On June 4, 2024, President Biden published a proclamation suspending entry of noncitizens across the southern border due to the number border crossings. Subsequently, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) published an Interim Final Rule (IFR) the following day, which severely restricted access to asylum and other humanitarian protections during emergency border circumstances. The IFR made three changes: first, it made asylum seekers ineligible for asylum, with narrow exceptions, if they entered through the southern border through an unapproved process; second, it required asylum seekers facing expedited removal to manifest their fear of persecution or an intent to apply for asylum while removing DHS’ existing individualized notice requirements; and three, it established a heightened standard during the credible fear screening process for withholding of removal and CAT.

The American Immigration Council and the American Immigration Lawyers Association (AILA) submitted a joint comment urging the Biden administration to rescind this IFR. The comment argued that these changes would make it insurmountably difficult for asylum seekers to qualify for protection, as well as infuse confusion and the arbitrary application of the law into border processing. Specifically, the comment noted that the imposed asylum ineligibility was in direct conflict with the Immigration and Nationality Act, which allows asylum seekers to request asylum regardless of their manner of entry.

The comment also explained that the imposition of the manifestation of fear requirement would undermines the credible fear process and result in asylum seekers to be removed to danger. In fact, the comment included an article detailing the stories of multiple families and individuals who were not allowed to speak up, or were ignored when they requested protection.

Lastly, the comment noted logistical and ethical issues in administering this IFR.