Skip to main content

Immigration Policy Tracking Project

Open main menu

DHS and DOJ issue joint third country asylum rule

  1. Original Date Announced

    July 16, 2019

    On July 16, 2019, DOJ (EOIR) and DHS (USCIS) issued an interim final rule (IFR), signed by Acting Secretary McAleenan and AG Barr. The IFR establishes a new mandatory bar to eligibility for asylum for aliens who enter or attempt to enter the United States across the southern land border after transiting through at least one country outside the alien's country of citizenship, nationality, or last lawful habitual residence en route to the United States. The IFR lists several exception categories to the bar, but also adds new limits on asylum eligibility when screening individuals subject to expedited removal.

    [ID #83]

    Interim Final Rule re Asylum Eligibility and Procedural Modifications

  2. Effective Date

    July 16, 2019

  3. Subsequent Trump and Court Action(s)

    • July 24, 2019

      East Bay Sanctuary Covenant TCT Ban IFR Preliminary Injunction

      On July 24, 2019, the Northern District of California issued a preliminary injunction blocking the Interim Final Rule from being implemented, identifying serious questions about the substantive validity of the rule and the invocation of "good cause" to avoid notice-and-comment rulemaking proceedures. See East Bay Sanctuary Covenant et al. v. Barr et al., 19-cv-04073 (N.D. Cal. 2019).

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • September 11, 2019

      East Bay Sanctuary Covenant TCT Ban IFR PI Stay

      On September 11, 2019, the Supreme Court issued a stay pending appeal of the Northern District of California's preliminary injunction blocking implementation of the Interim Final Rule. See Barr v. East Bay Sanctuary Covenant, No. 19A230 (Sept. 11, 2019).

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • June 30, 2020

      CAIR Coalition Third Country Transit Ban IFR Vacatur

      On June 30, 2020, D.D.C. vacated the IFR on APA procedural grounds. The cases (consolidated) are CAIR Coalition v. Trump & I.A. v. Barr, D.D.C. Nos. 19-cv-2117 & 19-cv-2530.

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • July 6, 2020

      East Bay Sanctuary Covenant v. Barr, IM-CA-0146. Docket Court, 4-19-cv-04073 ( N.D. Cal. )

      On July 6, 2020, the U.S. Court of Appeals for the Ninth Circuit upheld a preliminary injunction in East Bay Sanctuary Covenant v. Barr against the third country asylum rule announced in July 2019 by the Department of Homeland Security (DHS).

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
    • December 17, 2020

      Asylum Eligibility and Procedural Modifications, 85 Fed. Reg. 82260

      DOJ (EOIR) and DHS (USCIS) issued a final rule establishing a mandatory bar to asylum eligibility for individuals who transit through a third country and then enter or attempt to enter the U.S. across the southern border without having applied for protection in at least one of the third countries through which they transited. The Departments previously issued an IFR with request for comment on July 16, 2019, 84 FR 33829. The final rule makes minor technical and typographic changes to the IFR and will be effective on January 19, 2021.

      The final rule was signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel for DHS, on behalf of Acting Secretary Wolf, and James McHenry, EOIR Director.

      View Document
    • February 16, 2021

      East Bay Sanctuary Covenant v. Barr: N.D. Cal. Prelim. Injunction

      On Feb. 16, 2021, the Northern District of California issued a preliminary injunction blocking the Third Country Transit ban final rule from going into effect, reasoning that this rule was effectively identical to previous iterations of the rule that had already been ruled unlawful by the Ninth Circuit, including the Third Country Transit ban interim final rule discussed in the first entry above. See East Bay Sanctuary Covenant et al. v. Barr et al., 19-cv-04073 (N.D. Cal. 2021).

      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
  4.  

  5. Biden Administration Action: Proposed Revocation/Replacement/Modification

    February 23, 2023

    2023.02.23_Notice of Proposed Rulemaking, Circumvention of Lawful Pathways

    On February 23, 2023, DHS and DOJ issued a notice of proposed rulemaking requesting public comment on the proposed "Circumvention of Lawful Pathways" rule. The proposed rule would remove the mandatory bar to asylum eligibility for individuals who transit through a third country, but it would create a "rebuttable presumption" that would still encourage migrants to seek asylum in countries through which they travel.

    View Document

  6. Biden Administration Action: Revoked/Replaced

    May 11, 2023

    2023.05.11_Circumvention of Lawful Pathways - Federal Register

    On May 11, 2023, the Department of Homeland Security (DHS) and the Department of Justice issued a final rule anticipating the end of the CDC's Title 42 public health order and an influx of migrants crossing into the United States. The "Circumvention of Lawful Pathways" rule removed the regulatory text included in the previously-enjoined Third Country Transit final rule that implemented a mandatory bar to asylum eligibility for individuals who transit through or fail to apply for asylum in third countries before entering the United States. Instead, the Biden Administration's rule establishes a rebuttable presumption that noncitizens are ineligible for asylum if they traveled through a third country before entering the U.S. without authorization and without availing of existing lawful processes. Noncitizens can rebut this presumption if they meet various exception criteria. The rebuttable presumption is also time limited and only applies to those who enter the U.S. during the 24 month period after the rule’s effective date.

    The final rule was granted a good cause exception to the 30-day delayed effective date typically required by the APA. The departments had also previously issued an NPRM on February 23, 2023 that allowed for public comment. Several changes were incorporated from the proposed rule that were responsive to comments.

    View Document

  7. Biden Administration Action: Other

    May 11, 2023

    2023.05.11_Fact Sheet: Circumvention of Lawful Pathways Final Rule

    DHS released a fact sheet synthesizing and explaining the Circumvention of Lawful Pathways Final Rule. DHS also notes that, in parallel with this final rule, the department took steps to expand safe and orderly pathways for migrants to lawfully enter the United States. These pathways include: establishing country-specific processes to seek parole; expanding opportunities to enter for seasonal employment; rolling out the CBP One mobile app; and expanding refugee processing in the Western Hemisphere.

    View Document

Current Status

Not in effect

Most Recent Action

May 11, 2023 Action: Other 2023.05.11_Fact Sheet: Circumvention of Lawful Pathways Final Rule
February 23, 2023
Acted on by Biden Administration
May 11, 2023
Acted on by Biden Administration
May 11, 2023
Acted on by Biden Administration

Original Trump Policy Status

Status: Final/Actual In Litigation Enjoined/Vacated
Trump Administration Action: Rule
Subject Matter: Asylum, Withholding and CAT Border
Agencies Affected: ICE EOIR USCIS CBP

Associated or Derivative Policies

Pre Trump-Era Policies

  • July 16, 2019

    Section 208(2)(A) established an exception to asylum and allowed return to a "safe third country" only if: "the alien's life or freedom would not be threatened" and "the alien would have a full and fair procedure for determining a claim to asylum or equivalent temporary protection." The United States and Canada signed a Safe Third Country Agreement on December 5, 2002, based on mutual acknowledgement of the international legal obligations of the Parties under the principle of non-refoulement set forth in the Convention and Protocol and recognition that both countries offer generous systems of refugee protection, recalling both countries’ traditions of assistance to refugees and displaced persons abroad.

    Safe Third Country Agreement between United States and Canada

Commentary

Documents

Trump-Era Policy Documents
Biden Administration Policy Documents

To provide information, corrections, or feedback, please email IPTP.feedback@gmail.com

To provide information, corrections, or feedback, please email IPTP.feedback@gmail.com

© 2025 Immigration Policy Tracking Project