RAICES Bulletin: Circumvention of Lawful Pathways Rule Vacated
TL;DR On May 7, 2026, the court in East Bay Sanctuary Covenant v. Trump issued a new ruling voiding the 2023 Circumvention of Lawful Pathways (CLP) Rule. This ruling removes a major procedural hurdle; agencies and courts should no longer apply the rule's presumption against asylum eligibility in pending cases. While this ruling may open new doors for protection, legal representatives must continue to navigate other asylum bars and a rapidly shifting legal landscape.
WHAT TO KNOW
Issue: On May 7, 2026, the court in East Bay reaffirmed its prior summary judgment decision vacating the 2023 CLP Rule, which imposed a presumptive bar on asylum for individuals entering the U.S. via the southwest border without prior authorization (primarily through the CBP One app) after traveling through a third country.
Rationale: The court determined that the CLP rule’s asylum bar is not lawful. Furthermore, the court found the administration's departure from long-standing policies to be "arbitrary and capricious". The rule's underlying premise—that "lawful pathways" were readily available—was further invalidated by executive actions that terminated CBP One appointments and CHNV parole.
RAICES Impact: RAICES legal representatives should consider how this ruling might alter legal strategy. For clients who entered the U.S. between May 11, 2023, and May 11, 2025, with pending cases, agencies and courts should no longer apply the CLP’s rebuttable presumption against asylum eligibility. RAICES may see additional consultations with individuals who entered during this two-year window seeking to understand potential legal options flowing from the vacatur.
Community Impact: This ruling removes a significant procedural hurdle for thousands of asylum seekers. Although the CLP was not extended beyond May 11, 2025, it continued to impact those who crossed during its active period; this ruling potentially opens new doors to asylum protections for those individuals. However, advocates must remain mindful that other asylum bars independent of the CLP rule may still apply.
Related Legal Battles: The CLP rule is part of a broader trend of restrictive asylum policies currently facing litigation. Notably, on April 24, 2026, the D.C. Circuit ruled in RAICES v. Noem (No. 25-5243) that the Executive Branch cannot unilaterally block asylum seekers or implement summary removals by declaring an "invasion" at the southern border. While the government is expected to appeal this decision, these cases highlight the ongoing legal battles concerning attempts to limit asylum access.
Broader Immigration Strategy: The CLP rule, a Biden-era policy, represents one of many efforts to restrict asylum. This development underscores the need for advocates to urge lawmakers to uphold the original commitments of the 1980 Refugee Act. Furthermore, it serves as a critical reminder for legal practitioners to preserve all arguments during challenges to harmful policies, as the legal landscape can shift rapidly.
