Pragmatics and Problems

Abstract

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). This article responds to a proposal offered by Professor Mary Holper to reform the PSC bar. As Professor Holper convincingly shows, the PSC bar has become overly expansive as a result of a ruthless trend in U.S. criminal justice and immigration policy some call “the severity revolution.” To correct the severity revolution’s distorting effect on the PSC bar, Professor Holper proposes that the bar should only apply if a migrant was convicted of a violent offense against persons and incarcerated for five years. This is a pragmatic reform that would remedy some of the unpredictability that currently plagues the PSC analysis, advance the humanitarian purposes of asylum law, and honor the plain meaning of the “particularly serious crime” statutory text. The proposal does not, however, address the more difficult questions involving the PSC bar, including those related to the rehabilitation of criminal offenders and the challenges inherent in assessing dangerousness. Nor does it challenge the premise that the lives of U.S. citizens are more deserving than those of other human beings. Nonetheless, among proposals to improve the PSC bar, Holper’s analysis is clear, sensible, and actionable.