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Authors

Mary Holper

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, 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, which is part of an increasing mistrust of criminal court judges in immigration law. This PSC trend mirrors 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 this troubling trend in PSC law and proposes that the term include only violent crimes against persons where the offender has served a significant sentence.

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