The Departments of Justice and Homeland Security Publish Final Rule to Restrict Certain Criminal Aliens’ Eligibility for Asylum

New Mandatory Bars Prevent Convicted Felons, Drunk Drivers, Gang Members, and Other Criminal Aliens from Receiving Asylum

Today, the Department of Justice and the Department of Homeland Security announced the publication of a Final Rule amending their respective regulations to prevent certain categories of criminal aliens from obtaining asylum in the United States.  The rule takes effect 30 days after publication of the Final Rule in the Federal Register, which is scheduled to occur on Wednesday, Oct. 21.

Asylum is a discretionary immigration benefit that generally can be sought by eligible aliens who are physically present or arriving in the United States, irrespective of their status, as provided in section 208 of the Immigration and Nationality Act (INA), 8 U.S.C. § 1158.  However, in the INA, Congress barred certain categories of aliens from receiving asylum.  In addition to the statutory bars, Congress delegated to the Attorney General and the Secretary of Homeland Security the authority to establish by regulation additional bars on asylum eligibility to the extent they are consistent with the asylum statute, as well as to establish “any other conditions or limitations on the consideration of an application for asylum” that are consistent with the INA.

To ensure that criminal aliens cannot obtain this discretionary benefit, the Attorney General and Secretary of Homeland Security have exercised their regulatory authority to limit eligibility for asylum for aliens who have engaged in specified categories of criminal behavior.

The new bars apply to aliens who are convicted of:

(1) A felony under federal or state law;

(2) An offense under 8 U.S.C. § 1324(a)(1)(A) or § 1324(a)(1)(2) (Alien Smuggling or Harboring);

(3) An offense under 8 U.S.C. § 1326 (Illegal Reentry);

(4) A federal, state, tribal, or local crime involving criminal street gang activity;

(5) Certain federal, state, tribal, or local offenses concerning the operation of a motor vehicle while under the influence of an intoxicant;

(6) A federal, state, tribal, or local domestic violence offense, or who are found by an adjudicator to have engaged in acts of battery or extreme cruelty in a domestic context, even if no conviction resulted; and

(7) Certain misdemeanors under federal or state law for offenses related to false identification; the unlawful receipt of public benefits from a federal, state, tribal, or local entity; or the possession or trafficking of a controlled substance or controlled-substance paraphernalia.

Aliens who have committed certain domestic violence offenses, even if not convicted, will also be barred from asylum.

