The Expansion of 'Particularly Serious Crimes' in Refugee Law: Mirroring the Severity Revolution

Abstract

Refugees are not protected from deportation if they have been convicted of a “particularly serious crime” (“PSC”) which renders them a danger to the community. This raises questions about the meaning of “particularly serious” and “danger to the community.” The Board of Immigration Appeals, Attorney General, and Congress have interpreted PSC quite broadly, leaving many refugees vulnerable to deportation without any consideration of the risk of persecution in their cases. This trend is disturbing as a matter of refugee law, but it is even more disturbing because it demonstrates how certain criminal law trends have played out in immigration law. This article offers an explanation for the PSC expansion and proposes a definition that includes only violent crimes, i.e., those involving actual or threatened physical injury to a person, where the noncitizen served a significant sentence. While there has been much scholarship on the convergence of criminal and immigration law (dubbed “crimmigration”) and on refugee protection, there has been surprisingly little written about the PSC bar to refugee protection, where crimmigration law meets refugee law. This article seeks to fill that gap in the literature.This article proposes two theories for the ever-broadening PSC definition. First is what this article terms the “mistrusting criminal judges effect:” Attorney General Ashcroft and the Board of Immigration Appeals (“Board”) eliminated the criminal sentence as a relevant factor from the test set forth in the 1982 seminal case on PSC, Matter of Frentescu; this is part of an increasing mistrust of criminal court judges in immigration law. Second is what this article terms “the sweeping effect:” the expansive reading of the PSC bar is part of a larger trend by the Board and Congress to sweep many offenses into a “crimmigration” term of art in order to render more noncitizens deportable and fewer eligible for relief from removal. These PSC trends mirror a trend occurring within the criminal justice system; namely, the “severity revolution” of the 1980’s and 90’s, where attention shifted away from rehabilitating the individual offender and toward minimizing the risks presented by certain classes of offenders. The severity revolution, which was reflected in immigration law during the 1990’s and 2000’s, allowed “tough on crime” mentality to outweigh the humanitarian aspects of the 1980 Refugee Act, where the term PSC first was introduced into U.S. immigration law. This article seeks to expose these troubling trends in PSC law and proposes that the term include only violent crimes against persons where the offender has served a significant sentence.