The category of conviction that most often affects asylum applications is the “particularly serious crime.”[379]  A person convicted of an aggravated felony is not eligible for asylum, as any aggravated felony conviction is considered automatically to be a “particularly serious crime” for asylum purposes.[380]  A different rule applies to applicants for withholding of removal[381] or relief under the Convention Against Torture.[382]

 

Asylum may also be denied on other criminal grounds,[383] including upon a finding that there are serious reasons to believe that the noncitizen has committed serious nonpolitical offenses outside the United States prior to their arrival in the United States,[384] “reasonable grounds” exist for believing the noncitizen is a danger to the security of the United States,[385] and where the noncitizen is “described in” the terrorist ground of inadmissibility[386] or the security ground[387] of deportation.[388]

[379] In Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982), modified, Matter of C, 20 I. & N. Dec. 529 (BIA 1992), the BIA stated that “[i]n judging the seriousness of a crime, we look to 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.”

[380] INA § 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B)(i).

[381] See § 2.47, infra.

[382] See § 2.8, supra.

[383] See INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A).

[384] Chay-Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. May 6, 2004) (noncitizen who had committed serious nonpolitical crimes in native country ineligible for asylum or withholding or removal).

[385] Cheema v. INS, 350 F.3d 1035 (9th Cir. Dec. 1, 2003) (BIA denial of withholding reversed for lack of evidence that reasonable grounds exist to believe defendants are danger to security of the United States).  See also Bellout v. Ashcroft, 363 F.3d 975 (9th Cir. Apr. 12, 2004) (no judicial review of IJ finding that noncitizen is ineligible for asylum as someone found to engage in, or to be likely to engage in, terrorist activity).

[386] INA § 212(a)(3)(B)(i), 8 U.S.C. § 1182(a)(3)(B)(i).

[387] INA § 237(a)(4)(B), 8 U.S.C. § 1227(a)(4)(B).

[388] INA § 208(b)(2)(A)(v), 8 U.S.C. § 1158(b)(2)(A)(v).  Note that the REAL ID Act greatly expanded the terrorism grounds of inadmissibility and deportability. See REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, § § 103-104 (May 11, 2005).  For further discussion of asylum and criminal record, see ILRC § 11.14 and Immigration Law and Crimes § 9:17.

BIA

ADJUSTMENT OF STATUS " ASYLEE
Matter of C-J-H, 26 I. & N. Dec. 284 (BIA 2014) (noncitizen who has already adjusted status from asylee to LPR cannot re-adjust under INA 209(b), as a defense to removal).

RELIEF " ASYLUM " SERIOUS NONPOLITICAL CRIME
Matter of EA, 26 I&N Dec. 1 (BIA Sept. 11, 2012) (an IJ should balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal aspect of the acts outweighs their political nature).

RELIEF " POLITICAL ASYLUM " CRIMES " REMOVAL PROCEEDINGS
Matter of DK, 25 I&N Dec. 761 (BIA Apr. 2012) (noncitizen refugee under INA 207, 8 U.S.C. 1157, who has not adjusted status to LPR status may be placed in removal proceedings without a prior determination by the DHS that the noncitizen is inadmissible; distinguishing Matter of Garcia-Alzugaray, 19 I&N Dec. 407 (BIA 1986); when removal proceedings are initiated against a noncitizen who has been "admitted" to the United States as a refugee, the charges of removability under INA 237, 8 U.S.C. 1227 apply).

