On May 7, 2026, a federal district court in California once again struck down the Circumvention of Lawful Pathways rule, the Biden-era regulation that for two years presumed most people who crossed the southern border to be ineligible for asylum. The ruling vacates the rule nationwide and, unless a higher court stays it, forbids immigration judges and asylum officers from holding a border crossing against an applicant under that rule. This article explains what the rule did, how the long-running East Bay Sanctuary Covenant litigation reached this point, what the vacatur does and does not accomplish, and how it fits alongside the separate and far broader border proclamation that the current administration issued on its first day in office. It closes with practical guidance for the immigration bar generally and for the individual asylum seeker who entered the United States while the rule was in force.

Introduction

For three years now, asylum at the southern border has been governed less by a single statute than by a shifting stack of overlapping restrictions. The Circumvention of Lawful Pathways rule was one layer in that stack. Many practitioners and clients have heard the headline that the rule is gone, but the meaning of that news is widely misunderstood. Some assume it means asylum is now freely available; others assume the relief is limited to the Ninth Circuit; still others confuse the rule with the more sweeping border proclamation that has dominated the news since January 2025. None of those impressions is quite right.

The purpose of this article is to set the record straight in plain terms. The vacatur is real, it is nationwide, and it is significant. It is also narrow in a way that matters: it removes one presumption against eligibility, not the many other requirements and bars that asylum law imposes, and it does nothing to lift the separate proclamation regime that now governs new arrivals. Understanding where one ends and the other begins is the difference between sound advice and false hope. For a fuller map of the broader enforcement landscape in which this ruling sits, see Trump Administration Asylum Policies in 2026: Comprehensive Overview.

What the Circumvention of Lawful Pathways Rule Did

The rule took effect on May 11, 2023, the same day the Title 42 public-health expulsion authority ended and ordinary processing under Title 8 resumed. See Circumvention of Lawful Pathways, 88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. § 208.33). Its core mechanism was a rebuttable presumption of asylum ineligibility. A noncitizen who entered across the southwest land border, or who presented at a port of entry without a previously scheduled appointment, after traveling through at least one third country on the way, was presumed ineligible for asylum unless he had applied for and been denied protection in a transit country or qualified for one of the rule’s limited exceptions.

The rule was framed as the stick paired with a set of carrots. The government pointed to what it called lawful pathways, chiefly the CBP One appointment system and the country-specific parole processes for certain nationalities, as the orderly alternatives that an applicant was expected to use.1 On parole as a form of relief and its limits, see our overview of parole. Two features of the rule deserve emphasis because they shape who it ever touched. First, it created a presumption, not an absolute bar; in practice, though, the presumption was difficult to rebut and operated as a serious obstacle for many genuine claimants. Second, it was built to expire. The rule was designed to run for twenty-four months and lapsed by its own terms on May 11, 2025. It therefore only ever reached people who entered during that two-year window, a point that becomes important when distinguishing the rule from the proclamation discussed below.

The Long Road of East Bay Sanctuary Covenant

The organizations that challenged the rule were the same advocates who had defeated the prior administration’s entry and transit bans, and they returned to the same courtroom. On July 25, 2023, Judge Jon Tigar of the Northern District of California vacated the rule, holding it contrary to the asylum statute and arbitrary and capricious under the Administrative Procedure Act. See East Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025 (N.D. Cal. 2023). He stayed that decision to permit an appeal, and the rule remained in force during the appeal.

In April 2025, the United States Court of Appeals for the Ninth Circuit vacated Judge Tigar’s decision and remanded. See East Bay Sanctuary Covenant v. Trump, 134 F.4th 545 (9th Cir. 2025). The remand was not a ruling that the regulation was lawful. The panel directed the district court to revisit two intervening developments: the effect of FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367 (2024), on the organizational plaintiffs’ standing, and the effect of Executive Order No. 14165, which had terminated the very lawful pathways on which the rule partly rested. While the case sat on remand, the rule reached its sunset and expired on May 11, 2025. The litigation continued anyway, because the rule still governed every case of a person who had entered during the window it covered.

