DHS and DOJ Plan to Strengthen the Biden-Harris Administration’s Asylum Restriction Rule

The U.S. Department of Homeland Security (DHS) and the Department of Justice (DOJ) published a new update to their temporary asylum rule in early October. This rule, called the Securing the Border Interim Final Rule, implements President Biden’s 212(f) Proclamation to restrict asylum eligibility from any person who crosses the border illegally between ports of entry (POEs), with limited exceptions.

The president’s proclamation, however, was initially designed to only go into effect when encounters at the border exceed 2,500 per day and would be suspended when encounters drop below 1,500 per day 14 calendar days after DHS makes a determination that there has been a seven-consecutive-day average of fewer than 1,500 encounters between ports of entries. The president issued a new proclamation on September 27, 2024, to instead require that encounters must remain below 1,500 encounters between POEs for 28 consecutive calendar days before the 14-calendar-day waiting period is triggered. Biden also amended the proclamation to require DHS to include unaccompanied alien children (UACs) from non-contiguous countries when calculating the number of encounters for the purposes of the proclamation.

The new Securing the Border IFR was issued to implement the changes in the rule to match those made in the president’s September 27 order. Additionally, to ensure the rule can function even if the September 27 proclamation were rendered unlawful by a court order, DHS included a severability clause to insulate the rule.

The Biden-Harris administration made these changes to discourage migrants from waiting in Northern Mexico for the rule to be turned off. The departments explained that extending the applicability of the rule “will guard against a circumstance in which the threshold for discontinuation is met solely due to a short-term, erratic decrease (such as a short-term holiday downturn or a decrease due to an extreme weather event) that does not signal a meaningful reduction in overall migration pressures”.

In the rule, the departments also requested the public’s input on whether it should extend the geographic scope of a similar, but slightly weaker asylum rule the government put into place in May 2023 called the Circumvention of Lawful Pathways (CLAP) rule. The CLAP rule imposed a “presumption against eligibility” for asylum for aliens who crossed the Southern border illegally after transiting through a third country without either 1) applying for protection in that third country; or 2) using one of the Biden-Harris administration’s new “pathways” for illegal entry, such as their CBP One mobile app system that allows inadmissible aliens to schedule their arrival at a POE and be paroled into the United States. CLAP, however, imposed slightly lower screening standards and generally was ineffective in significantly deterring illegal border crossings in the long term.

CLAP currently only applies to migrants who enter the United States from Mexico at the Southwest land border and adjacent coastal borders. The departments are now considering expanding its applicability to all inadmissible aliens who arrive illegally by sea and removing the restriction that the rule only applies to aliens who enter the United States from Mexico.

This expansion would align the applicability of the CLAP rule with the Securing the Border IFR to “help avoid any incentive for maritime migration to such locations” that are currently covered by the Securing the Border rule but not by the CLAP rule. For example, this would mean that an alien “who enters the United States at a border via the Gulf of Mexico would be subject to the Circumvention of Lawful Pathways rule regardless of whether they transited through Mexico”.

The departments explained that they are considering this expansion both for operational consistency and because maritime migration poses unique hazards to life and safety to both migrants and DHS personnel. “Human smugglers and noncitizens migrating to the United States continue to use unseaworthy, overly crowded vessels, piloted by inexperienced mariners, without any safety equipment — including, but not limited to, personal flotation devices, radios, maritime global positioning systems, or vessel locator beacons. The USCG [Coast Guard] regularly interdicts noncitizens employing maritime migration in the Gulf of Mexico and Atlantic Ocean in makeshift, overcrowded vessels.”

Other Details to Know About the New Securing the Border IFR

• First and foremost, the policy created by the Securing the Border IFR permits a reckless level of illegal immigration to the United States. Under this policy, the Biden-Harris administration will tolerate up to 912,135 border encounters a year (2,499 per day) without triggering application of the rule. While that would be a significant reduction in the number of annual encounters that CBP has experienced since the Biden-Harris administration took power in January 2021, it is still a crisis level of illegal immigration.

  As I explained above, if the rule is already in effect, once encounter numbers drop below an average of 1,500 per day consistently, application of the rule to aliens’ credible fear claims would stop. Encounters exceeding 1,000 per day, however, should still considered to be crisis level. Former DHS Secretary Jeh Johnson, who served under President Obama, famously told NBC in 2019 that 1,000 border crossings in a day is a “bad day” for DHS and that high of a number would put him in a “bad mood the whole day”. He added, “I know that a thousand overwhelms the system.” The Biden-Harris administration should not be content with numbers that Obama officials would consider a failure.

• Importantly, the new IFR maintains DHS’s original plan to shift to a “manifestation of fear” policy. This means that an inadmissible alien must affirmatively make a fear claim to a DHS officer in order to be given a credible fear interview with an asylum officer. Previously, CBP officers would preemptively ask recent border crossers whether they have a fear of return to determine whether the alien should be given an interview. The departments say this shift, “has resulted in streamlined processing and a lower percentage of individuals indicating fear, thereby shortening the average processing time as those who do not indicate fear do not receive a screening by an [asylum officer] or review by an [immigration judge] prior to removal”.

