Earlier this year, the Biden-Harris Administration announced new border enforcement measures to “increase security at the border and reduce the number of individuals crossing unlawfully between ports of entry.” See White House Statement and Release. The announcement is in response to the surge of migrants crossing our Southern Border. Most notably, the measures incentivize migrants who enter the United States lawfully and punish those who enter unlawfully.
The most surprising measure by the Biden-Harris administration deals with a regulation that establishes a rebuttable presumption of asylum ineligibility. The restrictive measure is very reminiscent of the now-vacated Trump era “Third Country Transit Bar.” Specifically, in its “notice of proposed rulemaking,” published on February 23, 2023, the Biden-Harris Administration states that asylum seekers who fail to enter lawfully are presumed to be ineligible for asylum.
Fortunately, the proposed rule does include exceptions. Unaccompanied children are excluded from the rebuttable presumption. Additionally, the rule does not apply if the asylum seeker, or a member of their family with whom they are traveling meet at least one of the following exceptions:
- They were provided authorization to travel to the United States pursuant to a DHS-approved parole process;
- They used the Border Patrol (CBP) One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or
- They applied for and were denied asylum in a third country while migrating to the United States.
Asylum seekers can also rebut the asylum ineligibility presumption in exceptionally compelling circumstances, including having a severe medical emergency, being faced with an extreme imminent threat to their life or safety, or if they are a victim of sex trafficking as defined by statute.
Fortunately, asylum seekers who enter unlawfully, fail to rebut the presumption, and do not fall under one of the exceptions still have an opportunity to seek protection from their native country if they prove a reasonable possibility or persecution or torture by applying for withholding of removal or protection under the Convention Against Torture.
In the event this rule goes into effect, the attorneys at Federal Practice Group will diligently represent you and your loved ones escaping persecution.
Written by Law Clerk Skylar Young