Foreigners arriving at, or present in, the United States can generally obtain asylum if they have a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion (in accord with the legal definition of a refugee). As I previously discussed, however, the Trump administration issued a proposed regulation last June that would have undermined that longstanding policy by imposing numerous sweeping restrictions on the availability of asylum.

I specifically called attention to a provision of the proposed regulation that would have generally denied asylum to applicants based on tax noncompliance, even if the noncompliance was inadvertent and caused little or no revenue loss. I submitted a detailed public comment arguing that this tax provision was unduly harsh and inconsistent with Congress’s vision of asylum policy.

After purportedly considering the 87,000 (mostly critical) public comments, the administration finalized the regulation last month. The tax provision, like most of the regulation’s other provisions, was adopted without change. Asylum applications filed on or after Monday, January 11 will be subject to the tax provision, as well as the regulation’s other restrictions.

Under the tax provision, asylum will generally be
denied to applicants who have failed to report any taxable income under the
federal individual income tax, failed to timely file any federal, state, or
local income tax return, or failed to comply with any federal, state, or local
tax obligation. To be sure, asylum may (but need not) still be granted when
“extraordinary circumstances, such as those involving national security or
foreign policy considerations” are present or when the applicant demonstrates
“exceptional and extremely unusual hardship.” And applicants denied asylum can
avoid being sent back to their home countries under other provisions if they meet the
demanding standard of showing that they are “more likely than not” to face
persecution or torture. In most cases, however, tax noncompliance will now result
in the applicant being sent back to face possible persecution.

The tax provision is appallingly broad. For example, it is triggered if an applicant files an income tax return a day late, even if no revenue is at stake because the tax liability has been fully paid through withholding. No exception is made for noncompliance attributable to language barriers, difficulties in obtaining Individual Taxpayer Identification Numbers, unfamiliarity with local tax systems, or other factors outside the taxpayer’s control.

In its explanation of the final regulation, the administration ignored or sidestepped key issues that I and other commenters raised about the tax provision. For example, I highlighted ambiguities in the description of the three listed categories of tax noncompliance. I also noted that Congress generally exempts taxpayers from monetary penalties if they demonstrate “reasonable cause” for noncompliance, but that the proposal would offer no similar exception before sending applicants back to face possible persecution. I further noted that the tax provision’s breadth was discordant with the asylum law adopted by Congress, which bars asylum based on tax noncompliance only if the applicant has been convicted in a court of law of tax evasion (which requires an affirmative willful act) involving a revenue loss of $10,000 or more. The administration did not specifically respond to these points.

The administration dismissed commenters’ concerns
about the provision’s harshness by insisting that the provision is not a “bar
to eligibility” for asylum. According to the administration, the provision
merely treats tax noncompliance as a “negative factor” to be weighed along with
other factors in making the discretionary decision of whether to grant asylum.
In reality, however, the provision states that asylum will be denied without
any consideration of the nature or magnitude of the noncompliance, except in
extraordinary circumstances and cases of exceptional and extremely unusual
hardship.   

The Trump administration is evidently on a mission to reshape asylum policy on its way out the door. In addition to adopting the numerous asylum restrictions set forth in this regulation, the administration finalized three other restrictive asylum regulations (here, here, and here) last month, after having finalized yet another such regulation in October.

Because President-elect Joe Biden has pledged to “reassert America’s commitment to asylum-seekers and refugees,” it is likely that these regulations will be revised or removed after January 20. The regulations will undoubtedly remain in place for at least several months, however, as changing each regulation will require a new rulemaking process, including another round of public comment. The incoming administration should begin that work as quickly as possible.

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