New Bars to Asylum

By: Maridex Abraham

On October 21, 2020, the Department of Justice and the Department of Homeland Security published a final rule that further limits eligibility for asylum. The final rule revises current regulation by expanding the type of crimes that would render an applicant ineligible for asylum.

The final rule is one of many decisions under the Trump Administration intended to overhaul longstanding asylum policies in the U.S. These latest restrictions apply to individuals who are convicted of the following:

(1) A felony under federal or state law;

(2) An offense related to alien smuggling or harboring;

(3) An offense related to illegal reentry;

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

The new rule categorically restricts individuals who may have otherwise been eligible to receive the benefits. Historically, individuals who have been convicted of “particularly serious crimes” were already barred from seeking asylum. The asylum bar would extend to those who have been convicted of lesser offenses, including misdemeanors, under the new law. Thus, using a fake ID, receiving public benefits or having a couple DUIs on a person’s record would now be a significant barrier to seeking asylum.

Under the new rule, a person suspected of committing certain domestic violence offenses will also be barred from asylum, even if there is no arrest of conviction. Rather, the standard is whether an adjudicator “knows or has reason to believe” that an individual has engaged in acts of domestic battery or extreme cruelty. The broad language of the standard could potentially be too far reaching, because it would bar relief from those who have not been found to have committed an offense by a court of law.

This broad language is also applied in determining whether an asylum applicant has been involved in gang-related activity. The rules would render a person ineligible for an asylum based on whether the adjudicator “knows or has reason to believe” the person committed the crime to support a criminal street gang. However, the proposed rules do not make clear how an activity can be categorized as gang-related, raising similar concerns that the language is overly abroad and could include asylum applicants who are not affiliated with gangs.

The new rule regarding criminal bars to asylum will take effect on November 20, 2020. Contact an experienced immigration attorney to learn more about how the new rules affect your asylum case.