• The new IFR also maintains DHS’s original policy to raise the withholding of removal and Convention Against Torture screening standard to “reasonable probability”. This means that if an alien does not establish a significant possibility (the lowest screening standard) of eligibility for asylum in their credible fear interview, an asylum officer will apply a slightly higher screening standard to determine whether there is a “reasonable probability” that the alien could establish eligibility for statutory withholding of removal or withholding or deferral of removal under the Convention Against Torture. The “reasonable probability” standard is defined to mean substantially more than a “reasonable possibility”, but somewhat less than “more likely than not”.

  In the time since it began implementing the first version of the Securing the Border IFR in June 2024, DHS found, as CIS advised the agency it would, that raising the screening standard for statutory withholding of removal or CAT protection reduces the likelihood of false positives in the credible fear process. DHS and DOJ explained that the change “has further reduced the difference between the high screen-in rates and historically low ultimate grant rates of protection or relief … . As a result of the IFR, DHS is able to more quickly remove a greater percentage of those who do not have a legal basis to remain in the United States.”

• Finally, the inclusion of a severability clause may seem like a minor detail, but it highlights an important point that few immigration experts are making publicly: The president does not need to issue a 212(f) proclamation for DHS to issue the asylum restriction via regulation in the first place. DHS, as the agency explains in detail in the preamble of the rule, already has the legal authority to impose limitations on asylum eligibility.

  While the president’s 212(f) authority is an important one, the very concept of a 212(f) proclamation to “restrict the entry” of aliens who are already inadmissible under federal law and who have crossed the border illegally is a ridiculous concept to begin with. Congress has already done this by enacting our nation’s immigration laws.

  If the rule restricting asylum eligibility could stand on its own, then why tie it to a 212(f) proclamation to begin with? Doing so could set the Biden-Harris up for a sue-and-settle scheme. The rule has already been challenged in federal court by open-borders advocates. Settling the case could allow the Biden-Harris administration to agree to a court settlement that limits a future administration’s authority to issue its own 212(f) proclamations. This would be a win for open-borders advocates, regardless of its impact on present-day encounter numbers.

The Role of the 2024 Presidential Campaign

The Securing the Border IFR was promulgated primarily to advance the Harris campaign’s prospects. Polling has consistently shown that most American voters oppose the Biden-Harris administration’s immigration policies. To address this election vulnerability, the Biden-Harris administration issued both the CLAP and Securing the Border IFR to send the message to voters that they are, in fact, serious about reducing illegal immigration. The administration, however, has entirely minimized the role that the Government of Mexico has had on the reduced border encounters in the southwest border region.

As my colleague Todd Bensman has reported, the government of Mexico has, at the Biden-Harris administration’s request, implemented a program, nicknamed El Carrusel, to interdict migrants headed to the U.S. border and transport them to Mexico’s southernmost region. Mexico has also restricted visa issuances to migrants they believe are likely only entering Mexico to travel to the U.S. border and has provided monetary incentives for some migrants to return home. The effect that Mexico’s interior enforcement efforts has had on U.S. border encounters cannot be underemphasized — but it certainly is being downplayed by U.S. officials.

The DHS Office of Intelligence and Analysis’s 2025 Homeland Threat Analysis report also specifically cites Mexico’s heightened internal enforcement efforts as an important factor in the decline in encounters reported in calendar year 2024. This decline began and was sustained long before the first Securing the Border IFR was implemented in June 2024.

Instead, the Biden-Harris administration is hoping that voters believe that their own policies are the primary source of the decline. CBP data, however, has shown that the CLAP was largely ineffective for deterring border crossings in the long term and the Securing the Border IFR is not significantly different to inspire such a large-scale drop-in numbers. By this, I mean that restricting asylum from aliens who don’t use the Biden-Harris administration’s pathways for illegal entry instead of imposing a “presumption of ineligibility” for asylum for not using the Biden-Harris administration’s pathways for illegal entry is in practice meaningless. Under either rule, roughly the same categories of aliens will be restricted from asylum eligibility. Both rules have nearly identical exceptions to their asylum restrictions.

Application of the CLAP, as explained above, just has a smaller geographic scope. Expanding the scope may discourage and reduce maritime interdictions — which is an important goal — but that will not do enough to temper the severity of the mass illegal immigration crisis.

Public Comment Period

The public may submit a comment on this IFR to the federal government by November 6, 2024. All comments must be submitted to the Federal eRulemaking Portal at hhtp://www.regulations.gov by 11:59 pm EST. DHS and DOJ have specifically solicited comments on the extended and expanded applicability of the Securing the Border IFR and the proposal to extend the geographic applicability of the CLAP rule, but the agencies must respond to all relevant comments.

It is important to remember that any person can submit a comment on a proposed regulation, and the most effective comments explain the reason for any recommendation provided. Including data, information, or authorities that support the recommended course of action will also strengthen a comment’s persuasive value. Comments that express support or opposition to a policy proposal without additional details, however, can still have an impact.