Sessions Plans to Make Illegal Entry and Other Minor Crimes Bars to Asylum

Although many fleeing persecution have no choice but to enter the U.S. illegally, treating this as a crime, then newly banning people with minor crimes from seeking asylum, would have the effect of blocking countless people from protection.

By , J.D.


Attorney General Jeff Sessions is reportedly planning to issue major regulations that would bar asylum seekers convicted of illegal entry and other minor crimes from being granted asylum in the United States.

This is the latest in a recent series of actions by Sessions to restrict the ability of asylum seekers to gain protection in the United States. In April of 2018, the administration began a zero tolerance policy, prosecuting all persons unlawfully crossing the southern border with the misdemeanor crime of illegal entry, instead of following past practices of treating this as a civil violation. In the process, it separated thousands of parents from their minor children.

Although the administration's family separation policy was to some extend ended months later in an executive order (EO) signed by President Trump after public outcry, the practical result is that asylum seekers and others may face long-term detention as a family.

What's more, in June of 2018, Sessions issued a major decision in the asylum case Matter of A-B-, restricting the ability of victims of domestic violence and gang-based violence to qualify for asylum in the United States.

Proposed Regulations Would Remake Asylum and Criminal Bars and Discretionary Factors

Currently, a conviction for illegal entry—a misdemeanor offense—is not a bar to being granted asylum in the United States. While the "zero tolerance" policy's focus on prosecuting illegal entry frustrated and delayed asylum seekers' ability to request asylum (especially for those separated from their minor children), it did not bar it completely.

Under U.S. asylum law, a noncitizen is barred from asylum if he or she commits a "particularly serious crime." Particularly serious crime is not defined by statute but illegal entry has never been found to be such a crime. Examples of particularly serious crimes include robbery, firearms offenses, and drug trafficking.

Under the regulations proposed by Sessions, illegal entry would become a bar to asylum. In addition to the crime of illegal entry, the proposed regulation would bar people with other misdemeanor offenses (which could even include traffic offenses) from qualifying for asylum.

Attorneys could challenge these provisions as a violation of federal law, on the basis of their creating a criminal bar to asylum that does not rise to the level of a particularly serious crime as laid out in existing statute, written by Congress.

Even if these minor crimes were not considered an outright bar to asylum, the proposed regulation would instruct judges to consider illegal entry a negative discretionary factor, which they could use to deny legitimate claims even if the asylum seeker was not technically barred. Because a grant of asylum is discretionary, immigration judges would have broad authorization to deny asylum claims for people who entered the U.S. unlawfully.

Proposed Regulation Would Further Restrict Legal Definition of "Refugee"

In his June decision in the case Matter of A-B-, Sessions overturned a previously established Board of Immigration Appeals (B.I.A.) legal precedent case called Matter of A-R-C-G-, which held that victims of domestic violence could qualify for asylum protection. The Matter of A-B- decision also stated that targets of "private criminal activity" and gang violence would not, in most instances, be able to gain asylum in the United States.

The proposed regulation would reportedly go even further than Matter of A-B-, by limiting the ability of people seeking protection from family-based persecution, currently governed under B.I.A. precedent in Matter of Acosta and Matter of L-E-A- (and various federal circuit courts), which hold that persons can be granted asylum if they are persecuted based on their familial relationships.

This means that if a person is targeted because of his or her relationship to a family member (for example a gang threatening a mother whose son will not join the gang), the family member threatened (in this case the mother) could qualify for asylum. The regulation proposed by Sessions would limit such claims to people who have families that are widely known (on a national level).

Challenges to Federal Regulations

Unlike with the Matter of A-B- decision, which Sessions could simply issue of his own volition, federal regulations must be published in the Federal Registrar and go through a public notice and comment period before being enacted. This offers an opportunity for the legal community and immigration advocates to challenge the proposed regulations before they are finalized.

Effective Date: July 10, 2018