The Departments of Homeland Security (DHS) and Justice (DOJ) released a final rule on May 10, 2023, “Circumvention of Lawful Pathways,” which was effective May 11, 2023, and is scheduled to be published May 16, 2023. DHS and the Department of State (DOS) also released a related fact sheet.

DHS/DOJ Final Rule

The rule introduces a rebuttable presumption of asylum ineligibility for “certain noncitizens who neither avail themselves of a lawful, safe, and orderly pathway to the United States nor seek asylum or other protection in a country through which they travel.” The rule “will apply only to those who enter during a limited, specified date range at the southwest land border or adjacent coastal borders.” Specifically, the rule applies to noncitizens who enter the United States without authorization from Mexico at the southwest land border or adjacent coastal borders on or after the date of termination of the Title 42 public health order, May 11, 2023, and before a specified date 24 months from the rule’s effective date. However, the rule will continue to apply to such noncitizens who entered the United States during the 24-month timeframe in their Title 8 proceedings and in any subsequent asylum applications, except for those applications filed after the two-year period by those who entered the United States as minors and who apply as principal applicants, the rule states.

The Departments are requesting comments on whether applicability of the rebuttable presumption should be extended to noncitizens who enter the United States without documents sufficient for lawful admission during the same temporary time period at a maritime border.

DHS/DOS Fact Sheet

The DHS/DOS fact sheet, released May 10, 2023, announces “additional sweeping measures” to manage the border as part of the “comprehensive, multi-agency, multi-country plan to prepare for the return to processing migrants under Title 8 authorities.” The measures include:

  • Opening the first regional processing centers to direct individuals to lawful pathways, with eventual plans to open about 100 such centers in key locations in the Western Hemisphere;
  • Deploying additional troops to support the Border Patrol at the southwest border;
  • Surging additional resources to manage increased encounters;
  • Expanding access to the CBPOne app and transitioning to a new appointment scheduling system; 
  • Implementing the final rule noted above; and
  • Ramping up efforts to counter misinformation disseminated by smugglers.

In related news, a federal judge granted Florida’s request for a temporary restraining order blocking the Biden administration’s plan to release certain migrants on parole. Also, the American Civil Liberties Union and other immigration groups sued to block the new asylum limits.

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