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    In fiscal year (FY) 2020, GAO's work yielded $77.6 billion in financial benefits, a return of about $114 for every dollar invested in GAO. We also identified 1,332 other benefits that led to improved services to the American people, strengthened public safety, and spurred program and operational improvements across the government. In March 2021, GAO reported on 36 areas designated as high risk due to their vulnerabilities to fraud, waste, abuse, and mismanagement or because they face economy, efficiency, or effectiveness challenges. In FY 2020 GAO's High Risk Series products resulted in 168 reports, 26 testimonies, $54.2 billion in financial benefits, and 606 other benefits. In this year of GAO's centennial, GAO's FY 2022 budget request seeks to lay the foundation for the next 100 years to help Congress improve the performance of government, ensure transparency, and save taxpayer dollars. GAO's fiscal year (FY) 2022 budget requests $744.3 million in appropriated funds and uses $50.0 million in offsets and supplemental appropriations. These resources will support 3,400 full-time equivalents (FTEs). We will continue our hiring focus on boosting our Science and Technology and appropriations law capacity. GAO will also maintain entry-level and intern positions to address succession planning and to fill other skill gaps. These efforts will help ensure that GAO recruits and retains a talented and diverse workforce to meet the priority needs of the Congress. In FY 2022, we will continue to support Congressional oversight across the wide array of government programs and operations. In particular, our science and technology (S&T) experts will continue to expand our focus on rapidly evolving (S&T) issues. Hallmarks of GAO's (S&T) work include: (1) conducting technology assessments at the request of the Congress; (2) providing technical assistance to Congress on science and technology matters; (3) continuing the development and use of technical guides to assess major federal acquisitions and technology programs in areas such as technology readiness, cost estimating, and schedule planning; and (4) supporting Congressional oversight of federal science programs. With our requested funding, GAO will also bolster capacity to review the challenges of complex and growing cyber security developments. In addition, GAO will continue robust analyses of factors behind rising health care costs, including costs associated with the ongoing COVID-19 Pandemic. Internally, the funding requested will make possible priority investments in our information technology that include the ability to execute transformative plans to protect data and systems. In FY 2022 GAO will continue to implement efforts to increase our flexibility to evolve IT services as our mission needs change, strengthen information security, increase IT agility, and maintain compliance. We will increase speed and scalability to deliver capabilities and services to the agency. This request will also help address building infrastructure, security requirements, as well as tackle long deferred maintenance, including installing equipment to help protect occupants from dangerous bacteria, viruses, and mold. As reported in our FY 2020 financial statements, GAO's backlog of deferred maintenance on its Headquarters Building had grown to over $82 million as of fiscal year-end. Background GAO's mission is to support Congress in meeting its constitutional responsibilities and to help improve the performance and ensure the accountability of the federal government for the benefit of the American people. We provide nonpartisan, objective, and reliable information to Congress, federal agencies, and to the public, and recommend improvements across the full breadth and scope of the federal government's responsibilities. In fiscal year 2020. GAO issued 691 products, and 1,459 new recommendations. Congress used our work extensively to inform its decisions on key fiscal year 2020 and 2021 legislation. Since fiscal year 2000, GAO's work has resulted in over: $1.2 trillion dollars in financial benefits; and 25,328 program and operational benefits that helped to change laws, improve public services, and promote sound management throughout government. As GAO recognizes 100 years of non-partisan, fact-based service, we remain committed to providing program and technical expertise to support Congress in overseeing the executive branch; evaluating government programs, operations and spending priorities; and assessing information from outside parties. For more information, contact Gene L. Dodaro at (202) 512-5555 or dodarog@gao.gov.
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    Alexander Yuk Ching Ma, 67, a former Central Intelligence Agency (CIA) officer, was arrested on Aug. 14, 2020, on a charge that he conspired with a relative of his who also was a former CIA officer to communicate classified information up to the Top Secret level to intelligence officials of the People’s Republic of China (PRC). The Criminal Complaint containing the charge was unsealed this morning.
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  • Military Housing: Actions Needed to Improve the Process for Setting Allowances for Servicemembers and Calculating Payments for Privatized Housing Projects
    In U.S GAO News
