When "Fear of Persecution . . ." Requires Deportation: "Catch-22" False-Document Prosecutions After a Grant of Asylum

C. Peter Erlinder, William Mitchell College of Law


This article describes the contradictions between: (a) standards and procedures for seeking and receiving asylum status under 8 U.S.C. § 1158 and Article 31 (1) of the United Nations Refugee Convention; (b) removal proceedings described in 8 U.S.C. §§ 1225 and 1227; and (c) felony criminal prosecution for false documents under 18 U.S.c. §§ 1543, 1544 and 1546, for which full disclosure of entry on false documents and a grant of asylum has not been recognized as a defense by Congress or the courts. This article suggests that full disclosure of entry on false documents and a subsequent grant of asylum should be a full defense to a post-asylum criminal prosecution for use of those same false documents. This defense should arise by Congressional enactment, through judicial use of the Fifth Amendment, or through common-law concepts of estoppel or res judicata. The apparent contradiction between a grant of asylum (which is a defense to civil immigration penalties) and the absence of a defense to subsequent criminal prosecution for use of the same false documents upon which the asylum claim was grounded would best be resolved through Congressional action. An amendment to existing immigration statutes that clearly extended immunity from prosecution to issues considered by the immigration judge in granting asylum status would make clear that the contradictory use of executive branch discretion to grant asylum and then prosecute for the same acts does not comport with Congressional intent.