New Mandatory Bars Prevent Convicted Felons, Drunk Drivers, Gang Members, and Other Criminal Aliens from Receiving Asylum

WASHINGTON – Today, the Department of Justice and the Department of Homeland Security announced the publication of a Final Rule amending their respective regulations to prevent certain categories of criminal aliens from obtaining asylum in the United States. The rule takes effect 30 days after publication of the Final Rule in the Federal Register, which is scheduled to occur on Wednesday, Oct. 21.

Asylum is a discretionary immigration benefit that generally can be sought by eligible aliens who are physically present or arriving in the United States, irrespective of their status, as provided in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158. However, in the INA, Congress barred certain categories of aliens from receiving asylum. In addition to the statutory bars, Congress delegated to the Attorney General and the Secretary of Homeland Security the authority to establish by regulation additional bars on asylum eligibility to the extent they are consistent with the asylum statute, as well as to establish “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA.

To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.

The new bars apply to aliens who are convicted of:

  • A felonyunder federal or state law;
    • Includes ANY felony. The rule states this broad proscription is to avoid the purported “inconsistent or anomalous results” that courts have reached using the categorical approach. From the government’s view, this broad categorical bar “will significantly help to curtail inconsistencies and confusion over what offenses may be disqualifying for purposes of asylum, as all aliens who have been convicted of the same level of offense will receive the same treatment during asylum proceedings.”
  • An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);
    • This includes persons convicted of leaving provisions or other humanitarian assistance for persons attempting to enter the U.S. The rule contends that individuals convicted of smuggling and harboring categorically “present a danger to the community” because that conduct place[s] others, including children [“and vulnerable spouses”] in potentially hazardous situations that could result in injury or death, and that reflect a flagrant disregard for immigration laws.
  • An offense under 8 U.S.C. § 1326 (Illegal Reentry);
    • There is no exception for persons who unlawfully reentered the United States because of their desire to be reunited with family members living in the United States orindividuals who have been victims of trafficking or smuggling, so long as they are convicted of reentry. “The Departments believe that evaluations of mitigating factors or criminal culpability based on motives are more appropriately reserved for criminal proceedings.”
  • A federal, state, tribal, or local crimeinvolving criminal street gang activity WTF is a “local crime?” Localities don’t have criminal charging authority;
    • The rule authorizes adjudicators to utilize a “knows or has reason to believe” standard re: whether a crime “involved”, or was “in support, promotion, or furtherance of criminal street gang activity”. In making this assessment, the rule allows adjudicators to consider “all reliable evidence,” much like the broad class of documents allowed in analyzing “reason to believe…drug trafficker” inadmissibility.
  • Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under theinfluence of an intoxicant;
    • The rule specifies that the following “certain” DUI offenses will be categorical bars to asylum: a single DUI conviction that results in “serious bodily injury or death of another person”, or a “second or subsequent DUI offense”. Other DUI offenses are not a categorical bar, but go to discretionary eligibility.
  • A federal, state, tribal, or local domestic violenceoffense, 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;
    • The rule includes both convictions and merely alleged conduct involving domestic assault or battery, stalking, or child abuse, without requiring any adjudication of guilt.
  • The rule suggests that the categorical bar would not apply to individuals who (1) were battered or subject to extreme cruelty; (2) were not the primary perpetrator of violence in the relationship; and (3) whose convictions were predicated upon conduct where the individual acted in self-defense, violated a protection order intended to protect that individual, or where the crime either did not result in serious bodily injury or was connected to the individual having been battered or subjected to extreme cruelty. See statutory exception at INA § 237(a)(7)(A) / 8 U.S.C. § 1227(a)(7)(A).
  • Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefitsfrom a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.
    • Document Fraud:
      • The rule provides an exception for applicants who have necessarily and justifiably used false documents to escape persecution, if the asylum-seeker can establish (1) that the conviction resulted from circumstances showing that the document was presented before boarding a common carrier, (2) that the document related to the alien’s eligibility to enter the United States, (3) that the alien used the document to depart a country in which the alien has claimed a fear of persecution, and (4) that the alien claimed a fear of persecution without delay upon presenting himself or herself to an immigration officer upon arrival at a United States port of entry. See 8 CFR 208.13©(6)(vi)(B)(1), 1208.13(c)(6)(vi)(B)(1).
      • However, there is no exception for individuals who “only” used a false document in order to drive or work, or who obtained false documents after their own documents were maliciously confiscated, hidden, or destroyed by a third party (trafficking victims, specifically).
    • Public Benefit Fraud:
      • The rule does not require that the offense definition requirefraudulent intent or any other intent to achieve a conviction. This means that convictions for benefit fraud under strict liability-flavored laws are enough to categorically bar asylum. It does not matter if the individual was “unaware of the complex systems that might result in miscalculation and overpayment of benefits.” The rule advises such people to work that out with the prosecutor and not get convicted.
    • Drug and/or paraphernalia possession; trafficking
      • This rule does not penalize a single offense of marijuana possession for personal use of 30 grams or less.
      • Otherwise, neither the level of seriousness / dangerousness (in contrast with PSC analysis), nor decriminalization, nor mitigating circumstances, are relevant. The rule is predicated on the blunt principle that “possessors and traffickers of controlled substances ‘pose a direct threat to the public health and safety interests of the United States.’”
  • Finally, the rule removes the provisions at 8 C.F.R. § 208.16(e) and §1208.16(e) regarding reconsideration of discretionarydenials of asylum. In the DOJ’s own words, “the removal of the requirement to reconsider a discretionary denial would increase immigration court efficiencies and reduce any cost from the increased adjudication time by no longer requiring a second review of the same application by the same immigration judge.” https://www.justice.gov/opa/pr/department-justice-and-department-homeland-security-publish-joint-notice-proposed-rulemaking