Posted by Andre Mckenney-Dorval | Mar 27, 2023

America has a long history of taking in refugees and people who seek a safe harbor because they face danger in their home countries. Asylum has been and continues to be the path for refuge for many who seek to escape persecution, on account of race, religion, nationality, political opinion, and membership in a particular group.

In March 2020, as the world tried to grapple with the COVID-19 Pandemic, Title 42 was used to restrict immigrants and asylum-seekers from entering the U.S due to health risk.  Title 42 is a federal regulation stemming from 1944 legislation that was enacted as a means to stop disease spreading.

Now, the Biden Administration has announced it intends to end the public health emergency associated with COVID-19 pandemic on May 11, 2023.  This in turn will also end the expanded use of Title 42.  As Title 42 expansion ends, the Biden administration has announced a proposal, called the Circumvention to Lawful Pathways, that will potentially limit asylum for people attempting to enter the country through the southern U.S. border. This new proposal is set to go into effect on May 11, 2023 and is expected to remain for a maximum of two (2) years, unless an extension is granted.  

This new rule is, in part, a response to the historic immigrating surge at the border, but how it will affect current and future migrants and asylum seekers remains to be seen.


The Circumvention to Lawful Pathways coined as Biden's Asylum Travel Ban, creates a rebuttable presumption of ineligibility for asylum.  This presumption would effectively deny asylum to those who present themselves at the U.S. Mexico border if they have not first applied for asylum in a third country and if they have not scheduled an appointment at a border point of entry.  Attempting to enter the country between ports of entry could lead to immigrants being deemed ineligible for asylum.

Immigrants will also be required to prove they sought and were denied protection in the countries they passed through to reach the U.S., and failing to provide evidence of this could also lead to being denied asylum.  For many this will undoubtedly feel like the death of asylum for those in need of refuge and protection from persecution.

While single adults and families must adhere to the provisions of Biden's proposed asylum ban, unattended minors will not be subject to the new rule, nor will immigrants to whom one of the below apply:

  • Acute medical emergency
  • Imminent and extreme threat


This process is meant to offer additional pathways for people to legally enter the U.S., but it is not without its challenges and uncertainties. In order to schedule an appointment at a port of entry, immigrants must use CBP One, an app created specifically for this purpose. However, for immigrants who cannot access the scheduling app, this proposed method is unlikely to benefit them, which could mean that the people most in need of help and refuge will not be able to receive it. 

Set to take effect on May 11, 2023, after Title 42 ends, the proposed rule is likely to face challenges in court due to the requirement that asylum seekers must first prove they sought asylum in the countries which they passed through and were denied prior to reaching the U.S. This requirement is contrary to the U.S. Immigration law, which simply requires those seeking asylum must be on U.S. soil to do so. 

The United States immigration system is complex, and laws are constantly changing. If you are looking for guidance on a complicated immigration issue, Attorney Andre Mckenney-Dorval is here to help. She understands how frightening and overwhelming this process can be, and her first priority is ensuring you have a supportive advocate on your side. Andre has over a decade of legal experience and endless compassion and dedication, so call TCB Legacy Law at 954-302-8989 today for a consultation.

About the Author

Andre Mckenney-Dorval

Founder and Principal Attorney

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