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Trump Administration Proposes Adding Minor Crimes to Offenses Barring Asylum

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In its latest attempt to limit the entry of asylum seekers to the United States, the Trump administration has published a new proposal in the Federal Register entitled, “Procedures for Asylum and Bars to Asylum Eligibility,” adding minor crimes to the list of offenses that would bar individuals from obtaining asylum.

The proposal primarily seeks to establish additional bars on eligibility for asylum seekers who have committed certain offenses in the United States after entering the country, including minor offenses. Offenses which have been committed in a foreign country will not be counted. Therefore, the proposal targets asylum seekers who were once present in the United States, now returning to the United States seeking asylum protection, or asylum seekers waiting for a decision on a pending asylum case in the United States who have committed an offense after entering the country.

Under this new proposal, the ineligibility bar would apply to the following individuals:

Aliens convicted of:

(1) a felony under federal or state law;

  • The proposed rule defines felonies as crimes that have been designated as felonies by the relevant jurisdiction or crimes punishable by more than one year’s imprisonment.

(2) an offense for Alien Smuggling or Harboring under 8 U.S.C. 1324(a)(1)(A) or 1324(a)(1)(2)

  • all offenses involving the federal crimes of bringing in or harboring certain aliens pursuant to sections 274(a)(1)(A) and (2) of the INA, 8 U.S.C. 1324(a)(1)(A), (2)

(3) an Illegal Entry offense under 8 U.S.C. 1326;

  • all aliens convicted of illegal reentry under section 1326 would be considered to have committed an offense that disqualifies them from asylum eligibility

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

  • all those who are convicted of a crime involving criminal street gangs, regardless of whether that crime qualifies as a felony or as a misdemeanor.

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

  • aliens convicted under federal, state, tribal, or local law of certain offenses involving driving while intoxicated or impaired (also known as driving under the influence (“DUI”)) would be ineligible for asylum
  • Specifically, aliens will be found ineligible for asylum if they are convicted under federal, state, tribal, or local law of a second or subsequent offense of driving while intoxicated or impaired, or for a single such offense resulting in death or serious bodily injury

(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

  • aliens convicted of federal, state, tribal, or local offenses involving conduct amounting to domestic assault or battery, stalking, or child abuse in the domestic context would be ineligible for asylum, irrespective of whether those offenses qualify as felonies or misdemeanors.

(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 proposed regulation would also make certain misdemeanor offenses bars to asylum based on the authority to create new grounds for ineligibility in section 208(b)(2)(C) of the INA, 8 U.S.C. 1158(b)(2)(C).
  • The proposed rule would designate offenses involving the use of fraudulent documents, the receipt of public benefits under false pretenses, or the possession or trafficking of drugs as disqualifying for purposes of asylum, even if such offenses are misdemeanors rather than felonies.

With respect to felony convictions, the proposed rule adds that “the determination of whether a crime would be a felony for purposes of asylum eligibility would depend on whether the relevant jurisdiction defines the crime as a felony or whether the statute of conviction allows for a sentence of more than one year.”

The proposed rule, if passed, would allow the government to disqualify individuals from obtaining asylum even where those individuals have not been formally convicted, such as in the case where an individual has been accused of domestic violence. The new proposed rule departs from previous laws which have traditionally disqualified individuals from obtaining asylum on the basis of “particularly serious crimes,” such as murder, rape, sexual abuse of a minor, sexual abuse, and other grievous crimes.

With this new rule, USCIS and the Department of Homeland Security will be given additional grounds upon which they may bar an individual from seeking asylum. As we have witnessed, the Trump administration, through its policies is seeking to restrict legal administration as much as possible, and limit the entry of immigrants to the United States.

Public comments on this proposed rule will be accepted until January 21, 2020. After the comment period has closed, the government will review and take comments into consideration when drafting the final rule.

For more information about this new proposal please click here.