East Bay Sanctuary Covenant v. Trump: Challenging the May 2023 "Circumventing Lawful Pathways" Asylum Ban

The National Immigrant Justice Center joined the American Civil Liberties Union, ACLU of Northern California, and Center for Gender & Refugee Studies in filing an amended complaint in East Bay Sanctuary Covenant et al. v. Biden et al., challenging the Biden administration’s “Circumventing Lawful Pathways” asylum ban which took effect in May 2023.

On July 25, 2023, Judge Jon Tigar of the U.S. District Court of the Northern District of California blocked the Biden administration’s ban (finding it was contrary to the asylum statute, arbitrary and capricious, and procedurally defective) but stayed the ruling for 14 days to allow the government the opportunity to ask the Ninth Circuit Court of Appeals for further relief. Following argument, the Ninth Circuit vacated the district court’s order and remanded for supplemental briefing on standing and the Biden rule’s validity in light of intervening Supreme Court precedent and the Trump administration’s termination of the CBP One appointment system, parole programs, and other policies cited in the rule. On May 7, 2026, after considering the parties’ supplemental arguments on remand, the district court reaffirmed its 2023 decision and again vacated the Biden rule.

The Biden administration ban largely mimicked two policies from the first trump administration — known as the “entry” and “transit” bans — which were previously blocked by federal courts. It prohibited asylum for everyone at the border who transited through another country en route to the United States (i.e., people from countries other than Mexico) except for those who were able to obtain a scarce appointment to present themselves at a border port through a flawed mobile application; the rare person who first sought and was denied asylum in another country; or those who could prove that they qualify for one of a few other extremely narrow exceptions.

The case argued that asylum laws do not allow the administration to restrict access to asylum based on an individual’s manner of entry or whether they applied for asylum elsewhere. It further explained that migrants cannot meaningfully seek asylum in transit countries because many lack a functioning asylum system, others have systems that are stretched to the breaking point, and most are not remotely safe for asylum seekers to find refuge. U.S. courts had recognized these principles in rejecting the previous asylum bans that the new rule tried to combine and re-impose.

The case also cited numerous issues with requiring people to use the flawed CBP One mobile app to secure an appointment to seek asylum, including lack of financial resources to acquire a smartphone, lack of adequate internet access to use the app, technical glitches, language and literacy barriers, and an insufficient number of available appointments. These multiple, compounding barriers to CBP One access left many asylum seekers stranded indefinitely in dangerous and life-threatening conditions in Mexico.

Plaintiffs

Plaintiffs in this case were East Bay Sanctuary Covenant, American Gateways, Central American Resource Center, Immigrant Defenders Law Center, National Center for Lesbian Rights, and the Tahirih Justice Center