Circumvention of Lawful Pathways and Presidential Proclimation 10773
Date of Information: 08/28/2025
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Introduction
On June 3, 2024, President Biden issued a proclamation titled “Securing the Border.” The proclamation temporarily suspended and limited the entry of and asylum eligibility of aliens at the southwestern border (“SWB”). The proclamation went into effect on May 11, 2024, pursuant to an interim final rule promulgated by the Departments of Homeland Security (“DHS”) and Justice (“DOJ”). The rule is somewhat complex and arcane—which seems to have been intentional. But in general, the so-called “Circumvention of Lawful Pathways” rule (“CLP”) requires any person seeking asylum in the United States by entering through the southern border to make an appointment through the CBP-1 online application and then wait for their appointment before presenting themselves for inspection at the established point of entry. Any deviation from that course could result in inadmissibility and a bar to entering the United States.
The purpose of this guide is to outline the circumstances leading to the new rule, the rationale behind it, and the specific requirements. It will also outline possible arguments that might apply to a challenge to an alien’s admissibility under CLP by the Office of the Principal Legal Advisor (“OPLA”). Finally, it will analyze possible issues with the authorities the President, DHS, and DOJ used to promulgate the rule—possible challenges to the legality of the CLP rule itself.
History of the Rule
In or around 2020-2021:
A series of global conflicts, including but not limited to the fall of the Government of the Islamic Republic of Afghanistan, the Russian invasion of Ukraine, and civil wars in Syria and Ethiopia, increased global migration to the Western Hemisphere. Economic circumstances such as the COVID-19 pandemic also contributed. The combined effect of these conditions led to U.S. Customs and Border Protection (“CBP”) apprehending more than 2,500 aliens per day. As a shorthand, subsequent legislation, rules, and proclamations referred to these circumstances as “Emergency Border Circumstances.”
March 20, 2020:
The Trump Administration invoked authority under 42 U.S.C. § 265 to restrict the entry of aliens into the United States. See 85 FR 17060. 42 U.S.C. § 265 (colloquially, “Title 42”) was a public health authority executed under the auspices of the Centers for Disease Control and Prevention (“CDC”) rather than a substantive authority pertaining to immigration. The policy was controversial in that it was widely seen as an attempt by the Trump Administration to fulfill an anti-immigration campaign promise rather than designed to prevent the spread of the ongoing COVID-19 pandemic. The constitutionality of the policy and ancillary issues were litigated up to the Supreme Court of the United States (“SCOTUS”) in ARIZONA, ET AL. v. ALEJANDRO MAYORKAS, SECRETARY OF HOMELAND SECURITY, 598 U. S. ____ (2022). However, the case was essentially rendered moot when the policy ended before SCOTUS ruled on some of its procedural aspects.
January 20, 2021:
President Biden was inaugurated as 46th President of the United States, replacing President Trump.
January 31, 2023:
The U.S. House of Representatives passed the Pandemic is Over Bill (H.R. 382) and referred it to the U.S. Senate. The Senate never voted on the Bill.
Feb 23, 2023:
DHS and DOJ issued a notice of proposed rulemaking (“NPRM” or “proposed rule”) for CLP in anticipation of a potential surge of migration at the southwest border (“SWB”) of the United States upon the termination of the CDC public health order. See 88 FR 11704.
May 7, 2023, CBS Evening News report on the expiration of Title 42 authorities and the expected migrant surge.
May 11, 2023:
President Biden ended the COVID-19 emergency declaration underlying the CDC’s use of 42 U.S.C. § 265. See 88 FR 30889.
May 16, 2023:
DHS and DOJ issued a final CLP rule, with a request for comments on expanded applicability in a maritime context, retroactively effective to May 11, 2023. See 88 FR 31314.
June 3, 2024:
President Biden issued Proclamation 10773, “Securing the Border.” See 89 FR 48487.
June 7, 2024:
DHS and DOJ issued an interim final CLP rule with a request for comments. See 89 FR 48710.
September 27, 2024:
President Biden issued Proclamation 10817, “Amending Proclamation 10773.” See 89 FR 80351.
October 7, 2024:
DHS and DOJ issued a revised final CLP rule with a request for comments. See 89 FR 81156.