RELIEF " WITHHOLDING OF DEPORTATION " PARTICULARLY SERIOUS CRIME " PROCEDURE FOR DETERMINING
Matter of RAM, 25 I&N Dec. 657 (BIA 2012) (In determining, on a case by case basis, whether an offense is a particularly serious crime, see Delgado v. Holder, 648 F.3d 1095, 1106-07 (9th Cir. 2011), we examine the nature of the conviction, the type of sentence imposed, and the circumstances and underlying facts of the conviction. Matter of N-A-M-, 24 I&N Dec. 336, 342 (BIA 2007), affd, N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011); see also Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999) (determining that consideration of the individual facts and circumstances is appropriate); Matter of Q-T-M-T-, 21 I&N Dec. 639 (BIA 1996). [A]ll reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction. Matter of N-A-M-, 24 I&N Dec. at 342; see also Anaya-Ortiz v. Holder, 594 F.3d 673, 678-79 (9th Cir. 2010) (holding that it is proper to consider the respondents testimony in a particularly serious crime determination).).

REMOVAL PROCEEDINGS " EVIDENCE
Matter of Velasquez, 25 I&N Dec. 680 (BIA 2012) (to be admissible as evidence of a conviction, an electronic disposition must comply with the authentication requirements of 8 CFR 1003.41(d)).

RELIEF - ASYLUM - WITHHOLDING
Matter of SK, 23 I&N Dec. 936 (BIA Jun. 8, 2006) (contribution of $1,100 to an organization associated with a terrorist organization was sufficient to demonstrate "material support" of a terrorist organization, thereby disqualifying respondent from asylum and withholding of removal, even though respondent arguably did not intend the donation to be used for terrorist activities; INA 212(a)(3)(B) does not allow a "totality of the circumstances" in determining whether an organization is engaged in terrorist activity).

First Circuit

RELIEF - POLITICAL ASYLUM - FRIVOLOUS ASYLUM APPLICATION
Tchuinga v. Gonzales, 545 F.3d 54 (1st Cir. Jul. 7, 2006) (noncitizen ineligible for adjustment of status due to prior submission of a frivolous asylum application; court lacks jurisdiction to review frivolous asylum application because it was not raised in the motion to reopen). http://laws.lp.findlaw.com/1st/051875.html

Third Circuit

JUDICIAL REVIEW - PARTICULARLY SERIOUS CRIME - WITHOLDING
Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (decision that criminal offense was a "particularly serious crime" not barred from judicial review, since the question is a matter of law, not in the discretion of the Attorney General). http://caselaw.lp.findlaw.com/data2/circs/3rd/051632p.pdf

RELIEF - WITHHOLDING - PARTICULARLY SERIOUS CRIME - CRIME MUST BE AGGRAVATED FELONY TO BE PSC
Alaka v. Attorney Gen., 456 F.3d 88 (3d Cir. Jul. 18, 2006) (BIA decision that bank fraud conviction was a "particularly serious crime" reversed because offense must be an aggravated felony to be considered a PSC and petitioner's bank fraud conviction was not an aggravated felony). http://caselaw.lp.findlaw.com/data2/circs/3rd/051632p.pdf

Fourth Circuit

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - NON-AGGRAVATED FELONY CAN BE PSC
Gao v. Holder, ___ F.3d ___, ___, 2010 WL 624312 (4th Cir. Feb. 23, 2010) (federal conviction for unlawful export of military technology, in violation of 50 U.S.C. 1702 and 1705(b), was a "particularly serious crime," even though it was not classified as an aggravated felony: "We defer to the BIA's reasoned view that an offense need not be an aggravated felony to qualify as a particularly serious crime for purposes of withholding. Furthermore, we conclude that the BIA may determine that a non-aggravated felony is a particularly serious crime for purposes of asylum through the process of case-by-case adjudication.").

RELIEF - 209(C) WAIVER
Saintha v. Mukasey, 516 F.3d 243 (4th Cir. Feb. 14, 2008) (adjustment of status with waiver under INA 209(c) is not available to a refugee that has already adjusted status).

Fifth Circuit

RELIEF - POLITICAL ASYLUM
Jean v. Gonzales, ___ F.3d ___, 2006 U.S. App. LEXIS 14281 (5th Cir. Jun. 9, 2006) (attorney general did not act ultra vires to the Act in creating and applying new heightened standards for allowing for adjustment of status and discretionary grant of relief from inadmissibility under INA 209(c), since the Jean heightened waiver standard is rationally related to the national immigration policy of not admitting aliens who would be a danger to society and within the attorney generals discretion). Citing Rivas--Gomez v. Gonzales, 441 F.3d 1072, 1079 (9th Cir. 2006).

