DHS and DOJ Final Rule Establishes an Asylum “Transit Ban”

DHS and DOJ final rule “Circumvention of Lawful Pathways,” which establishes, for a two-year period, a rebuttable presumption of asylum ineligibility for certain noncitizens who enter at the southwest border (or adjacent coastal borders) without documentation and traveled through a country that is a signatory to the 1951 Refugee Convention or its 1967 Protocol. The rule is effective 5/11/23.



CBP Issues Memo on Policy on Parole with Conditions in Limited Circumstances Prior to the Issuance of a Charging Document

CBP issued a memo outlining when it may exercise discretionary parole authority for urgent humanitarian reasons or a significant public benefit including its use of parole prior to the issuance of a charging document. The memo states: “This memorandum describes a policy concerning when CBP may ecercise its discretionary parole authority for urgent humanitarian reasons or a significant public benefit, including where there are conditions requiring the expeditious processing of noncitizens in exigent circumstances in order to ensure (1) appropriate and safe conditions for the health and safety of individual noncitizens in custody and (2) USBP’s continued ability to care out its critical border security and enforcement mission. During periods of sustained high encounter numbers, it is significantly more efficient for USBP to process individuals, consistent with INA § 235(a), 8 U.S.C. § 1225(a) for Parole with Conditions as opposed to issuing an NTA or other charging document at the time of encounter. Those subject to Parole with Conditions are not simply released into the community; they are required to schedule an appointment with ICE for initiation of section 24 removal proceedings, as appropriate, or, at a designated online location, request service of an NTA by mail.”

Supreme Court Decision In Favor of Immigrants

In a unanimous ruling, the U.S. Supreme Court held that INA §242(d)(1) is not jurisdictional, and that a noncitizen need not request discretionary forms of administrative review, like reconsideration of an unfavorable BIA determination, in order to satisfy §242(d)(1)’s exhaustion requirement. Accordingly, the Court vacated the Fifth Circuit’s determination that the petitioner, a transgender women from Guatemala seeking withholding of removal and Convention Against Torture (CAT) relief, was required to seek reconsideration from the BIA prior to pursuing judicial review, and remanded the case for further proceedings. (Santos-Zacaria v. Garland, 5/11/23)

BIA Holds That It May Accept Late-Filed Appeals in Certain Situations Through Equitable Tolling

Overruling Matter of Liadov, the BIA first held that it has authority to accept what are otherwise untimely appeals, and consider them timely, in certain situations because 8 CFR §1003.38(b) (2022) is a claim-processing rule and not a jurisdictional provision. The BIA then concluded that it will accept a late-filed appeal where a party can establish that equitable tolling applies, which requires the party to show both diligence in the filing of the notice of appeal and that an extraordinary circumstance prevented timely filing. Matter of Morales-Morales, 28 I&N Dec 714 (BIA 2023)

CBP No Longer Requires Proof of COVID-19 Vaccination

Starting May 12, 2023, nonimmigrant air travelers will not be required to show proof of covid19 vaccination when entering the United States. This is in line with the CDC rule that there is no longer a pandemic.