Monday, January 20, 2020

Expanding Criminal Bars to Asylum Nonsensical

The U.S. is considering expanding the exclusions barring individuals with criminal records from seeking asylum. Expansion is unnecessary given that the United States already bars individuals convicted of "aggravated felonies" from seeking asylum -- a bar that, counter-intuitively, already works to exclude individuals convicted of conduct that is neither aggravated nor a felony.

By statute, only individuals convicted of a “particularly serious crime,” 8 U.S.C. § 1158(b)(2)(ii), should be excluded from obtaining asylum. As mentioned, through the currently-existing "aggravated felony" bar, the United States already excludes individuals from seeking asylum who have committed crimes that are, in no sense, particularly serious. We certainly do not need to bar more individuals for committing even less-particularly-serious crimes.

Take the proposed rule to render ineligible asylum-seekers who are convicted of first-time smuggling of their family members, including their children. This expansion is nonsensical. If an individual is fleeing persecution within the meaning of 8 U.S.C. § 1101(a)(42), they will want to save their children from the same persecution. Fear and desperation in the face of a threat of persecution may well drive an asylum-seeker to enter the U.S. unlawfully -- particularly given the well-documented "metering" that is going on at the Southern Border and which (intentionally) serves as a barrier against seeking asylum at lawful points of entry. Under the current federal prosecutorial priorities, it's not unlikely that such an adult would face a criminal charge of alien smuggling. And yet the smuggling would be the direct result of our failed asylum processes on the U.S. border!

Consider too the proposal to "render ineligible aliens who engaged in acts of battery and extreme cruelty in a domestic context in the United States, regardless of whether such conduct resulted in a criminal conviction." This, too, is nonsensical. How can we exclude individuals from seeking asylum on the basis of their "particularly serious crime" if they have never been convicted of a crime! Moreover, such a change would task immigration courts with work they are wholly unsuited to do -- make factual findings about past conduct to determine if it is sufficiently criminal in nature. This is especially problematic where migrants do not have a right to counsel and are frequently pursuing their cases while in detention (or, worse, while in Mexico under the Migrant Protection Protocols). How can we expect such individuals to locate and bring witnesses to immigration court in order to address factual allegations about their past conduct?

The U.S. should be looking to narrow, not expand, the criminal grounds that bar migrants from seeking asylum.

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There are still a few more hours today to submit your own comments in opposition to these proposed rules. The comment period closes Tuesday.

-KitJ

https://lawprofessors.typepad.com/immigration/2020/01/expanding-criminal-bars-to-asylum-nonsensical.html

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