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69 Fla. L. Rev. Forum 1 (2017)

handle is hein.journals/flrf69 and id is 1 raw text is: 









PRAGMATICS AND PROBLEMS


Allison Crennen-Dunlap *and Cesar Cuauhtmoc Garcia Hernandez**



    Born of an international commitment to avoid sending migrants to
countries where they face persecution on a small set of protected bases,1
asylum law is one aspect of U.S. immigration law that purports to serve
humanitarian purposes.2 Its humanitarianism is thwarted, however, when
migrants who otherwise qualify for asylum or withholding of removal3
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.5 As such, to serve asylum's
humanitarian aims, the PSC bar should be reserved for extreme cases.,6
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,,7 the PSC bar has become overly expansive
encompassing nonviolent offenses even where no incarceration results.


      * J.D. candidate, University of Denver, 2019.
      ** Associate professor of law, University of Denver. Publisher, crimmigration.com.
      1. See Mary Holper, Redefining Particularly Serious Crimes in Refugee Law, 69 FLA.
L. REv. 1093, 1099-1100 (2017).
     2. Although generally humanitarian purposes animate asylum law, the narrow relief it
provides is woefully inadequate to accommodate those migrating to avoid harm. See generally
Laura Westra, Satvinder Juss & Tullio Scovazzi, Introduction to the Question ofAsylum Seekers:
'Se Non Ora, Quando?', in TowARDS A REFUGEE ORIENTED RIGHT OF ASYLUM 1, 3-7 (Laura
Westra, Satvinder Juss & Tullio Scovazzi eds., 2015).
     3. Asylum is a discretionary immigration benefit for migrants who can show a well-
founded fear of persecution in their countries of origin on account of race, religion, nationality,
membership in a particular social group, or political opinion. 8 U.S.C. §§ 1101 (a)(42)(A), 1158(b)
(2012). If a migrant shows that her life or freedom would be threatened (a higher burden of
proof) based on one of those five protected grounds, she must not be removed, unless a bar to
withholding of removal applies. See § 123 l(b)(3).
     4. See § 1158(b)(2)(A)(ii), (B) (asylum PSC bar); § 1231(b)(3)(B)(ii) (withholding PSC
bar).
     5. See, e.g., Sarah Stillman, When Deportation Is a Death Sentence, NEW YORKER (Jan.
15,  2018),  https://www.newyorker.com/magazine/2018/01/15/when-deportation-is-a-death-
sentence (telling the stories of several migrants who explained that they would be killed if
deported, were deported, and were killed).
     6. Holper, supra note 1, at 1102 (quoting UNITED NATIONS HIGH COMM'R FOR REFUGEES,
HANDBOOK AND GUIDELINES ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS,
  154 (2011), http://www.unhcr.org/3d58e13b4.html).
     7. See Teresa A. Miller, Blurring the Boundaries Between Immigration and Crime Control
After September l1th, 25 B.C. THIRD WORLD L.J. 81, 83 (2005); Joseph E. Kennedy, Monstrous
Offenders and the Search for Solidarity Through Modern Punishment, 51 HASTINGS L.J. 829,
831-32 (2000).
     8. See N-A-M-, 24 I. & N. Dec. 336, 343 (B.I.A. 2007) ([W]e find no merit to the
respondent's argument that the offense is not a particularly serious crime because a sentence to a

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