On June 4, 2024, President Biden issued a new proclamation and rule leveraging his executive authority to prevent migrants who enter the United States unlawfully from accessing asylum. Citing a need to enhance the United States’ “ability to address the historic levels of migration and more efficiently process migrants arriving at the southern border given current resource levels,” President Biden’s new rule suspends entry of noncitizens across the U.S. southern border during times of high border crossings. The new border policy will take effect when there is a seven-consecutive-calendar-day average of 2,500 encounters or more between ports of entry. For reference, since February 2021, encounters at the southern border have exceeded these numbers every day. According to the proclamation, the term “encounter” refers to a noncitizen who “(i) is physically apprehended by CBP immigration officers within 100 miles of the United States southwest land border during the 14-day period immediately after entry between ports of entry; (ii) is physically apprehended by DHS personnel at the southern coastal borders during the 14-day period immediately after entry between ports of entry; or (iii) is determined to be inadmissible at a southwest land border port of entry.” The suspension and limitations on entry will typically go into effect immediately, once the Secretary of Homeland Security has made a determination that the encounter numbers have triggered the new policy. The suspension on entry will continue until 14 calendar days after there has been a seven-consecutive-calendar-day average of less than 1,500 encounters.  

According to the proclamation, the suspension and limitation on entry does not apply to noncitizen nationals of the United States, U.S. lawful permanent residents, unaccompanied children, severe trafficking victims, individuals demonstrating exceptionally compelling circumstances, and individuals with valid U.S. visas or other lawful permission to seek admission into the United States.

Immigrant advocates filed a lawsuit days after the proclamation was issued. The American Civil Liberties Union and others on behalf of the Refugee and Immigrant Center for Education and Legal Services (RAICES) and Las Americas Immigrant Advocacy Center are challenging the legality of the proclamation, which went into effect June 5. In their complaint, the plaintiffs argue that the proclamation violates federal law and effectively bars asylum based on where a noncitizen enters the United States. The plaintiffs request that the district court vacate the law and issue a declaratory judgment finding the new rule illegal, arbitrary, and capricious and procedurally invalid.