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Redefining Particularly Serious Crimes in Refugee Law
Florida Law Review, Forthcoming (2017)
  • Mary Holper
This article explores the term “particularly serious crime (“PSC”),” which is a bar to refugee protection under both U.S. and international law. I examine the evolution of the PSC bar to refugee protection in U.S. law, which, since its introduction in 1980, has broadened to sweep in numerous crimes, leaving many noncitizens vulnerable to deportation without any consideration of their claims to refugee protection. I propose a PSC 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, i.e., five years. The PSC bar exists to protect the public from dangerous individuals; because this is a central goal of criminal law, criminal law’s focus on the inviolability of the body should inform PSC determinations. Also, deporting the violent offender actually protects the U.S. community from a dangerous individual, since that person will physically be unable to commit a violent crime against a person from abroad. Limiting PSCs to those who served significant sentences provides appropriate deference to the criminal sentencing judge, who already has examined the facts and circumstances of the crime at issue and decided whether this person is a danger to the community. This proposal also presents a common sense solution that is faithful to the plain meaning of the statute, since the word “crime” has two modifiers, “particularly” and “serious.”

To explain why PSC has broadened beyond recognition, thus necessitating this proposal, I suggest a theory for why non-violent crimes have become PSCs, which I name 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. 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. More specifically, the PSC evolution mirrors 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.
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Mary Holper. "Redefining Particularly Serious Crimes in Refugee Law" Florida Law Review, Forthcoming (2017)
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