New U.S. Government Rules Add Several Criminal Bars to Receiving Asylum

November 20, 2020 New rules will widely expand the types of criminal convictions and activities that would bar an applicant from being granted asylum in the United States.

By , J.D.


On October 21, 2020 U.S. Citizenship and Immigration Services (USCIS) and the Executive Office of Immigration Review (EOIR) published a new rule, to take effect in 30 days, which will widely expand the types of criminal convictions and activities that would bar an applicant from being granted asylum in the United States.

People who have applied for asylum or are thinking of applying for asylum, and have any kind of criminal record (including arrests and/or convictions), should immediately consult an immigration attorney to determine whether their record will impact their asylum case under the new rule.

NOTE: The new rules described in this article are on hold. A U.S. District Court for the Northern District of California issued a nationwide injunction on October 21, 2020, to block the rule while awaiting further, final court proceedings and a decision on whether it is lawful.

Previous Criminal Bars to Asylum

Under current U.S. asylum law, people convicted of "particularly serious crimes" are barred from being granted asylum in the United States.

In addition, those convicted of serious non-political crimes abroad, and those who pose a security danger to the United States, or participated in terrorist activities or the persecution of others, are barred from being granted asylum.

A crime is always deemed a "particularly serious crime" if it is characterized as an aggravated felony under immigration law. Aggravated felonies include murder, drug or firearms trafficking, money laundering of more than $10,000, theft or violent crime with a sentence of at least one year, sexual abuse of a minor, prostitution, tax evasion over $10,000, and other crimes.

In addition to these aggravated felonies that are always particularly serious crimes, a judge has discretion to determine that any crime is "particularly serious" and would therefore bar an asylum applicant from relief; for example if a crime is violent.

Expanded Criminal Bars Under the New Rule

Under the new rule far more criminal activity would bar a non-citizen from seeking asylum including:

  • any felony under federal or state law
  • alien smuggling or harboring
  • illegal reentry into the U.S.
  • any crime involving gang activity
  • driving while intoxicated (DUI or DWI)
  • a domestic violence offense (even without a conviction, if an adjudicator finds the person to have engaged in these acts)
  • a misdemeanor related to using false identification
  • unlawful receipt of public benefits, and
  • possession or trafficking of a controlled substance (other than a single conviction of possession of 30 grams of marijuana for personal use)

The new criminal bars encompass a wide range of criminal activity and will affect many more asylum seekers than the previous standard.

Alien Smuggling

People who have ever assisted a child or family member in entering the United States unlawfully (even if that person was fleeing persecution or seeking asylum) could be potentially charged with alien smuggling.

Under the published rule, the asylum bar would require a conviction for alien smuggling, not just having engaged in the practice. Still, it would be best to discuss this issue with an attorney if you have ever assisted someone in entering the United States unlawfully and are now seeking asylum (and you should definitely do so if you have a conviction for alien smuggling).

Illegal Reentry to the U.S.

This bar will apply to you only if you have entered the United States unlawfully more than one time. It also requires a criminal conviction. This bar will not have as big of an impact as the others, because people who have been previously removed from the United States and re-enter unlawfully are already currently barred from asylum (and usually seek another similar form of relief known as "withholding of removal").

Crimes Involving Gang Activity

This bar could be interpreted broadly, and includes any crime (including a misdemeanor or felony) that "was committed in support, promotion, or furtherance of the activity of a criminal street gang as that term is defined under the law of the jurisdiction where the conviction occurred" or under federal law.

This bar requires an actual conviction, although if a judge or asylum officer believes you have engaged in any sort of gang activity, they are likely to deny your application for asylum as a matter of discretion even without the criminal bar. If you have ever even been suspected of gang activity and are seeking asylum, you should consult with an attorney.

Driving While Intoxicated

Both misdemeanor and felony convictions for driving while intoxicated will bar an individual from being granted asylum under the new rule. If you have been arrested for DUI or have a DUI conviction and are seeking asylum, consult an attorney immediately.

Domestic Violence Offenses

The domestic violence bar contained in the new rule is potentially the most problematic for asylum seekers, because it does not require a conviction to bar the grant of asylum.

A crime is a crime of domestic violence if it involves harassing, coercing, threatening or using violent force against a current or former spouse, a person you share a child in common with, or a person who you have cohabitated with who is similarly situated to a spouse.

People convicted of child abuse, neglect or abandonment and/or domestic assault and battery are barred from asylum under the new rule. This includes both misdemeanors and felonies.

Even if you don't have a conviction for a domestic violence crime, you might still be barred under the new rule if "there are serious reasons to believe have engaged" in domestic "acts of battery or extreme cruelty." This could include physical violence and other harassing or threatening behavior towards a partner. If you have ever encountered law enforcement authorities related to a domestic incident and you are seeking asylum, contact an immigration attorney immediately.

Misdemeanor Related to False Identification

Many asylum seekers use false identification to flee persecution and arrive in the United States. Under the new rule, a conviction (including a misdemeanor conviction) for using false identification can bar an asylum seeker from being granted asylum.

The rule contains an exception if the conviction was with regard to "a document related to the alien's eligibility to enter the United States, that the alien used the document to depart a country in which the alien has claimed a fear of persecution, and that the alien claimed a fear of persecution without delay upon presenting himself or herself to an immigration officer upon arrival at a United States port of entry." If you used false identification to enter the United States and are applying for asylum it is in your best interest to consult with an immigration attorney, especially if you have a conviction for the offense, because you might qualify for the exception.

Unlawful Receipt of Public Benefits

If you have been convicted of any offense related to receiving federal, state, or local benefits that you shouldn't have, perhaps obtained through a lie or fraud, you would be barred from seeking asylum under the new rule. Seek out the help of an attorney.

If you have lawfully used public benefits, you do not need to worry about this bar.

Possession or Trafficking of a Controlled Substance

Under the new rule a conviction for possession or trafficking of a controlled substance will bar someone from being granted asylum (whether it is a misdemeanor or a felony). There is an exception for one conviction of under 30 grams of marijuana. While this bar requires a criminal conviction, it is in your interest to consult with an immigration attorney if you have ever encountered authorities related to a controlled substance issue.

Implications of New Asylum Bars Going Forward

The new asylum bar rules apply to a wide array of criminal activity, including misdemeanors and felonies. Most of the bars require a criminal conviction; though the domestic violence bar does not.

To be safe, you should consult with an immigration attorney if you have ever been arrested for or convicted of a crime in the United States and are now seeking or plan to seek asylum. While the bars will make it mandatory that the judge or asylum officer deny your application, the adjudicator can always use discretion to deny your application based on a belief that you have engaged in criminal activity.

Effective Date: November 20, 2020