Changes to the asylum application process at the U.S. border
On May 11, 2023, a new rule related to bypassing legal avenues in the asylum process at the U.S. border went into effect. The main idea behind the rule is that individuals who have failed to utilize legal procedures are ineligible for political asylum.
The rule applies to migrants of any nationality who have failed to use the CPB One application, failed to go through a checkpoint and seek asylum in a third country through which they traveled, or have been denied asylum in those countries.
However, there are exceptions to this rule. Those who have been granted Parole status by DHS, those who have used the CBP One application, and those who have requested asylum in a third country and have been denied. Unaccompanied children are also not subject to the new rule.
Those who wish to rebut the rule's application to themselves must prove that they faced an acute medical emergency, an extreme and immediate threat to their life or safety, or were a victim of a severe form of human trafficking.
It's important to note that to avoid the rule, it's sufficient to meet only one of the specified exemption items, not necessarily all three. And it is only required for one of the family members. If you used the CBP One application, or entered through CBP and were granted Parole status, you can still claim political asylum.
The extent of the rule's applicability is also noted in bold. In other words, the rule will not apply to everyone without exception. It will be up to an ICE officer or Asylum officer based on a Credible Fear Interview to decide whether the rule applies and whether a person is ineligible for asylum, with the possibility of the decision being referred to a judge for review.
Those who do not fall under the new rule or disprove the application of the rule will not face any consequences. For them, proving a 10% threat of possible persecution will be sufficient to successfully complete the interview.
Those who fall under the new rule will lose their ability to obtain political asylum, but they will still be able to apply for Withholding of Removal or CAT protection. However, it then becomes much more difficult to successfully pass the Credible Fear Interview, with an approximate success rate of 50%. If the interview fails, there will be immediate deportation with a ban on re-entry for 5 years, with no possibility of parole.
Thus, this new rule will mainly affect those who cross the border illegally. It emphasizes that entry through a checkpoint is legal, while entry outside a checkpoint is illegal. This rule establishes a significant difference between the two.
A few other important points should be noted:
The rule applies to migrants of any nationality who have failed to use the CPB One application, failed to go through a checkpoint and seek asylum in a third country through which they traveled, or have been denied asylum in those countries.
However, there are exceptions to this rule. Those who have been granted Parole status by DHS, those who have used the CBP One application, and those who have requested asylum in a third country and have been denied. Unaccompanied children are also not subject to the new rule.
Those who wish to rebut the rule's application to themselves must prove that they faced an acute medical emergency, an extreme and immediate threat to their life or safety, or were a victim of a severe form of human trafficking.
It's important to note that to avoid the rule, it's sufficient to meet only one of the specified exemption items, not necessarily all three. And it is only required for one of the family members. If you used the CBP One application, or entered through CBP and were granted Parole status, you can still claim political asylum.
The extent of the rule's applicability is also noted in bold. In other words, the rule will not apply to everyone without exception. It will be up to an ICE officer or Asylum officer based on a Credible Fear Interview to decide whether the rule applies and whether a person is ineligible for asylum, with the possibility of the decision being referred to a judge for review.
Those who do not fall under the new rule or disprove the application of the rule will not face any consequences. For them, proving a 10% threat of possible persecution will be sufficient to successfully complete the interview.
Those who fall under the new rule will lose their ability to obtain political asylum, but they will still be able to apply for Withholding of Removal or CAT protection. However, it then becomes much more difficult to successfully pass the Credible Fear Interview, with an approximate success rate of 50%. If the interview fails, there will be immediate deportation with a ban on re-entry for 5 years, with no possibility of parole.
Thus, this new rule will mainly affect those who cross the border illegally. It emphasizes that entry through a checkpoint is legal, while entry outside a checkpoint is illegal. This rule establishes a significant difference between the two.
A few other important points should be noted:
- The rule does not apply retroactively and does not apply to those who are already in the U.S. or will cross the border before the rule takes effect.
- The rule will be temporary for 24 months.
- It has drawn a wave of criticism, so litigation is inevitable.
- Enforcement of the rule will not be physically possible for everyone. There are not enough detenschen and officers available to conduct interviews.