The May 7, 2026 Ruling and Its Nationwide Reach

On remand, Judge Tigar reaffirmed his earlier conclusion. See East Bay Sanctuary Covenant v. Trump, No. 18-cv-06810-JST, 2026 WL 1256873 (N.D. Cal. May 7, 2026). He found that the organizational plaintiffs continued to have standing and again held the rule unlawful, and he vacated it. The single most important practical feature of that disposition is the one most often misreported: a vacatur under the Administrative Procedure Act voids the rule itself, so its effect is nationwide. It is not confined to the Ninth Circuit.

This corrects a common misconception. Because the case arises in California and travels through the Ninth Circuit, some have assumed the argument that the rule no longer applies is stronger in western states than elsewhere. It is not. As of now, the rule is vacated and unenforceable against any asylum seeker in any immigration court in the country, unless and until the government obtains a stay pending appeal.2 What is genuinely tied to the Ninth Circuit is the favorable appellate posture and the precedent backing the ruling, not its geographic reach. A practitioner in the immigration courts of Denver, Charlotte, Orlando, or Chicago may rely on the vacatur to the same extent as one in San Francisco.

The qualification matters. The government is likely to appeal and to seek a stay, and the rule’s status should be treated as provisional rather than permanently settled. Counsel should monitor the docket, because a stay would restore the presumption while the appeal is pending.

The Bars That Remain

Vacatur of the rule removes one presumption. It does not grant asylum, and it leaves every other requirement of the law in place. An applicant must still establish a protected ground and a well-founded fear of persecution, and must still contend with the statutory bars and the discretionary nature of the relief. The one-year filing deadline continues to apply, so the Form I-589 must ordinarily be filed within one year of the applicant’s last arrival absent changed or extraordinary circumstances. See INA § 208(a)(2)(B), (D). The firm resettlement bar, the persecutor bar, and the criminal bars likewise remain fully operative. See INA § 208(b)(2)(A)(i) (persecutor), (ii)-(iii) (criminal), (vi) (firm resettlement).

There is also a subtler point about the manner of entry. Even with the rule gone, the way a person entered the country has never been irrelevant to asylum, because asylum is discretionary and adjudicators may weigh how an applicant came to the United States as part of the discretionary calculus. The Attorney General’s guidance on discretion expressly lists the circumvention of orderly refugee procedures and transit through other countries among the factors an adjudicator may consider. See Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018); see also our analysis of Matter of A-B-. The difference is that, with the rule vacated, the manner of entry is no longer a near-automatic presumption of ineligibility; it is at most one discretionary consideration to be weighed against the equities, and a well-prepared record can answer it.

Proclamation Analysis

The vacatur cannot be understood in isolation, because it sits next to a far more aggressive measure. On January 20, 2025, the President issued Proclamation No. 10888, Guaranteeing the States Protection Against Invasion, 90 Fed. Reg. 8333 (Jan. 29, 2025). Premised on the suspension-of-entry authorities in INA §§ 212(f) and 215(a), and on the Constitution’s guarantee that the federal government will protect the states against invasion, the proclamation declared conditions at the southern border to be an invasion, suspended the entry of those said to be engaged in it, and purported to restrict access to asylum under INA § 208 for affected noncitizens.

Two differences from the rule are fundamental. First, the proclamation is broader. The rule reached only a defined two-year entry window and operated through a rebuttable presumption; the proclamation purports to foreclose the act of applying for asylum altogether for those it covers, and it is not limited to a sunset window. Second, the proclamation governs the people the rule no longer touches, namely those who arrived after the rule expired. For a client who crossed after January 20, 2025, the vacatur of the rule provides no relief, because the rule never applied to that entry in the first place; the proclamation regime is what governs.

The proclamation has fared poorly in court, though the litigation is not over. In RAICES v. Noem, 793 F. Supp. 3d 105 (D.D.C. 2025), the district court entered a declaratory judgment that the proclamation is unlawful insofar as it suspends or restricts access to asylum and related protections, and it certified a nationwide class. The District of Columbia Circuit then issued a partial stay on August 1, 2025: it held that access to withholding of removal and protection under the Convention Against Torture is mandatory and may not be suspended, but it stayed the portion of the district court’s order concerning asylum. Under that interim posture, affected arrivals at the border were denied access to asylum, but their claims for withholding and Convention Against Torture protection still had to be considered.3 After argument in November 2025, the D.C. Circuit ruled on the merits on April 24, 2026, holding that the proclamation is unlawful insofar as it suspends or restricts access to asylum and the protections Congress enacted. See RAICES v. Noem, No. 25-5243 (D.C. Cir. Apr. 24, 2026). The reasoning was that the executive cannot use the suspension-of-entry power to override the asylum scheme Congress built. The question is widely expected to reach the Supreme Court, which is where the durability of the entire approach will be decided.4

