Rules would create sweeping new categorical bars to asylum and eliminate rules intended to ensure refugee families are not separated
Human Rights First expressed its strong opposition to finalized rules, that were set to take effect on November 20, 2020, that will result in refugees being denied asylum and deported to persecution as well as the separation of refugee families. These provisions are likely to have a disproportionate impact on refugees who are ethnic and racial minorities, victims of trauma, and LGBTQ.
“These rules, coming on top of the myriad restrictions this administration has also proposed or already implemented, all but eliminate asylum for the purpose for which it was intended to provide safety, integration and a new future to people fleeing persecution that threatens their lives and the lives of their families,” said Anwen Hughes, deputy legal director at Human Rights First. “These rules fly in the face of international norms and eliminate any margin of compassion and judicial discretion in existing law. They would bar from asylum—and thus deny family reunification—for asylum seekers already prosecuted for trying to bring a spouse, child, or parent to safety, and allow the re-adjudication in immigration proceedings of criminal charges that were never even brought against the asylum applicant, much less sustained. These rules are yet another salvo in this administration’s broad-based attack on the institution of asylum in the United States, in disregard of the will of Congress and the treaty obligations of this country.”
These illegal new rules will:
- Create sweeping and overbroad additional categorical bars to asylum including:
- Any conviction for “smuggling or harboring,” even if the asylum seeker committed the offense for the purpose of bringing her spouse, child, or parent to safety;
- Any conviction for illegal reentry (in direct contravention of Article 31 of the Refugee Convention), even if the asylum seeker was previously deported because she was wrongfully denied an opportunity to request asylum ;
- Any conviction for an offense “involving criminal street gangs,” with the immigration judge empowered to look to any evidence put forward by the government to decide whether an asylum seeker’s conduct was allegedly gang-related;
- Accusations of battery involving a domestic relationship – even if the individual was not charged or convicted;
- Any drug-related offense, even misdemeanors for simple possession (except first-time marijuana possession) – needlessly punishing refugees who sometimes struggle with substance abuse related to the persecution and trauma they have faced and without access to affordable medical care in the United States.
- Make it easier for the administration to leave asylum seekers permanently separated from their families by rescinding a provision in the current regulations that instructs immigration judges to reconsider denying asylum on discretionary grounds when doing so would result in an asylum seeker’s spouse and children stranded in the country of persecution, often themselves also in danger.
These finalized rules are virtually identical to the rules proposed by the administration in December 2019, which Human Rights First and hundreds of other organizations and individuals opposed through public comments.
As Human Rights First previously noted, these rules are yet another effort by the Trump administration to deny asylum to more and more refugees, leaving them permanently separated from their families with only the potential of receiving the very limited relief of withholding of removal. These additional bars to asylum will disparately impact particularly vulnerable populations, including LGBTQ asylum seekers and asylum seekers from Africa, the Caribbean, Central America, and other regions who are routinely criminalized because of their identities, racially disparate policing practices, or in connection with experiences of trafficking and domestic violence.
In issuing these new categorical bars to asylum, the administration is violating U.S. immigration law and vastly exceeding the limited authority Congress provided to the Attorney General to determine discretionary factors that may be considered in asylum cases. These rules also violate the United States’ treaty obligations under the 1967 Refugee Protocol and the 1951 Refugee Convention by penalizing refugees for seeking asylum protection in the United States and separating refugees from their families.
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