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EOIR and USCIS issue final rule expanding criminal bars to asylum and limiting review of discretionary denials of asylum

  1. Original Date Announced

    October 21, 2020

    EOIR and USCIS issue a final rule adding numerous new mandatory criminal bars to asylum eligibility, including offenses arising under sections 274(a)(1)(A), 274(a)(2), or 276 of the INA; crimes "committed in support, promotion, or furtherance of the activity of a criminal street gang;" convictions for driving while intoxicated or impaired; crimes of stalking, child abuse, child neglect, child abandonment, and domestic violence, including misdemeanor domestic violence; unlawful use of an identification document; and unlawful use of public benefits, among others. The rule also sets forth criteria for determining whether a vacated, expunged, or modified conviction or sentence should be recognized for purposes of determining whether an individual is eligible for asylum, and repeals provisions regarding reconsideration of discretionary denials of asylum. The rule, signed by Chad Mizelle, Senior Official Performing the Duties of the General Counsel, on behalf of Acting Secretary Wolf, takes effect on November 20, 2020.

    [ID #1099]

    Final Rule on Procedures for Asylum and Bars to Asylum Eligibility

  2. Effective Date

    November 20, 2020

  3. Subsequent Trump and Court Action(s)

    • November 2, 2020

      2020.11.19 Pangea Legal Services v. DHS (TRO Order)

      On November 2, 2020, four immigration advocacy groups filed suit in the Northern District of California, raising INA, APA, HSA/FVRA, and constitutional arguments. See Pangea Legal Services v. DHS, 3:20-cv-07221 (N. D. Cal., Nov. 2, 2020). On November 19, 2020, District Judge Susan Illston granted the plaintiffs' motion for a TRO, enjoining the rule from going into effect as scheduled on November 20. On November 24, Judge Illston converted the TRO into a preliminary injunction.


      **Litigation is listed for informational purposes and is not comprehensive. For the current status of legal challenges, check other sources.**

      View Document
  4.  

  5. Biden Administration Action: Under Study

    Bars to Asylum Eligibility and Related Procedures

    This notice made known the Biden administration's proposal to modify or rescind the Trump-era policy identified in this entry.

    DHS and DOJ issued a Unified Regulatory Agenda notice announcing their proposal to modify or rescind regulatory changes promulgated in two final rules, including the policy identified in this entry, consistent with Executive Order 14010.

    View Document

Current Status

Not in effect

Most Recent Action

Action: Under Study Bars to Asylum Eligibility and Related Procedures
Acted on by Biden Administration

Original Trump Policy Status

Status: Final/Actual In Litigation Enjoined/Vacated
Trump Administration Action: Rule
Subject Matter: Asylum, Withholding and CAT Hearings and Adjudications Interior Border
Agencies Affected: CBP ICE USCIS EOIR Bureau of Population, Refugees, and Migration

Pre Trump-Era Policies

  • The INA previously barred from asylum eligibility any alien who (1) 'ordered, incited, assisted, or otherwise participated in the persecution of any person on account of' a protected ground; (2) ‘having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States;’ (3) ‘has committed a serious nonpolitical crime outside the United States’ prior to arrival in the United States; (4) constitutes ‘a danger to the security of the United States;’ (5) is described in the terrorism-related inadmissibility grounds, with limited exception; or (6) ‘was firmly resettled in another country prior to arriving in the United States.’ INA 208(b)(2)(A)(i)–(vi), 8 U.S.C. 1158(b)(2)(A)(i)–(vi)." Regulation requires review of discretionary asylum denials where applicant is granted withholding in order to allow family unification.

    8 U.S.C. 1158(b)(2)(A)

Commentary

Documents

Trump-Era Policy Documents
Biden Administration Policy Documents

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