    The Department of Defense (DOD) has established a process to determine basic allowance for housing (BAH) rates, which help cover the cost of suitable housing in the private sector for servicemembers. However, DOD has not always collected rental data on the minimum number of rental units needed to estimate the total housing cost for certain locations and housing types. GAO analysis found that 44 percent (788 of 1,806) of locations and housing types had fewer than the minimum sample-size target. Until DOD develops ways to increase its sample size, it will risk providing housing cost compensation that does not accurately represent the cost of suitable housing for servicemembers. DOD followed congressional requirements for calculating BAH reductions and payments to privatized housing projects. However, while the 2019 congressionally mandated payments lessened the financial effects of BAH reductions, as intended, they did not do so commensurate with the amount of the BAH reduction. GAO found that privatized housing projects received payments that were either over or under the amount of revenue lost from reductions made to BAH, in some cases by $1 million or more. (see figure) Number of Privatized Housing Projects and Amounts That Congressionally Mandated Payments Were Above or Below the Basic Allowance for Housing (BAH) Reduction Estimate (in 2019) These distortions occurred because the legal requirements for calculating the BAH reduction and the congressionally mandated payments differ. Specifically, the law requires that the BAH reduction be a set dollar amount, regardless of location, while payments to privatized housing projects are required to differ by location. This required method of calculating the BAH reduction amounts is consistent with how prior reductions were calculated. According to DOD, BAH rates were reduced so that servicemembers share a portion of housing costs, and that reduction amount was the same for servicemembers with the same pay grade and dependency status, regardless of location. Until Congress takes steps to ensure congressionally mandated payment calculations are consistent with how BAH reductions are calculated, some privatized housing projects will continue to receive more or less than was intended. DOD spent about $20 billion in fiscal year 2019 on BAH—often one of the largest components of military pay. BAH is designed to cover a portion of servicemembers' housing rental and utility costs in the private sector. Starting in 2015, DOD reduced BAH rates so that servicemembers share a portion of housing costs. The majority of servicemembers rely on the civilian housing market, while others rely on government housing or privatized housing projects. These projects rely on BAH as a key revenue source. In 2018-2020, Congress required DOD to make payments to these projects to help offset the BAH reduction. Senate Report 116-48 included a provision for GAO to review DOD's BAH process. This report evaluates, among other things, the extent to which (1) DOD established a process to determine BAH and (2) DOD's congressionally mandated payments to projects lessened the effects of BAH reductions. To conduct this work, GAO reviewed relevant guidance and other documents, analyzed key data, and interviewed cognizant DOD officials. GAO is making a matter for congressional consideration to revise statutory language to ensure payments to privatized housing projects are consistent with BAH reductions. GAO is also making three recommendations, including that DOD review its sampling methodology to increase sample size. DOD concurred with two recommendations. DOD also partially concurred with one recommendation, which GAO continues to believe is valid, as discussed in the report. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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  • Hypersonic Weapons: DOD Should Clarify Roles and Responsibilities to Ensure Coordination across Development Efforts
    In U.S GAO News
    What GAO Found GAO identified 70 efforts to develop hypersonic weapons and related technologies that are estimated to cost almost $15 billion from fiscal years 2015 through 2024 (see figure). These efforts are widespread across the Department of Defense (DOD) in collaboration with the Department of Energy (DOE) and, in the case of hypersonic technology development, the National Aeronautics and Space Administration (NASA). DOD accounts for nearly all of this amount. Hypersonic Weapon-related and Technology Development Total Reported Funding by Type of Effort from Fiscal Years 2015 through 2024, in Billions of Then-Year Dollars The majority of this funding is for product development and potential fielding of prototype offensive hypersonic weapons. Additionally, it includes substantial investments in developing technologies for next generation hypersonic weapons and a smaller proportion aimed at countering hypersonic threats. Hypersonic weapon systems are technically complex, and DOD has taken several steps to mitigate some of the challenges to developing them. For example, DOD has attempted to address challenges posed by immature technologies and aggressive schedules by pursuing multiple potential technological solutions so that it has options. Other challenges DOD is addressing relate to industrial base and human capital workforce investments needed to support large-scale production and the availability of wind tunnels and open-air flight test ranges needed to test hypersonic weapons. DOE and NASA have agreements with DOD on supporting roles, but DOD itself has not documented the roles, responsibilities, and authorities of the multitude of its organizations, including the military services, that are working on hypersonic weapon development. Such governing documentation would provide for a level of continuity when leadership and organizational priorities inevitably change, especially as hypersonic weapon development efforts are expected to continue over at least the next decade. Without clear leadership roles, responsibilities, and authorities, DOD is at risk of impeding its progress toward delivering hypersonic weapon capabilities and opening up the potential for conflict and wasted resources as decisions over larger investments are made in the future. Why GAO Did This Study Hypersonic missiles, which are an important part of building hypersonic weapon systems, move at least five times the speed of sound, have unpredictable flight paths, and are expected to be capable of evading today's defensive systems. DOD has begun multiple efforts to develop offensive hypersonic weapons as well as technologies to improve its ability to track and defend against them. NASA and DOE are also conducting research into hypersonic technologies. The investments for these efforts are significant. This report identifies: (1) U.S. government efforts to develop hypersonic systems that are underway and their costs, (2) challenges these efforts face and what is being done to address them, and (3) the extent to which the U.S. government is effectively coordinating these efforts. This is a public version of a sensitive report that GAO issued in January 2021. Information that DOD deemed to be sensitive has been omitted. GAO collected and reviewed information from DOD, DOE, and NASA to identify hypersonic weapons development efforts from fiscal years 2015 through 2024. GAO also analyzed agency documentation and interviewed agency officials.
