Convention. Under Article 33 of the Refugee Convention, member states may
not “expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where
his life or freedom would be threatened” because of a protected ground (i.e., race, religion, nationality,
membership in a particular social group, or political opinion).
Some have argued that the proposed rule would violate an individual’s right to seek asylum under Article
33’s “non-refoulement” provision. However, the extent to which the Refugee Protocol’s provisions are
legally binding under U.S. law depend upon whether it is a self-executing or non-self-executing treaty. A
“self-executing” treaty is considered to have the force of U.S. domestic law without the need for Congress
to pass implementing legislation. A non-“self-executing” treaty, though, is not directly enforceable in U.S.
courts. Federal courts have held that the Refugee Protocol is not self-executing for domestic law
purposes. For that reason, the Refugee Protocol, in itself, creates no judicially enforceable rights or duties
beyond those granted by implementing legislation.
Moreover, as DHS and DOJ discussed in their Federal Register notice, Congress has implemented the
“non-refoulement” obligations under Article 33 of the Refugee Convention through legislation, codified
at 8 U.S.C. § 1231(b)(3). That statute concerns withholding of removal, a mandatory form of protection
unlike asylum, which is a discretionary form of relief. Under the final rule, aliens ineligible for asylum
can still pursue withholding of removal as well as CAT protection, consistent with Article 33 and the U.N.
Convention Against Torture. The Supreme Court previously explained this distinction, noting that, while

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withholding of removal corresponds to Article 33, asylum is based on Article 34 of the Refugee
Convention, which only requires contracting states to “facilitate the assimilation and naturalization of
refugees.” The Court construed Article 34 as a discretionary provision that “does not require the
implementing authority actually to grant asylum to all those who are eligible.” Because the Refugee
Protocol recognizes parties’ broad discretion over asylum, there are reasonable grounds to believe the
proposed rule would not violate U.S. treaty obligations.
Federal Statute Governing Asylum
Although it likely does not conflict with treaty obligations, there might be questions over whether the
proposed rule conflicts with existing federal statute. A provision governing asylum, 8 U.S.C. § 1158(a)(1),
provides that “[a]ny alien who is physically present in the United States or who arrives in the United
States (whether or not at a designated port of arrival . . .), irrespective of such alien’s status, may apply
for asylum” (emphasis added). Another provision, 8 U.S.C. § 1158(a)(2), however, bars certain aliens
from applying for asylum. Those excepted from applying for asylum include aliens that can be removed
to a “safe third country” under an agreement where they have a “full and fair opportunity” to seek asylum,
those who failed to demonstrate that their application was filed within one year of their arrival, and those
who failed to establish that they have not previously applied for asylum.
A separate provision, 8 U.S.C. § 1158(b)(1)(A), grants the Secretary of Homeland Security or the
Attorney General the authority to “grant asylum to an alien who has applied for asylum in accordance
with the requirements and procedures established by” DHS or DOJ if it is determined that such alien is a
refugee. Those ineligible for asylum include aliens who have engaged in the persecution of others; aliens
convicted of certain crimes; aliens regarded as a danger to the security of the United States; or aliens who
have firmly resettled in another country prior to their arrival in the United States. Under 8 U.S.C.
§ 1158(b)(2)(C), the Attorney General or the Secretary of Homeland Security has authority to promulgate
regulations “establish[ing] additional limitations and conditions, consistent with [8 U.S.C. § 1158], under
which an alien shall be ineligible for asylum” (emphasis added). Section 1158(d)(5)(B) also allows the
Attorney General to promulgate regulations “for any other conditions or limitations on the consideration
of an application for asylum not inconsistent with” the Immigration and Nationality Act.
Previously, reviewing courts considered whether the Trump Administration’s 2018 rule that barred aliens
from asylum if they unlawfully entered the United States, as well as the 2019 rule barring aliens from
asylum if they failed to seek protection in a third country through which they traveled, conflicted with 8
U.S.C. § 1158. DHS and DOJ argued that they promulgated both rules as “additional limitations and
conditions” on asylum under 8 U.S.C. § 1158(b)(2)(C). Both the Ninth Circuit and the U.S. District Court
for the District of Columbia held that the 2018 rule was not “consistent with” 8 U.S.C. § 1158(a)(1)
because that statute permits aliens to seek asylum regardless of their manner of entry. The Ninth Circuit
also held that the 2019 rule conflicted with 8 U.S.C. § 1158’s provisions that limit asylum eligibility
based on third-country considerations only if there is a safe third country agreement or firm resettlement.
In another case, the D.C. district court determined that the 2019 rule was unlawful because DHS and DOJ
failed to comply with certain procedural requirements under the Administrative Procedure Act.
In support of the 2023 rule, DHS and DOJ contend they have statutory authority to impose “additional
limitations and conditions” on the granting of asylum pursuant to 8 U.S.C. § 1158(b)(2)(C), and authority
to establish certain procedures for consideration of asylum applications, under 8 U.S.C. § 1158(d)(5)(B).
Some have argued that the rule is similar to the Trump Administration’s 2018 and 2019 rules that were
struck down by the courts. DHS and DOJ argue, however, that the 2023 rule is distinguishable because it
is more limited in its application and does not categorically bar asylum. Unlike the previous rules, the
agencies contend, an alien’s manner of entry or travel through a third country are not dispositive factors,
and the rule contains “a number of exceptions and means for rebutting the presumption” of asylum
ineligibility. The agencies also argue that any regulatory limits on asylum based on a failure to seek

