A new federal rule that will go into effect on December 31, 2025, will significantly change the criteria that determine who can apply for asylum or for cancellation of removal in the United States.
Under the justification of protecting national security and public health, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) confirmed that certain foreigners may be denied protection if they are deemed a health risk during emergencies.
Although the rule was originally published in December 2020, its implementation was postponed several times.
Now, after years of technical adjustments and conflicts with other regulations, it is confirmed that its substantive part will be implemented as originally conceived, while other elements have been removed for being considered obsolete or incompatible.
New exclusion criteria
The regulation introduces an expanded interpretation of the so-called "mandatory bars" to asylum and protection against deportation.
Specifically, it establishes that a foreign national can be considered "a threat to the security of the United States" if, in the context of a public health emergency, they meet certain medical or epidemiological criteria.
"An foreign national will be ineligible for the removal suspension […] if they exhibit symptoms of a disease declared a public health emergency or if they have been in contact with that disease within the maximum incubation and contagion period," states the official document, signed by the Secretary of Homeland Security, Kristi Noem.
Furthermore, the DHS, the DOJ, and the Department of Health may designate countries or entire regions as health threats, which can lead to automatic bans for applicants from those areas.
"If the DHS and the DOJ, in consultation with Public Health, determine that the physical presence of foreigners from certain regions with active epidemics poses a danger to health in the U.S., those foreigners may be considered a threat to national security," states the regulation.
What is eliminated
In parallel to the enactment of the rule, the agencies have removed parts of the original 2020 text that modified the credible fear interview procedures.
These changes, which included stricter rules on how and when to apply vetoes, created contradictions with other regulations approved between 2021 and 2024.
The DHS acknowledged that leaving those active elements would have caused "regulatory confusion" and potential legal errors.
Therefore, the instructions affecting the preliminary asylum evaluation procedure, the removals to third countries, and other technical aspects of the migration process have been withdrawn.
"The implementation of the rule without adjustments would jeopardize the agencies' ability to use the expedited removal system," warns the document.
Immediate impact and exceptions
The new regulation does not have retroactive effect. It also does not create new standards for evidence nor completely eliminate the right to seek protection under the Convention against Torture (CAT), which will remain available if the applicant demonstrates that it is "more likely than not" that they will be subjected to torture in their country of origin.
Likewise, it will not apply to those returning to the United States from Canada under the current bilateral agreement, according to a specific provision included in the regulation.
A policy of the current administration
Although originally drafted under the Trump administration, the implementation of this rule represents another step in the current immigration policy, focused on deterring unauthorized entries and strengthening border controls.
On December 2nd, the U.S. Citizenship and Immigration Services (USCIS) suspended all asylum applications while conducting a comprehensive review of the system, and this regulation complements that shift in focus.
“This final rule is an additional step in our efforts to support the priorities of the Trump administration, ensuring that foreigners who may pose a threat to the security of the United States do not receive asylum or a stay of removal,” the DHS stated in a press release.
What could come next?
Although the DHS claims that there is currently no active health emergency that would trigger these restrictions, the regulation is designed to be applied in future health crises such as pandemics or epidemic outbreaks.
This means that if an official public health emergency declaration is activated, simply showing symptoms of a communicable disease could be enough to deny asylum.
The measure has been criticized by organizations advocating for migrants' rights, who warn about the risk of arbitrariness and discrimination, as well as by public health specialists who question the scientific basis for some of its provisions.
However, the government insists that this regulation strengthens the country's health and migratory sovereignty without eliminating other legal avenues for protection.
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