Response to Mary Holper, Redefining “Particularly Serious Crimes” in Refugee Law
Born of an international commitment to avoid sending migrants to countries where they face persecution on a small set of protected bases, asylum law is one aspect of U.S. immigration law that purports to serve humanitarian purposes. Its humanitarianism is thwarted, however, when migrants who otherwise qualify for asylum or withholding of removal are deported because they have been convicted of a “particularly serious crime” (PSC), a sweeping term of art which bars an asylum claim. For some migrants, deportation results in death. As such, to serve asylum’s humanitarian aims, the PSC bar should be reserved for “extreme cases.” However, as Professor Mary Holper describes in her recent article, Redefining “Particularly Serious Crimes” in Refugee Law, as part of a ruthless trend in U.S. criminal justice and immigration policy some call “the severity revolution,” the PSC bar has become overly expansive, encompassing nonviolent offenses even where no incarceration results. Further, the approach immigration judges (IJs) use to determine whether an offense is a PSC produces inconsistent, unpredictable results, raising serious concerns for migrant criminal defendants deciding whether to accept a plea deal.