On October 20, 2020, the Trump administration announced additional bars to asylum that create new, needless obstacles to protection and threaten U.S. compliance with its obligations under international and domestic asylum law. NIJC submitted a public comment opposing the rule after it was first proposed in December 2019. NIJC’s press release condemning the announcement of the final rules is available on our website. The final rule itself can be found here.
Pursuant to the final rule, individuals can be barred from asylum based on even minor legal involvement. In particular, the final rule bars from asylum individuals with convictions related to
- Unlawful reentry to the United States
- Alien harboring or smuggling
- Crimes that the adjudicator knows or has reason to believe were related to the activity of a criminal street gang
- Offenses for driving while intoxicated or impaired where such impaired driving was the cause of serious bodily injury or death of another
- A second or subsequent offense for driving while intoxicated or impaired
- Crimes involving conduct amounting to a crime of stalking, child abuse, child neglect, or child abandonment, as well as various domestic violence-related offense. The final rule also bars individuals for whom the adjudicator knows or has reason to believe have engaged in battery or extreme cruelty within the context of domestic violence, irrespective of any conviction
- Misdemeanor offenses related to the possession or use of false identification, the receipt of a public benefit, or possession of a controlled substance or paraphernalia, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana
- Any felony
The rule also creates new definitions of “felony,” “misdemeanor,” “conviction,” and “sentence” for the purpose of the asylum bar.
The final rule is effective November 20, 2020. Significantly, 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. Thus, if you are representing an NIJC asylum client who filed for asylum prior to November 20, 2020 and/or who has a conviction listed in the final rule that occurred before November 20, 2020, the final rule does not apply.
Attorneys should be aware that even if a criminal history does not bar an individual from asylum under the previously existing bars or the new final rule, an adjudicator may still rely on the criminal history to deny asylum as a matter of discretion. If barred from asylum, individuals remain eligible for withholding of removal and Convention Against Torture relief.
NIJC pro bono attorneys should contact their NIJC point-of-contact with any questions.