The Department of Homeland Security (DHS) and the Department of Justice (DOJ) have finalized a new rule that places certain limiting conditions on asylum eligibility for those who fail to use lawful, safe, and orderly pathways to enter the United States. The rule, which goes into effect once the Title 42 public health Order terminates, presumes that those who do not use lawful pathways to enter the United States are ineligible for asylum and allows the United States to remove individuals who do not establish a reasonable fear of persecution or torture in the country of removal. Noncitizens can rebut this presumption based only on exceptionally compelling circumstances.
Exceptions to the presumption include noncitizens who received appropriate authorization to travel to the United States to seek parole or presented at a port of entry, and those who sought and were denied asylum or other protection in at least one other country. Unaccompanied children are also exempt from the presumption.
DHS has been preparing for the end of the Title 42 public health Order for nearly two years and has been implementing measures to improve border security, limit irregular migration, and create additional safe and orderly processes for people fleeing humanitarian crises to lawfully come to the United States. In conjunction with this new rule, DHS is urging Congress to act on President Biden’s immigration reform proposal, bipartisan legislation to protect Dreamers and farm workers, and repeated requests for additional resources to hire more asylum officers and immigration judges.