December 18, 2024:
DHS and DOJ make some minor adjustments to the CLP Rule to allow “asylum officers (AOs) to consider the potential applicability of certain bars to asylum and statutory withholding of removal during credible fear and reasonable fear screenings, including credible fear screenings where the Circumvention of Lawful Pathways or Securing the Border rules apply.” 89 FR 103370.
Authorities Underlying the Rule
As a constitutional matter, the President of the United States is vested with significant authority over the foreign affairs and national security of the United States. See United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320(1936). The President’s authority over the foreign affairs and national security of the United States is enhanced even further when Congress specifically authorizes his actions. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952).
Such is the case with most of the President’s authorities to regulate immigration. Of Congress’s delegation of power to the Executive Branch through the Immigration and Nationality Act (“INA”), the U.S. Supreme Court has stated:
[P]lenary congressional power to make policies and rules for exclusion of aliens has long been firmly established. In the case of an alien excludable under [INA Section 212], Congress has delegated conditional exercise of this power to the Executive. We hold that when the Executive exercises this power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against [other Constitutional] interests.
INA Section 212(f) specifies that:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.
8 U.S.C. § 1182(f). Of this broad statutory authority, the U.S. Supreme Court has stated:
By its terms, § 1182(f) exudes deference to the President in every clause. It entrusts to the President the decisions whether and when to suspend entry (“[w]henever [he] finds that the entry” of aliens “would be detrimental” to the national interest); whose entry to suspend (“all aliens or any class of aliens”); for how long (“for such period as he shall deem necessary”); and on what conditions (“any restrictions he may deem to be appropriate”). It is therefore unsurprising that we have previously observed that § 1182(f) vests the President with “ample power” to impose entry restrictions in addition to those elsewhere enumerated in the INA.
Additionally, INA Section 215 states, somewhat redundantly, that “[u]nless otherwise ordered by the President, it shall be unlawful . . . for any alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.” 8 U.S.C. § 1185(a)(1). The Executive Branch of the U.S. Government has routinely invoked INA Sections 212(f) and 215(a)(1) collectively as the legal basis for ad hoc restrictions on immigration.
Codification of the CLP Rule
The CLP rule revised and expanded the regulations codified in the Code of Federal Regulations (“CFR”) in the following locations:
8 C.F.R., Part 208, as it pertains to asylum; and
8 C.F.R., Part 235, as it pertains to expedited removal.
Requirements under the CLP Rule
The CLP rule is arcane and nuanced—probably intentionally. But there are a few key themes and requirements that applicants and asylum seekers should be aware of:
There is a rebuttable presumption that an alien entering the United States through the Southwestern Border (“SWB”) without a visa is ineligible for asylum if they passed through another country that is a signatory to the 1951 United Nations Convention relating to the Status of Refugees or the 1967 Protocol relating to the Status of Refugees. See 8 C.F.R. § 208.33(a)(1).
The rebuttable presumption does not apply under three circumstances:
The alien has DHS permission to travel to the United States to seek parole, see 8 C.F.R. § 208.33(a)(2)(A);
The alien presents himself at a port of entry for inspection by appointment made through the CBP-1 application, see 8 C.F.R. § 208.33(a)(2)(ii)(B);
The alien presents himself at a port of entry for inspection without an appointment but can show by a preponderance of the evidence that he could not use CBP-1 due to a language or technology barrier, see 8 C.F.R. § 208.33(a)(2)(ii)(B); or
The alien applied for asylum in a third country but was denied, see 8 C.F.R. § 208.33(a)(2)(ii)(C).
Even if the rebuttal presumption applies to the alien, the presumption can be rebutted by a preponderance of the evidence showing that exceptionally compelling circumstances exist, including but not limited to:
An acute medical emergency, see 8 C.F.R. § 208.33(a)(3)(i)(A);
An imminent and extreme threat to life or safety, see 8 C.F.R. § 208.33(a)(3)(i)(B); or
That the alien was a victim of a severe form of trafficking in persons, see 8 C.F.R. § 208.33(a)(3)(i)(C).
If the rebuttable presumption applies, and the alien fails to rebut it, CBP will make a negative credible fear determination. However, the alien can still stay in the United States if he can show “a reasonable possibility of persecution (meaning a reasonable possibility of being persecuted because of their race, religion, nationality, membership in a particular social group, or political opinion) or torture, with respect to the identified country or countries of removal.” 8 C.F.R. § 208.33(b)(2)(i) (emphasis added).
