Comments in Opposition to Proposed Rulemaking: Procedures for Asylum and Bars to Asylum Eligibility

January 21, 2020

Human Rights First submits these comments in response to the proposed regulations to amend regulations relating to eligibility for asylum published in the Federal Register on December 19, 2019 (“the Proposed Rules”).  For the reasons described below, Human Rights First strongly opposes this regulatory proposal and urges the Department of Homeland Security and the Department of Justice to withdraw the Proposed Rules in their entirety.

Human Rights First and its Interest in this Issue

For over 40 years, Human Rights First has worked to ensure protection of the rights of refugees, including the right to seek and enjoy asylum.  Human Rights First grounds its work on refugee protection in the international standards of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol and other international human rights instruments, and we advocate adherence to these standards in U.S. law and policy.  Human Rights First has a longstanding interest in the correct application of exclusions from refugee protection, focused both on ensuring that those rightly subject to exclusion—those guilty of crimes against peace, war crimes, crimes against humanity, serious non-political crimes, or acts contrary to the purposes and principles of the United Nations—are not granted refugee protection, but also on ensuring that exclusion determinations are made through fair processes, and that states, including the United States, not return refugees to persecution based on bars that go beyond the scope of the exclusion clauses and the exceptions to the obligation of non-refoulement laid out at Article 33 of the 1951 Refugee Convention. Human Rights First is also concerned with preserving the institution of asylum in the United States, in furtherance of Article 34 of the Refugee Convention, and consistently with the United States’ long history of fostering the integration of refugees.

Human Rights First also operates one of the largest and most successful pro bono asylum representation programs in the country.  With the assistance of volunteer attorneys, we provide legal representation, without charge, to hundreds of refugees each year. This extensive experience dealing directly with refugees seeking protection in the United States is the foundation for our advocacy work and informs the comments that follow.


On December 19th, the Department of Homeland Security (DHS) and the Department of Justice (DOJ) issued a joint set of Proposed Rules that would make three primary changes to the rules governing asylum adjudications.  Human Rights First opposes these Proposed Rules because it believes that they will result in the return to persecution of refugees not subject to exclusion from protection under the 1951 Refugee Convention and the 1967 Refugee Protocol to which the United States is a party.  Human Rights First believes the Proposed Rules will result in the separation of families, contrary to the intent of Congress which, consistently with the recommendation of the Final Act of the Conference that adopted the 1951 Convention, enacted multiple measures to ensure the unity of refugee families, all of which are contingent on the principal applicant being granted asylum.  By barring asylum seekers from asylum for reentry without inspection, the Proposed Rules are in direct contravention of Article 31 of the Refugee Convention.  Human Rights First is also concerned that these Proposed Rules will have a disproportionate negative impact on refugees who are members of ethnic and racial minorities, on those who have been victims of trauma, and on those who have the least access to services to help them cope with their past experiences.  Human Rights First also has grave concerns that these Proposed Rules will result in immigration adjudicators making decisions that are rightly the province of the criminal justice system, and that the decisions that result will frequently be wrong.  Finally, Human Rights First is baffled that this Administration would simultaneously claim to be incapable of fairly processing the asylum claims before it, and impose on admittedly overburdened immigration judges and asylum officers additional subjects for adjudication, rather than leaving those determinations to the state and federal criminal systems set up, trained, and separately funded to make them.

The first proposed set of changes adds the following seven categorical bars to asylum eligibility: (1) any conviction of a felony offense; (2) any conviction for “smuggling or harboring” under 8 U.S.C. § 1324(a), even if the asylum seeker committed the offense for the purpose of bringing her own spouse, child or parent to safety; (3) any conviction for illegal reentry under 8 U.S.C. § 1326; (4) any conviction for an offense “involving criminal street gangs,” with the adjudicator empowered to look to any evidence to determine applicability; (5) any second conviction for an offense involving driving while intoxicated or impaired; (6) any conviction or accusation of conduct for acts of battery involving a domestic relationship; (7) and any conviction for several newly defined categories of misdemeanor offenses, including any drug-related offense except for a first-time marijuana possession offense, any offense involving a fraudulent document, and fraud in public benefits.

The second section of the Proposed Rules provides a multi-factor test for immigration adjudicators to determine whether a criminal conviction or sentence is valid for the purpose of determining asylum eligibility. The third section rescinds a provision in the current regulations regarding the reconsideration of discretionary denials of asylum where the applicant is found to qualify for withholding of removal, in order to preserve family unity or prevent a permanent separation of the asylum seeker from his or her spouse and children.

Taken together, these proposed changes constitute an unnecessary, harsh, and unlawful gutting of the protections of asylum, in contravention of the purposes of the Refugee Convention and Protocol and of Congressional enactments implementing those purposes.


Published on January 21, 2020


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