The practical upshot of placing the two measures side by side is this. A client who entered during the rule’s window benefits directly from the May 2026 vacatur, subject to a possible stay. A client who entered after the proclamation took effect lives in a different and more contested world, where, pending final resolution, access to asylum at the border may be foreclosed even as withholding of removal and Convention Against Torture protection remain available. A world without the rule is not a world without obstacles.

Practical Implications

For the immigration bar, several steps follow immediately. In any pending matter, counsel should object to any reliance by the government on the rule or on 8 C.F.R. § 208.33, citing the May 2026 vacatur and its nationwide effect. Where a prior decision applied the rule’s presumption, or pretermitted a claim on that basis, counsel should evaluate a motion to reopen or reconsider in light of the changed legal landscape, mindful of timing and numerical limits. Counsel should keep the rule and the proclamation analytically separate in briefing, because conflating them invites confusion and weakens the argument. And in every border case, counsel should plead withholding of removal and Convention Against Torture protection in the alternative, both because the proclamation litigation has left those forms of relief intact and because they are not subject to asylum’s discretionary grant or its one-year deadline.5 Finally, counsel should watch the appellate dockets in both cases, since a stay could restore the rule and the Supreme Court may yet reshape the proclamation question.

For the individual asylum seeker, the guidance is more concrete. If you crossed the southern border between May 11, 2023 and May 11, 2025, and you were told, or you feared, that the Circumvention of Lawful Pathways rule made you presumptively ineligible because you passed through another country on your way here, that presumption is, for now, off the table. Tell your attorney promptly and ask whether your case should be revisited. Do not, however, mistake this for an approval. You still must prove your claim: that you face persecution on account of a protected ground, with credible testimony and corroborating evidence. You must still respect the one-year filing deadline; if you have not yet filed your Form I-589 and a year has nearly passed since your last entry, that is urgent. You should preserve your claims for withholding of removal and Convention Against Torture protection, which can provide safety even where asylum is unavailable. And you should understand the timing risk: a higher court could change this picture, so it is better to act now, with counsel, than to wait. Stay in close contact with your attorney as the appeals proceed, because the rules that govern your case can shift quickly.

  1. U.S. Dep’t of Homeland Sec., Fact Sheet: Circumvention of Lawful Pathways Final Rule (May 11, 2023), (describing the CBP One appointment system and country-specific parole processes offered as lawful pathways alongside the rule).
  2. Practitioner guidance reaching the same conclusion on the nationwide, unenforceable-unless-stayed effect of the May 7, 2026 vacatur includes Nat’l Immigrant Justice Ctr., EBSC v. Trump: An Explainer for Advocates on Vacatur of the Circumvention of Lawful Pathways Rule (May 2026); Catholic Legal Immigration Network, Inc., Practice Advisory (noting that the rule is vacated and unenforceable nationwide unless stayed on appeal).
  3. For the practical effect of the District of Columbia Circuit’s August 1, 2025 stay, including that withholding of removal and Convention Against Torture protection remained available while the asylum portion of the district court’s order was stayed, see Ctr. for Gender & Refugee Studies, RAICES v. Noem (case page).
  4. Commentary across the spectrum anticipates that the proclamation question will be resolved by the Supreme Court following the D.C. Circuit’s April 24, 2026 decision. See, e.g., Andrew R. Arthur, Ctr. for Immigration Studies, D.C. Circuit Shoots Down Trump Border Asylum Ban (Apr. 29, 2026) (predicting Supreme Court review).
  5. Withholding of removal under INA § 241(b)(3) and protection under the Convention Against Torture, see 8 C.F.R. §§ 1208.16-1208.18, are mandatory rather than discretionary and are not subject to asylum’s one-year filing deadline. Convention Against Torture protection, unlike asylum and withholding, also does not require a nexus to a protected ground. These features are why counsel should plead them in the alternative even where asylum is contested or unavailable.