Even if the alien fails to show a reasonable possibility of persecution, the alien has the opportunity to for a review of the credible fear determination by an immigration judge. See 8 CFR 208.33(b)(2)(v).
A visual representation of the analysis:
Current Challenges to CLP
Several lawsuits are pending in federal courts challenging the Circumvention of Lawful Pathways (CLP) Rule and related presidential proclamations. Advocacy groups, including the ACLU, have argued that the CLP unlawfully restricts the right to seek asylum under U.S. and international law. While no court has yet issued a nationwide injunction, the litigation landscape is evolving quickly.
What this means for you: The rule is in effect now, but parts of it could be limited or struck down in the future.
Practice tip: If you are in removal proceedings, it is essential to preserve legal arguments that the CLP rule is unlawful.
Practical Advice for Asylum Seekers
Important Update (January–March 2025):
As of January 20, 2025, the CBP One app was discontinued and can no longer be used to make asylum appointments.
In March 2025, DHS introduced a replacement app called CBP Home, but its features are limited to self-deportation and a few other CBP services. It does not allow you to schedule asylum appointments.
What this means for you now:
You must present yourself directly at a port of entry on the U.S.–Mexico border if you wish to request asylum. There is no app-based system for scheduling surrender.
Be prepared for delays. Ports may have long wait times or limited processing capacity.
Document your attempts to seek asylum:
Keep a record of the date, time, and location of your attempt to present yourself.
If you are turned away or delayed, try to get written confirmation, photos, or affidavits from witnesses.
Gather evidence for exceptions and rebuttal:
Language or technology barriers: Since CBP One is no longer an option, you should instead focus on documenting difficulties accessing safe pathways or alternative lawful routes.
Medical or safety emergencies: Carry hospital records, police reports, or affidavits showing you face imminent danger.
Previous asylum applications in a third country: Bring proof of your denial.
Victim of trafficking: Document your experience through affidavits, NGO support letters, or law enforcement reports.
Remember: Even if you are given a negative credible fear determination, you still have the right to seek review before an immigration judge.
Practical Advice for Attorneys and Advocates
Key Policy Shift:
CBP One (discontinued Jan. 20, 2025): Previously the only way to schedule asylum appointments.
CBP Home (launched Mar. 2025): Focused on voluntary departure (“self-deportation”) and other limited CBP functions; does not provide asylum scheduling.
What this means for advocacy:
Preserve the Record:
Since no appointment system exists, encourage clients to document their direct attempts to present at ports of entry.
Evidence could include photos of queues, affidavits from witnesses, or written notes of CBP’s response.
Prepare for Heightened Litigation Needs:
DHS will likely argue asylum seekers “circumvented lawful pathways” if they did not present via CBP One before January 2025.
Be ready to argue that no lawful appointment mechanism currently exists, undermining any presumption of ineligibility.
Frame Exceptions Strategically:
Emphasize safety risks in transit states.
Use expert testimony and country condition reports to rebut DHS’s presumption of eligibility bars.
Challenge the Rule’s Legality:
Continue raising INA and APA challenges to the Circumvention of Lawful Pathways framework, especially now that its original “lawful pathway” (CBP One) no longer exists.
Preserve constitutional arguments in case federal courts weigh in on whether the lack of a functioning pathway violates asylum law.
Monitor Litigation and Policy Changes:
Ongoing federal lawsuits could alter DHS practices.
Stay in touch with litigation updates through ACLU and immigrant rights coalitions.
Special Considerations for Vulnerable Populations
Certain groups face unique challenges under CLP:
Families with Children: Documentation of family unity and the potential harm to minors can strengthen rebuttal arguments.
LGBTQ+ Asylum Seekers: Some transit countries are unsafe due to criminalization or violence. Evidence of this risk should be presented if CBP One access was not feasible.
Stateless Individuals: Applicants without recognized nationality may have no safe third country to apply in, bolstering claims for exception.
Victims of Gender-Based Violence: Survivors should provide documentation of threats, medical reports, or NGO affidavits showing inability to safely apply in third countries.
