Jersey City, New Jersey – Amongst the many new rules imposed by the Trump administration in its efforts to make asylum available to as few people as possible, are rules limiting eligibility for persons convicted of crimes. Several rules have been imposed and are at different stages of implementation. This article will summarize those changes.
The Particularly Serious Crime (“PSC”) bar to asylum has existed since the 1950s. The law that created the PSC bar also allowed the Attorney General to designate crimes for which conviction establishes an automatic PSC and bar to asylum. Over the years, the list of PSCs has expanded. The rules proposed by the Trump administration greatly expand the number and nature of crimes that would fall into this bar.
The new bars are:
- Any felony conviction
- Any conviction for smuggling or harboring an alien, even if that alien is a relative seeking safety
- Any conviction for illegal reentry
- Any conviction for an offense “involving criminal street gangs” with the adjudicator allowed to consider any evidence of such involvement
- Any second conviction for driving while intoxicated or impaired
- Any conviction or accusation of conduct (not requiring a conviction) involving a domestic relationship
- Any conviction, even misdemeanors, involving drug related offenses, fraudulent documents or fraud in public benefits.
While all these changes are problematic and disconcerting, denying any relief based on petty offenses, helping a family member escape danger (likely the reason for the asylum application), or based on mere accusations that do not result in convictions are the most worrisome and quite possibly illegal.
Further, the new regulations use the same parameters to deny Employment Authorization Documents (“EAD”) for those with pending asylum applications and for those who fail to establish they are not subject to mandatory denial of asylum based on the criminal regulation grounds. The rules also state that even convictions later vacated due to Constitutional defects would remain convictions to be considered in asylum applications. This rule is highly problematic as it would penalize those who have already been victimized by an unfair judicial process and leave them with no options to regain asylum eligibility. Whether this provision is legal will certainly be challenged in court, as will the other provisions.
The impact of these rules, if they survive court challenges, would be devastating. While it is possible court challenge will be successful, and it is possible the Biden administration will revoke the changes, it could be months or years until those things happen. The confusion and injustice in the intervening time will be tragic for many asylum applicants. It is essential that anyone applying for asylum work with a lawyer who monitors the constantly changing rules. Too often asylum applicants think it is OK to try on their own and hire a lawyer if something goes wrong. But overcoming a denial is much harder than succeeding in the first instance and putting one’s self in such a position is bad strategy.