Circumventing Lawful Pathway Rule (CLPR)
Circumvention of Lawful Pathways Final Rule
Summary
The Circumventing Lawful Pathways (CLPFR) applies to entries between May 11, 2023 and May 11, 2025 who entered by crossing the US/Mexico border or adjacent coastal borders who traveled through a third country (so all other than Mexicans). Exceptions being:
(1) availed themselves of an existing lawful process,
(2) presented at a port of entry at a pre-scheduled time using the CBP One app, or
(3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions.
The rule applies to anyone who enters the United States between May 11, 2023, and May 11, 2025, including minors traveling with their parents.
Exceptions
Noncitizens who cross the southwest land border or adjacent coastal borders of the United States without authorization after traveling through a third country will be presumed ineligible for asylum unless they, or a member of their family with whom they are traveling, meet one of three exceptions:
- They were provided authorization to travel to the United States pursuant to a DHS-approved parole process;
- They used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or
- They applied for and were denied asylum in a third country en route to the United States.
✳️ Unaccompanied children are exempted from the rebuttable presumption.
Rebutting the Presumption
Noncitizens can rebut the presumption of asylum ineligibility in exceptionally compelling circumstances, including if they demonstrate that, at the time of their unauthorized entry, they or a member of their family with whom they were traveling:
- Faced an acute medical emergency;
- Faced an extreme and imminent threat to their life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or
- Were a victim of a severe form of trafficking, as defined in 8 CFR § 214.11.
Process
Pursuant to the Immigration and Nationality Act, noncitizens who attempt to enter the United States without authorization and cannot establish a legal basis to remain in the United States may be subject to expedited removal. The rebuttable presumption established by the final rule would be evaluated by an asylum officer as part of the credible fear interview, subject to review by an immigration judge.
- If an asylum officer determines that the noncitizen is not subject to, is excepted from, or has rebutted the presumption of asylum ineligibility, the asylum officer’s credible fear determination would follow existing procedures, including the screening for eligibility for asylum, withholding of removal, and Convention Against Torture (CAT) protection under a significant possibility standard.
- If an asylum officer determines that the noncitizen is subject to and has not made a sufficient showing of being excepted from or rebutting the presumption, the asylum officer’s screening would be limited to determining whether the noncitizen has demonstrated a reasonable possibility of persecution or torture in the designated country of removal. If a reasonable possibility of persecution or torture is established, the noncitizen will be issued a notice to appear for removal proceedings before an immigration judge.
The rebuttable presumption will apply in expedited removal proceedings, as well as to asylum applications affirmatively filed with the Asylum Office or filed in immigration court proceedings as a defense to removal.
To avoid separating members of a family traveling together, the final rule establishes that if one family member is exempted from or rebuts the presumption, all family members will be similarly treated.
Consequences
Noncitizens who are subject to the rebuttable presumption, do not rebut the presumption, and do not establish a reasonable fear of persecution or torture in the country of removal will be promptly removed.
Those ordered removed will be subject to at least a five-year bar to reentry and potential criminal prosecution if they subsequently re-enter without authorization. Those ordered removed also will be ineligible for the parole processes available to nationals of Cuba, Haiti, Nicaragua, and Venezuela.
Rescission of the Transit Ban and Entry Ban
The Departments are also rescinding the Trump-era transit ban and entry ban, which – unlike this new final rule – imposed categorical bars on eligibility for asylum and thus conflict with the approach taken in this final rule.
Time-limited
The final rule is an emergency measure that is intended to respond to the elevated levels of encounters expected after the lifting of the Title 42 Order. As such, it is designed to be temporary in duration, applying to those who enter the United States at the southwest land border and adjacent coastal borders during the 24-month period following the rule’s effective date and subsequent to the lifting of the Title 42 order. The rule’s presumption will continue to apply to these noncitizens after the end of that 24-month period.
Changes from Notice of Proposed Rulemaking
The final rule incorporates a small number of changes from the proposed rule that are responsive to comments received. These changes do not alter the purpose or structure of the rule. The changes from the proposed rule are:
- The final rule includes an exception to the general provision that the presumption of asylum ineligibility continues to apply to covered noncitizens after the end of the 24-month period of applicability: noncitizens who entered the United States as children under the age of 18 and subsequently apply for asylum as a principal applicant after the end of the 24-month period will not be subject to the presumption.
- The NPRM proposed that the rule would apply to those who enter the United States at the U.S.-Mexico land border. The final rule provides that the rule applies to those who enter the United States from Mexico at the U.S.-Mexico land border or at coastal borders near that land border, consistent with the geographic scope of the Title 42 public health Order.
- The NPRM proposed that a noncitizen in removal proceedings who is found eligible for withholding of removal, would have been eligible for asylum but for the rule’s condition on asylum eligibility, and who have family members with them in removal proceedings would be able to rebut the presumption of asylum ineligibility, thereby allowing their spouse and/or children to obtain asylum as derivative beneficiaries. The final rule extends that provision so that it applies equally to noncitizens with family members outside the United States who could follow to join as derivative beneficiaries.
The final rule also includes a few other clarifications and non-substantive changes.
PRACTICE ADVISORIES
Exceptions to Circumvention of Lawful Pathways Rule
Exceptions to the Circumvention of Lawful Pathways Rules
The rule makes the right to seek asylum conditioned upon being denied asylum in a country the individual traveled through on his or her way to the United States, assuming the country is a signatory to the 1951 Refugee Convention or the 1967 Protocol Relating to the Status of Refugees. This presumption of ineligibility is rebuttable if a noncitizen:
- Received prior authorization to present at the border pursuant to a DHS-approved parole process;
- Presented at a port of entry at the scheduled time or is able to demonstrate that it was not possible to use the CBP One application;
- Received a final denial decision for asylum in a transit country (or a member of the noncitizen’s family did);
- Suffered an “acute medical emergency; faced an imminent and extreme threat to life or safety, such as an imminent threat of rape, kidnapping, torture, or murder; or satisfied the definition of ‘victim of a severe form of trafficking in persons’ provided in 8 CFR 214.11” (or a member of the noncitizen’s family did);
- Reports other exceptional circumstances; or
- Is an unaccompanied child.
To rebut the presumption of asylum ineligibility on the basis of a technical CBP One application failure or because of an imminent threat, the asylum seeker must demonstrate a preponderance of evidence. This places a significant
burden on asylum seekers who in many cases will not have access to counsel.