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protection in a third country do not have to be based on the same criteria specified in 8 U.S.C. § 1158’s
safe-third-country and firm-resettlement provisions (8 U.S.C. § 1158(a)(2)(A), (b)(2)(A)(iv)), and that
they may supplement those existing provisions with additional or alternative conditions on asylum
eligibility. Furthermore, the agencies have asserted that the rule is consistent with 8 U.S.C. § 1158(a)(1)
because that statute requires only that an alien be permitted to “apply” for asylum, but does not require
that an alien is entitled to receive asylum.
Some advocacy groups had vowed to legally challenge the rule if it became final. On May 11, 2023, the
American Civil Liberties Union sued to challenge the rule in the U.S. District Court for the Northern
District of California, claiming that the rule essentially reinstates the Trump Administration’s previous
“asylum bans,” and that it “will effectively eliminate asylum” for many non-Mexican asylum seekers.
Thus, courts will likely consider whether the rule’s asylum limitations are “consistent with” 8 U.S.C.
§ 1158 and whether the rule suffers from the same legal deficiencies identified in the 2018 and 2019 rules.
Legislative Options
The final rule could raise questions about whether immigration authorities may deny asylum based on an
applicant’s failure to seek protections in a third country or to pursue “lawful pathways” to enter the
United States. In the past, reviewing courts have construed 8 U.S.C. § 1158(a)(1) as prohibiting asylum
denials based on manner of entry into the United States or based on third-country considerations, except
in statutorily specified situations. While courts may consider, in view of this precedent, whether the final
rule’s asylum limitations are lawful, the rule more broadly could raise questions about the extent to which
the executive branch, in general, can limit the ability to seek asylum through regulations.
There has been some legislation introduced in the 118th Congress concerning whether aliens traveling
through third countries on the way to the United States may pursue asylum. For instance, the Secure
Border Act of 2023 (H.R. 2) and the Asylum Abuse Reduction Act (S. 348, H.R. 469) would make aliens
who traveled through one or more third countries ineligible for asylum if they failed to apply for
protections in one of those countries unless they were subject to a “severe form of human trafficking.”
The Secure Border Act would also allow aliens to pursue asylum only if they arrive at a U.S. port of entry.
Another bill, the Stop the Cartels Act (H.R. 597), would make aliens ineligible for asylum if they are
nationals or habitual residents of a country in Central America that has a “refugee application and
processing center” designated by the Secretary of State.
Alternatively, Congress could clarify the type of “additional limitations and conditions” in 8 U.S.C.
§ 1158(b)(2)(C) that the executive branch may impose on arriving asylum seekers, as well as clarify what
“other conditions or limitations on the consideration of an application for asylum” under 8 U.S.C.
§ 1158(d)(5)(B) are statutorily consistent with the other provisions in § 1158.

Author Information

Hillel R. Smith

Legislative Attorney

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