(UNITED STATES) — A new DHS-led regulation taking effect Dec. 31, 2025, would allow asylum and related protection to be denied on public health grounds by treating certain epidemic-related risks as a “danger to the security of the United States,” potentially expanding a rarely used statutory bar into a fast-moving, emergency-driven screening tool.
The rule, signed by Homeland Security Secretary Kristi Noem and coordinated with DOJ and public health authorities, is not a BIA precedent decision. Its core legal move—folding disease exposure and outbreak geography into the “danger to security” bar—tracks a framework immigration adjudicators already know from the Attorney General’s interpretation of that bar in Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005). That decision, though factually far removed from communicable disease, is likely to shape how immigration judges, the Board of Immigration Appeals (BIA), and litigants evaluate the regulation’s legality and its day-to-day application.
The governing “danger to security” precedent: Matter of A-H-
In Matter of A-H-, the Attorney General addressed the statutory bar that can make a person ineligible for asylum if “there are reasonable grounds for regarding the alien as a danger to the security of the United States.” See INA § 208(b)(2)(A)(iv). A similar bar applies to withholding of removal. See INA § 241(b)(3)(B)(iv).
Holding (in practical terms): The Attorney General read “reasonable grounds” as a relatively low threshold, akin to probable cause, and emphasized that adjudicators may rely on a range of evidence. The decision also treated “danger to security” as a concept that can reach beyond a completed harmful act, depending on the risk shown. See Matter of A-H-, 23 I&N Dec. 774 (A.G. 2005).
Why that matters now: If a regulation treats epidemic exposure, symptoms, or origin from designated regions as a security “danger,” opponents will likely argue the agency is stretching “security” past its statutory meaning. Supporters will likely point to A-H- as supporting a broader, risk-based reading.
What the new rule does (and why it is newsworthy
According to the rule’s public description, it would permit DHS and DOJ adjudicators to deny asylum and withholding/suspension-type protections during a declared public health emergency when an applicant:
- Exhibits symptoms of a disease that is the subject of the emergency declaration; or
- Has had recent contact within the maximum incubation and contagion period.
The rule also contemplates country or region designations—an agency finding that certain places are epidemic hotspots such that the presence of nationals from those places may be treated as a security risk, triggering ineligibility.
Importantly, the summary indicates the rule is not retroactive to previously filed applications. It also notes an exception tied to people returning from Canada under existing bilateral arrangements.
The timing is significant. DHS also announced that USCIS had suspended asylum applications for “system review” effective Dec. 2, 2025, a separate operational move that may slow filings and adjudications even before this new bar is applied in individual cases.
Deadline Watch (Effective Date)
The regulation is scheduled to take effect Wednesday, Dec. 31, 2025. Implementation details may change through agency guidance or litigation.
Key facts that set up the legal conflict
Unlike Matter of A-H-, which arose from a security-focused factual record, the new regulation is built around public health conditions and emergency declarations. The reported triggers are not individualized “dangerousness” findings in the classic sense. They are often medical or epidemiological indicators, sometimes paired with broad geographic designations.
That factual design is the crux of the coming disputes. The government may argue that epidemic threats can impair national security. Challengers may respond that this is primarily a public health and border-management issue, not “security” as Congress used that term in the asylum statute.
How the regulation may operate inside asylum and withholding law
1) Asylum bars vs. withholding and CAT
Asylum is discretionary relief under INA § 208. It is subject to mandatory bars, including the “danger to the security of the United States” bar. See INA § 208(b)(2)(A)(iv).
Withholding of removal under INA § 241(b)(3) is not discretionary. But it also has mandatory bars, including the same “danger to security” bar. See INA § 241(b)(3)(B)(iv).
Protection under the Convention Against Torture (CAT), implemented by regulation, is different. Even when a person is barred from asylum and statutory withholding, they may still seek CAT deferral if they meet CAT’s strict standard. See generally 8 C.F.R. §§ 1208.16–1208.18 (EOIR regulations).
The new regulation’s practical impact may therefore be to push more cases into a CAT-only posture, depending on how it is written and applied.
