On May 11, 2023, the U.S. Congress issued a final rule titled “Circumvention of Lawful Pathways.” Below is a simplified summary of this final rule for informational purposes.
When does the final rule go into effect?
The final rule is effective as of May 11, 2023.
Who does the final rule apply to?
The final rule applies to any non-citizen who, after the effective date, crosses the southwest land border or adjacent coastal borders, without authorization and who also traveled through another country and:
- Entered without availing themselves of an existing lawful process
- Entered without having presented themselves at a pre-scheduled time as designated by the CBP One app, or
- Entered without having previously been denied asylum in a third country through which they traveled prior to arriving in the U.S.
How does the final rule affect these non-citizens?
The final rule establishes a presumption that these non-citizens are ineligible for asylum. These individuals are presumed ineligible for asylum unless they, or a family with whom they are traveling:
- Were provided authorization to travel to the U.S. pursuant to a DHS-approved parole process
- Used the CBP One app to schedule a time and place to present themselves at a port of entry
- Applied for and were denied asylum in a third country through which they traveled on their way to the U.S.
Can this presumption of ineligibility for asylum be rebutted?
Yes, the presumption of ineligibility is a rebuttable presumption. In order to rebut the presumption, these individuals will need to demonstrate exceptionally compelling circumstances. Exceptionally compelling circumstances at the time of entry can include acute medical emergencies, extreme and imminent threats to life or safety, or being a victim of human trafficking.
Are there any exceptions to the presumption of ineligibility?
Yes, there are some exceptions to the presumption. For example, non-citizens who enter as unaccompanied children (under 18 years of age) are exempted from the presumption.
What is the best way to avoid myself or a loved one being subject to the presumption of ineligibility?
The best way to avoid yourself or a family member being subject to the presumption of ineligibility is to contact an experienced immigration attorney. An experienced immigration attorney can better accessorize you regarding the impact of this final rule and how it can impact your case. If you have further questions or need assistance, you can contact our office at (303) 974-7758 to schedule an appointment and one of our attorneys can provide further guidance.
Please note the information contained in this blog is the subject of ongoing litigation and may not be current. Please contact our office with any questions regarding your particular case.