Originally published by The New York Times
The Trump administration moved on Wednesday to bar immigrants convicted of minor crimes in the United States from obtaining asylum, the latest effort to limit protections extended to those fleeing persecution.
The new rule, issued by the Justice Department and the Department of Homeland Security, would expand the list of crimes that bar migrants from asylum to include misdemeanor offenses, including driving under the influence, possession of fake identification and drug possession, including having more than 30 grams of marijuana. The administration would also deny asylum to migrants caught crossing the border after receiving a deportation order and those who illegally received public benefits.
The policy does not include offenses committed in a foreign country, meaning that it will target those who were convicted of one of the offenses and are returning to the United States for protection or are currently in the country awaiting a decision in their asylum case.
“Convictions for such misdemeanor offenses should be disqualifying because these offenses inherently undermine public safety or government integrity,” according to a draft of the rule signed by Attorney General William P. Barr and the acting secretary of homeland security, Chad F. Wolf.
Immigrants accused of domestic violence, even those not convicted, would also be barred from asylum protections. The rule is expected to be published in the Federal Register on Thursday, starting a 30-day comment period after which it is likely to take effect, barring a court-ordered stay.
The list of offenses barring migrants from asylum has typically been reserved for “particularly serious crimes,” such as murder, rape, assault and other violent acts, according to immigration lawyers and former homeland security officials. Critics say this policy will prevent vulnerable families from seeking safety.
“The Refugee Act has for years said only those with ‘particularly serious’ crimes could be categorically denied asylum. This administration has essentially crossed out the words ‘particularly serious,’” said Lee Gelernt, the lead lawyer for the American Civil Liberties Union in the legal challenge to the administration’s asylum rules. “There will no doubt be challenges to these new rules.”
The rule would also remove a requirement that immigration judges reconsider rejected asylum applications that were previously decided based on their discretion.
The elimination of that automatic review would “increase immigration court efficiencies and reduce any cost from the increased adjudication time by no longer requiring a second review of the same application by the same immigration judge,” according to a statement from the Justice Department.
The rule adds to a growing list of policies limiting who is eligible for an asylum program that has diminished under President Trump. The administration already tried unsuccessfully to bar any migrant who crossed the southern border between the ports of entry from obtaining asylum and directed agents at the border to limit the daily number of migrants who can be processed at those ports.
The administration also recently began deporting asylum seekers to Guatemala if they failed to apply for asylum there under a deal with that Central American country’s government. The United States is preparing to put a similar deal in place with Honduras to handle additional asylum seekers, who would be required to apply there.
The administration last month also proposed charging asylum seekers $50 for their applications, a move that would make the United States one of four countries to charge for asylum. More than 53,000 migrants have been returned to Mexico to wait while their asylum cases make their way through the immigration system.
The White House and the Department of Homeland Security have argued that few migrants are actually granted asylum, that those who are denied often stay in the United States illegally and that the country’s immigration system has been overwhelmed by a surge of asylum-seeking families in recent years.
The new rule would most likely limit the number of asylum seekers who have a chance to make their case in immigration court — a court system that this year topped more than one million cases. Arrests at the southern border have declined from more than 144,000 in May to more than 40,000 in November, but the administration has continued to find ways to limit migration.
“This administration simply wants to limit legal immigration, and they’ve been very creative in going up and down and finding all these small levers,” said Barbara Strack, a former chief of the refugee affairs division at United States Citizenship and Immigration Services under Presidents George W. Bush and Barack Obama.
Even migrants who have had prior convictions expunged or modified would be subject to the new rule. Such migrants would need to prove that their sentence was not changed in order to gain legal status in the United States. Under the rule, immigrants would still be able to prevent their deportation if they could prove that they had a fear of torture or persecution, a much higher bar to clear than the standard for asylum protections.
“The Trump administration wants to treat asylum like something only angels can win,” said Aaron Reichlin-Melnick, the policy counsel at the American Immigration Council, a nonprofit in Washington. “I would argue Congress didn’t intend to make extremely low-level crimes a bar to asylum.”