Proposal to Narrow Asylum Eligibility

The U.S. Department of Justice (DOJ) and the U.S. Department of Homeland Security (DHS) proposed a rule that would further limit asylum eligibility. Under the current rules, a criminal conviction does not automatically make a person ineligible for asylum unless it is for a particularly serious crime committed in the United States, or a serious nonpolitical crime outside the U.S. The proposed rule, if implemented, would greatly expand the categories of criminal convictions that would make a person ineligible for asylum, including for certain immigration violations.

The proposed rule would also clarify the criteria for determining how a vacated, expunged, or modified conviction or sentence impacts a person’s eligibility for asylum. Finally, the rule seeks to eliminate the automatic review of certain discretionary denials.

New Criminal Bars to Asylum

The new rule would add the following list of crimes warranting a mandatory bar:

• Any felony conviction (not limited to aggravated felonies)
• Smuggling and/or harboring of unauthorized immigrants
• Illegal reentry
• Any crime involving criminal street gangs
• Two or more convictions of driving while intoxicated or impaired, or for a single such offense resulting in death or serious bodily injury involving driving while intoxicated or impaired
• Domestic assault or battery, stalking, or child abuse

The proposed rule would also include a number of other misdemeanor offenses as automatic bars to asylum, including use of fraudulent documents, receipt of public benefits under false pretenses, and the possession or trafficking of drugs.

Impact of Post-Conviction Relief

The proposed rule also details how post-conviction relief, such as a vacated, expunged, or modified conviction or sentence determines eligibility for asylum. The rule proposes that, if a conviction is vacated or expunged, or if the conviction or sentence is modified, and this was done for rehabilitative or immigration purposes, this would have no impact on the consequences of the original conviction and eligibility for asylum. The immigration judge or other adjudicator would be permitted to review evidence, other than the order itself, to determine whether the order was issued for rehabilitative or immigration purposes. Further, the person applying for asylum would have the burden of evidencing that the order was not granted for rehabilitative or immigration purposes, and that the court had jurisdiction and authority to alter the relevant order.

The proposed rule creates a rebuttable presumption against the effectiveness, for immigration purposes, of any order vacating, expunging, or modifying a conviction or sentence, if the court granted relief after commencement of removal proceedings, or if the applicant seeks relief, more than one year after the date of the original order.

Conclusion

While it is understandable that the federal government would want to avoid providing immigration benefits to dangerous criminals, some of the provisions in this proposed rule are disturbing. In particular, the inclusion of several immigration-related misdemeanors is clearly intended to reduce the number of asylees from Latin America.

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