Frequently Asked Questions (FAQ)
1. What is “Circumvention of Lawful Pathways” (CLP)?
A DHS/DOJ framework that makes many border crossers presumptively ineligible for asylum unless they meet an exception or rebut the presumption (e.g., emergencies, trafficking, prior denial in a third country).
2. What changed in January–March 2025 about border appointments?
CBP One was discontinued on Jan 20, 2025. The replacement, CBP Home (Mar 2025), does not schedule asylum appointments; it’s oriented to voluntary departure (“self-deportation”) and a few other CBP services. You must present directly at a port of entry to request asylum.
3. Is it illegal to enter the U.S. and ask for asylum?
No. U.S. and international law recognize the right to seek asylum. However, how and where you enter can affect eligibility under CLP and other rules.
4. Is it illegal to cross the border without permission just to ask for asylum?
Crossing between ports can trigger immigration violations and CLP’s presumption against eligibility. Whenever possible, present at an official port of entry and document your attempt.
5. What is the legal way to seek asylum in the USA now?
Appear in person at a port of entry, ask to seek asylum, and be prepared for screening (credible-fear or reasonable-fear, depending on the posture).
6. What are the five protected grounds for asylum?
Persecution “on account of” race, religion, nationality, political opinion, or membership in a particular social group.
7. Can I ask for asylum at the Canadian border?
You may express fear and request protection at U.S. ports along any land border. Separate U.S.–Canada agreements (including Safe Third Country rules) can affect where claims are processed—consult counsel before traveling.
8. Can you seek asylum in any country you want?
No. Each country has its own laws and screening processes. Transit-country rules or safe-third-country agreements may limit where you can lodge a claim.
9. What’s the “new immigration law in January 2025”?
For travelers seeking asylum, the practical change most people felt was the end of CBP One appointments and the CBP Home rollout (not an asylum-appointment tool). Policy litigation continues; rules can shift.
10. What is the “immigration information 2025” everyone mentions?
Most queries refer to the no-app environment for border presentation and ongoing CLP-related screening standards.
11. How long after asylum can I apply for U.S. citizenship?
Typical path: Asylee → 1 year to adjust to LPR (green card) → 5 years as an LPR (often counted from an asylee-credit date) → eligible to apply for naturalization if all requirements are met.
12. Can a derivative asylee travel to their home country?
Travel to the country of feared persecution can jeopardize protection. Derivatives should use Refugee Travel Documents and get counsel before any trip.
13. Are asylum seekers allowed to go back home?
Returning to the country of persecution can undermine your claim/status. Speak to an attorney before any such travel.
14. Can I go back to my country after asylum—or after I become a U.S. citizen?
Even after citizenship, frequent or intent-suggesting returns to the persecution country can raise issues in narrow circumstances. Get tailored advice first.
15. Can asylees travel outside of the U.S.?
Yes—with a Refugee Travel Document (Form I-131) obtained before departure. Avoid the country of persecution; talk to counsel on routing/visas.
16. Is Canada offering asylum to U.S. citizens?
Canada’s system is open to applicants who meet refugee/protection definitions. U.S. citizenship alone rarely qualifies; you must show individualized risk under Canadian law.
17. Can U.S. citizens claim asylum in Canada?
They can apply, but approval is uncommon absent a qualifying persecution claim. Many Americans instead pursue immigration categories unrelated to asylum.
18. Is Canada accepting American immigrants?
Yes—through standard Canadian immigration programs (e.g., Express Entry, work/study routes). That’s different from asylum.
19. Is Canada still giving asylum?
Yes—under Canadian law. Processing times and eligibility vary; consult Canadian counsel for specifics.
20. Are any countries offering asylum to U.S. citizens?
Asylum hinges on persecution, not nationality per se. Without a qualifying claim, approval is unlikely in any country.
21. How long is the wait for asylum in Canada? Are U.S. citizens still welcome?
Waits fluctuate widely by case type and location; “welcome” depends on visa/immigration category. Check current Canadian government guidance before travel.
Need Help With Your Asylum Case?
The rules are changing quickly, and the government no longer offers an app to schedule asylum appointments. If you’re unsure how to present at a port of entry, what evidence to bring, or how to protect your rights, schedule a consultation today. We’ll review your situation and give you a clear plan forward.
