Seven Additional Bars to Asylum Proposed

USCIS and EOIR jointly proposed a new rule to add seven mandatory bars to asylum eligibility on December 19, 2019. (84 FR 69640, 12/19/19)  Under this rule, an asylum seeker will be barred from obtaining political asylum if he / she is convicted of:

(1) Any felony under federal or state law;

(2) Alien smuggling or harboring [8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2)] ;

(3) Illegal reentry to the U.S. after removal under 8 U.S.C. § 1326;

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) A DUI/DWI offense under federal, state, tribal, or local law; 

(6) A domestic violence offense under federal, state, tribal, or local domestic violence law (or has been found to have committed acts of domestic violence);

(7) Misdemeanor offenses under federal or state law related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Under the new proposed rule, a vacated, expunged, or modified conviction or sentence would still be recognized for purposes of determining whether an individual is eligible for asylum, unless the applicant can establish that the change was not for immigration or rehabilitative purposes.

The proposed rule would also remove the automatic review of a discretionary denial of an alien’s asylum application. The current regulation mandates that denial of asylum must be reconsidered

if the denial is solely based on exercise of discretion, and the applicant is subsequently granted withholding of deportation or removal.

These changes would severely limit foreigners' ability to obtain asylum in the United States.  

DUIs Will Affect Eligibility for Naturalization and Other Benefits

Certain forms of immigration benefits or relief, including naturalization and cancellation of removal, will only be granted to those that demonstrate "good moral character".

Cancellation of removal is available to those undergoing deportation who have shown good moral character in the 10 years leading up to the decision, among other requirements. The Attorney General can grant the applicant relief and confer permanent resident status to him/her.

Recently, an Attorney General decision, Matter of Castillo-Perez, held that having 2 or more DUI convictions presumes lack of good moral character for cancellation of removal.  Although an applicant can rebut this presumption with strong evidence showing that the DUIs are "aberrations" of their otherwise good moral character, it is unclear from the decision what such contrary evidence can be.

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The term "good moral character" is somewhat abstract. The statute INA 101(f) lists some behaviors and conditions that would preclude a finding of good moral character. Someone who is a habitual drunkard or whose income is from illegal gambling lacks good moral character. Someone who has been convicted of a serious criminal offense during the relevant period, who gave false testimony to gain immigration benefits, or who participated in things like genocide, torture, and killing does not have good moral character. Notably, someone who has been jailed for a total of at least 180 days during the relevant period is also determined not to have good moral character. Outside of these conditions, however, law officials have discretion to judge a person's good moral character. 

The Attorney General's decision introduces another level of complexity to what constitutes "good moral character". The decision counts all state and federal convictions of DUI against the applicant. Yet, the definition of DUI differs with jurisdiction. All 50 states have their own definition, some relatively lax and some harsh. New Jersey, for example, does not classify a DUI as an indictable offense but as a traffic violation. Statutes in different jurisdictions also have different elements and defenses regarding DUI offenses.  Consequently, the decision in Matter of Castillo-Perez covers a broad range of behaviors that have different levels of culpability.

Although the relief sought in the case is cancellation of removal, its impact will be felt in other applications, especially naturalization applications, which require applicants to have at least 5 years of good moral character.

It is noteworthy to know that the courts have held that simple DUIs are not "crimes involving moral turpitude," and they do not bar a foreigner from applying for a U.S. visa or render a person deportable from the U.S. The Attorney General clearly intends to further tighten the requirements for immigration benefits by this decision.

It is uncertain how future decisions involving DUIs and good moral character will play out. For now, if you have one or more DUI convictions, you should first consult with a qualified immigration attorney before submitting an immigration petition.  

Recent DUI Arrest - Basis for Denying Immigration Bond

A foreign national who is in the custody of the U.S. Government may request for a custody determination or "bond hearing" under section 236(a) of the Immigration and Nationality Act.  An Immigration Judge may set a bond as a condition for the release of the foreign national if it can be established that he or she is not a danger to the community, not a threat to the national security, and does not pose a risk of flight.  

