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

  1. Date Announced

    Oct. 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]

    See Biden administration action below.

    View Policy Document
  2. Effective Date of Change

    Nov. 20, 2020
  3. Subsequent Action

    November 2, 2020

    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.**

    2020.11.19 Pangea Legal Services v. DHS (TRO Order)
  4. Biden Administration Action

    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 Uniform Regulatory Agenda notice announcing their proposal to modify or rescind regulatory changes promulgated in three final rules, including the policy identified in this entry, consistent with Executive Order 14010.

    Bars to Asylum Eligibility and Procedures
Type of Action: Rule

Prior 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)

Subsequent Action

Biden Administration Action

Other Documents


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