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Hans von Spakovsky / Oct. 31, 2020

Why Does the 'Open Borders' Lobby Oppose Rule Against Asylum for Criminals?

The asylum process has become a major loophole in the immigration system.

Editor’s note: This piece, republished from The Heritage Foundation, is coauthored by Mike Howell.

On Oct. 21, the Departments of Justice and Homeland Security finalized a new rule that will prevent gang-bangers, violent felons, domestic batterers, and dangerous drunk drivers from being granted asylum. You’d think that every American would agree that our country doesn’t need more criminals, nor should they be allowed to take advantage of the asylum process.

Yet don’t be surprised if the “open borders” lobby challenges the rule on meritless grounds, hoping some activist judge will toss it out. After all, that’s how they’ve tried to overturn almost every major immigration action taken by this administration.

Under the asylum process, both legal and illegal aliens can find refuge in the United States by establishing that a return to the home country would be too dangerous due to “persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The granting of asylum is discretionary; even if an alien technically meets these requirements, he can still be denied asylum if the individual facts don’t merit granting asylum.

The asylum process has become a major loophole in the immigration system. Recognizing that the immigration courts are overburdened and an asylum claim triggers a lengthy legal process, illegal immigrants often falsely claim eligibility for asylum as a tactic to extend their stay in the country. From 2008 to 2017, asylum claims exploded by almost 1,700%. Ultimately, about 90% of these claims were rejected as invalid or fraudulent.

Gang members certainly don’t merit discretionary asylum. Criminal transnational gangs continue to take advantage of our immigration system to smuggle drugs and people into the country, engaging in human trafficking, sex slavery, and committing violent crimes. They earn tens of billions of dollars through these operations.

In July, the administration announced the results of a joint Department of Justice-Department of Homeland Security task force that charged 13 leaders of the violent MS-13 gang, which was transporting bulk quantities of methamphetamine and weapons into the country.

According to Nicholas Trutanich, U.S. attorney for the District of Nevada, the arrests “disrupted MS-13’s leadership and significantly undermines the gang’s ability to engage in violence and other criminal conduct.” This major investigation is only one example of the administration’s focus on MS-13 and other transnational gangs.

It’s not just gang members whom the new rule would exclude from receiving asylum. Child abusers, wife beaters, drunk drivers, and felons who have committed crimes under federal, state, or tribal law would be excluded as well, and for good reason. The asylum process was intended to protect those who are threatened with prosecution not because of their own violent criminal or reckless behavior but because of things they cannot change, such as their race or nationality, or should not have to change, such as their religious beliefs, political opinions, or membership in a particular social group. It makes no sense to extend this definition to include criminals and others who pose a threat to public safety.

Those who are aware of the shortcomings of foreign legal systems, particularly when it comes to protecting women and children from domestic abuse, should be pleased to know that the new rule takes that problem into account. For example, it doesn’t require a foreign court conviction for wife-beating to make an applicant ineligible for asylum. Instead, if “there are serious reasons to believe” that the alien has “engaged in acts of battery or extreme cruelty,” that can be considered by immigration officers in evaluating the asylum claim.

All of this, no doubt, seems like common sense to the vast majority of Americans who welcome legal immigrants and support our asylum laws. Many will be surprised to learn that these criminals were eligible for asylum in the first place. They may also be surprised to learn that some on the Left are already planning legal challenges to the rule.

Yet, as Deputy Secretary of Homeland Security Ken Cuccinelli told the Daily Caller, “This is part of President Trump’s four-year effort to bring some sanity to the asylum system and our legal immigration system in particular.” It is intended “to get the charlatans out of the system and preserve it for those who are deserving of America’s tremendous generosity.”

We wholeheartedly agree. Abusers, gang members, and other criminals do not deserve asylum.

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