Continuing its assault on asylum, the Trump Administration has proposed new regulations that would further restrict an individual’s eligibility to file for asylum. Under the proposed rule, the regulations would create an additional seven categories that would bar a person from filing for asylum. It is important to note that these new bars would be in addition to the current bar against applicants who have been convicted of “particularly serious crimes.” The new bars would apply non-US citizens convicted of
· A felony under federal or state law
· An offense under 8 USC 1324(a)(1) or 1324(a)(1)(2), which pertains to Alien Smuggling or Harboring
· An offense under 8 USC 1326, which covers Illegal Reentry
· A federal, state, tribal, or local crime involving street gang activity
· Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle under the influence of an intoxicant-in other words, DUI/DWI. Specifically, individuals convicted of a second or subsequent offense of DUI/DWI, or for a single offense resulting in death or serious bodily injury, would be barred.
· 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
· 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.
As is evident, the proposal poses a dramatic expansion of disqualifying offenses that reach significantly beyond what would constitute a particularly serious crime. Besides conviction of any felony, which is any crime with a possible jail sentence of more than one year (regardless of whether the applicant is actually sentenced to incarceration), applicants who have been convicted of a second drunk driving-which in some states, is not even considered a felony-would be barred. In some cases, specifically within the context of domestic violence, a conviction is not even required as long as an adjudicator finds that the applicant has engaged in acts of battery or extreme cruelty. This affords a tremendous degree of discretion and subjectivity to an officer who may not be legally trained to evaluate whether an act constitutes battery or extreme cruelty under the law. But if the crime does not involve domestic violence, an officer is permitted to summarily rule out an applicant’s claim without regard to whether the applicant was sentenced to jail or whether there were any extenuating circumstances or mitigating factors.
Note that these are proposed regulations and not yet law. The public has until January 21, 2020 to submit comments.