New Bars to Asylum Eligibility

Asylum Eligibility

Asylum seekers are individuals coming to the US to escape persecution in their home countries. Regardless of how meritorious one’s fears are, however, asylum already has some bars, meaning some individuals are already ineligible to receive this benefit from the government. This includes individuals who have engaged in terrorist activity, pose a danger to the security of the United States, committed a “particularly serious crime” or a “serious nonpolitical crime” outside of the United States.

The Trump Administration has now broadened the list to include many other criminal and immigration convictions or even simply conduct. These include:

  • A conviction related to alien harboring, alien smuggling, and illegal reentry
  • A conviction for a crime that the Attorney General or asylum officer has reason to believe was committed in support, promotion, or furtherance of a criminal street gang;
  • A felony or misdemeanor conviction for driving while impaired or intoxicated, including driving under the influence of drugs or alcohol, if that impaired driving was the cause of serious bodily harm or death of another person;
  • A second or subsequent conviction for driving while intoxicated or impaired;
  • A conviction of a crime that involves conduct amounting to a crime of stalking; or a crime of child abuse, child neglect, or child abandonment; or that involves conduct amounting to a domestic assault or battery offense;
  • Any conviction for a felony under Federal, State, tribal, or local law
  • A conviction for a misdemeanor offense under Federal, State, tribal, or local law involving using a false identification document unless the document was used to enter the United States while escaping persecution;
  • A conviction for a misdemeanor under Federal, State, tribal, or local law for the receipt of public benefits without lawful authority;
  • A conviction for a misdemeanor under Federal, State, tribal, or local law for possession or trafficking of a controlled substance or controlled substance paraphernalia, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana;
  • Even without a conviction, anyone who the asylum officer knows or has reason to believe has engaged in acts of battery or extreme cruelty upon their current or former spouse, the parent of their child, a person they are living with or have lived with as a spouse, someone similarly situated to a spouse under domestic or family violence laws of the jurisdiction, or any person who is protected from their acts under domestic or family violence laws.

Am I No Longer Eligible for Asylum?

What do you do if you think you are no longer eligible?? There are important exceptions and considerations to remember before you panic or forgo applying. These include:

  • Importantly, this rule is effective November 20, 2020. That means it only applies to asylum applications filed on or after November 20, 2020 and for convictions and acts that occurred or were engaged in on or after November 20, 2020;
  • For the last bar pertaining to acts of battery or extreme cruelty, an exception exists for people who are themselves the victim of battery or extreme cruelty if they were acting in self-defense, violated a protective order that was protecting themselves, or have committed a crime that did not result in serious bodily injury or where there was a connection between the crime and the domestic violence they experienced;
  • The bars would not affect one’s eligibility for Withholding of Removal or protection under the Convention Against Torture, which are similar forms of relief from removal that would permit an individual to remain indefinitely in the United States;
  • There are legal arguments that can be made for many of the bars on this list, including challenging a state convictions inclusion in the list under the categorical approach for analyzing a criminal statute;
  • Like with many other Trump initiatives, we expect that these new bars to asylum will be challenged in federal court and when or if the new rule will actually be applied is still yet to be seen.

These new bars very well might be an unauthorized over-reach, rendering individuals with valid claims ineligible for asylum. After all, the Board of Immigration Appeals has already said that “the dangerous of persecution should generally outweigh all but the most egregious of adverse factors.” Matter of Pula, 19 I & N Dec. 467 (BIA 1987). This new rule should not discourage individuals, with valid claims, from applying. If you would like to discuss these new bars in more detail, please contact our office to schedule a consultation.

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