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Explainer: The Biden Administration’s “Securing the Border” Interim Final Rule and Implementation of Border Policies

On June 4, 2024, the Biden administration released a new interim final rule, “Securing the Border,” alongside a related presidential proclamation. Together, these two policy changes will significantly limit access to the right to seek asylum at the U.S.’s southern border unless migrant crossings substantially decline over a prolonged period or litigation blocks their enforcement.

The presidential proclamation largely relies on the interim final rule to impose swift consequences on people who enter the U.S. unauthorized, while the rule relies on the proclamation to trigger its alternative border processing structure. The proclamation implements a suspension of and limitation on entry for migrants and asylum seekers whenever the number of encounters hits a daily average of 2,500 or more over a seven-day period. During these emergency procedures, most people are ineligible for asylum under the rule, with narrow exceptions. If someone still wants to claim protection in the U.S., they must affirmatively manifest their fear through words or actions to be screened for lesser relief at a higher initial standard.

The proclamation’s suspension and limitation on entry would only lift 14 days after migrant encounters hit a seven-day daily average of fewer than 1,500 — and only if the seven-day daily average remains below 2,500. In this context, and given that the daily average of migrant encounters has been above 1,500 a majority of the time during the last 24 years, the regulation’s restrictions on asylum could remain in place as long as the proclamation is in effect.

The new policies build off the administration’s 2023 “Circumvention of Lawful Pathways” rule, which had already rendered many migrants ineligible for asylum but had operational capacity issues. This explainer describes the “Securing the Border” interim final rule and its most significant changes to the U.S. asylum system, while providing context on how the policies are being implemented on the ground.

1. The Rule’s Immediacy

Generally, rulemaking can be a long and tedious process that requires opportunities for the American public to weigh in and agencies to consider that input before a rule takes effect. However, the Biden administration’s “Securing the Border” rule was issued as an interim final rule and implemented within hours. Under the Administrative Procedure Act, the issuance of an interim final rule allows agencies to finalize that rule instead of releasing a proposed version in the Federal Register first, representing an exception to the regular “notice-and-comment” rulemaking process. This fast-tracked rulemaking can occur when an agency has “good cause” to determine that normal procedures would be “impracticable, unnecessary, or contrary to the public interest,” such as during emergency situations where there is a need to address a problem immediately.

Interim final rules do provide an avenue for public comment after promulgation. The Department of Homeland Security (DHS) and the Department of Justice (DOJ) will be accepting public comments on the “Securing the Border” interim final rule until July 8 and may modify it in response to those comments. But the use of an interim final rule means that border officials are already enforcing new protocols without receiving public feedback or providing preparation time for organizations serving migrants on the ground.

Both the “Securing the Border” interim final rule and its related presidential proclamation went into effect at 12:01 a.m. EDT on June 5, 2024. Given a seven-day daily average of unauthorized border crossings above 2,500, their restrictions were immediately triggered.

2. The Rule’s Effect on Asylum

Already, through the “Circumvention of Lawful Pathways” rule in May 2023, the Biden administration had generally rendered most migrants at the U.S.’s southern border ineligible for asylum, based on the circumstances surrounding their arrival to the U.S. Under that rule, asylum seekers traveling through a third country on their way to the U.S.-Mexico border are presumed ineligible for asylum, with limited exceptions. In theory, this would disqualify most non-Mexican migrants from asylum. Yet, in practice, the rule has had limited impact, at least in terms of deterrence. Over the past year, DHS has struggled to widely implement the rule’s restrictions while still at the U.S.’s southern border, owing to a lack of resources, infrastructure, and personnel. These shortfalls have meant that only a relatively small percentage of the people who entered without authorization were subject to the rule’s most immediate consequences, including rapid deportation.

A major factor in these challenges with operational capacity was that even expedited removal — the process by which low-level U.S. immigration officials can quickly deport asylum seekers and migrants who are apprehended near the border — had inherent safeguards for people fleeing persecution. Historically, border agents and officers were required to ask those processed through expedited removal whether they had a fear of return to their country of deportation. If a migrant responded in the affirmative, they were given a consultation period to potentially speak with an attorney and referred for often time-intensive initial protection screenings — called credible fear interviews — with an asylum officer.

Even under the 2023 “Circumvention of Lawful Pathways” rule, these procedures remained in place, in part to discern whether would-be asylum seekers could qualify for other forms of humanitarian protection and whether they would face persecution or torture if repatriated. By providing this safety valve, the federal government was limited in the number of people it could realistically put through expedited removal, and it released many migrants and asylum seekers with dates for full immigration court proceedings often years into the future.