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    In Crime News
    The United States filed two civil forfeiture complaints today in the U.S. District Court for the Southern District of Florida alleging that commercial real estate in Louisville, Kentucky, and Dallas, Texas, both acquired using funds misappropriated from PrivatBank in Ukraine, are subject to forfeiture based on violations of federal money laundering statutes.
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  • Blue Bell Creameries Ordered To Pay $17.25 Million In Criminal Penalties In Connection With 2015 Listeria Contamination
    In Crime News
    A federal court in Texas sentenced ice cream manufacturer Blue Bell Creameries L.P. to pay $17.25 million in criminal penalties for shipments of contaminated products linked to a 2015 listeriosis outbreak, the Justice Department announced today.
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    A Chinese national pleaded guilty today in federal court in Boston in connection with illegally procuring and causing the illegal export of $100,000 worth of U.S. origin goods to Northwestern Polytechnical University (NWPU), a Chinese military university that is heavily involved in military research and works closely with the People’s Liberation Army on the advancement of its military capabilities.
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    A federal criminal complaint unsealed today charges 10 Iranian nationals with running a nearly 20-year-long scheme to evade U.S. sanctions on the Government of Iran by disguising more than $300 million worth of transactions – including the purchase of two $25 million oil tankers – on Iran’s behalf through front companies in the San Fernando Valley, Canada, Hong Kong and the United Arab Emirates.
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  • Climate Resilience: Actions Needed to Ensure DOD Considers Climate Risks to Contractors as Part of Acquisition, Supply, and Risk Assessment
    In U.S GAO News
    The Department of Defense (DOD) has not routinely assessed climate-related risks faced by its contractors as part of its acquisition and supply processes, through which DOD obtains contracted goods and services. DOD's acquisition process includes long-term planning activities such as life-cycle sustainment planning. Its supply chain process includes steps to identify and assess potential disruptions, such as severe storms affecting transportation or energy systems, in order to mitigate risk. However, these processes in general do not systematically identify and consider climate-related risks to materiel acquisition and supply or the acquisition of weapon systems, according to Office of the Secretary of Defense (OSD) and military department officials. DOD's climate change adaptation directive indicates that OSD and the military departments should include climate considerations in acquisition and supply and integrate those considerations into relevant policy and guidance. However, GAO's review of DOD and military department guidance on acquisition and supply found that the guidance did not implement DOD's climate change directive by including consideration of climate change or extreme weather. Until DOD and the military departments include these considerations in their guidance on acquisition and supply chain processes, they risk continuing to develop acquisition strategies and managing supply chains without building climate resilience into these processes and potentially jeopardizing their missions. DOD guidance requires consideration of climate-related risks as part of the mission assurance process, when appropriate. However, GAO found that the department has not assessed risks—including those associated with climate change or extreme weather—to commercially owned facilities, which can support DOD installations as well as weapon systems, as part of this process. Assessing risks to commercial facilities has been a longstanding challenge for DOD, with the department noting in 2012 that it had paid inadequate attention to challenges outside of DOD-owned facilities and citing a limited understanding of supply chain risks as a pervasive problem. DOD's mission assurance guidance includes minimum requirements for assessments of certain non-DOD-owned facilities, such as completion of an all-hazards threat assessment. However, DOD officials stated that they had not conducted such assessments. The officials noted that DOD is limited in its ability to conduct such assessments, as it does not have the same access to commercial facilities as it does to its own facilities. While DOD officials stated that they are exploring alternative ways of assessing risks to commercial facilities, they noted that these efforts are in the early stages. Without determining what approaches may be feasible for assessing risks to commercial facilities as part of the mission assurance process and issuing or updating guidance accordingly, DOD may not fully evaluate the risks to critical commercial facilities as part of the mission assurance process, leaving gaps in its knowledge of potential risks—to include climate and weather-related risks—to its ability to fulfill key