U.S. Court of Appeals for the Ninth Circuit Court, No. 23-16032
U.S. District Court for the Northern District of California, No. 4:18-cv-06810-JST
What is the government doing and why are we challenging it?
On May 10, 2023, the Biden administration issued a final rule that will bar asylum for the vast majority of people seeking safety at the southwest border. The Circumvention of Lawful Pathways Rule (“CLP Rule”) combines and repackages two Trump-era policies - known as the “entry” and “transit” bans - which were struck down by the courts as unlawful.
The CLP Rule imposes a categorical bar on asylum for anyone who passes through one or more countries en route to the U.S. border and does not apply for - and get denied - protection in at least one of those countries first. The CLP Rule took effect at midnight on May 11, 2023, when the government’s illegal Title 42 expulsion policy was lifted. The CLP Rule expired on May 11, 2025, meaning that new entrants are no longer subject to it, but it continues to cause harm because anyone who entered at the southwest border while the CLP Rule was in effect will continue to have it applied to them.
There are few extremely narrow and limited situations in which people subject to the CLP Rule can avoid its application:
- People can bypass the CLP Rule if they obtained an elusive appointment through the government’s flawed CBP One smartphone app. This app proved inaccessible to the most vulnerable people seeking refuge. On January 20, 2025, the incoming Trump Administration removed the scheduling functionality of the app for migrants and cancelled all CBP One appointments.
- People from Cuba, Haiti, Nicaragua, Venezuela, and Ukraine could apply for and enter on parole, although these programs have since been terminated by the Trump Administration. [1]
- People who can prove “exceptionally compelling circumstances,” such as an acute medical emergency, must make the case that they qualify to rebut the presumption of ineligibility in an extremely rushed screening, with no access to legal help - making it very unlikely that they will succeed.
- Mexican nationals and children seeking asylum alone are not subject to the CLP Rule.
Under U.S. and international law, people fleeing persecution have a legal right to seek asylum at our borders, no matter how they cross, no matter what countries they pass through on their way, and whether or not they are able to schedule an advance appointment. That is because our asylum system was designed to protect people fleeing imminent threats to their lives, who cannot afford to wait for an application to be adjudicated in an unsafe country, or for an appointment to materialize if they are lucky. We are arguing that the CLP Rule violates our asylum laws and will result in the unlawful return of bona fide refugees to countries where their lives are in danger.
[1] The termination of the CHNV parole processes is being challenged in separate litigation. Svitlana Doe v. Noem, No. 1:25-cv-10495-IT (D. Mass.) (filed Feb. 28, 2025).
What is at stake?
The CLP Rule denies protection to most people who sought safety at the southwest border during its effective period. The rule applies to anyone who passed through another country on their way to the United States when it was in effect, shutting the door to most people fleeing countries other than Mexico during that time. The countries people travel through en route to the U.S. border are notoriously unsafe for refugees and migrants, particularly Black, Indigenous, and LGBTQ+ people. None have functioning asylum systems with the capacity to process those subject to the CLP Rule. Requiring people to apply for protection in one of those countries first is as absurd as it is illegal.
The primary mechanism that allowed people to avoid that requirement - securing an appointment via CBP One - left the most vulnerable people behind. The CBP One app was riddled with glitches and proved nearly impossible for even the most tech-savvy individuals to navigate. The app was also available only in English, Spanish, and Haitian Creole. It was entirely inaccessible to people who do not speak one of those languages - such as most Indigenous people, and those coming from non-English speaking parts of Africa, Asia, and the Middle East. It was also inaccessible to people without robust literacy skills, and to those without access to a later-model smartphone and a reliable Internet connection. Many repeatedly tried and failed to book a CBP One appointment for weeks on end, while languishing in precarious conditions in northern Mexico, where people seeking asylum are routinely targets of brutal violence.
The Trump Administration has recently expanded the expedited removal process to encompass asylum seekers who cannot prove they have been in the United States for more than two years. Because the Rule continues to apply to people who entered during the two-year effective period, people currently being placed in those expanded expedited removal proceedings continue to be subject to the Rule's presumption against asylum eligibility.
What’s the status of this case?
CGRS and our co-counsel filed the legal challenge in the U.S. District Court for the Northern District of California on May 11, 2023, a few hours before the CLP Rule took effect.
On July 25, 2023, Judge Jon Tigar vacated the rule, finding it unlawful. The Biden administration appealed the decision, and on August 3, 2023, the Ninth Circuit granted its request for a stay of Judge Tigar’s ruling, pending resolution of the appeal, and put the case on a highly expedited schedule.
After oral argument the parties filed a joint motion to hold the case in abeyance so that they might attempt to settle the case. On February 21, 2024, the Ninth Circuit issued a published decision granting the motion.
On April 10, 2025, the Ninth Circuit issued a published order vacating the district court’s judgment and remanding the case to the district court for further consideration. In district court, the Trump Administration continues to defend the CLP Rule. The parties briefed the impact of: (1) intervening Supreme Court caselaw regarding organizational standing; and (2) the Executive Order cancelling of two of the Rule’s so-called lawful pathways, the CHNV parole processes and the use of CBP One to schedule appointments.
This CLP Rule currently remains applicable to those who entered the United States during its two-year effective period.
Who’s involved?
CGRS is co-counsel, along with the ACLU Immigrants’ Rights Project, the ACLU of Northern California, and the National Immigrant Justice Center. We represent eight organizational plaintiffs that serve people seeking asylum who would be subject to the ban: East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center.
How can you help?
Take the #WelcomeWithDignity pledge and join our movement to defend the right to seek asylum. You can support CGRS’s vital work on cases like this one by making a donation.
Need more information?
Contact Brianna Krong, Communications and Advocacy Manager, at krongbrianna@uclawsf.edu.
Resources for Advocates
- Attorneys representing clients who may be subject to the asylum ban can request assistance from CGRS through our Technical Assistance Library.
- CGRS’s comment on the proposed version of the asylum ban rule can be read here.
- A report on the shortcomings of the government’s CBP One app can be found here, co-authored by CGRS, Haiti Justice Partnership, Haitian Bridge Alliance, and École Supérieure Catholique de Droit de Jérémie (ESCDROJ).
CGRS’s report on the dangers facing people seeking asylum in common countries of transit can be read here.