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New Final Rule Impacts Asylum Seekers, Barring Entry Based on Criminal Records

Asylum seekers may have more trouble getting into the United States in the near future, at least if they have a criminal record. On Wednesday, October 21, the Department of Homeland Security and the Department of Justice published the “Final Rule” that establishes the new guidelines, though it will still be another 30 days from that date until it takes effect.

Those seeking asylum are immigrants who, like refugees, often strive to escape upheaval, persecution and potential physical harm in their home countries. The difference is largely that asylum seekers are already at the border and attempting to enter the country, or they have already done so, when asking to be granted status. Refugees, on the other hand, first obtain refugee status in remote camps and then make the trip to the United States when cleared and selected to do so. The rules for this process are laid out in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158.

The INA has always restricted asylum seekers with certain backgrounds or those who fit within specific categories, and it also gives the power to create further restrictions to the Secretary of Homeland Security and the Attorney General. The stipulation is simply that that new regulations align consistently with the initial Act. The worry is that those with a problematic criminal history could then enter the United States, potentially abusing those benefits, when they would be better extended to those without such a background.

To continue this process, new bars have now been established, and those who would become ineligible for asylum include individuals with legal convictions — and being convicted is a key factor here in most, though not all, of these cases — on charges of:

  • Felony violations at the state or the federal level
  • Smuggling other illegal aliens over the border or harboring them
  • Illegally reentering the country after being deported or removed
  • Driving a vehicle while intoxicated, with the substance not specified (i.e., alcohol or illegal drugs)
  • Participating in activity that is classified as that of a street gang
  • Engaging in domestic violence
  • Allegations of domestic cruelty, with or without a conviction, if an adjudicator classifies it as extreme

It is important to note that some domestic violence allegations will not require a conviction to result in barring an individual status as an asylee, even when not defined as extreme. This gives new weight to these allegations of abuse.

Finally, specific state and federal misdemeanors may also result in status being denied, despite being lower-level offenses. These include:

  • Receiving public benefits illegally
  • Providing false identification
  • Trafficking or possessing controlled substances
  • Trafficking or possessing the paraphernalia for said controlled substances

These are dramatic changes to the asylum program that could result in many denials for those who would previously have been granted status and allowed entry. Particularly interesting is the lack of a necessary conviction in some cases, and the addition of misdemeanor crimes as simple as drug possession.

It is now more important than ever for those who want to enter the United States, whether as refugees, asylees or under any other classification, to carefully consider the legal side of the process. If you need guidance in this process, don’t hesitate to ask for help.

Marshall Cohen
Marshall Cohen

Marshall Cohen is one of the founding principals of Antonini & Cohen. Admitted to the Georgia Bar in 1989, he has practiced immigration law exclusively for over 30 years. Mr. Cohen practices all areas of immigration law including family and employment cases, temporary and permanent visas, naturalization, deportation defense, and federal litigation.

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