The Circumvention of Lawful Pathways Rule: Asylum ban 3.0?

August 8, 2023

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As alluded to in the prior blog posts in this series, Title 8 of the U.S. Code is once again the controlling law over immigration policy at the border. However, the policy did not return to the status quo after Title 42 expired. Instead, the Biden administration’s asylum final rule, known as Circumvention of Lawful Pathways, went into effect upon Title 42’s expiration, adding Section 208.33 to Title 8 of the Code of Federal Regulations.

As seems inevitable in today’s immigration world, the Circumvention of Lawful Pathways (CLP) rule was the subject of litigation from the day it went into effect. The plaintiffs of an earlier suit against the Trump administration’s “asylum ban,” EBSC v. Garland, 994 F.3d 962 (9th Cir. 2020), filed an Amended and Supplemental Complaint for Declaratory and Injunctive Relief on May 11, 2023. Plaintiffs argued that the CLP rule was essentially the same regulation as the “entry” and “transit” bans implemented under the Trump Administration, both of which were struck down by the courts. Judge Jon S. Tigar in the Northern District of California agreed with plaintiffs that despite the addition of certain exceptions, discussed below, the Biden administration’s CLP rule contradicts the INA and the intent of congress in the same manner as the Trump administration’s entry and transit bans.[1] On July 25, 2023, the court granted the Plaintiff’s summary judgement and vacated the CLP rule with a 14-day stay.

This would have left the CLP rule in place until August 8, 2023, after which the border processes for asylum seekers would return to the pre-Title 42 status quo. However, the Biden administration appealed to the 9th Circuit. On August 3, 2023, the three-judge 9th circuit panel agreed to extended the stay on the district court’s order, which will allow the CLP rule to remain in place pending appeal. t. For now, the CLP rule remains in effect. With briefing on the appeal to end no earlier than September 14, 2023, it is likely that it will be in effect well into the fall.

What does the CLP Rule do?

The CLP rule added new restrictions on the border on how asylum seekers can access protection. Prior to the COVID pandemic and the invocation of Title 42, migrants at the southern border that did not have a visa or other permission to enter the United States, and were not from Mexico, would be processed at the port of entry by Customs and Border Patrol (CBP) and be placed in expedited removal or offered voluntary return. In expedited removal proceedings the migrant could have a “Credible Fear Interview” to determine if they had a fear of returning to their home county due to persecution. If the migrant was able to establish a credible fear, they were then put in INA 240 non-expedited proceedings to plead their case in front of an immigration judge.

The Biden administration’s CLP rule did not necessarily change the process described above, but rather added required steps a migrant[2] intending to apply for asylum must follow prior to presenting themselves at a port of entry on the southern border. In order to be eligible for asylum processing, an immigrant must meet one of the following “exemptions” under CLP rule:

  1. The immigrant already has an approved parole application,
  2. The immigrant made an appointment on the CBP One app (or demonstrated a barrier to using the app), or
  3. The immigrant applied for asylum in another country and was denied.

Each immigrant that asks for asylum is now presumed ineligible for asylum unless they can rebut the presumption with one of these three exemptions. The second exception was discussed in our prior blog on the CBP One app, and the third exception will be reserved for a forthcoming blog post. This blog post will focus on the first exception and its relation to the “lawful pathways” referred to in the CLP rule. What are those lawful pathways that the rule is trying to prevent people from circumventing and how does parole fit in?

What are the “Lawful Pathways?”

There is a common refrain when it comes to undocumented migrants in the U.S. and migrants at the border: “Why don’t they just get in line?” As most immigration practitioners know, the idea that there is even a line available to most individuals wanting to come to the U.S. is a misconception. How the United States immigration system works is an intricate and complicated discussion which is somewhat beyond the scope of this blog. Nevertheless, at the risk of a gross oversimplification, there are generally four methods of immigrating to the United States: through employment, through family, through humanitarian means, or though luck under the diversity visa scheme. When people are referring to “getting in line” they are generally referring to immigration through employment or family, which are two of the four existing pathways. The third lawful pathway, which seems to be generating the most controversy recently and is not usually included in the “get in line” analysis, includes refugees and asylum seekers.

  1. “Existing and Expanded Lawful Pathways”

Although not reflected in the language of the new rule, 8 CFR 208.33, the Biden administration’s announcement of the final CLP rule in the Federal Register refers to “existing” and “expanded” pathways. The four methods described above are the existing lawful pathways, but what are the expanded pathways?

  1. Parole:

Under the parole power INA 212(d)(5)(A) provides, the Biden administration has created several parole programs for different nationalities with the innovative component of sponsorship by a U.S. individual or entity. The program is for Cubans, Haitians, Nicaraguans, and Venezuelans and was put into place in 2022, before the expiration of Title 42 and the promulgation of the final CLP rule. It allows for nationals of the aforementioned countries, referred to as CHNV, to apply for travel authorization prior to arriving at the U.S. border. There are several requirements, including passing a background check, having vaccinations and complying with public health requirements, and not having been ordered removed from the U.S. in the last 5 years. The most significant requirement, however, is a sponsor or “supporter” who has lawful status in the United States and commits to supporting the individual from CHNV for the duration of their stay in the United States.

