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Criminal Bars to Asylum and Withholding of Removal

By Miguel Martinez

Many individuals seek asylum and withholding of removal each year because they are facing persecution or a threat to their life or freedom in their home country. While these forms of protection are important, they are not granted automatically. Applicants must meet certain requirements, provide evidence to support their claim and, in the context of asylum, demonstrate that they warrant favorable discretion from the adjudicating officer or immigration judge.

One important factor that can impact an applicant's eligibility for asylum or withholding of removal is their involvement in criminal activity. Specifically, those considered particularly serious crimes. In this article, we will explore what constitutes a particularly serious crime and how it can impact an individual's asylum or withholding of removal case.

What is a Particularly Serious Crime?

A Particularly Serious Crime (PSC) is essentially conduct that makes the applicant for asylum a danger to society which results in a conviction. A “crime” in this context specifically requires a “conviction by a final judgment”. That means that an arrest, pending prosecution, or a criminal case on appeal, are not likely to meet the definition of “conviction by a final judgment”.

The scope of a particularly serious crime is not clearly defined in the Immigration and Nationality Act (INA). However, there are two categories of PSCs. The first one is aggravated felonies. An aggravated felony conviction will result in an automatic ineligibility for asylum. On the other hand, an aggravated felony conviction will not result in an automatic bar to withholding of removal unless the offense is punishable by a maximum prison sentence of at least five years. Examples of aggravated felonies include murder, rape, and drug trafficking. These crimes are considered to be serious because they pose a threat to public safety and often involve violence or harm to others

Convictions that are not aggravated felonies may be considered particularly serious crimes on a case-by-case basis. The Board of Immigration Appeals created a framework to determine whether a conviction constitutes a particularly serious crime. Essentially, a PSC finding will depend upon the specific facts in each case, and, in judging the seriousness of a crime, the adjudicating officer or judge will consider such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community

The adjudicating officer or immigration judge may consider evidence outside of the record of conviction such as police reports and even the applicant’s own testimony. In the 9th circuit, the mental health of the applicant at the time of the crime must be considered.

How Particularly Serious Crimes Impact Asylum and Withholding of Removal Cases?

First, committing a particularly serious crime can result in the applicant being barred from asylum or withholding of removal. The INA states that an individual is ineligible for asylum or withholding of removal if they have been convicted of a particularly serious crime and constitute a danger to the community of the United States. This means that even if the applicant meets all other eligibility criteria, they may still be denied protection if they are found to be a danger to the community. This might leave them with very limited options pertaining to protection from removal.

Second, even if the applicant is not barred from asylum or withholding of removal, the fact that they have committed a crime with aggravating circumstances can weigh heavily against them. Immigration judges have discretion to grant or deny asylum based on the totality of the circumstances. If an applicant has committed a crime with aggravating circumstances, this can be seen as proof that they pose a risk to public safety and are not deserving of protection. A lesser offense such as an aggravated DUI, theft, burglary, or any aggravated misdemeanor, may lead the judge to find that the applicant does not deserve the benefit of asylum. Evidence of rehabilitation, good moral character, charitable contributions, and ties to the community may help to offset some of the derogatory marks in the applicant’s record

Furthermore, even if the applicant is granted asylum or withholding of removal, their status is conditional. The INA allows for the termination of asylum or withholding of removal if the individual is later found to have committed a particularly serious crime or to be a danger to the community.

Lastly, it is important to note that the burden of proof is on the applicant to demonstrate eligibility for asylum and withholding of removal. This means that they must provide evidence to support their claim and persuade adjudicating officers or immigration judges that they have not committed a particularly serious crime.

Review your criminal record today

Being convicted of a crime can have serious implications for an individual's asylum or withholding of removal claims. While it is not an automatic bar to protection, a conviction will certainly make it more difficult for applicants to obtain protection in the United States.

If you have been arrested, charged, or convicted of any crime, please contact KPB Immigration at your earliest convenience to learn how to protect your right to stay in the country.

Miguel Martinez is an Associate Attorney with KPB immigration since 2019. Miguel is fluent in Spanish and received his J.D. with honors from the Interamerican School of Law of Puerto Rico. Miguel is licensed to practice law in California and Puerto Rico. He currently specializes in complex criminal-immigration issues as well as removal defense, family-based immigration, and humanitarian forms of relief.