Last month, the Trump administration issued a proposed regulation that would dramatically restructure asylum policy. I was one of over 86,000 individuals and organizations that submitted comments on the proposal. My comment addressed a specific provision that would send refugees with minor unintentional tax noncompliance back to their home countries to face possible persecution. This harsh provision is incompatible with sound asylum policy.
Non-citizens generally can apply for asylum when they arrive at the border or during the first year of their (lawful or unlawful) presence in the United States. To obtain asylum, which paves the way to a green card, the applicant must demonstrate a “well-founded fear” of persecution in her home country on account of race, religion, nationality, membership in a particular social group, or political opinion.
Congress has barred asylum for some
applicants, such as those who have participated in persecution or terrorism or
been convicted of serious crimes. Congress has also empowered asylum officers
and immigration judges to deny asylum if the applicant does not merit a
“favorable exercise of discretion,” though that power that has rarely been
Last month’s proposed regulation would break from longstanding practice by decreeing that applicants who are subject to any of nine “adverse factors,” including a tax noncompliance factor, generally do not merit a favorable exercise of discretion. To be sure, applicants subject to an adverse factor could still receive asylum in “extraordinary circumstances.” And applicants denied asylum could avoid being sent back to their home countries under other provisions if they met the demanding standard of showing that they were “more likely than not” to face persecution or torture. In many cases, though, asylum applicants subject to an adverse factor would be returned to their home countries.
The tax noncompliance factor would be
triggered by three types of noncompliance — failure to report taxable income
under the federal individual income tax; failure to timely file federal, state,
and local income tax returns; and failure to comply with any federal, state,
and local tax obligation. Not only is the provision poorly drafted (the vague
and sweeping third category appears to subsume the other two), but it would be
administered by asylum officers and immigration judges with no tax expertise.
Most disturbingly, the factor would be
triggered even if the noncompliance was unintentional or caused no revenue
loss. It could be triggered by a failure to report a small amount of tip income
or by a misunderstanding of local tax systems. It could be triggered if the
applicant filed an income tax return a day late due to logistical difficulties,
even if no tax was due because the full tax liability was covered by withholding.
Unintentional tax noncompliance can happen to anyone, which is why Congress usually provides exceptions to tax penalties when “reasonable cause” can be shown. Yet the provision would allow no similar exception before sending refugees back to face possible persecution. Moreover, some non-citizens face additional compliance challenges due to language barriers and difficulties in obtaining and renewing the Individual Taxpayer Identification Numbers needed by filers who do not have Social Security numbers.
The unintentional minor tax noncompliance covered by the proposal bears no resemblance to the grounds that Congress has set forth as bars to asylum, such as terrorism, persecution, and serious criminal convictions. On the tax front, Congress has barred asylum for applicants who have been convicted of a tax evasion offense (which requires an affirmative willful act to escape taxes) involving a revenue loss of more than $10,000. By denying a favorable exercise of discretion for unintentional omissions that cause no revenue loss, the proposal would sharply diverge from Congress’s vision of asylum.
Last month’s proposed regulation includes many other provisions that would limit the availability of asylum, and it follows a number of earlier restrictions. But we should not lose sight of the tax noncompliance provision in the shuffle. This harsh provision should be withdrawn.