Introduction

Under the Trump administration, accessing asylum for individuals at the Southern border is almost impossible. Those seeking safety have been subjected to cruel deterrence policies like family separation and are increasingly returned to Mexico’s dangerous conditions without having their claims heard. The administration has continued to create an overlapping web of policies that preclude asylum eligibility for countless individuals and families. 

On October 21, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) published mirror final rules adding new bars to asylum eligibility. This latest attempt at dismantling the U.S. asylum system directly impacts families, domestic violence victims, and vulnerable populations, including children and LGBTQ community members who seek safety within the U.S. 

Initially published in December 2019, the rule received over 500 comments highlighting the likely harm and legal implications it would have. Administration officials dismissed those concerns; the final rule reflects only minor changes.

This rule imposes seven categorical bars to asylum eligibility: 

  1. Any conviction of a felony offense defined as being punishable by one-year imprisonment;
  2. Any conviction for “smuggling or harboring” under 8 U.S.C. § 1324(a), even if the asylum seeker committed the offense to bring their spouse, child, or parent to safety;
  3. Any conviction for illegal reentry under 8 U.S.C. § 1326;
  4. Any conviction for an offense “involving criminal street gangs,” with the adjudicator empowered to look at any evidence to determine applicability;
  5. Any second conviction for an offense involving driving while intoxicated or impaired;
  6. Any conviction or accusation of conduct for acts of battery involving a domestic relationship; and
  7. Any conviction for several newly defined categories of misdemeanor offenses, including any drug-related offenses except for a first-time marijuana possession offense, any offense involving fraudulent documents, and fraud in public benefits 

Issues With the Rule

There are already measures in place to bar criminals from asylum in the U.S. 

There are already broad and extensive bars to asylum based on allegations of “particularly serious crimes” or “aggravated felonies.” Any conviction for an offense determined to be an “aggravated felony” is considered a particularly serious crime and is a mandatory bar to asylum. The term “aggravated felony” was initially limited to murder, weapons trafficking, and drug trafficking. It now encompasses hundreds of offenses, including petty offenses like forgery, failure to appear in court, and submitting false documents. 

When Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), they created three categories of migrants barred from applying for asylum and adopted six other mandatory bars to asylum eligibility. The Act also authorized the Attorney General to expand upon two bars of asylum eligibility — the bars for “particularly serious crimes” and “serious nonpolitical crimes.” Congress also vested the Attorney General with the ability to establish by regulation “any other conditions or limitations on the consideration of application for asylum,” so long as those limitations are not inconsistent with the Immigration and Nationality Act (INA). 

These rules imposing new asylum bars rely on the second authority to determine additional “limitations and conditions” on asylum. The administration must depend on a lower standard for classifying these crimes, given that they are unable to call them “particularly serious crimes,” nor can they assert these rules are based on public safety. 

The rule ignores the realities of the criminal justice system

The rules categorically ban any individual convicted of a felony and defines a felony as a punishable crime by more than a year of imprisonment. The Department’s reasoning for this is that these individuals constitute a danger to the community. However, these rules disregard the realities of criminal justice systems that can convict an individual of a crime without determining that they are dangerous. This rule would still bar protection from individuals who a federal, state, or local judge has concluded is no longer a danger by, for example, imposing a non-custodial sentence. Just conviction for a crime does not make one a present or future danger. The Refugee Convention accounts for this with the particularly severe crime bar, made part of United States law through 8 U.S.C. § 1158, should only properly apply if both (1) a migrant is convicted of a particularly serious crime and (2) a separate assessment shows that she is a present or future danger.

These rules also fail to account for the fact that a significant number of people are wrongfully convicted or agree to plead to a crime to avoid a more severe punishment. The rules do not address and make no exception for convictions for conduct influenced by mental illness or duress. Not only is a conviction an unreliable predictor of future danger, but it can also be an unreliable indicator of past criminal conduct. 

It reduces the discretion of asylum adjudicators

For those not categorically barred from asylum relief, the immigration adjudicator maintains full discretion to grant or deny asylum. The expanded criminal bar that removes the discretion of asylum adjudicators to use the context of an individual’s case to determine if the crime was committed under duress or is coincident to their flight from persecution. These rules hinder an adjudicator’s expert ability to use the individual facts of a case to make the best determination and risks returning persecuted families and individuals to harm. 

The new rules show the Trump administration’s continued attacks on families seeking safety in the U.S and focus on deterrence policies. The regulations expand the asylum bar to parents or other caregivers convicted of smuggling or harboring offenses after taking steps to help minor children enter the U.S to flee persecution. The bars on offenses related to harboring, smuggling of noncitizens by parents and family members, and those previously removed would have the same impact on families arriving together at the southern border as the reckless and cruel zero-tolerance policy had — widespread family separations. 

These rules would have dire effects on individuals who flee persecution multiple times and result in people’s continued return to harm and possible death. These rules would force immigration adjudicators to treat all recidivist offenders the same regardless of prior convictions’ seriousness. 

