In the ongoing saga of the Trump Administration's efforts to dismantle our humanitarian immigration law, the Departments of Justice and Homeland Security published a new rule imposing mandatory bars that prevent "convicted felons, drunk drivers, gang members, and other criminal aliens from receiving asylum." The Trump Administration has not changed the law related to asylum--that would take an act of Congress signed by the President--and even when they controlled the Senate and the House in 2017 and 2018, Republicans did not attempt to modify the law. Instead, the Administration has been attacking asylum through regulatory and bureaucratic changes, many of which have been challenged in court.

This latest change is designed to block certain convicted and suspected criminals from receiving asylum. What's wrong with that? Why should we grant refuge to criminals? I must admit that in the abstract, I don't have a great deal of sympathy for asylum seekers with criminal records. They are asking for an immigration benefit after having violated our country's law. However, when you actually meet non-citizens with criminal records and understand their circumstances, it is often more difficult to hold this view. Nevertheless, I suppose this new rule will be less controversial than others implemented by the Trump Administration, since it targets (supposed) criminals.

That said, there are a number of reasons why this new rule is bad. First, the Immigration and Nationality Act already bars asylum for many people with criminal convictions (and some who have been accused but not convicted). Those who are not barred under the old rules can still be denied asylum as a matter of discretion on a case-by-case basis, and few people with anything resembling a serious criminal conviction get asylum. So as usual with the Trump Administration's rule making, this new regulation is a solution in search of a problem.

Second, some asylum seekers will be barred for committing a domestic violence offense even without a conviction. For cases in family court, it is sometimes necessary to admit guilt and enter a rehabilitation program in order to (for example) regain custody of your children. I worked on such cases early in my career, and I observed that people who adamantly claimed innocence would be forced to admit guilt if they wanted to reunite with their family. This is of particular concern for low income individuals, who are more likely to face government intervention in their lives. And so relaxing the rules about convictions will probably result in innocent people being barred from asylum.

Third, and on a related note, this new rule will have unintended "up stream" consequences for non-citizens in criminal or domestic court. They will now have a stronger incentive to fight their case and try to avoid any adjudication of guilt. This could result in people with minor issues (such as a second DUI or a minor domestic violence incident) failing to get the help they need, since obtaining assistance requires an admission of culpability. Thus, it will be more difficult to reach a good outcome in cases that would normally be amenable to positive government intervention.

Fourth, some of the criminal conduct targeted by the new rule is very minor--for example, the misdemeanor use of a false ID. Some asylum seekers use fake documents to flee persecution and enter the U.S. Others use fake IDs to work (and eat). Blocking such people from asylum is an unfairly harsh consequence for a relatively small infraction.

Finally, the new rule bars certain people from asylum if they are convicted of illegally re-entering the U.S. or for alien smuggling (and alien smuggling can be interpreted very broadly--for example, a person who enters the U.S. illegally and who helps a non-relative enter at the same time could be convicted of alien smuggling). Thus, the rule potentially prevents people from seeking asylum for fleeing persecution and coming to the United States.

Let's turn to the new rule itself. One important point is that this rule is not retroactive. Meaning that if you have an old conviction, it does not bar you from asylum. However, if you are convicted after the rule goes into effect--November 20, 2020, unless blocked by a court--then you would be barred. So if you are arrested for a crime prior to November 20, 2020, but convicted on or after that date, you are barred from asylum. The new bars apply to aliens who are convicted of--

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

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

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant if the impaired driving caused serious injury or death, or if the offense was a second or subsequent DUI offense;

(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

(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 new rule also makes it more difficult to modify or overturn a prior conviction in order to mitigate the immigration consequences of a crime. The rule specifically indicates that convictions altered for immigration purposes do not allow the applicant to avoid any bars to asylum. It has never been easy to reopen a criminal case and change a conviction, but some non-citizens have successfully used that approach to avoid the immigration consequences of their crimes. Under the new rule, that practice--already quite limited--will become nearly impossible.

The point to take from all this is pretty simple: If you are an asylum seeker, do not commit any crimes. The repercussions for even a small infraction can be severe. If you are arrested and charged with a crime (no matter how minor), or if you have a case in domestic or family court, you need to speak with a lawyer who is familiar with the immigration consequences of the charges against you.

To me, this new rule is redundant and unnecessary. Asylum seekers are often people who have had traumatic experiences, and sometimes those experience manifest in conduct that gets them into trouble. The old rule--which blocked most criminals but allowed for case-by-case adjudication in certain instances--was more fair, and enabled the fact-finder to consider all the relevant circumstances in an asylum applicant's case. But when it comes to asylum seekers, the Trump Administration is not interested in fairness. Perhaps the courts will see fit to block this new rule, but to me, that seems doubtful. The vast majority of asylum seekers do not commit crimes, and under this new rule, it is imperative for anyone who needs asylum to keep it that way.

Originally posted on the Asylumist: www.Asylumist.com