Understanding the Implications of Proclamation 10773
Dicklyon, CC BY-SA 4.0, via Wikimedia Commons
A Call to Action for Asylum Seekers and Advocates
Written by
Sarah Yore-VanOosterhout, Esq., Managing Attorney, Lighthouse Immigrant Advocates
Samuel T. Filcik, Asylum Attorney, Lighthouse Immigrant Advocates
What is Asylum?
Asylum status in the United States is an often misunderstood immigration legal remedy. U.S. immigration law is fairly new in terms of the broader historical context of the U.S. timeline. It wasn’t until 1924 that the United States enacted its first real piece of immigration legislation (yes, this means that anyone who claims that their ancestors did it the “right way” prior to 1924 are quite misinformed, as there was not a “right way” prior to 1924).
Historical Context of U.S. Asylum Law
In response to an unprecedented number of refugees fleeing Europe following the Second World War, the United States enacted the Displaced Persons Act of 1948, which was the first law of its kind to help rehome some of the nearly 7 million displaced people in Europe.
While both national and international law continued to take shape around the resettlement of displaced people, a system for granting asylum within the United States did not take shape until the 1980 Refugee Act. Prior to this, the United States did not have a system for granting asylum to displaced people within their borders.
In American immigration law, asylees and refugees are two distinct legal categories. Refugees must prove that they meet the United Nations’ definition of “refugee” while they are outside of the United States; refugee status is granted by the United Nations. Asylees, on the other hand, must prove that they meet the United Nations’ definition of “refugee” while they are inside the United States; asylum status is granted by either the U.S. Citizenship and Immigration Services (USCIS), which administers asylum offices across the U.S., or the Executive Office of Immigration Review (EOIR), which administers immigration courts across the U.S. Both USCIS and EOIR are U.S. government agencies within the Department of Homeland Security (DHS). Both asylees and refugees must meet the same definition to prove eligibility:
“any person who is outside any country of such person’s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. §1101(a)(42). Because both must meet the same criteria to be considered eligible, the two groups are often confused and conflated.
Another category of people is those who are physically present in the United States and are in the asylum process but have not yet received a decision on their asylum application. People in this situation are “asylum seekers.”
Challenges to the U.S. Asylum System
Currently, asylum seekers and the mechanisms by which they seek status are under fire by the current administration. Asylum is often cited as a method by which “illegal” border crossers “invade” the United States, and it is often stated or implied that the mere act of entering through a port of entry and requesting asylum is illegal. This is all false rhetoric. The United States has signed international treaties and enacted federal legislation that allows for displaced people to seek asylum regardless of how they entered the United States. If they entered with a visa, parole, or any other type of status at a port of entry, U.S. law permits them to request asylum through a USCIS Asylum Office. If they entered between ports of entry, or even at a port of entry and were granted parole by CBP, they usually will be put into removal proceedings in an EOIR immigration court, where U.S. law permits them to request asylum.
“The means do not accomplish the ends. Proclamation 10773 will simply refuse protection to people who would otherwise be eligible for asylum.”
Biden Administration's New Regulation
However, on June 4, 2024, the Biden administration announced a presidential proclamation (Proclamation 10773) and Interim Final Rule (hereinafter “regulation”) to suspend the entry of asylum seekers. To be clear, the regulation, otherwise known as "Securing the Border," does not close the border; it does not make all asylum seekers ineligible or unable to remain in the United States; it does not allow the U.S. government to deport asylum seekers who are actively seeking asylum; and it does not allow the U.S. government to expel people without following the existing immigration procedures.
In practice, what the regulation will do, however, is prevent people from seeking asylum if they entered the United States without being inspected at a port of entry, though other forms of protection are available. For those who entered without being inspected at a port of entry, it will be more difficult to pursue other forms of protection because of new restrictions and higher standards implemented at the outset of their processing. Ultimately, as with many administrations, the Biden administration stated its goal is to deter unlawful border crossings not at a port of entry.
