Minimize Criminal Bars to Asylum.
Over the last four years, we have seen the Trump Administration try to eradicate asylum using a series of horrific bans. (Every time, we and our partner organizations have fought back.) But for even longer, asylum-seekers in the U.S. have faced another broadly applied bar to asylum: criminal bars. For many asylum-seekers with past criminal offenses, these bars can be fatal.
When created, these bars were meant to be extremely narrow. But today, we see a sweeping over-application of criminal bars, violating asylum-seekers’ due process rights and our obligations under international law. Criminal bars are inherently racist in nature, and due to racism within the criminal system, disproportionately affect Black immigrants and immigrants of color.
If barred from protection due to a criminal offense, asylum-seekers can be forcibly removed to a country where they could be persecuted, tortured, or killed.
Criminal Bars to Asylum Were Designed to Be Extremely Limited
The U.S. immigration statute specifies two crime-related bars to asylum eligibility: (1) the particularly serious crime, or “PSC” bar and (2) the serious nonpolitical crime bar, or “SNPC” bar.
These bars come from the 1951 Refugee Convention, the international treaty establishing the right to asylum, which the US codified into domestic law in 1980. The primary obligation of the Convention is “non-refoulement,” a fundamental principle in international human rights law that means a guarantee to not send back a refugee to a country where they face persecution. Non-refoulement is the overarching principle that guides all other considerations in the Convention.
Because the Covenction’s primary obligation to avoid refoulement, any bars had to be extremely narrow so as to not preclude a refugee from protection. Only in extremely rare circumstances, namely due to a criminal offense falling under the PSC or SNPC bars, can a government override this principle and “refoul” or forcibly deport a refugee.
These bars were only to apply if the person had a “very serious” capital or grave crime such as murder, arson, rape, or armed robbery involving particular circumstances that make the person pose a “danger.” We at CAIR Coalition acknowledge that even in these situations, a person is more than the best or worst thing that they’ve ever done. Refoulement is tantamount to the death penalty in many cases, and no human being should be forced to return to persecution.
Any time the government alleges an asylum-seeker’s history falls under the PSC or SNPC categories, the Convention and U.S. law require an individualized, fact-specific analysis to determine whether the offense falls under one of these two bars. That means that a person’s life story, history, and context must be considered. There is no blanket rule that certain crimes are PSCs or SNPCs. Immigration officials are required by law to closely analyze an individual person’s circumstances to determine if this is one of the rare cases in which the U.S.’s fundamental commitment under the Convention — to not refoul a refugee — can be broken because one of the bars is triggered.
Criminal Bars are Racist
In application, however, we at the Capital Area Immigrants’ Rights (CAIR) Coalition have seen U.S. immigration officials broadly interpret and apply the PSC and SNPC bars, blocking many adults and children alongside whom we work from qualifying for asylum.
The sweeping use of criminal bars to block people from asylum is racist. The injustices that lead to arrests and criminal charges in the first place are well documented: racial bias, discrimination, and over-policing of communities of color mean the system predominantly criminalizes Black and Brown indigent people. The criminal system also targets those with mental health challenges who are in need of therapeutic care, not incarceration.
Then, charges turn into convictions as the overwhelmed criminal legal system resolves approximately 95% of charges through plea agreements, irrespective of the person’s innocence or viable defenses. Racial bias and inequality has resulted in an entrenched system of mass incarceration, with Black people and people of color comprising 70% of prisoners nationwide.
For Black immigrants and immigration of color, the punishment doesn’t stop there. After serving their sentences (or, frequently, when the criminal court determines they should not have any jail time), many if not all immigrants are transferred to immigration detention, where they often remain detained for periods longer than that of their criminal sentences. And ultimately, many get deported through the criminal-immigration detention-deportation pipeline.
For asylum-seekers specifically (as opposed to immigrants in the US for other reasons), there is then a third punishment: persecution, torture, and sometimes death. Due to the criminal bars, these individuals, many of whom have viable asylum claims based on persecution in their home countries, are blocked from the only defense to deportation available to them under the law: asylum. They can try for a lesser form of protection — harder to prove and with fewer benefits — or will be deported.
Where Do We See The Bars?
