TIPs: Topline Immigration Policy Updates

Details of Proposed Asylum Rule
On Feb. 23, 2023, the Biden administration proposed a new rule related to asylum that will create a “rebuttable presumption” of ineligibility for asylum for certain non-citizens who enter the United States through the southern border on or after the sunset date of Title 42, which is May 11, 2023, and who have passed through a third country without seeking asylum there. The proposed rule makes clear that “enter” the U.S. refers to those who present themselves at a port of entry without proper documentation and those who enter the U.S. between ports of entry.

Does the rebuttable presumption apply to everyone?
The rebuttable presumption of ineligibility for asylum does not apply to:
  • Those who have sought asylum in a third country and were denied or those who have sought humanitarian parole though one of the established programs for nationals from Cuba, Haiti, Nicaragua, Ukraine or Venezuela.
  • Those who have arrived at a U.S. port of entry for a prescheduled appointment with the DHS scheduling app known as “CBP One” or those who can demonstrate that “CBP One” was not available for them to use to schedule the appointment. It is unclear how asylum seekers can show they were unable to use the CBP One app to demonstrate that the rebuttable presumption does not apply to them. 
  • Unaccompanied minors.
How can one rebut the presumption of being ineligible for asylum?
The proposed rule states that if an asylum seeker can demonstrate exceptionally compelling circumstances by a preponderance of the evidence, then the rule will not apply. The proposed rule only lays out three scenarios where the presumption can be rebutted:
  • Where the asylum seeker or a member of their family with whom they are traveling is facing an acute medical emergency.
  • Where the asylum seeker is faced with imminent and extreme threats to their life or safety.
  • Where an asylum seeker is a victim of a severe form of trafficking.
In addition to these three grounds, the adjudicator could also determine if any other exceptional compelling circumstance should rebut the presumption of ineligibility for asylum. One such compelling circumstance, illustrated in the proposed rule, is to avoid family separation. 

If an asylum seeker cannot rebut the presumption of ineligibility for asylum, would they be eligible for other relief or protection?
According to the proposed rule, those who are ineligible for asylum may still be eligible for withholding of removal or protection under the Convention Against Torture (CAT). But this can get a little confusing. See below.

Who determines whether an asylum seeker has or has not rebutted the presumption of ineligibility for asylum?
Asylum officers who would normally have conducted credible fear screenings for those in expedited removal would first determine if the rebuttable presumption applies and, if so, whether the asylum seeker was able to rebut the presumption.

If the rebuttable presumption does not apply or has been rebutted, then the asylum officer will continue with the credible fear screening under the “significant possibility” standard.  If the asylum officer issues a negative credible fear finding under the lower “significant possibility standard” then the  asylum officer conducts the credible fear interview, but under a higher standard of “reasonable possibility” of persecution or torture. When applying this higher standard, the asylum officer will only consider if the asylum seeker is eligible for withholding of removal or CAT protection.

If the asylum officer makes a positive credible fear finding, using either the “significant possibility” or the “reasonable possibility standard,” then the asylum officer will issue the noncitizen a Notice to Appear, or NTA, on Form I-862 where the noncitizen will be able to apply for asylum, withholding of removal and CAT protection on Form I-589 before the Immigration Judge, or IJ.

If the asylum officer issues a negative credible fear decision, an IJ can review the asylum officer’s negative credible fear decisions. The IJ will review whether the presumption applies and whether it has been rebutted. If the presumption is found not to apply or has been rebutted, then the IJ will determine if the asylum seeker has established a credible fear of persecution.

If a credible fear of persecution is established then DHS has the discretion to allow an asylum officer to conduct an asylum merits interview or to place the noncitizen in INA 240 removal proceedings where they can apply for asylum, withholding and CAT protection. If the IJ determines that the presumption does apply and/or is not rebutted, then the IJ will determine if the noncitizen has a reasonable possibility of persecution or torture. If the IJ determines the noncitizen merits a positive credible fear determination based on the “reasonable possibility” then DHS will issue an NTA on Form I-862 and the asylum seeker can apply for asylum, withholding of removal and CAT protection before the IJ.  

When will this rule go into effect, if finalized?
The proposed rule, if finalized, will go into effect May 11, 2023, when Title 42 is set to expire.

How long is this proposed rule intended to last?
The proposed rule is intended to last two years, but after the sunset date the rule will continue to apply to those who entered within the two-year period.

When are comments to this proposed rule due?
The public only has 30 days from Feb. 23, 2023, to submit comments to this proposed rule. Comments should be submitted on or before March 27, 2023, unless an extension is granted.

Advocate for Asylum Seekers
CLINIC is hosting a free webinar on the Biden administration’s new proposed asylum rule. We will cover how this proposed rule is essentially an asylum ban and an entry ban with limited exceptions and how it would negatively and disproportionately impact asylum seekers arriving at the U.S. southern border. We will discuss how you and your organization can stand with asylum seekers by submitting comments to this proposed rule and we will share comment-writing and outreach strategies. The webinar will take place on Tuesday, March 14, at 2 p.m. ET.

CLINIC will also circulate a template comment that advocates and the general public can use to submit additional information and details that will be useful to the government as they consider the comments.
Read CLINIC’s press release in response to the proposed rule.
CLINIC affiliates: If you have a substantive legal question about a case, please contact CLINIC’s Ask the Experts service. For assistance resolving an issue with a case, check out CLINIC’s Case Escalation Services. For State and Local advocacy assistance, email
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