Tweet
It is of course impossible to cover an entire legal field in one blog post, and so here, we will discuss only the basics. But hopefully this will provide enough information to help you determine whether your asylum application is in jeopardy, and whether you need to seek more specific advice from a lawyer.
We'll start with the law. A person may be barred from asylum for the following criminal conduct:
- Ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion
- Were convicted of a “particularly serious crime” such that you are a danger to the United States
- Committed a “serious nonpolitical crime” outside the United States
- Pose a danger to the security of the United States
- Activities related to terrorism
As you can see, not all of these bars require a criminal conviction. Further, some of this "criminal" activity may be perfectly legal in the home country. Let's go through these categories one at a time.
Persecutor Bar: If you have persecuted or harmed anyone on account of their race, religion, nationality, membership in a particular social group or political opinion, you could be barred from asylum. This behavior may not have been criminal in your home country. For example, you could be barred if you served as a prison guard or police officer in a country known for abusing human rights, or if you allowed your female child to be circumcised, or if you served in a military or guerrilla unit that committed abuses.
Particularly Serious Crime: The asylum law states that a conviction in the U.S. for an "aggravated felony" constitutes a particularly serious crime. The Immigration and Nationality Act provides a long list of aggravated felonies, and you have to compare your conviction with the crimes on the list. These include serious crimes such as murder, rape, and certain drug and theft offenses, but also lesser crimes, such as gambling offenses and failure to appear in court. In addition, crimes that are not aggravated felonies may also be considered "particularly serious." In making this determination, adjudicators examine "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 respondent is a danger to the community." These standards are broad and relatively vague, and individual adjudicators can decide whether a certain crime is "particularly serious" for purposes of the asylum law.
Serious Nonpolitical Crime: If there are "serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States," the person may be barred from asylum. In other words, even if you have not been arrested or convicted, you can be barred from asylum if the U.S. government believes you committed a serious nonpolitical crime overseas. Some crimes--such as participating in a violent political demonstration--are arguably more political than criminal, but the immigration law tends to view such cases as triggering the asylum bar, and so you need to be careful. Also, even crimes that do not seem very serious (at least to me) may be viewed as serious for purposes of the bar, such as throwing rocks at a protest or engaging in financial fraud. Finally, remember that a conviction is not needed here. If there are "serious reasons for believing" that you committed a crime, you could be barred from asylum.
Danger to the Security of the United States: A person can be barred from asylum if there are "reasonable grounds for regarding the alien as a danger to the security of the United States." "Security" includes "defense, foreign relations, or economic interests," and so if the U.S. government believes that your presence here will negatively impact our country's security (as broadly and vaguely defined), you can be barred from asylum, even if you have never been arrested or convicted.
Terrorism Bars: The terrorism-related bars are quite broad. Anyone who has engaged in terrorist activity or who is likely to engage in terrorist activity is barred. This includes people who provided material support to terrorists. Also barred is anyone who incited terrorist activity, who is a member or representative of a terrorist organization, or who has persuaded others to support terrorists. In addition, anyone who has received military-type training from or a terrorist organization is barred. Finally, the spouse or child of an individual covered by these terrorism-related bars may also be barred by virtue of the relationship.
Aside from these legal bars, a person can also be denied asylum as a matter of discretion. Where a person is legally qualified for asylum, the adjudicator must evaluate the person's good and bad characteristics (what lawyers call the positive and negative equities). If the bad outweighs the good, the adjudicator can deny asylum as a matter of discretion. This means that even if you are not barred from asylum due to a criminal issue, that issue could still result in a discretionary denial.
Where does all this leave us? It seems to me that anyone who has been arrested or convicted of a crime in the U.S. or abroad should talk to a lawyer about possible asylum bars. Also, if you have engaged in any conduct--whether voluntarily or against your will--that might be viewed as persecuting others or involvement with terrorists, you should talk to a lawyer. This includes people who have paid a ransom to terrorists or who paid money at a terrorist-controlled checkpoint. In short, all of these scenarios are potential bars to asylum and it is important to have assistance from someone who can provide legal guidance.
Finally, if you are not eligible for asylum due to your criminal history, you still may be eligible for other, lesser forms of humanitarian relief, such as Withholding of Removal and protection under the United Nations Convention Against Torture (though certain, more limited bars may apply to those forms of relief as well).
It is always helpful to have a competent attorney to assist with an asylum case. But there are certain times when a lawyer is particularly necessary. Dealing with criminal, national security, and terrorism issues is one of those times. And so if you have concerns that any of these bars might apply to you, talk to a lawyer and get the help you need to navigate this difficult legal minefield.
Originally posted on the Asylumist: www.Asylumist.com
