Circumvention of Lawful Pathways and Presidential Proclimation 10773
Date of Information: 01/06/2025
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.
Charles International Law’s assessment of the CLP rule is that, as it stands on the last update to this page, it should not affect the admissibility or asylum eligibility of the vast majority of aliens entering the United States. While it is clear that the DHS has used the CLP rule to deny asylum to thousands of people who would otherwise qualify, the current language of the CLP rule has several critical vulnerabilities that should allow practitioners to earn asylum for their clients if the clients meet preexisting standards.
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.
Timeline of the Rule and the Conditions Underlying It
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).
