On December 19th, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) issued a joint set of Proposed Rules. In January, The Advocates for Human Rights submitted detailed comments to the proposed rule.
The proposed rule would make three primary changes to the rules governing asylum adjudications. First, the proposed rule proposes adding seven categorical bars to asylum eligibility: (1) any conviction of a felony offense; (2) any conviction for “smuggling or harboring” under 8 U.S.C. § 1324(a), even if the asylum seeker committed the offense for the purpose of bringing her own spouse, child or parent to safety; (3) any conviction for illegal reentry under 8 U.S.C. § 1326; (4) any conviction for an offense “involving criminal street gangs,” with the adjudicator empowered to look to any evidence to determine applicability; (5) any second conviction for an offense involving driving while intoxicated or impaired; (6) any conviction or accusation of conduct for acts of battery involving a domestic relationship; (7) and any conviction for several newly defined categories of misdemeanor offenses, including any drug-related offense except for a first-time marijuana possession offense, any offense involving a fraudulent document, and fraud in public benefits. Second, the proposed rule creates a multi-factor test for immigration adjudicators to determine whether a criminal conviction or sentence is valid for the purpose of determining asylum eligibility. Third, the proposed rule rescinds a provision in the current rules regarding the reconsideration of discretionary asylum.
The proposed rule violates the United States’ obligations under international human rights law and international refugee law, including the 1951 Refugee Convention. Of particular concern is the proposed categorical bar for accusations of conduct for acts of battery involving a domestic relationship. The proposed rule is arbitrary and capricious, offered without any justification for the proposed categorical bars or any evidence that the existing discretionary framework has failed to adequately give effect to Congress’s intent as articulated in the 1980 Refugee Act. The proposed multi-factor test would further complicate asylum adjudications, making proceedings more time-consuming and resource-intensive. Offered without justification, the proposed rules can be read only as an attempt to eviscerate the congressionally mandated asylum system.