On September 30, 2024, the Biden administration issued a proclamation on amending Proclamation 10773.
Key Changes
According to the proclamation, in order to better achieve Proclamation 10773’s goal of addressing historic levels of migration and more efficiently process migrants arriving at the southern border, Proclamation 10773 will include unaccompanied children from both non-contiguous and contiguous countries in the calculation of encounters.
Additionally, to ensure that the threshold to discontinue the suspension and limitation on entry reflects a sustained decrease in encounters, President Biden is amending Proclamation 10773 so that the suspension and limitation on entry in that proclamation should be discontinued only after the Secretary of Homeland Security has determined that there have been 28 consecutive calendar days in which the 7-consecutive-calendar-day average of encounters is less than 1,500.
Background of Proclamation 10773 & Results
On June 3, 2024, President Biden signed Proclamation 10773 (Securing the Border), which suspended and limited the entry of certain noncitizens into the United States across the southern border during times of high border crossings, and directed the Secretary of Homeland Security and the Attorney General to promptly consider issuing any instructions, orders, or regulations as might be necessary to address the circumstances at the southern border, including any additional limitations and conditions on asylum eligibility that they determined were warranted.
- Following that direction, the Secretary of Homeland Security and the Attorney General issued an interim final rule (IFR) that established a limitation on asylum eligibility for certain noncitizens who enter the United States across the southern border during times when Proclamation 10773 and the IFR are designed to be in effect, and revised certain procedures applicable to the expedited removal process to more swiftly apply consequences for irregular migration during those times for noncitizens who do not establish a lawful basis to remain.
- Since Proclamation 10773 and the IFR went into effect, the average number of encounters by the United States Border Patrol at the southwest border between ports of entry has decreased by 59 percent compared to the period after the Circumvention of Lawful Pathways rule began to apply on May 12, 2023, and before Proclamation 10773 and the IFR went into effect.
Public Comments
Following the issuance of the IFR, the Department of Homeland Security and the Department of Justice received and reviewed more than 1,000 comments. Based on their review of those comments and their experience in implementing Proclamation 10773 and the IFR, the Departments have identified two issues related to the thresholds for determining when to apply the suspension and limitation on entry in Proclamation 10773 and the measures described in the IFR.
- The Departments have assessed that the current threshold for discontinuing the suspension and limitation on entry in Proclamation 10773 and the measures described in the IFR could be reached following a short-term decrease in the number of encounters at the southern border that does not reflect a sustained decrease in the number of such encounters or an end to the border circumstances in which Proclamation 10773 and the IFR are designed to apply. The Departments are currently considering regulatory action to address this issue as it relates to the measures described in the IFR.
- Proclamation 10773 and the IFR excluded encounters of unaccompanied children from non-contiguous countries from the calculation of encounters. However, based on the assessments the departments have determined that this exclusion is unwarranted because processing such noncitizens is particularly resource-intensive for frontline personnel at the southern border. The Departments are currently considering regulatory action to address this issue as it relates to the measures described in the IFR.
Both of these issues are being addressed in the Proclamation amendment.
Erickson Insights & Analysis
Erickson Immigration Group will continue to monitor developments and share updates as more news is available. Please contact your employer or EIG attorney if you have questions about anything we’re reporting above or case-specific questions.