After receiving and considering over 50,000 public comments in response to a Notice of Proposed Rulemaking issued earlier this year, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) finalized a new rule to further incentivize individuals to use lawful, safe, and orderly pathways to enter the United States. The rule builds upon efforts to combine lawful pathways with consequences for failure to use them, by placing certain limiting conditions on asylum eligibility for those who fail to use those pathways. This rule goes into effect once the Title 42 public health Order terminates, on Thursday 11 May at 11:59pm ET.
The rule presumes those who do not use lawful pathways to enter the United States are ineligible for asylum and allows the United States to remove individuals who do not establish a reasonable fear of persecution or torture in the country of removal. Noncitizens can rebut this presumption based only on exceptionally compelling circumstances.
The presumption will not apply to:
- a noncitizen if they, or a family member traveling with them, received appropriate authorization to travel to the United States to seek parole; presented at a port of entry, pursuant to a pre-scheduled time and place using the CBP One app;
- established that it was not possible to access or use the CBP One app due to specific and extenuating circumstances, significant technical failure, or other applicable exception;
- or sought and were denied asylum or other protection in at least one other country.
Individuals may also rebut the presumption by demonstrating exceptionally compelling circumstances.
Unaccompanied children are exempted from this presumption.