Sixth Circuit

RELIEF - POLITICAL ASYLUM - SERIOUS NONPOLITICAL CRIME
Berhane v. Holder, 606 F.3d 819 (6th Cir. Jun. 4, 2010) (determination of whether asylum applicant has committed a serious non-political crime is a non-discretionary decision subject to appellate review; case remanded to the BIA for further explanation of why throwing rocks at Ethiopian police officers would not be considered a political offense sufficient to allow him to qualify for asylum).

RELIEF - WITHHOLDING OF REMOVAL - SERIOUS NONPOLITICAL CRIMES
Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. Mar. 5, 2010) (denying withholding of removal where noncitizen testified he had assaulted another with a bat as part of a gang in Honduras).

RELIEF - ASYLUM
Stolaj v. Holder, 577 F.3d 651 (6th Cir. Aug. 19, 2009) (status as a former asylee granted LPR status does not prevent DHS from initiating removal proceedings based on fraud at the time asylum was granted).

Seventh Circuit

RELIEF " CONVENTION AGAINST TORTURE " DEFERRAL OF REMOVAL " JUDICIAL REVIEW
Wanjiru v. Holder, 705 F.3d 258 (7th Cir. Jan. 11, 2013) (court has jurisdiction to review denial of a request for deferral of removal under the Convention Against Torture; INA 242(a)(2)(C) does not bar review).

RELIEF " ASYLUM
Pronsivakulchai v. Holder, 646 F.3d 1019 (7th Cir. Jul. 25, 2011) (asylum, withholding and CAT barred under 8 U.S.C. 1158(b)(2)(A)(iii), 8 U.S.C. 1231(b)(3)(B)(iii), and 8 C.F.R. 1208.16(d)(2), respectively, where government had serious reason to believe that petitioner had committed offenses related to drug trafficking).

RELIEF - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME - RESIDENTIAL BURGLARY
Issaq v. Holder, 617 F.3d 962 (7th Cir. Aug. 17, 2010) (Illinois conviction of residential burglary crime leading to an aggregate of more than five years' imprisonment constituted a "particularly serious crime" felony for purposes of withholding of removal).

RELIEF - WITHHOLDING OF REMOVAL - POLITICAL ASYLUM
Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (success in establishing persecution for purposes of withholding of removal necessarily implies standards for asylum have also been met; upon remand after determining conviction was not a particularly serious crime for asylum purposes, only remaining issue in asylum claim is whether asylum should be granted as a matter of discretion), following INS v. Cardoza-Fonseca, 480 U.S. 421, 448-449 (1987); Ghebremedhin v. Ashcroft, 392 F.3d 241, 244 (7th Cir. 2004).

RELIEF - 209(c) WAIVER FOR REFUGEES
Gutnik v. Gonzales, 469 F.3d 683 (7th Cir. Nov. 29, 2006) (deferring to BIAs determination that refugee status automatically terminates upon adjustment to LPR and therefore 209(c) waiver is unavailable to former refugee-LPR seeking to re-adjust to avoid removal).

RELIEF - WAIVER - HEIGHTENED HARDSHIP STANDARD FOR ASYLEES/REFUGEES CONVICTED OF DANGEROUS CRIMES IS NOT ULTRA VIRES TO THE STATUTE
Ali v. Achim, 468 F.3d 462 (7th Cir. Nov. 6, 2006) (Attorney General's heightened "exceptional and extremely unusual hardship" standard, under Matter of Jean, 23 I. & N. Dec. 373, 383 (A.G. 2002), for aliens convicted of "violent or dangerous" criminal acts who seek to adjust status under INA 209(c), 8 U.S.C. 1159(c)); accord, Rivas-Gomez v. Gonzales, 441 F.3d 1072, 1078 (9th Cir. 2006); Jean v. Gonzales, 452 F.3d 392, 397 (5th Cir. 2006).