Unfortunately, the regulation is misaligned with stated goals, as the real outcome will simply refuse protection to people who would otherwise be eligible for and entitled to protections in the United States. That is to say, the means do not accomplish the ends. Importantly, this regulation comes in the wake of a number of other government efforts to reduce border crossings (specifically, “Circumvention of Lawful Pathways,” issued in May 2023). With unprecedented amounts of displaced people seeking asylum in the United States, creating more red tape in the asylum process will not do anything to expedite the processing of these individuals. It will, without a doubt, only create larger backlogs and greater delays, something that our office is already seeing happen at the Chicago Asylum Office and the Detroit Immigration Court. Notably, prior to the implementation of these processes, border crossings were already declining, due in large part to the interdiction of migrants by Mexico and not because of any U.S. policy.
Emergency Regulation Trigger
The regulation is triggered when, over a seven-day period, border apprehensions between ports of entry total more than 2,500 on average. For perspective, in May 2024, Customs and Border Protection (CBP) officers apprehended individuals 117,906 times between ports of entry, down 8.5 percent from the previous month (note that these numbers refer to the number of apprehensions, not the number of distinct individuals; in other words, the same individual is often detained by CBP multiple times). This is an average of 26,623 apprehensions per week. In the last six years, monthly border crossings have averaged more than 1,500 with the exception of 2020, when the border was shut down due to the COVID-19 pandemic. Essentially, what this data means is that the Biden administration created and instituted an emergency regulation designed to be in effect forever, given data from the last six years.
Changes to Border Processing as a Result of Proclamation 10773
As mentioned earlier, these changes will not impact individuals who enter the United States at a port of entry (official border crossing point) with an appointment. Currently, individuals can make an appointment through a smartphone app called CBP One. These individuals do not count toward the total number of border crossings and therefore will not affect the thresholds that the emergency regulation would adopt. Currently, the CBP One app allows for up to 1,450 individuals to seek appointments at a port of entry to request entrance into the United States. This may seem like a lot of appointments each day. However, on average, individuals are waiting several months to be granted an appointment through the CBP One app.
This system seems well and good to those of us that regularly carry our precious smartphones everywhere and are well-versed in smartphone technology. The CBP One app, number one, requires possession of a smartphone. Even in this day and age, not everyone has a smartphone. The CBP One app, number two, is only available in three languages. And, number three, like many government websites and technology, the CBP One is plagued by glitches, making it often impossible to use.
Removal of Previous Exemptions and Impact on Asylum Seekers
Previous exemptions to the use of the CBP One app are no longer permitted under Biden’s new regulation. In some rare instances, people who approach a port of entry without an appointment might be considered for admission, but there are no longer any official exemptions to the mandatory use of CBP One.
“In the end, if the United States wishes to see a decrease in the number of border crossings, then they need to take steps to prevent individuals from fleeing their countries of origin in the first place.”
Under the regulation, individuals who enter the United States without being admitted at a port of entry are ineligible for asylum. This also includes individuals who crossed between ports of entry but were not apprehended. As mentioned above, there are several exceptions allowing U.S. officials to lift the asylum ban for certain individuals.
For example, officials may permit individuals to enter after taking into consideration the “totality of the circumstances,” which includes, but is not limited to, public safety, medical emergencies, or humanitarian concerns.
Alternatively, another carveout allows individuals with medical emergencies to prove by a preponderance of the evidence that they are indeed suffering a medical emergency, an “imminent and extreme threat to life or safety,” or that they were trafficked. Individuals need to make this assertion when they are first processed at a detention facility.
Perhaps the most important part of the regulation is that, even for those individuals who are subject to the asylum ban and are in the process of being removed from the U.S., they may still be given the opportunity to apply for asylum. Individuals who are apprehended between ports of entry will be held in government custody and, if they are not exempted from the asylum ban, will be processed for removal/deportation from the United States. If, during this processing period, the individual expresses a fear of return to their country of origin, an asylum officer must review this claim, which may then be reviewed by an immigration judge. If the individual fails the screening or never expresses a fear, the process of deportation continues. Prior to this regulation, as part of processing, border officials were required to ask individuals whether they feared returning to their home country, and if so, why. The regulation removes this requirement, and only implements the asylum screening procedure if an individual, unprompted, expresses a fear of return to their country of origin.