missions dependent on such facilities. Since 2010, DOD has identified climate change as a threat to its operations and installations. The department relies on contracted goods and services for its mission and installations. Climate change is projected to have broad effects that could affect DOD's supply chains, and any associated risks to contractors can have an impact on DOD. One way DOD assesses risk to its missions is through mission assurance, which is a process to protect or ensure the function of capabilities and assets critical to its missions. GAO was asked to review potential threats to national security from the effects of climate change on defense contractors. GAO examined the extent to which DOD assesses the potential effects on its operations from climate change and extreme weather risks faced by its contractors through the department's (1) acquisition and supply processes, and (2) mission assurance process. GAO reviewed DOD acquisition, supply, and mission assurance documents and interviewed relevant DOD officials and contractor representatives. GAO is making six recommendations, including that DOD incorporate climate adaptation into its acquisition and supply guidance and issue or update guidance on mission assurance-related assessments for commercial facilities. DOD concurred with three recommendations and partially concurred with three. GAO continues to believe that DOD should fully implement its recommendations. For more information, contact Elizabeth A. Field at (202) 512-2775 or fielde1@gao.gov.
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    On Jan. 15, 2021, a federal court issued a preliminary injunction in favor of the United States and against Jeffrey and Lauren Lowe, Greater Wynnewood Exotic Animal Park LLC, and Tiger King LLC based on claimed violations of the Endangered Species Act and the Animal Welfare Act.
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  • Aviation Sanitation: FDA Could Better Communicate with Airlines to Encourage Voluntary Construction Inspections of Aircraft Galleys and Lavatories
    In U.S GAO News
    Most commercial aircraft undergo voluntary inspections to ensure that galleys and lavatories are constructed and assembled to meet the Food and Drug Administration's (FDA) sanitation standards, according to industry representatives. Twenty-seven percent of the inspections FDA conducted between fiscal years 2015 and 2019 found objectionable conditions. But in nearly all of these instances, the conditions identified, such as the need for additional sealant in areas where there was a gap or seam, were corrected by the airline or aircraft manufacturer during the inspection. However, some regional airline representatives told GAO that their aircraft do not receive these construction inspections, either because larger airlines with which they have contracts told them the inspections were unnecessary or because they did not believe the inspections were relevant to them. FDA provides these inspections free of charge, upon request of aircraft manufacturers or airlines, and aircraft passing inspection receive a certificate of sanitary construction. Representatives of one aircraft manufacturer said they view the certificate as beneficial because their customers see it as a guarantee that the aircraft was constructed in a way that decreases the likelihood of microbial contamination, pests, and insects. While the construction inspections are important, they are not required, and FDA does not proactively encourage airlines to request them. By developing a process for communicating directly to all U.S.-based commercial airlines, including regional airlines, to encourage them to receive construction inspections, FDA could better ensure that aircraft meet FDA sanitation standards to protect passenger health. An Airline Representative Applying Additional Sealant in Response to an FDA Inspection FDA faces several challenges in providing construction inspections and is taking steps to address these challenges. For example, the demand for inspections by manufacturers and airlines is unpredictable, and FDA inspectors are responsible for inspections at multiple locations. To help mitigate these challenges, officials we interviewed from four FDA field offices said they usually request advance notice from industry to allow the agency time to allocate the necessary resources for construction inspections. Voluntary construction inspections are the primary mechanism by which FDA oversees compliance with its required sanitation standards for the construction of aircraft galleys and lavatories. A report accompanying the House 2019 Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations bill included a provision for GAO to review FDA's process for ensuring proper sanitation in aircraft galleys and lavatories. This report (1) examines the extent to which aircraft are inspected to ensure compliance with FDA's sanitation standards, and (2) discusses challenges FDA faces in providing aircraft inspections and how FDA is addressing such challenges. GAO reviewed FDA guidance, interviewed FDA officials in headquarters and four selected field offices with high volumes of construction inspections, conducted site visits to meet with FDA inspectors, and interviewed representatives of selected aircraft manufacturers and airlines. GAO recommends that FDA develop a process for communicating directly with all U.S.-based commercial airlines to encourage them to request construction inspections. FDA generally agreed with our recommendation. For more information, contact Steve Morris (202) 512-3841 MorrisS@gao.gov.
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    In Crime News
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    A Texas man was sentenced to 40 years in prison for his leadership role in an armed home invasion robbery crew that traveled the United States targeting families of South Asian and East Asian descent.
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