Eighth Circuit

RELIEF - ASYLUM
Freeman v. Holder, ___ F.3d ___, ___, 2010 WL 760238 (8th Cir. Mar. 8, 2010) (noncitizen who has been granted a waiver of inadmissibility under INA 209(c) is still "removable" for purposes of barring circuit court jurisdiction under INA 242(a)(2)(C), 8 U.S.C. 1252(a)(2)(C)).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME
Tian v. Holder, 576 F.3d 890 (8th Cir. Aug. 19, 2009) (court lacked jurisdiction to review BIAs finding that noncitizens federal conviction of unauthorized access to a computer, in violation of 18 U.S.C. 1030(a)(4), qualified as a particularly serious crime).

EVIDENCE - HEARSAY - POLICE REPORTS - ASYLUM - PARTICULARLY SERIOUS CRIME
Solis v. Mukasey, 515 F.3d 832 (8th Cir. Feb. 8, 2008) (police report, although hearsay, was allowed into evidence for purposes of rebutting respondents version of the underlying facts of controlled substances conviction in determining whether the conviction was for a particularly serious crime).

Ninth Circuit

RELIEF " WITHHOLDING OF REMOVAL " PARTICULARLY SERIOUS CRIME " TRANSPORTATION OF METHAMPHETAMINES
Perez-Palafox v. Holder, 744 F.3d 1138 (9th Cir. Mar. 11, 2014) (California conviction for transportation of methamphetamine, in violation of California Health and Safety Code 11379(a), constituted a particularly serious crime for purposes of barring withholding of removal).

RELIEF " ASYLUM " WITHHOLDING " PARTICULARLY SERIOUS CRIME " RESISTING ARREST
Alphonsus v. Holder, 705 F.3d 1031, 2013 WL 208930 (9th Cir. Jan. 18, 2013) (particularly serious crime exception to withholding of removal was not facially unconstitutionally vague).

RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME " MAIL FRAUD
Arbid v. Holder, 674 F.3d 1138 (9th Cir. Apr. 3, 2012) (neither BIA nor IJ abused their discretion in holding that petitioner was convicted of a "particularly serious crime" rendering him ineligible for asylum or withholding of removal).

RELIEF " POLITICAL ASYLUM " PARTICULARLY SERIOUS CRIME " RESIDENTIAL BURGLARY
Lopez-Cardona v. Holder, ___ F.3d ___, 2011 WL 5607634 (9th Cir. Nov. 10, 2011) (California conviction for residential burglary, in violation of Penal Code 459, constitutes a crime of violence under 18 U.S.C. 16(b), and is therefore a particularly serious crime); see United States v. Becker, 919 F.2d 568 (9th Cir. 1990) (California conviction of first-degree burglary under California Penal Code 459 is categorically a crime of violence under 18 U.S.C. 16(b) because the crime inherently involves a substantial risk of physical force); Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (The reckless disregard in[18 U.S.C.] 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime. The classic example is burglary. A burglary would be covered under 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.) (footnote omitted).

