The Asylum Transit Ban and the End of Title 42
On May 11, 2023, the Biden Administration ended Title 42 and began implementation of the asylum transit ban (aka circumventing legal pathways - CLP).
There will likely be litigation that might delay the actual implementation of this rule; however, if the CLP rule goes into effect, here is some relevant information for asylum-seekers coming to the United States.
Thank you AILA for the super helpful practice alert on the CLP.
What the CLP Does
Creates a rebuttable presumption of ineligibility for asylum based on (1) HOW the asylum seeker entered the United States and (2) whether they applied for protection in a country they transited through on their way to the United States.
Who the CLP Applies To - 8 CFR §208.33(a)(1)
Individuals who entered through the U.S.-Mexico border or adjacent coastal border without documents for lawful entry;
Whose entry was between May 11, 2023 and May 11, 2025; and
According to stakeholder calls, this regulation will apply to individuals who entered between these dates even after this regulation expires.
Traveled through a country other than their country of citizenship, nationality, or last habitual residence (for those who are stateless).
The transit country must also be a party to the 1951 Convention or 1967 Protocol on the Status of Refugees (includes Colombia, Panama, Costa Rica, Nicaragua, Honduras, Guatemala, Belize, Mexico).
Exceptions to the CLP Transit Ban - 8 CFR §208.33(a)(2)
Unaccompanied children (at time of entry).
Mexican nationals.
Individuals or a member of the individuals’ family was provided appropriate authorization to travel to the US to seek parole, pursuant to a DHS-approved parole process.
Individuals who used the CBP One Smart Phone App and presented at a Port of Entry at their scheduled time.
Individuals who can prove by a preponderance of the evidence that it was not possible to access or use CBP One (e.g., language, illiteracy, significant technical failure) can be exempted. This is expected to be a high bar and would be applied by an Asylum Officer during the credible or reasonable fear interview.
Individuals who sought and were denied asylum or other protection in a country through which they traveled. This must be a final decision, not merely abandoning their application.
Overcoming the Rebuttable Presumption in the Transit Ban - 8 CFR §208.33(a)(3)(i)
If the asylum seeker can demonstrate by a preponderance of the evidence that “exceptionally compelling circumstances exist.”
Including, if they or a family member that they are traveling with:
Faced 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 person” under 8 CFR 214.11(a).
This list is not exhaustive but indicates the high burden that asylum seekers will bear.
If you or a loved one are thinking of traveling to the United States to seek asylum, or have already traveled, and believe that the CLP might impact your claim, please contact our law firm for a free consultation.