Response to Professor Holper's Article, "Redefining 'Particularly Serious Crimes' in Refugee Law"
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An individual who faces a significant risk of persecution in her home country is barred from asylum in the United States if she is convicted of a “particularly serious crime” (“PSC”). Despite the grave consequences of such a conviction, there is relatively little scholarship exploring how a PSC should be defined. The term, which comes from the UN Refugee Convention, was incorporated into the Immigration and Nationality Act in 1980. Professor Holper’s article, Redefining “Particularly Serious Crimes” in Refugee Law, makes an important contribution to the literature by showing how the historical trajectory of the PSC definition mirrors the “severity revolution” of the 1980s and 1990s in the criminal justice system. She also explains that the federal Bail Reform Act (BRA) creates rebuttable presumptions of dangerousness for certain types of offenses—not just crimes of violence, but also drug trafficking and offenses involving minor victims, including possession of child pornography—that are now treated as PSCs in immigration cases. Professor Holper persuasively argues that immigration law has gone astray by following in the footsteps of the severity revolution, which many agree has failed. Because an individual’s life is at stake in cases involving refugee protection, Professor Holper contends that PSC determinations should be narrower than classifications of dangerousness under federal bail law. She proposes dropping offenses like drug trafficking and child pornography from the PSC definition and limiting this categorization to violent crimes against persons with a significant sentence of at least five years. This response seeks to develop the discussion in two ways. First, it addresses Professor Holper’s argument that the Board of Immigration Appeals (BIA) has expressed “mistrust” of criminal law judges by minimizing the importance of the length of a sentence in the PSC determination. I argue that the relationship between the immigration and criminal systems is complicated and cannot easily be categorized as one of trust or mistrust. I then address Professor Holper’s proposal and compare it to a proposal that I made recently in an article arguing that the PSC analysis should follow the categorical approach to analyzing convictions.