The PSC bar most often applies to clients of color with mental health issues. Anyone who is subject to a potential PSC bar is also “mandatorily detained,” meaning they are detained throughout their removal proceedings with no opportunity for bond. There is no leaving detention, and no getting asylum.
The government most often uses SNPC bars against our child clients, those who were forced to participate in some gang activity as minors. When children arrive in the United States and are under the custody of the Office of Refugee Resettlement, they often see a government-contracted psychological provider. (This is required because so many children who come to the United States alone have severe trauma.) This is a venue in which children will often open up about what they have seen, what they have been through, and what captors or gang leaders forced them to do. We have then seen the government use records from these supposedly confidential meetings in court, in an attempt to demonstrate the child is subject to the SNPC bar and cannot have asylum.
In both cases, immigrants can try for lesser forms of protection — Withholding of Removal and protection under the Convention Against Torture (CAT) — which require higher burdens of proof and come with fewer benefits. But in most cases, following a gang order as a minor under duress, or getting caught up in the racist criminal system, is enough to be barred from protection for life.
Understanding the Human Impact: Diego and Mibsan
Take Diego for example. Diego was abandoned by his parents as a 4-year-old. A homeless orphan still learning to speak, he was taken in by gangs. Throughout Diego’s childhood, the gang members forced him to look out, steal, and run packages for them. When he was 14, he saw the gangs murder his best friend. They ordered Diego to kill someone. When he refused, they tortured him. He fled.
The government alleged that Diego was barred from asylum under the SNPC bar. They alleged that his activities under the gang — from ages 4 to 14 — were enough to overcome our inherent obligation of non-refoulement. They won.
Mibsan arrived in the U.S. in 2003 after gangs beat him and left him unconscious, with scars and nightmares. He built a life for himself here and stayed afloat for a while, but got caught up in the racist criminal system as a young adult. After serving his sentence, instead of being released to freedom, he was transferred to immigration detention. Due to his criminal conviction, he would not be allowed to apply for a bond. Despite the fact that he had already served his sentence, he was incarcerated again, this time indefinitely.
In immigration detention, Mibsan was diagnosed with bipolar disorder and schizophrenia, among other mental health conditions. Presenting his case in front of a judge, he would have to speak to a judge about these past traumas, re-opening boxes he knew would cause him great suffering. When he did, the government alleged his conviction placed him under the PSC bar. Despite the scars on his body and his brain, the government argued, he was barred from asylum.
Diego ultimately prevailed on appeal. Mibsan went for a lesser form of protection, protection under the Convention Against Torture or “CAT,” and won. Even though CAT is one of the hardest protections to attain, those who are granted receive the fewest benefits. Under CAT, Mibsan cannot go to college, cannot have health insurance, can never get a green card or be on a pathway to citizenship. He will never vote. Every year, he has to apply for asylum in three other countries. If any accept, the United States will no longer let him stay. He is safe, for now, but without asylum, his life remains limited and uncertain.
For so many others, there is no appeal or legal counsel to help apply for CAT. For so many others, the PSC and SNPC bars only mean one thing: refoulement.
It’s Time to Correct These Injustices: Minimize Criminal Bars
The interpretation of the PSC and SNPC bars must be narrowed.
The bars should never be used as a tool to exclude large groups of people from protection and increase deportations of vulnerable asylum-seekers. At the very least, they must only be used in exceptional and rare circumstances.
The individualized, fact-specific analysis standards used to interpret these bars must faithfully be applied to account for the unique circumstances of each person’s case and factors including:
· How a person’s criminal history and story exist not in a vacuum but within a larger context of institutional and systemic racism;
· Mental health conditions and the failures of the system to provide appropriate therapeutic and rehabilitative care, instead of incarceration;
· The trauma many asylum-seekers face from the past persecution they have suffered and the ongoing generational traumas of their families who have suffered similar persecution, war, violence, and/or generations of dehumanization and inequality;
· The history of how the individual has experienced significant violence or other harm themselves, which serves not to excuse their acts but certainly to contextualize them;
· Positive equities and the whole person, as people are more than what their criminal records say; and
· The intent of the Refugee Convention to be primarily focused on foreclosing refoulement.
Join us in our efforts to ensure refugees are not refouled and sent back to places they can be killed, tortured, and otherwise persecuted. Sign up for our e-mail list to stay up to date with the latest development in asylum protection and ways to contribute.
