Open Questions, Legal Hurdles for Biden’s New Border Rule

The Biden administration announced on May 16 a new border rule that creates new pathways for lawful entry and limits access to asylum for unauthorized entrants. Although the rule takes important steps to create alternatives to unauthorized entry for those seeking refuge, serious questions remain about the viability and practical accessibility of those pathways. The rule and related policies also face challenges from both sides of the political spectrum, with the ACLU assailing the rule as a violation of the Immigration and Nationality Act (INA), the Administrative Procedure Act (APA), and international law, and Florida challenging related Customs and Border Protection (CBP) guidance on use of the executive’s parole power to allow noncitizens into the country on a temporary basis. 

The new rule, titled Circumvention of Lawful Pathways and promulgated jointly by the Department of Homeland Security and the Department of Justice, addresses the expiration of a COVID-era border expulsion policy known as Title 42. During the early days of the pandemic, the Centers for Disease Control and Prevention (CDC) issued an order under a public health statute codified in Title 42 of the U.S. Code calling for summary expulsion of unauthorized noncitizens seeking to enter the United States, purportedly on public health grounds. Anticipating a “surge” at the border upon that policy’s expiration, the administration worked for months to develop a plan to manage border encounters.

The new border rule establishes a presumption of ineligibility for asylum for noncitizens who cross the southwestern land border with Mexico or adjacent coastal borders without authorization between May 11, 2023, and May 11, 2025, after traveling through a third country that is a party to the UN Convention Relating to the Status of Refugees or the 1967 Protocol to that treaty, barring narrow exceptions. Specifically, noncitizens are now presumed ineligible for asylum if they failed to “avail[] themselves of an existing lawful process,” failed to “present[] at a port entry at a pre-scheduled time using the CBP One app,” or failed to apply for asylum in a third country through which they have traveled (usually Mexico). In essence, migrants are expected to seek asylum in a third country or, alternatively, make an appointment with CBP at a port of entry. 

The new rule also provides the basis for “sweeping new actions” to create pathways for lawful entry and resettlement in the United States, Canada, and Spain. The centerpiece of this effort is the creation of regional processing centers, where officials can direct asylum-seekers to refugee resettlement opportunities and assist with making appointments at U.S. ports of entry. Additional pathways include temporary visas for seasonal workers from specified countries, opportunities to reunite with immediate family members who are permanent residents or citizens, and a special parole program for nationals of Cuba, Haiti, Nicaragua, and Venezuela, allowing them to fly to the United States with a valid passport. 

Critics say that the new rule only feigns a more compassionate approach and instead “recycles” illegal Trump-era policies. Back in 2018, the Trump administration issued a rule, decried by some as an “asylum ban,” making noncitizens ineligible for asylum if they entered the United States between ports of entry. Crucially, that policy created no new pathways for lawful entry. 

The federal courts roundly rejected the Trump policy as contrary to the INA. A key provision of that statute, codified at 8 U.S.C. § 1158(a), states: “Any alien who is physically present in the United States, or who arrives in the United States (whether or not at a designated port of arrival …), irrespective of such alien’s status, may apply for asylum in accordance with this section….” (italics added). Thus, the courts deemed a categorical ban on asylum for unauthorized entrants illegal. 

The Trump administration subsequently entered into a series of Asylum Cooperation Agreements with Guatemala, El Salvador, and Honduras, allowing the administration to remove certain asylum-seekers to those countries—countries typically associated with high levels of persecution rather than refugee protection.  

Although the new rule resonates with these failed policies, Homeland Security and Justice defend the new rule as consistent with § 1158(a) and international law. The agencies contend that the new rule simply places permissible “conditions” on asylum eligibility under 8 U.S.C. § 1158(b)(2)(C) while taking steps to provide less dangerous routes of entry. The government further relies on a Board of Immigration Appeals decision that authorizes immigration judges to consider an applicant’s manner of entry in deciding whether to award asylum. 

The question becomes whether these new limits on asylum, leavened with greater opportunities for resettlement, appointments through the CBP One app, and additional pathways for legal entry, will pass legal muster. 

The administration’s proposed use of parole also faces legal hurdles. Title 8, § 1182(d)(5)(A) of the U.S. Code authorizes the attorney general, “in his discretion, to parole [any alien] into the United States temporarily under such conditions as he may prescribe only on a case-by-case basis for urgent humanitarian reasons or significant public benefit[.]” The border rule establishes several initiatives based on this parole power, including a parole process for noncitizens with family members in the United States and an approved family-based petition, and a special parole program for nationals of select countries.

Florida sued the administration for using this power allegedly in violation of the APA and sought a temporary restraining order. Judge T. Kent Wetherell II granted the emergency motion the day before the policy was set to begin. Although this lawsuit does not challenge the final rule directly, it challenges one of the rule’s key components. 

Aside from potential legal trouble, the practical challenges in achieving the rule’s objectives are substantial. According to the Biden administration, the rule creates an incentive for migrants to use pathways for lawful entry, such as presenting oneself at a port of entry for a prescheduled appointment. CBP rolled out the CBP One app in October 2020 to allow migrants to schedule appointments via mobile phone, but reports suggest that the app does not work consistently or well. Moreover, available appointments fill almost instantly, leaving many migrants with no prospect for lawful entry. CBP has made roughly 1,000 appointments available per day, and the agency says it will consider increasing the number of appointments made available “as operations and efficiencies” allow. But appointments could be scarce for the foreseeable future.

Under Section (a)(2)(ii)(B) of the rule, codified at 8 C.F.R. § 1208.33, noncitizens can overcome the presumption of ineligibility by demonstrating “by a preponderance” that the Homeland Security scheduling system was inaccessible “due to language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle.” In addition, under (a)(3), noncitizens can rebut the presumption by showing that they could not avail themselves of a lawful pathway due to an “imminent and extreme threat to life or safety,” “acute medical emergency,” or severe trafficking. Whether these provisions will serve as a meaningful safety valve remains to be seen. 

Other infrastructure for inclusion also remains dubious, with regional processing not yet established, and the U.S. Citizenship and Immigration Services facing a massive backlog on family-based petitions as it is. 

Access to asylum has long been intertwined with unauthorized entry. For reasons I have explored elsewhere, states providing refugee protection typically do not offer an asylum visa to enable a noncitizen to travel lawfully to the state of refuge to apply for asylum. This leaves most noncitizens fleeing persecution with few options for reaching safety, leading to reliance on unauthorized migration and, in some cases, hiring smugglers. Unauthorized entry is dangerous for asylum-seekers and disfavored by government officials and the public. Accordingly, some observers have hailed the Biden administration’s use of immigration parole authority as “smart.” But the far-reaching presumption of asylum ineligibility for those who do not access these new pathways—perhaps because the pathways prove inaccessible in practice—stands to dismantle asylum “as we know it.”