There is particular dangerousness in assuming all individuals with multiple entries or prior removal orders have had their asylum claims heard. Many eligible for asylum have been wrongly assessed in previous credible fear interviews—especially under the Trump administration where immigration laws are changed with little notice—or previously entered/ attempted to enter the country before the onset of circumstances giving rise to their fear. These rules don’t allow asylum adjudicators the discretion to grant asylum for individual cases or allow for the correction of errors that might have previously occurred.

Additionally, these rules bar asylum for asylum seekers who have been convicted of using fraudulent documents (a misdemeanor offense). This hinders an adjudicator’s ability to factor in the migration-related circumstances that often give rise to convictions involving document fraud. Individuals fleeing persecution often leave their home countries with little notice or resources and must rely on informal networks along their flight path. These networks often rely on fraudulent means to pass through countries and avoid persecutors at the hands of gangs or state actors. Under U.S. law, charges arising from an asylum applicant’s manner of flight should account for one of many factors to be considered in an asylum case. Applying a blanket bar to asylum seekers who are forced to resort to fraudulent means to enter the U.S risks returning people with strong asylum claims to harm and possibly death. 

This rule does not allow asylum adjudicators to use important contextual information in determining why these crimes were committed. Categorical denials, rather than a discretionary review by experts, will result in a great injustice for asylum seekers. 

It increases risk for vulnerable populations

These rules will disparately impact vulnerable populations fleeing persecution in their home countries who are routinely criminalized because of their identities, racial disparity, and in connection with their experiences of gender-based violence. These rules turn the very persecution that people in many Central American countries are fleeing from into their denial of safety. 

These rules also create a unique threat to LGBTQ immigrants fleeing violence and discrimination in their home countries. Isolation and discrimination towards the LGBTQ community leave many immigrant community members vulnerable to discriminatory police practices, trafficking, domestic violence, and substance abuse. This new bar will have a disparate impact on LGBTQ individuals whose involvement in the legal system is often connected to the circumstances and persecution in their home countries and along their flight path to the U.S.

The rules require immigration adjudicators to interpret an asylum applicant’s conduct (regardless of criminal conviction) in domestic violence and gang violence cases.This rule allows adjudicators to bar any individual for whom there is “reason to believe” committed an offense related to or in furtherance of gang activity. 

Second, the rule permits immigration adjudicators to “assess all reliable evidence to determine whether [a] conviction amounts to a domestic violence offense;” and to go even further by considering whether non-adjudicated conduct “amounts to a covered act of battery or extreme cruelty.” Including a categorical ban on gang activity crimes could result in denial for almost any asylum seeker from the Northern Triangle countries. Civil war, political instability, and poverty have given rise to gang activity in every corner of Guatemala, Honduras, and El Salvador, which has forced hundreds of thousands of people to flee each year. Gangs are known to extort businesses and individuals and restrict community members’ ability to work, go to school, and visit family members. Investigators for the Central Bank of El Salvador have found that Salvadorans pay $756 million a year in extortion fees. La Prensa reported that Hondurans pay approximately $200 million per year. While extortion fees can easily be considered to be related to gang violence under this rule, these payments are made under duress and are often the driving force for people to flee their country in the first place. 

These new rules will also impact survivors of domestic violence. The Violence Against Women Act (VAWA) allows adjudicators to evaluate immigration relief claims to exercise discretion based on several factors and circumstances related to intimate partner violence’s complex dynamics. The rules issued by the Departments bar asylum for individuals arrested in any domestic dispute, regardless of conviction. Domestic violence incidents all too often involve the arrest of both the abuser and the survivor. Authorizing asylum adjudicators to bar an individual in the absence of a judicial determination unfairly prejudices survivors who are wrongly arrested. The rules too broadly categorize domestic violence offenses and risk, including both offenders and survivors under the blanket of this eligibility bar.

Additionally, this rule creates a “gang-related” crime bar, which will exacerbate the due process violations already occurring due to unsubstantiated information on supposed gang ties. Immigration adjudicators already routinely premise discretionary denials of relief on purported gang membership. Using a standard of “reason to believe” that the crime was related to gang activity expands the number and type of convictions for which an analysis of eligibility is required. This standard could include minor offenses that would not otherwise trigger immigration consequences (including offenses not covered by these rules) if the adjudicator concludes they have “reason to believe” the offense was committed in furtherance of gang activity. This could result in the disproportionate denial of asylum claims, especially for young men of color who are subject to racially disparate policing practices in their home country. 

Conclusion

The Trump administration continues to sow chaos and fear in people seeking safety in the U.S. These rules issued by DHS and DOJ do not protect public safety but add to the overwhelming web of policies that restrict asylum for vulnerable populations fleeing persecution. This rule imposes categorical bans on asylum seekers who have not committed serious crimes. It has no bearing on whether an asylum seeker will be law-abiding in the U.S. Categorical bans are dangerous, as they ignore the dangers that many asylum seekers are fleeing from, or are forced to confront on their journey to safety. In another attempt to close the Southern border, the U.S. is punishing asylum seekers for the very persecution they are fleeing. 

Photo Credit: U.S. Customs and Border Protection, Public domain, via Wikimedia Commons