New Rule Proposed to Further Restrict Asylum Eligibility

In line with the Trump administration’s mission to restrict eligibility for asylum, on Thursday, December 19, 2019, the Department of Homeland Security, home to Immigration and Customs Enforcement (ICE), and the Department of Justice, home to the immigration courts, issued a joint statement of proposed rulemaking, signaling the potential creation of new draconian restrictions on asylum eligibility.

This new rule would make any individual ineligible for asylum in any of the following circumstances:

• They have been convicted of a felony under federal, state, tribal, or local law;
• They have a federal conviction for “harboring aliens”;
• They have a federal conviction for “Illegal reentry”;
• They have any federal, state, tribal, or local convictions for offenses involving criminal street gangs;
• They have a second conviction for offenses involving driving while intoxicated or impaired, or one in which death or serious bodily injury occurs;
• They have a conviction for Domestic Assault or Battery, Stalking, or Child Abuse;
• They have a conviction for certain misdemeanor offenses involving use of fraudulent documents, receipt of public benefits under false pretenses, or certain drug offenses.

The problems inherent in creating these new bars to asylum are too numerous to list here.  The application of these laws will affect thousands of people in numerous circumstances.  But beyond how the specific changes would affect perhaps most vulnerable group of people, a few thoughts:

The origins of refugee and asylum resettlement come from a post-World War II convention in which the United Nations, in an effort to prevent future persecution of particular groups of people by their government, sought to create the ability for people to flee countries in which they would be persecuted for who they are.  This subset of immigration law was created not because of bleeding-heart liberalism, but because the signatories to the 1951 Convention, and the 1967 Protocol (here including the United States) had seen firsthand the atrocities a government could inflict on its citizenry during the Holocaust.

The United States has, until recent years, been the world’s leader in refugee resettlement, fully embracing the mission and message that people should be safe from persecution by their governments.  However, as the number of worldwide refugees has skyrocketed, refugee admissions in the United States have dropped precipitously.  According to the Pew Research Center, in 2016 the United States admitted 97,000 refugees.  In 2017 that number was only 33,000.  In 2018, the number further shrunk to 23,000 and the United States, for the first time since the implementation of the Refugee Act of 1980, was no longer the world’s leader in refugee resettlement.

In the domestic context of refugees, asylees, who must prove that they meet the definition of a refugee after presenting themselves at a port of entry and requesting asylum, or doing so while within the United States, hurdle after hurdle have also been erected.  Not even accounting for the changes to asylum law made in 2019, the Transactional Records Access Clearinghouse (TRAC) based out of Syracuse University documents a massive spike in denial rates starting in March 2017 and tracing other new asylum restrictions, such as then Attorney General Sessions’s decision in Matter of A-B-, which restricted asylum eligibility for victims of domestic violence.  Further restrictions have been implemented since this data, and, as can be seen by the current proposed rulemaking, further restrictions are yet to come.

Laws have consequences.  Greater restrictions on asylum eligibility have real costs – people’s lives are in jeopardy when they flee their homes to seek asylum in a new country.  These most recently proposed changes say, in no uncertain terms, that an undocumented immigrant who signed up for food stamps has conducted themselves in such an “inherently pernicious” manner that they do not deserve the benefit of protection from persecution in the way of asylum.  After all, as the proposed rule says, such behavior “burdens taxpayers.”  The rule states that an immigrant who helps an immediate family member, such as a spouse or child, enter the United States unlawfully should be barred entirely from this potentially lifesaving benefit, as such a person has displayed a “serious disregard for U.S. immigration law.”

Reasonable minds may disagree upon where the line should be drawn on conduct that should disqualify someone from applying for asylum, but this overbroad rule and the restrictionist campaign it is a part of seems to violate the very spirit of the Refugee Convention, and in so doing weakens both protections for some of the most vulnerable people in the world, and the United States’ place as a global leader.

Public comment is open on this proposed rule until January 21, 2020, at 11:59 PM, and the agencies are required by law to take into consideration each comment submitted.  If you’d like to make a public comment opposing these new measures, or read the proposed rule yourself, please see the following link: https://www.regulations.gov/document?D=EOIR-2019-0005-0001

Jens Manuel Krogstad, Key facts about refugees to the U.S., Pew Research Center (Oct. 7, 2019), https://www.pewresearch.org/fact-tank/2019/10/07/key-facts-about-refugees-to-the-u-s/

Asylum Decisions and Denials Jump in 2018, Transactional Records Access Clearinghouse (Nov. 29, 2018), https://trac.syr.edu/immigration/reports/539/