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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
  4. 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.

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  5. 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.

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  6. 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.

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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

Trump Administration Action: Rule
Agencies Affected: ICE EOIR USCIS CBP

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


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