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Original Date Announced
July 16, 2019On 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 ModificationsEffective Date
July 16, 2019Subsequent Trump-Era and Court Action(s)
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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.**
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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.**
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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 government has appealed the district court's order. 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.**
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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). The government's petition for rehearing en banc was filed on October 5, 2020 and is currently pending at the Ninth Circuit as of 12/21/20.
**Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**
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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.
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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
Biden Administration Action: Proposed Revocation/Replacement/Modification
February 23, 20232023.02.23_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 DocumentBiden Administration Action: Revoked/Replaced
May 11, 20232023.05.11_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 DocumentBiden Administration Action: Other
May 11, 20232023.05.11_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 DocumentCurrent Status
Not in effectMost Recent Action
May 11, 2023 Action: Other 2023.05.11_Fact Sheet: Circumvention of Lawful Pathways Final RuleFebruary 23, 2023Acted on by Biden Administration
May 11, 2023Acted on by Biden Administration
May 11, 2023Acted on by Biden Administration
Original Trump Policy Status
Trump Administration Action: RuleSubject Matter: Asylum, Withholding and CAT BorderAssociated or Derivative Policies
- July 15, 2019 EOIR issues guidelines regarding DHS/DOJ third country interim final rule
- July 26, 2019 United States and Guatemala sign Asylum Cooperative Agreement
- September 20, 2019 United States and El Salvador sign Asylum Cooperative Agreement
- September 27, 2019 U.S. and Honduras sign agreements on immigration enforcement and H-2 visa programs
- November 19, 2019 Interim final rule modifies existing regulations to implement the Asylum Cooperative Agreements
Pre Trump-Era Policies
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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
Documents
Trump-Era Policy Documents
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New Policy
Original Source:
Asylum Eligibility and Procedural Modifications
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Prior Policy
- Subsequent Action
- Subsequent Action
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Subsequent Action
Original Source:
CAIR Coalition v. Trump Third Country Transit Ban IFR Vacatur
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Subsequent Action
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Subsequent Action
Original Source:
Asylum Eligibility and Procedural Modifications
- Subsequent Action
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Commentary
Original Source:
DOJ Press Release
Commentary
DOJ Press Release Third Country Asylum Rule
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