Warning for Applicants in Proceedings
A denial of asylum on a mandatory bar can reshape the entire case. It may shift the focus to withholding or CAT, with different burdens and evidence needs.
2) Evidence and the “reasonable grounds” concept
Matter of A-H- is likely to be cited for the proposition that the government does not need proof “beyond a reasonable doubt” to apply the bar. The question becomes what evidence is acceptable to show “reasonable grounds” in a health-based case.
In practice, that could mean reliance on:
– Medical screening notes at or near the border.
– Vaccination or test records.
– Public health contact-tracing documentation, if it exists.
– Country or regional designations issued by agencies during an emergency.
The counterpoint is that epidemic-era information can be incomplete. Symptoms overlap with non-contagious illnesses. Exposure windows can be disputed. Applicants may have limited ability to obtain records while detained.
3) Designating whole regions: individualized adjudication concerns
If entire regions can be designated as threats, litigants may argue this resembles a categorical bar that short-circuits individualized analysis. This is where due process, administrative law, and statutory interpretation arguments are likely to concentrate.
Even in a risk-based framework, immigration courts typically expect an individualized record. If a presumption becomes functionally irrebuttable, that may become a major litigation target.
If You Are Sick or Were Exposed
Do not assume you are automatically disqualified from all protection. The statutory scheme is complex, and CAT may still be available in some cases. Get counsel quickly.
How this precedent affects future cases (even without a new BIA decision)
Because Matter of A-H- is an Attorney General decision, it is binding on immigration judges and the BIA unless modified by later authority. That matters in two ways:
- Government attorneys may cite A-H- to defend a broad reading of “danger to security,” arguing that Congress allowed a flexible, preventative standard.
- Respondents may distinguish A-H- by emphasizing its security-and-terror context, arguing that communicable disease policy belongs in health statutes, not asylum bars.
Over time, litigation may produce new BIA precedent or circuit case law that either narrows or accepts the health-security linkage. Until then, A-H- may function as the closest high-level interpretive anchor.
Are there circuit splits yet?
No circuit split has been reported on this specific regulation, and there is no noted BIA precedent addressing it. That said, asylum-bar questions often become circuit-dependent over time, especially on:
- What counts as sufficient evidence for a mandatory bar.
- How much deference courts give to agency interpretations under administrative law principles.
- The level of process required when categorical designations drive outcomes.
As cases reach federal courts, watch for divergent approaches among circuits to emergency-based categorical findings and the amount of individualized proof required.
Practical takeaways for applicants and practitioners
- Screen early for bar issues. If a public health emergency is declared, symptoms, exposure history, travel routes, and documentation may become central, not peripheral.
- Preserve rebuttal evidence. Medical records, negative tests, vaccination documentation, and proof of timing can matter, especially if “incubation period” becomes a legal trigger.
- Plan for alternative protection. If asylum is barred, statutory withholding may also be barred. CAT deferral may remain, but it requires specific proof of likely torture.
- Expect fast policy shifts. Emergency declarations can change quickly. Agency designations can be updated, expanded, or withdrawn.
- Litigation may alter implementation. Temporary restraining orders, preliminary injunctions, and phased guidance are common when high-impact rules roll out.
Strong Recommendation
If you may be affected—especially if you are in removal proceedings or detained—consult an experienced immigration attorney immediately. Bar determinations can be case-dispositive, and early strategy often matters.
Official government resources
- EOIR (Immigration Court): EOIR (Immigration Court)
- USCIS Asylum: USCIS Asylum
- INA (Cornell Law School): law.cornell.edu/uscode/text/8
Resources:
– AILA Lawyer Referral
⚖️ Legal Disclaimer: This article provides general information about immigration law and is not legal advice. Consult a qualified immigration attorney for advice about your specific situation.
The U.S. government is expanding the ‘danger to security’ asylum bar to include public health risks. Effective late 2025, the rule allows for the denial of asylum and withholding of removal based on disease symptoms or regional epidemic designations. While exceptions exist for prior applications and Canadian returns, the rule faces potential legal challenges regarding its broad interpretation of security and its impact on individualized adjudication.
