In an attempt to address an anticipated surge in migration at the southwest border following termination of a pandemic-related public health order, the Biden Administration on May 11, 2023, implemented a new rule, known as the Circumventing Legal Pathways rule, that significantly revises access to the asylum system. The prior public health order, commonly referred to as Title 42 restrictions, enabled the government to rapidly expel many migrants, including asylum seekers, at the border over a period of nearly three years. The ABA, which expressed opposition to the promulgation of the new rule earlier this year, is concerned that the new rule, like its predecessor, significantly impedes access to the U.S. asylum system and prevents bona fide asylum seekers from seeking protection as mandated by domestic and international law.
June 28, 2023
Different Name But More of the Same
Administration’s New Rule Maintains Barriers to Asylum Access
Under the new rule, noncitizens who cross the southwest border without authorization after traveling through another country are presumed to be ineligible for asylum unless they entered through a lawful parole process, utilized a government smart phone app (CBP One) to schedule an appointment at a port of entry, or were denied asylum in a third country. Asylum seekers can rebut the presumption of asylum ineligibility in exceptionally compelling circumstances, including where they can demonstrate that they or a family member faces a medical emergency, an imminent threat to their life or safety, or was a victim of trafficking.
ABA President Deborah Enix-Ross sent a letter to the Secretary of Homeland Security on June 26, 2023, reiterating the association’s concerns and recommending several revisions to mitigate problems that asylum seekers face when trying to comply with the rule, including technological, literacy, and language barriers when attempting to utilize the CBP One app, lack of access to counsel for those subject to the new process, and difficult conditions for those detained in CBP facilities. While recognizing the challenges the government faces at the southwest border, she noted that the U.S. nevertheless “must comply with our domestic and international legal obligations and provide a reasonable and fair process to ensure that we are doing so.”
The new rule is facing legal challenges on multiple fronts. Several immigrant advocacy organizations have filed lawsuits in federal court alleging many of its provisions violate U.S. domestic law. At the other end of the spectrum, the state of Texas has filed a suit asserting that the CBP One app enabling migrants to set up appointments at the border to seek entry into the United States is encouraging illegal immigration. Like its Title 42 predecessor, it’s likely that the legality of the new asylum rule will be challenged in the courts over the next several years.