On Tuesday, June 4, 2024, President Biden introduced a significant executive action under Immigration and Nationality Act sections 212(f) and 215(a) (“Proclamation”) aimed at restricting asylum eligibility and increasing the consequences for those who enter without authorization across the southern border.. The partial ban on asylum claims takes effect at 12:01 a.m. on June 5 and will remain in place until the Secretary of Homeland Security determines that the average daily illegal border crossings have decreased to fewer than 1,500 over a 14-day period. If the average daily crossings exceed 2,500, the proclamation can be reactivated.
At ILS, we understand the complexities of immigration law and are committed to helping businesses navigate the system effectively. If you need assistance with immigration matters, please contact our Head of Immigration, Anna Sun, at anna.sun@consultils.com.
Key Components of the Executive Actions
Bar Unlawful Migrants from Asylum: Accompanied by an interim final rule from the Departments of Justice (“DOJ”) and Homeland Security (“DHS”),, the Proclamation deems noncitizens who cross the southern border unlawfully or without authorization to be ineligible for asylum, absent exceptionally compelling circumstances, and unless they are excepted by the Proclamation.
Strengthening Asylum Screening: A proposed rule from the DHS will expedite the removal of migrants posing public safety or national security risks, while continuing to adhere to the U.S. international obligations and commitments by screening individuals who manifest a fear as noted above and do not qualify for an exception to the Rule for withholding of removal and Convention Against Torture protections at a reasonable probability of persecution or torture standard – a new, substantially higher standard than is currently applied under the Circumvention of Lawful Pathways rule.
Enhanced Immigration Case Resolution: The DOJ and DHS have launched a "Recent Arrivals" docket to expedite immigration cases for unlawful border crossers, facilitating quicker decisions and removals.
Combating Human Smuggling: The DOJ has intensified efforts against human smuggling, including imposing visa restrictions on individuals profiting from unlawful migration and launching initiatives to dismantle smuggling organizations.
Increasing Border Security and Enforcement: The DHS has increased the number of agents and repatriation flights and collaborated with regional partners to curb irregular migration and expand lawful pathways.
Seizing Illicit Fentanyl: Border officials have seized more fentanyl at ports of entry in the past two years than in the previous five combined. New drug detection technologies have been deployed to further disrupt fentanyl smuggling.
Implications for Migrants and U.S. Asylum Law
This policy shift represents a significant change to U.S. asylum law, which traditionally allows migrants on American soil to request humanitarian protection, even if they enter illegally. Biden administration officials argue that the asylum system is overwhelmed by over 3 million pending applications, creating an incentive for migrants to come to the U.S. with the expectation of lengthy processing times.
Under the new policy, migrants who cross the border illegally will be barred from asylum and subject to immediate removal to Mexico or their home countries. More importantly, the removed illegal immigrants could be subject to at least a five-year bar to reentry and potential criminal prosecution. The policy will not apply to unaccompanied children, individuals with acute medical conditions, or those fleeing imminent harm. Migrants using legal entry pathways, such as the CBP One smartphone app, will continue to be processed, with approximately 1,500 migrants being processed at ports of entry daily.
How We Can Help
While the recent executive actions primarily target asylum seekers and illegal border crossers, they highlight the broader challenges and changes in U.S. immigration policy. Businesses relying on international talent must stay informed about regulatory changes and ensure compliance with new regulations.
At ILS, we understand the complexities of immigration law and are committed to helping businesses navigate the system effectively. If you need assistance with immigration matters, please contact our Head of Immigration, Anna Sun, at anna.sun@consultils.com.
Anna Sun, Esq. is the Head of Immigration at ILS. She has advised clients for many years on all aspects of U.S. business immigration matters and has assisted employers worldwide in hiring and retaining foreign national executives and highly talented individuals for their U.S. workforce.
Email: anna.sun@consultils.com | Phone: +1 (626) 344-8949
*Disclaimer: This article does not constitute legal opinion and does not create any attorney-client relationship.
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