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New Asylum Regulations Enjoined 01/08/2021

Updated: Jan 26, 2021


Many of you have probably heard news of recent changes to the asylum regulations, particularly new criminal bars to eligibility to apply for asylum. Although implementation of those new bars has been enjoined, we wanted to make you aware of what these bars are in the event the injunction is vacated.


Changes to the Federal Code of Regulations establishing additional bars to asylum were set to go into effect on November 20, 2020. However, an injunction has been granted and these new regulations will not apply to your client, unless the injunction is vacated. See Pangea Legal Services v. DHS, 3:20-cv-09253-JD (N.D. Cal filed January 8, 2021).


For your information, under the new regulations a non-citizen will be barred from seeking asylum, if, on or after November 20, 2020, they are convicted of:

  • An offense arising under 8 USC 1324(a)(1)(A) or 8 USC 1324(a)(2) – bringing non-citizens into the United States;

  • An offense arising under 8 USC 1326 – unlawful re-entry into the United States;

  • A crime for which the asylum officer or immigration judge has “reason to believe” was committed in “support, promotion or furtherance of the activity of a criminal street gang”;

  • A DWI or DWAI offense that caused serious bodily injury or death of another person;

  • A second or subsequent DWI or DWAI offense;

  • A crime that involves conduct amounting to a crime of stalking; or a crime of child abuse, child neglect, or child abandonment; or that involves conduct amounting to a domestic assault or battery offense; a ‘crime of domestic violence’, or a crime based on conduct in which the non-citizen “harassed, coerced, intimidated, voluntarily or recklessly used (or threatened to use) force or violence against, or inflicted physical injury or physical pain, however slight… against a current or former spouse, a person with whom they share a child in common, a person cohabiting as a spouse, someone similarly situated to a spouse, or someone protected under the domestic or family violence laws”;

  • Any Felony offense;

  • Any Misdemeanor offense involving:

  1. The possession or use of an identification document, authentication feature, or false identification document without lawful authority, unless said document was used to board a common carrier to enter the U.S. to flee from persecution, and the noncitizen presented themselves to an immigration officer upon arrival at a U.S. port of entry;

  2. Receipt of Federal public benefits or similar benefits from a State, tribal, or local entity without lawful authority;

  3. Possession or trafficking of a controlled substance or controlled-substance paraphernalia, except a single offense involving possession of 30 grams or less of marijuana for one’s own use.

Further, under the new regulations a non-citizen will also be barred from seeking asylum if an asylum officer or immigration judge has reason to believe:

  • A noncitizen engaged in acts of battery or extreme cruelty to a current or former spouse, a person with whom they share a child in common, a person cohabiting as a spouse, someone similarly situated to a spouse, or someone protected under the domestic or family violence laws, even if the acts did not result in a criminal conviction.

It is also important to note that the new regulations will not apply to asylum applications filed prior to November 20, 2020, even if the conviction or conduct occurred after. Additionally, these new bars to eligibility only apply to asylum applications and not applications for withholding of removal or relief under the convention against torture.

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