Driving under the influence is a significant adverse consideration in determining whether an alien is a danger to the community in bond proceedings, according to the Board of Immigration Appeals.  In Matter of Siniauskas, 27 I&N Dec. 207 (BIA 2018), the foreign national is a long time U.S. resident without legal status; he is married to a green card holder and has a U.S. citizen daughter who filed an immigrant visa petition on his behalf.  He also volunteers in church and owns his business.  He had several DUI convictions more than ten years ago and has sought professional help regarding his drinking problem.  Recently he was arrested again for drunk driving.  He explained that his recent arrest was an aberration that has mitigating circumstances, i.e., it happened on the first anniversary of his mother’s death. 

However, the Board did not accept his explanation.  The Board found his actions indicate that he is and continues to be a danger to his community and revoked his bond. The Board's decision means that he will continue to be held in custody until a decision is made on his immigration petitions. 

In recent years, DUIs have been made a priority for immigration enforcement, especially under the current administration.  DHS Secretary had stated in an interview that a single DUI could lead to deportation of an immigrant. 

ICE New Detainer Guidance

The nation's immigration enforcement agency issued new national guidance on detention policy of individuals for removal purposes.  The new policy targets individuals who have serious prior criminal convictions including DUI, unlawful possession of firearms, unlawful flight from the scene of an accident; and individuals who post danger to public safety and who have previously been deported.  Individuals who have less serious immigration violations such as visa overstays and illegal entries are not priorities for immigration detention.

As an enforcement branch of the Department of Homeland Security, the Immigration (DHS) and Customs Enforcement (ICE) is charged with the responsibility to enforce the nation's immigration laws including the arrest, detention and removal of foreign nationals who are illegally present in the United States.  Recently, the agency released statistics on the numbers and profiles of individuals deported during fiscal year 2012, highlighting their efforts to remove from the country convicted criminals and other individuals that fall into priority areas for enforcement. During FY2012, ICE operation unit removed 409,849 individuals, of which approximately 55 percent, or 225,390 of the people removed, were convicted of felonies or misdemeanors.  These numbers almost double the numbers of criminal removal in  FY 2008.  Among those deported, 1,215 of them were convicted of homicide; 5,557 convicted of sexual offenses; 40,448 convicted for crimes involving  drugs; and 36,166 convicted for driving under the influence. According to ICE, about 96 percent of all ICE's removals fell  into their high priority category.

The new detention policy announced on December 21, 2012 is to further focus ICE resources on the most serious criminal offenders.   The guidance sets forth the circumstances in which the agency's officers and attorneys may lodge a "detainer" against a foreigner.  An immigration detainer (Form I-247) is a notice that DHS/ICE issues to federal, state and local law enforcement agencies to inform them that ICE intends to take over custody of an individual who is being held in detention by these agencies.  For instance, if a person is convicted of a crime by a state court and is also in violation of the U.S. immigration laws, upon completion of his sentence, ICE can issue a detainer to the state law enforcement agency demanding custody of the person.  The state agency must then hold the person in custody for up to 48 hours so that ICE may have time to take over custody of the individual. 

The new guidance is to further Department of Homeland Security (DHS) Secretary Janet Napolitano's direction to ICE that resources should be used on "key priorities in all aspects of its immigration enforcement efforts." Under the new guidance, ICE officers should issue a detainer against an immigration violator only where one or more of the following conditions apply: the individual has a prior felony conviction or has been charged with a felony offense; the individual has three or more prior misdemeanor convictions; the individual has a prior misdemeanor conviction or has been charged with a misdemeanor offense if the misdemeanor conviction or pending charge involves violence, threats, or assault;  sexual abuse or exploitation;  driving under the influence of alcohol or a controlled substance; unlawful flight from the scene of an accident; unlawful possession or use of a firearm or other deadly weapon; the distribution or trafficking of a controlled substance; or other significant threat to public safety.  

Other individuals who are targeted under the new detention policy include those who have been convicted of illegal entry into the U.S.; who have illegally re-entered the country after a previous removal or return; who have an outstanding order of removal; who have been found by an immigration officer or an immigration judge to have knowingly committed immigration fraud; or who otherwise poses a significant risk to national security, border security, or public safety.