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Interim Final Rule by Biden Administration and Its Impact on Asylum Seekers

Overview

The Biden administration’s 2024 interim rule on asylum seekers, as part of the broader “Securing the Border” initiative, is a big change in US immigration policy. The new interim final rule was released on June 4, 2024 along with a Presidential Proclamation and it is based on the administration’s 2023 “Circumvention of Lawful Pathways”. The rule will remain in effect as long as the proclamation is in effect, and the proclamation’s suspension and limitation on entry will only lift if certain conditions regarding the reduction in the number of migrant encounters are met. Specifically, the suspension and limitation on entry would only be lifted 14 days after the daily average of migrant encounters drops to a seven-day daily average of fewer than 1,500 and remains below 2,500. The changes brought by this rule, intended to manage and reduce the strain on the southern border during periods of high migration, introduce new barriers and challenges for those seeking refuge in the U.S.

Background

“Circumvention of Lawful Pathways” or CLP rule of 2023 had already rendered many migrants ineligible for asylum but faced operational capacity issues. While the CLP rule encouraged the use of lawful pathways, the new rule further restricts asylum eligibility. The previous rule was aimed to encourage migrants to use lawful, safe and orderly processes for entering the U.S. Non-citizens who cross the southwest land border or adjacent coastal borders on May 11, 2023 or later, without authorization after traveling through another country are presumed ineligible for asylum. However, certain exceptions include those who:

  • Availed themselves of an existing lawful process

  • Presented at a port of entry at a pre-scheduled time using the CBP One app

  • Were denied asylum in a third country through which they traveled

The new rule of 2024 has significant consequences to support the existing CLP rule, one of which is making it harder for asylum seekers to file applications by tightening the eligibility criteria.

About the Interim Rule: Impact on Asylum Seekers

Stricter Eligibility Criteria

Under this new rule, most migrants who enter the country illegally are no longer eligible for asylum. This is applicable to everyone who enters or exits ports of entry without using the CBP One app to make an appointment in advance. There are special exceptions available, nevertheless, for people who are seriously ill, in danger of losing their lives, or who are being trafficked. The goal of this action is to deter unauthorized immigration and direct asylum applicants to authorized ports of entry. The practical implications, however, are dire. Due to their desperate circumstances, a lot of asylum seekers frequently lack the time or resources to schedule appointments or navigate intricate bureaucratic processes. The provision essentially throws a huge hurdle in front of those who need protection the most, by making lawful entry a requirement for asylum.

The “Shout Test”

The condition known informally as the “shout test” is then introduced by the rule. This means that in order for asylum seekers to be given consideration for protection, they must clearly communicate to border officials their fear of persecution. Thus, people must express their dread of going back to their home country in a loud and obvious manner as soon as they arrive. Critics contend that this requirement is unfair and unreasonable. Upon arrival, asylum seekers frequently exhibit trauma, disarray, and fatigue. It is challenging to expect children to instantly express their concern in a situation where there is a lot of pressure. Moreover, a large number of asylum seekers may not comprehend the procedure and do not speak English, which raises the possibility that legitimate claims may be disregarded. Because of this criteria, legitimate asylum applicants may find themselves denied protection because they were unable to express their anxieties in the appropriate way.

Elevated bar at Initial Screening

Apart from the “shout test,” the interim rule sets a more stringent requirement for passing the initial credible fear screening. In the past, in order to pursue their claim, asylum seekers had to show a “significant possibility” of persecution. They must demonstrate a “reasonable probability” of being persecuted under the new regulation. This seemingly insignificant rewording has important consequences. Because the bar is higher, fewer people will be able to pass the preliminary screening and proceed to full asylum hearings, which will decrease the number of asylum seekers. With this modification, more asylum seekers will probably be deported more swiftly without having their cases thoroughly investigated. This could force many people to return to risky and possibly fatal situations.

Immediate Removal

The rule’s provision for rapid expulsions and a temporary ban on admission during times of large-scale migration is another crucial element. If a migrant does not match the new requirements, the rule permits their immediate removal, thereby decreasing their prospects of remaining in the U.S. In addition, when daily contacts surpass 2,500 on average during a seven-day period, the government has the authority to halt admission at the southern border. When the daily average drops below 1,500 encounters for a comparable amount of time, this suspension may be lifted. The purpose of this method is to mitigate the impact on border facilities and control surges in migration. Asylum seekers, however, now run a higher danger of being deported without having their claims sufficiently examined when migration is high. Although effective, the expedited removal procedure raises questions about due process and how fairly asylum claimants are treated.

Critic’s Perspective

There has been much discussion on the interim rule’s compliance with both domestic and international legal requirements due to its strict measures. The regulation may result in fewer successful asylum claims by raising obstacles and tightening standards, thereby infringing on the United States’ obligations under international law to protect people escaping torture and persecution. Countries are required by international law to protect refugees and asylum seekers, including accords to which the U.S. is a party. For example, the concept of non-refoulement forbids sending people back to a nation where they pose a severe risk to their safety or liberties. Critics contend that the new rule’s strict standards and quick expulsion processes compromise these safeguards and endanger those who are already vulnerable.

The “shout test” and the operational focus on speedy removals may also make it more difficult for border officials to impartially and fully evaluate asylum requests. Due to the increased workload brought on by the large number of arrivals, border officials might find it difficult to thoroughly assess each case in light of the new, stricter requirements. This could result in the early rejection of legitimate asylum requests.

Human rights organizations also have concerns that the new regulations can result in further violations of human rights. Due to the swift expulsion procedure and the strict guidelines for claiming fear, a large number of asylum seekers may be deported without being given a fair trial. This presents moral questions regarding how those who are trying to find safety and protection in the U.S. are treated.

Conclusion

The 2024 Rule issued by the Biden Administration marks a dramatic change in US immigration law. It places significant obstacles in the way of asylum seekers even as it attempts to safeguard the southern border and control high migration rates. The “shout test,” increased standards for initial screenings, new eligibility requirements, and clauses allowing for fast expulsion all work together to make it far more difficult for people escaping persecution to obtain protection in the U.S. There are major ethical, legal, and humanitarian questions raised by these changes. Critics contend that the regulation violates both the United States’ commitments under international law and the core tenets of the asylum system. As the discussion rages on, the effects on those who are most in need of protection continue to be crucial issues that demand serious thought and action.

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