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On June 3, 2024, the President signed Proclamation 10773 under sections 212(f) and 215(a) of the Immigration and Nationality Act, finding that the entry into the United States of certain noncitizens during emergency border circumstances would be detrimental to the interests of the United States, and suspending and limiting the entry of those noncitizens across the southern border.  The Proclamation directed DHS and DOJ (the Departments”) to promptly consider issuing regulations addressing the circumstances at the southern border, including any warranted limitations and conditions on asylum eligibility.  The Departments issued an interim final rule, 89 FR 48710, in response to the Proclamation.  Under the IFR, certain persons who enter across the southern border while encounters are above thresholds described in the Proclamation will be ineligible for asylum unless they demonstrate by a preponderance of the evidence that exceptionally compelling circumstances exist, and will be subject to certain revised processing standards and procedures applicable to the expedited removal process. On October 7, 2024, the Departments published a final rule, 89 FR 81156, responding to the public comments received on the interim final rule and requesting comment on potential changes to the Circumvention of Lawful Pathways rule as well as changes made to the interim final rule’s encounter thresholds that parallel modifications made by a subsequent Proclamation amending Proclamation 10773.  The Departments will consider the comments received on the changes and proposals.

Statement of Need:

In the absence of congressional action to appropriately resource DHS and EOIR and to reform an outdated statutory framework, the Proclamation and the changes made by this rule are intended to substantially improve the Departments' ability to deliver timely decisions and consequences to noncitizens who lack a lawful basis to remain. The Proclamation and rule realign incentives at the southern border by improving DHS's ability to place into expedited removal the majority of noncitizens who are amenable to such processing; to avoid large-scale releases of such individuals pending section 240 removal proceedings; and to allow for swift resolution of their cases and, where appropriate, removal. The rule requested comment on changing aspects of the Circumvention of Lawful Pathways rule including whether, and if so how, to (1) align the geographic reach of the Circumvention of Lawful Pathways rule to that adopted by the Securing the Border rule, and (2) extend the temporal applicability of the Circumvention of Lawful Pathways rule’s rebuttable presumption and credible fear provisions.

Summary of the Legal Basis:

The Secretary and the Attorney General jointly issue this rule pursuant to their shared and respective authorities concerning consideration of claims for asylum, statutory withholding of removal, and protection under regulations implemented pursuant to U.S. obligations under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Alternatives:

In the absence of congressional action to appropriately resource DHS and EOIR and to reform an outdated statutory framework, the Proclamation and the changes made by this rule are intended to substantially improve the Departments' ability to deliver timely decisions and consequences to noncitizens who lack a lawful basis to remain.

Anticipated Costs and Benefits:

The expected effect of this rule, as discussed fully in the October 7, 2024 Final Rule, is primarily to reduce incentives for irregular migration and illegal smuggling activity. The primary effects of this rule will be felt by noncitizens outside of the United States. For those noncitizens who are present in the United States and described in the Proclamation, the rule will likely decrease the number of asylum grants and likely reduce the amount of time that noncitizens who are ineligible for asylum and who lack a reasonable probability of establishing eligibility for protection from persecution or torture would remain in the United States. The benefits of the rule are expected to include reductions in strains on limited Federal Government immigration processing and enforcement resources; preservation of the Departments' continued ability to safely, humanely, and effectively enforce and administer the immigration laws; and a reduction in the role of exploitative transnational criminal organizations and smugglers. Some of these benefits accrue to noncitizens whose ability to receive timely decisions on their claims might otherwise be hampered by the severe strain that further surges in irregular migration would impose on the Departments. The direct impacts of the rule are borne by noncitizens and the Departments. The anticipated effects of the Departments' proposed expansion and extension of the Circumvention of Lawful Pathways rebuttable presumption, if finalized, are discussed in the October 7, 2024 Final Rule.

Risks:

In the absence of this rule Departments' would have less ability to deliver timely decisions and consequences to noncitizens who lack a lawful basis to remain.