What is the current state of law with Circumvention of Lawful Pathways rule in asylum cases?

The Circumvention of Lawful Pathways (CLP) rule is not currently operative in asylum adjudications. USCIS reports that East Bay Sanctuary Covenant v. Biden, No. 18-cv-06810 (N.D. Cal.) vacated the rule, so DHS and DOJ may not apply its asylum presumption as a current eligibility bar.[2]

What the CLP rule did

The rule created a rebuttable presumption of asylum ineligibility for many noncitizens who:

  • Entered from Mexico across the southwest land or adjacent coastal border;
  • Entered without documents sufficient for lawful admission;
  • Entered between May 11, 2023, and May 11, 2025; and
  • Had traveled through another country without seeking protection there or using specified lawful pathways.[1]

The implementing regulation was 8 C.F.R. § 208.33, which included exceptions for, among others, unaccompanied children, certain DHS-authorized parole processes, scheduled or qualifying unsuccessful attempts to use a port of entry, and applicants denied protection in a transit country.[1]

Current legal effect

IssueCurrent status
CLP presumptionVacated and no longer enforceable
Automatic asylum bar based solely on covered entryUnavailable under CLP
Ordinary asylum eligibility rulesContinue to apply
Other statutory asylum barsRemain potentially applicable
Withholding of removal and CAT protectionRemain distinct forms of protection and are not eliminated by the CLP vacatur

The rule’s vacatur is consistent with the Ninth Circuit’s earlier holding that conditioning asylum eligibility on entry through a port of entry conflicted with the Immigration and Nationality Act’s express authorization to apply for asylum after arrival, “whether or not at a designated port of arrival.” East Bay Sanctuary Covenant v. Trump, 993 F.3d 640, 670–76 (9th Cir. 2020).[3] The court held that the rule was contrary to 8 U.S.C. § 1158(a)(1) and therefore unlawful under 5 U.S.C. § 706(2)(A).[3]

“Section 1158(a) provides that migrants arriving anywhere along the United States’s borders may apply for asylum.” East Bay Sanctuary Covenant v. Trump, 993 F.3d 640, 675 (9th Cir. 2020).[3]

Practical qualification

The CLP rule may still arise in historical litigation or adjudication records involving entries during its former effective period, but it should not presently be treated as an operative, independent presumption of asylum ineligibility. The applicant’s case remains subject to the ordinary requirements of 8 U.S.C. § 1158, including timeliness, statutory bars, the refugee definition, and discretionary adjudication.

Sources & References

  1. East Bay Sanctuary Covenant v. Trump
  2. Asylum | USCIS
  3. East Bay Sanctuary Covenant v. Donald Trump, 993 F.3d 640 (2020)

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