Updates from the Presidential Proclamation on September 30, 2024
On September 30, 2024, the Biden Administration announced two major changes to its June 6 Proclamation concerning new rules governing how asylum requests are processed at the southern border.
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First, the Administration is doubling the duration restrictions on asylum eligibility will remain in place following a finding that unauthorized crossings have exceeded an average of 1,500 over the previous 7 days, extending the cutoff from 14 to 28 calendar days.
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Second, the administration will now be including unauthorized crossings by unaccompanied minors from Central America and elsewhere in its 7-day averages.
Effectively, these changes mean that rules listed below, which severely curtail the right of migrants to seek asylum in the U.S., will remain in effect for longer.
Summary
NOTE: This summary is geared towards immigration practitioners. USA Hello has great explainers of current asylum law and policy for non-practitioners here.
1. Many noncitizens, including Mexican nationals and those having language and accessibility issues with the CBP One app, are subject to an Asylum Ban absent exceptionally compelling circumstances or exceptions. Circumstances and exceptions must be proved by preponderance of the evidence.
a. Those with the following circumstances are not subject to the ban:
- Lawful permanent residents or other noncitizens with a valid visa;
- Unaccompanied children;
- Those suffering, or have accompanying family suffering, an acute medical emergency;
- Those under, or have accompanying family under, imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; and
- Trafficking victims.
b. This makes a lot of migrants eligible only for Withholding of Removal and protection under the Convention Against Torture. See #3 below for changes in the burden of proof for these interviews.
2. Implements the “Shout Test.” CFI/RFI only happens if migrant manifests or expresses fear of return or intent to apply for asylum.
a. CBP used to affirmatively ask if a person was afraid of returning to their home country, that is not the case anymore. Migrants must let immigration officers know they are afraid of returning to their home country or somehow manifest fear. However, according to various immigration service providers and advocacy groups, there are already credible reports that migrants have been ignored by DHS despite making their fear of return known.
3. Those barred from asylum get screened for higher reasonable probability standard instead of reasonable possibility for Withholding of Removal and Convention Against Torture protection. This standard is now similar to the burden of proof for the final merits hearing for these kinds of relief.
4. Shortens time given for seeking Credible/Reasonable Fear Interview help from legal service providers to only 4 hours, raising severe due process issues.
This rule came into effect on June 4, 2024, and is in effect when the average number of daily crossings over a 7-day period between ports of entry is 2,500. It stops 14 days after crossings drop below 1,500 per day for a week. It is believed it will be in effect most of the time.
This new rule is worse than Title 42 expulsions in the sense that this change quickly removes migrants who may otherwise have asylum claims AND issues them a removal order and could subject them to criminal prosecution.
The limitation on asylum eligibility applies during merits adjudications but will most frequently be relevant for noncitizens who are subject to expedited removal.
These are the new rules and procedures on paper. However, it is expected things will play out differently in practice to the detriment of asylum seekers.
Summary by: Jessica Cisneros, Managing Attorney at Texas Immigration Law Council.