This way of identifying asylum seekers was used in the past. It became known as the “shout test.” The “shout test” proved problematic, because officials often just ignored a person’s assertions of fear. Under Title 42, there were many reports of individuals who were expelled even after expressing fear of return; these individuals were denied the required fear screenings.
Under previous screening requirements, individuals had to express a “credible fear” of persecution or harm if returned to their country of origin. Essentially, there had to be a “significant possibility” that an individual would be able to establish eligibility for asylum before a judge or an asylum officer. Under the May 2023 Circumvention of Lawful Pathways rule, the standard was changed to “reasonable possibility.” And now under this new regulation, individuals must prove a “reasonable probability” which, according to the regulation, “means substantially more than a reasonable possibility, but somewhat less than more likely than not.” Clear as mud!
As a new standard of burden of proof, it is impossible to know, right now, how the “reasonable probability” standard will be implemented and whether it will be more restrictive in practice. Data indicates there were fewer individuals who passed the screening under the Circumvention of Lawful Pathways rule. Likely, we will see an even lower passage rate under this new regulation.
Again, this all sounds nice on paper, but in practice, it is not feasible. Currently, offices at the border lack the capacity to do this for even a small percentage of people crossing into the United States. The United States only has about 1,000 asylum officers. The current backlog of asylum applications with USCIS recently surpassed 1,000,000. Yet the United States has diverted these asylum officers from regional Asylum Offices to attempt to meet the need at the border. Basically, the government is robbing Peter to pay Paul. Anecdotally, Lighthouse Immigrant Advocates is seeing extreme delays in processing affirmative asylum applications at the Chicago Asylum Office–officials there have reported to us that their backlogs have swelled due to the diversion of their employees to these southwest border screening efforts. Asylum applicants are currently waiting years for their interviews or hearings. Furthermore, we have noted increased errors in government paperwork and extensive delays in filing this paperwork with proper agencies, such as the Immigration Court (if the paperwork gets filed at all). Even this far removed from the southwest border, the situation here demonstrates the obvious:
The system is failing.
For point of reference, in the first six months of 2024, officers made decisions in 115,900 screening interviews. In that same period, 671,389 individuals were released from custody with notices to appear in Immigration Court. The government releases individuals in this way either after someone passes a screening interview or when the government has resource limitations and cannot conduct the credible fear screening, kicking the can down the road for another federal agency to pick up.
As mentioned, asylum applicants are currently waiting several years for their asylum interview with USCIS or their hearing with EOIR. It is important to understand that Congress has mandated that “in the absence of exceptional circumstances,” the asylum interview or hearing “shall commence” within 45 days of a person’s filing their asylum application. Congress has further mandated that after the interview or hearing, USCIS or EOIR must make a decision within 180 days of the asylum application. 8 U.S.C. §1158(d)(5).
If an individual does not satisfy any of the exceptions, they are not necessarily banned from remaining in the United States; they simply cannot pursue asylum as a remedy. Withholding of Removal and protection under the Convention Against Torture still exist as remedies to them, though are inferior forms of protection as they are not a path to permanent residency. Additionally, it is much more challenging to obtain these remedies, even more challenging than proving eligibility for asylum. This means that, while someone might have qualified for asylum, they might be denied these other protections because of the higher burden of proof.
In the end, if the United States wishes to see a decrease in the number of border crossings, then they need to take steps to prevent individuals from fleeing their countries of origin in the first place. When the bathtub is overflowing, the answer is not to grab a mop and hope that it stops the tub from overflowing–instead, you turn off the faucet. Essentially, the Proclamation and the regulation are a mop and will do nothing to address the actual source of the problem. And when the faucet is irreparably broken, there is always the option of channeling the water elsewhere. Focusing on reducing border crossings instead of deterring them or strengthening our existing asylum system and reducing barriers to lawful entry, is only going to perpetuate the problem.
Hiring more asylum officers. Hiring more immigration judges. Diverting resources to ports of entry staff, immigration judges, and support staff in offices such as the Office of Refugee Resettlement and the U.S. Office of Field Operations. Providing more pathways to lawful entry. Channeling resources into deterrence strategies. These investments would guarantee that our asylum system would endure into the future.
