Asylum seekers may face additional hurdles to winning protection in the United States after the Trump administration unveiled a proposed rule that would place new restrictions on the system.

The rule would expand the kinds of criminal convictions, or charges in certain domestic violence cases, that bar someone from winning asylum. People who are convicted of “aggravated felonies” — a legal term created by Congress to refer to certain crimes that should be taken into account in immigration proceedings — were already blocked from asylum in the United States, and the new rule aims to add to the list of convictions that make asylum seekers ineligible.

The Department of Justice and Department of Homeland Security announced the rule together last week.

In the proposed rule, the departments note that the expansion of bars on asylum will likely result in fewer asylum grants, but they said they were not able to estimate how many cases would be affected.


There are already several mandatory bars to asylum created by Congress. Asylum seekers found to have persecuted others are not eligible for asylum. People who have been convicted of “particularly serious crimes” or who are deemed to be security threats or terrorists are also banned.

Asylum is a discretionary benefit. That means that those trying to receive asylum in the United States have to show not only that they meet all of the statutory requirements under the law’s criteria but also that they deserve discretion.

In practice, that often meant that asylum seekers would have to show that they hadn’t done anything to make them unworthy of the grant of protection. The Trump administration has emphasized its discretionary power since it began working to restrict the asylum system.

The rule would bar anyone from winning asylum who has a felony criminal conviction or a conviction for a crime that could have had a sentence for more than one year, regardless of how long of a sentence the person actually received.


The rule would also specifically create bars to asylum for those convicted of harboring or smuggling people — including their close relatives — across the border. Certain types of alien smuggling were already barred because they are aggravated felonies, but the rule would specifically expand the bar to include situations like parents who are criminally charged for bringing their children across the border.

“Even first-time alien smuggling offenses involving immediate family members display a serious disregard for U.S. immigration law and pose a potential hazard to smuggled family members, which often include a vulnerable child or spouse,” the proposal says.

The rule also makes all illegal reentry into the United States — which is a federal felony — a bar for asylum separate from the more general bar on those with felony convictions.

“The fact that the alien has repeatedly engaged in criminal conduct suggests a tendency to engage in such conduct in the future, thus warranting a conclusion that the alien poses a danger to the community that makes the alien’s crime particularly serious,” the rule says.


Previously, certain cases of illegal reentry, such as when someone was deported because of an aggravated felony and got caught crossing back to the U.S., were bars to asylum. People who already have removal orders, meaning that they were ordered deported, were also not able to request asylum under current policy.

The rule goes on to include any crime, whether felony or misdemeanor, that involves “criminal street gangs.” The person deciding whether to grant asylum will have the power to determine whether the motivation for the conviction was gang-related.

The departments asked the public to comment on what should be considered a “sufficient link” between a conviction and gang activity.

The rule would make someone ineligible for asylum after a second DUI or after one DUI if that incident caused a death or serious injury. It would also disqualify those who are convicted of domestic assault or battery, stalking or child abuse as well as those who engage in battery and extreme cruelty regardless of whether they are convicted.


Finally, the rule would ban people from getting asylum if they are convicted of misdemeanors that involve use of fraudulent documents, receiving public benefits under false pretenses or possession or trafficking of drugs. Any controlled substance or paraphernalia conviction other than a single offense of possession of 30 grams or less of marijuana for personal use would be included in this ban.

The new rule would not apply to old convictions from before the rule goes into effect. Vacated or expunged convictions would still count in many cases.

In a post on a blog about immigration court proceedings, former immigration judge Paul Schmidt called the proposed changes “unadulterated BS and gratuitous cruelty.”

“Those advocating for the legal, constitutional, and human rights of asylum seekers are being forced to divert scarce resources to respond to the ‘regime shenanigan of the day,’” Schmidt wrote. “These aren’t ‘legal disputes’ or ‘legitimate policy initiatives.’ No, they are lawless outright attacks on our Constitution, our nation, our human values, and our system of justice.”


The Trump administration has tried with mixed success to implement other kinds of bars on asylum including illegal entry, which was blocked by courts, and passing through third countries, which has been allowed to go into effect for now while a court case challenging the regulation is pending.

People fleeing other countries who are ineligible for asylum due to one of the existing or new bars can still apply for two kinds of protection that allow them to stay in the United States. The difference is that asylum allows them to immediately bring their spouses and unmarried children, and it puts them on a path to a green card and later citizenship. The other programs, known as withholding of removal and protection under the Convention Against Torture, do not offer these benefits.

The legal standard for proof in withholding and CAT cases is much higher than that of asylum cases.

The rule is open for comment until January 21, 2020.