The interim final rule increases capacity in expedited removal by undoing these relatively modest safeguards, while elevating barriers to passing initial screenings. Critics have argued that these changes do not comply with existing federal law or U.S. treaty obligations.

Below are some of the most significant elements of the “Securing the Border” rule that make it more difficult for bona fide asylum seekers to find refuge in the U.S.

a. Asylum Ineligibility for Most

Under the new interim final rule, when the presidential proclamation’s suspension and limitation on entry are in place, most people who ask for protection will be disqualified from asylum – whether they have crossed the border between ports of entry or have walked up to an official port of entry without a pre-scheduled appointment. The guidance provides exceptions for those who can show by a preponderance of the evidence that they or their family member who is traveling with them had an acute medical emergency, suffered an imminent and extreme threat to life or safety, or qualified as a victim of severe human trafficking.

The presidential proclamation describes other exceptions, including most notably for people who are able to schedule an appointment at a port of entry through the CBP One phone app. For more on exceptions to the suspension and limitation on entry — and thus to the bar on asylum eligibility — see the Forum’s Q&A on the presidential proclamation.

b. “Shout Test” at the Border

Instead of the standard practice of having U.S. Customs and Border Protection (CBP) personnel affirmatively ask individuals if they fear return to their country of removal, the interim final rule requires people fleeing persecution or torture to affirmatively “manifest” their fears. This practice, colloquially known as a “shout test,” is required to be referred for an initial protection screening. The authors of the interim final rule acknowledge that the new standard “could result in some noncitizens with meritorious claims not being referred to a credible fear interview.” But, the authors continue, “in light of the emergency border circumstances facing the Departments and addressed by the Proclamation and this rule, DHS believes the standard is appropriate and necessary.”

According to leaked implementation guidance from U.S. Immigration and Customs Enforcement (ICE), someone in expedited removal will only be referred to the credible fear process “if the noncitizen manifests a fear of return or expresses an intention to apply for asylum or related protection, expresses a fear of persecution or torture, or expresses a fear of return to his or her country or designated country of removal.” Officials are supposed to watch for verbal, non-verbal, or physical cues to evince these fears of persecution or torture, including statements of fear, evidence of abuse or self-harm, and/or hysteria, trembling, shaking, panic attacks, or other abnormal behaviors. 

This “manifestation of fear” standard has been used twice in recent history: During the Title 42 public health order amid the Covid-19 pandemic, and during Coast Guard maritime interdictions of crafts with migrants aboard. Concerningly, reports indicate that in those scenarios, the reliance on “shout tests” has sometimes resulted in officials ignoring people’s fear claims, despite guidance to the contrary. For instance, among 97 families interviewed from June through October 2022, while Title 42 restrictions were in place, researchers found that 51 families said they had verbally manifested a fear of return and 73 said they had non-verbally expressed fear, but none of them were referred for initial protection screenings. Further, CBP officials reportedly told some of the families to “shut up” and that they had “no right” to be interviewed by an asylum officer.

c. Heightened Standard at Initial Screening

For those who are able to secure a credible fear interview, the interim final rule then heightens the eligibility standard to move on to the next stage in the protection process instead of being deported. The Biden administration has created a new “reasonable probability” standard, which the rule describes as “a higher standard than the ‘reasonable possibility’ standard under the Circumvention of Lawful Pathways rule” but “somewhat less than more likely than not.” In practice, this means that most people seeking protection at the U.S.’s southern border will need to show that there’s a reasonable probability of being persecuted based on their race, religion, nationality, political opinion, or membership in a particular social group — or that there’s a reasonable probability that they will be tortured — if they are deported.

This is the second time that the Biden administration has increased the screening standard for most applicants for protection. Historically, asylum seekers have only had to show a “significant possibility” of qualifying for asylum to pass the credible fear hurdle. But under the “Circumvention of Lawful Pathways” rule, people subject to a presumption of asylum ineligibility then had to show a “reasonable possibility” of receiving other forms of humanitarian relief. According to the interim final rule’s authors, the credible fear screen-in rate dropped from 83% in 2014-2019 to 52% under the Circumvention of Lawful Pathways rule through the end of March 2024. In certain contexts, such as when asylum seekers went through the credible fear process while still in CBP custody, unofficial data suggest pass rates have fallen even further, to around 23%.

Heightening the standard at the initial screening stage represents a trade-off. While raising it again is intended to further reduce the passage rate by driving out weaker claims, that increases the likelihood of people with valid claims being returned to danger.

d. Application to Mexicans

Unlike the “Circumvention of Lawful Pathways” rule, the presidential proclamation and interim final rule do not categorically exempt Mexican asylum seekers from their restrictions. As a result, Mexicans fleeing violence and persecution will be barred from seeking asylum in the U.S., their first safe country of arrival, unless they meet one of the policies’ limited exceptions.

