Updates to our Terms of Use

We are updating our Terms of Use. Please carefully review the updated Terms before proceeding to our website.

Friday, February 23, 2024 | Back issues
Courthouse News Service Courthouse News Service

White House Announces New Limits on Asylum Eligibility

The Trump administration on Wednesday announced new restrictions on immigrants’ eligibility for seeking asylum, blocking out those who have been convicted of drug and gang charges, among other crimes. 

WASHINGTON (CN) – The Trump administration on Wednesday announced new restrictions on immigrants’ eligibility for seeking asylum, blocking out those who have been convicted of drug and gang charges, among other crimes.

Citing provisions of the Immigration and Nationality Act, the Departments of Justice and Homeland Security issued a joint notice of proposed rulemaking aiming to “prevent certain categories of criminal aliens from obtaining asylum in the United States.”

The changes target those who have been found guilty of a felony under federal or state law, and specifically name gang activity, domestic violence, drug possession and trafficking, and driving under the influence as convictions that would bar eligibility for asylum. Illegal reentry and human smuggling are also included.

The agencies said the new limits would add to a list that already includes asylum bans for those convicted of “serious nonpolitical crimes, security threats, terrorist activity, and firm resettlement in another country.”

The proposal also includes a rollback of a law that allows for reconsideration of asylum denial based solely on the discretion of the immigration judge, even if the safety of the immigrant’s family was on the line.

“The removal of the requirement to reconsider a discretionary denial would increase immigration court efficiencies and reduce any cost from the increased adjudication time by no longer requiring a second review of the same application by the same immigration judge,” the department said.

The Justice Department did not immediately respond Wednesday to a request for comment.

Aaron Reichlin-Melnick, policy counsel at the American Immigration Council, said the proposed rule changes are “part and parcel with the administration's attack on asylum seekers.”

He said the previous threshold for asylum denial was “particularly serious crimes,” a term he said was specifically vague but still limited by Congress.

“Congress didn’t intend for immigration to be limited to a deserving few,” he said.

As for making judges reconsider a denial of asylum, Reichlin-Melnick said the law was created to support family unity and the proposed changes would ignore that goal.

“The government recognized family reunification is important,” he said. “This rule gets rid of that automatic reconsideration and doesn’t require the immigration judge to have a second thought” about their ruling’s impact on families.

Wednesday’s proposal follows years of court battles between immigration activists and the Trump administration.

The Ninth Circuit heard oral arguments earlier this month over two immigration policies – one that forces asylum seekers to apply for protection in another country on their way to the U.S., and another that sought to cut funding to so-called “sanctuary cities” that instruct police departments not to cooperate with federal immigration agents.

That hearing came less than a month after a former immigration official went public with concerns over the administration’s program that forces asylum seekers to stay in Mexico while they wait for an immigration board hearing.

“It returns migrants to these extremely dangerous situations, it’s creating a risk to public safety, and it’s putting those individuals in significant danger of crime, violence and possibly torture,” Douglas Stephens, a former asylum officer with U.S. Citizenship and Immigration Services, told reporters in a press call after going public with his complaints on NPR’s “This American Life.”

Ken Cuccinelli, the recently appointed deputy secretary of the Department of Homeland Security, called the “Remain in Mexico” program one of the department’s most significant initiatives to “restore a safe and orderly immigration process” and “decrease the number of aliens attempting to game the immigration system.”

President Donald Trump has long argued gang members disguise themselves as asylum seekers and game the system to gain U.S. citizenship.

“Many Gang Members and some very bad people are mixed into the Caravan heading to our Southern Border,” he tweeted last year when a large group of South American immigrants were working their way north. “Please go back, you will not be admitted into the United States unless you go through the legal process.”

But the statistics don’t support Trump’s theory. Even the conservative Cato Institute acknowledged that immigrants “have a lower criminal incarceration rate and there are lower crime rates in the neighborhoods where they live.”

A July 2015 study by the American Immigration Council reiterated that point: “The overwhelming majority of immigrants are not ‘criminals’ by any commonly accepted definition of the term.”

Seen as an effort to shore up his base ahead of the 2018 midterm elections, Trump’s anti-immigrant push resulted in 40 House seats flipping to Democrats that November.

Follow @@BradKutner
Categories / Government, Law, National

Subscribe to Closing Arguments

Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.