The supporter submits a Form I-134A for the individual with proof of financial ability to support the CHNV individual. Once the supporter is vetted by USCIS and the CHNV individual enters their biographic information in a USCIS online account, they can apply for advance travel authorization through the CBP One app. Upon arriving at the border, the CHNV individual will then be considered for parole by CBP on a “case-by-case” basis. If CBP grants the CHNV individual parole, it will be for a period of up to two years and includes eligibility to apply for a work permit.

A second parole program relating to the expiration of Title 42 was announced in April 2023 and began to be implemented on July 10, 2023. This is a family reunification parole process for El Salvador, Guatemala, Honduras, and Colombia, modeled on the Cuban and Haitian family reunification parole processes, established in 2007 and 2014, respectively. In order to qualify for family reunification parole (FRP), an individual from one of the listed countries must be the beneficiary of an approved I-130 family-based immigration petition, but there is not yet a visa available to them (or they have not yet received a visa to immigrate). However, an individual cannot apply directly for the family reunification parole program. Rather, the family member that petitioned will be invited “to request consideration for advance authorization to travel and parole” for the individual from El Salvador, Guatemala, Honduras, or Colombia. On July 28, 2023, the government announced that the Department of State’s National Visa Center (NVC) would begin issuing invitations under the FRP process for Colombia, El Salvador, Guatemala, and Honduras on July 31, 2023.

The requirements for the beneficiary and the process of obtaining family reunification parole are almost exactly the same as those for CHNV parole. The petitioning family member must file a Form I-134A, be vetted, the beneficiary individual must enter biographical information and apply for advance travel authorization on the CBP One app. If CBP grants parole when the beneficiary individual arrives at the border it will be for a period of up to three years and include eligibility to apply for a work permit.

  1. Refugees:

Although being designated a refugee was already considered one of the four lawful pathways, the Biden administration has reinstated or created refugee programs that broaden who can be considered a refugee. Many people in the United States would probably think of a refugee as someone from a war torn area, like Africa, the Middle East, or Eastern Europe. In fact, the definition of refugee from the 1951 Convention and 1967 Protocol Relating to the Status of Refugees seems to corroborate this by mentioning types of “events,” which was subsequently defined as “happenings of major importance involving territorial or profound political changes as well as systematic programmes of persecution which are after‑effects of earlier changes.”

However, as can be seen in the Cartagena Declaration on Refugees, the circumstances under which individuals can be considered refugees has evolved over time:

”[I]t is necessary to consider enlarging the concept of a refugee…[to] include[] among refugees persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.”

The Central American Minors or CAM Program, which was started under the Obama administration and reinstated by the Biden administration, allows children from El Salvador, Guatemala, or Honduras to seek refugee status from within their home country. The child, who must be under the age of 21 and unmarried, needs to have a parent in the United States with status that submits a refugee application for them with a designated resettlement agency. If for some reason the child is not determined to be a refugee, they may be eligible to be paroled into the U.S.

Further expanding refugee processing in the Americas, the Biden administration announced in April 2023 as part of the CLP rule and the Los Angeles Declaration on Migration and Protection that it would double the number of refugees from the “western hemisphere.” Also, part of the Los Angeles Declaration, the U.S. and other countries party to the Declaration will be setting up “Regional Processing Centers” (RPCs), starting with locations in Colombia and Guatemala. On May 11, 2023, the government announced the launch of MovilidadSegura.org, which gives details on the RPCs. So far there are locations in Colombia, Guatemala, and Costa Rica with the intention that “®he ‘Safe Mobility’ initiative helps refugees and migrants travel safely and lawfully to the United States and other countries.” The RPC in Colombia is meant to help migrants from Cuba, Haiti, and Venezuela; the Guatemalan RPC will serve Guatemalan, Nicaraguan, Salvadoran, and Honduran migrants; and the Costa Rica RPC will help Nicaraguans and Venezuelans present in Costa Rica before June 12, 2023. All three sites indicate that they are free and by appointment only. However, Colombia and Guatemala are currently not accepting applications, according to the website, which urges individuals to “check back for updates.”

The controversial CLP rule is here for the foreseeable future. Although there are some potential benefits for those few individuals who happen to already be the beneficiary of an I-130 petition, the CLP rule is likely to have a chilling effect on migrants seeking asylum on the southern border, as we have already seen. As will be discussed in further blogs in this series, other Biden administration policies related to the CLP rule have also gone into effect, and HILSC encourages practitioners to stay up to date and on the lookout for individuals subject to these new programs.

[1] “The Court concludes that the Rule is contrary to law because it presumes ineligible for asylum noncitizens who enter between ports of entry, using a manner of entry that Congress expressly intended should not affect access to asylum.  The Rule is also contrary to law because it presumes ineligible for asylum noncitizens who fail to apply for protection in a transit country, despite Congress’s clear intent that such a factor should only limit access to asylum where the transit country actually presents a safe option.” Order Granting Plaintiffs’ Motion for Summary Judgment and Denying Defendants’ Motion For Summary Judgment, pg. 19.

[2] 8 CFR 208.33(a)(2)(i) expressly exempts unaccompanied children from being subject to the presumption of ineligibility for asylum under the CLP rule.
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