3. Little Time to Consult

Even as the Biden administration introduced a heightened standard at initial screening, news broke that officials released additional guidance decreasing the amount of time asylum seekers have to consult an attorney ahead of their credible fear interviews, representing another hurdle to avoiding deportation. Previously, people were given a minimum of 24 hours to try to reach legal counsel or speak to another trusted source, which already represented a significant reduction from the 48-hour minimum in place under the Biden administration prior to mid-2023. Now, the waiting period has once again been reduced to a minimum of four hours between 7 a.m. and 7 p.m., including on weekends. This will provide few realistic opportunities for people to access representation or even a legal orientation as they prepare for protection screenings.

4. Real-World Consequences

In the first days of the “Securing the Border” rule and presidential proclamation’s implementation, reports are emerging of complex and concerning realities on the ground. This section covers some of those reported consequences, including a large number of deportations, more reliance on expedited removal, and the detention of families in CBP facilities.

a. More Expedited Removal, Thousands of Deportations

In issuing the interim final rule and presidential proclamation, the Biden administration is attempting to process more migrants through expedited removal and avoid releasing them with notices to appear in immigration court, a process that involves multi-year backlogs. According to reports, in the first few days post-implementation, the Biden administration has put more than 2,000 people into the fast-tracked deportation process each day — more than double the prior rate.

Unsurprisingly, this increased use of expedited removal has coincided with a high number of removals. Thousands have been deported in less than a week, many on removal flights to places as far-flung as Uzbekistan. Nationalities deported under the new policies include Colombians, Ecuadorans, Salvadorans, Guatemalans, Peruvians, and Mexicans.

The number of migrant encounters at the U.S.-Mexico border has also declined, at least in the short-term. On June 7, two days after the policies went into effect, Border Patrol apprehended 3,100 people between ports of entry, a roughly 20% drop. However, migrant encounters have declined temporarily after previous significant policy announcements, as people waited to see how others fared under the new protocols.

b. Impact on Families

The New York Times reported that the new restrictions are “likely to disproportionately affect families,” who until now have been subject to expedited removal under the Biden administration in a non-detained context, but not while in border facilities. Previously, the Biden administration touted its efforts to indefinitely suspend family immigration detention, a practice that has serious negative implications for children’s health and wellbeing.

However, under the new policy, families will now reportedly be prioritized for expedited removal while in Border Patrol facilities. These facilities, which are intended for short-term stays, have been found to be inadequate and even dangerous for longer-term detention, especially for minors. Notably, children are generally not allowed to be in CBP custody for more than 72 hours, an especially quick turnaround for meaningful access to the credible fear process. This raises questions about whether there will be extended stays above 72 hours in arduous conditions or even further truncated credible fear/reasonable probability proceedings for families.

c. Repatriation Limitations

Under the new policies, certain nationalities will also be more likely to have the new restrictions applied to them, while others will be released for full removal proceedings. According to a leaked implementation memorandum, Border Patrol will process individuals and families according to three categories: easily removable, hard to remove, and very hard to remove. Single adults who are easily removable “will not be released from DHS custody unless they receive a positive Credible Fear determination,” the memo explains, adding that “any exceptions to this requirement due to exigent circumstances must be approved by [U.S. Border Patrol] headquarters leadership.” On the other hand, people can be placed in full removal proceedings if they are from countries that do not accept repatriation flights or where the U.S. otherwise lacks capacity to carry out deportations.

Practically, this means that the most severe consequences of the rule and proclamation will fall on asylum seekers from nations with regular, easy removals, such as Mexico and the Northern Triangle countries. In contrast, nationals from places like Venezuela and China — countries with which the U.S. has strained ties — may often be allowed into the U.S. because the federal government is unable to obtain cooperation to deport them. In some circumstances, however, the U.S. may deport those individuals to third countries, such as when it has returned Venezuelans and others to Mexico in recent years, pursuant to agreements with the Mexican government.

5. Conclusion

The Biden administration’s “Securing the Border” interim final rule intersects with President Biden’s presidential proclamation to significantly restrict access to the U.S. asylum system at the southern border. The policies are designed to make it easier for border officials to process more people through the fast-tracked expedited removal authority, and they subject those fleeing persecution or torture to elevated eligibility standards in their initial screenings. In practice, the proclamation and rule are expected to disproportionately affect families and people from easily deportable countries. Together, these policies raise concerns that people with valid claims for protection will not be able to have those claims heard.

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