RELIEF " ASYLUM " CRIMINAL BARS " SERIOUS NONPOLITICAL CRIME
Go v. Holder, __ F.3d __, 2011 WL 1678196 (9th Cir. May 5, 2011) (The INA bars an applicant from obtaining asylum and withholding relief when there are serious reasons to believe that he or she committed a serious nonpolitical crime before arriving in the United States. 8 U.S.C. 1158(b)(2)(A)(iii) (asylum), 1231(b)(3)(B)(iii) (withholding). We interpret serious reasons' to believe as being tantamount to probable cause. McMullen v. INS, 788 F.2d 591, 599 (9th Cir.1986), overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n. 7 (9th Cir.2005) (en banc) (per curiam). Under our precedent, we must uphold the Board's conclusion that an alien is ineligible for relief if that determination is supported by substantial evidence. See id. We may reverse the decision of the Board only if the applicant shows that the evidence compels the conclusion that the asylum decision was incorrect. See Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.2006).; admission by respondent to drug trafficking in removal proceedings sufficient to establish serious reason to believe respondent had engage in a serious nonpolitical crime).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - NO JUDICIAL REVIEW
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("We do not have jurisdiction to evaluate discretionary decisions by the Attorney General, see 8 U.S.C. 1252(a)(2)(B)(ii), and therefore lack jurisdiction over the BIA's ultimate determination that Anaya committed a "particularly serious crime" when he drunkenly drove his car into an elderly victim's house and caused part of the wall to collapse on her."); see Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.2005) (holding that "when the Attorney General decides that the alien's offense was a particularly serious crime, we lack jurisdiction to review such a decision because it is discretionary") (citation omitted); Afridi v. Gonzales, 442 F.3d 1212, 1218 (9th Cir.2006), overruled in part on other grounds by Estrada-Espinoza v. Mukasey, 546 F.3d 1147, 1160 n.15 (9th Cir.2008) (en banc).

RELIEF - ASYLIM - PARTICULARLY SERIOUS CRIME - EVIDENCE
Anaya-Ortiz v. Holder, (9th Cir. Jan. 25, 2010) (either party may introduce all reliable evidence concerning whether a conviction constitutes a particularly serious crime), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009); deferring to Matter of NAM, 24 I. & N. Dec. 336, 342, 344 (BIA October 24, 2007) ("all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction"); see Morales v. Gonzales, 478 F.3d 972, 980, 982 (9th Cir. 2007).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - EVIDENCE
Anaya-Ortiz v. Holder, 594 F.3d 673 (9th Cir. Jan. 25, 2010) (the Immigration Judge may consider respondent's testimony at the removal hearing in holding that he had been convicted of a "particularly serious crime"; "Where the BIA does not make an explicit adverse credibility finding, we must assume that [the petitioner's] factual contentions are true."), withdrawing and superseding opinion previously published at 553 F.3d 1266 (9th Cir. Jan. 27, 2009); see Matter of NAM, 24 I. & N. Dec. 336, 342, 344 (BIA October 24, 2007) ("all reliable information may be considered in making a particularly serious crime determination, including the conviction records and sentencing information, as well as other information outside the confines of a record of conviction").

RELIEF - ASYLUM - ADJUSTMENT OF STATUS
Robleto-Pastora v. Holder, 567 F.3d 437 (9th Cir. May 27, 2009) (a noncitizen who has adjusted status under INA 209(b) is no longer an asylee; the DHS does not have to terminate asylee status officially under INA 208(c)(2), (3), 8 C.F.R. 208.22, 208.24).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (non-aggravated felony may still be considered a "particularly serious crime" for purposes of withholding of removal; the Attorney General may determine by adjudication that a crime is "particularly serious" without classifying it as such by regulation).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - COURT OF APPEAL HAS PETITION FOR REVIEW JURISDICTION TO REVIEW MERITS OF PARTICULARLY SERIOUS CRIME DETERMINATION FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (court of appeal has jurisdiction to review the merits of a "particularly serious crime" determination for purposes of asylum, because this question is specifically exempted from the jurisdiction-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii)), following Morales v. Gonzales, 478 F .3d 972, 980 (9th Cir. 2007).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - DEFINITION OF PARTICULARLY SERIOUS CRIME
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) ("Although the Convention did not define "particularly serious crime," it did create another exception for aliens who had committed a "serious nonpolitical crime" outside of the country of refuge. Convention, art. 1.F.b. As the BIA has stated, "it should be clear that a particularly serious crime is not the equivalent of a serious nonpolitical crime . Further, a particularly serious crime is more serious than a serious nonpolitical crime...." Frentescu, 18 I. & N. Dec. at 247. With reference to a "serious nonpolitical crime," the Handbook on Procedures and Criteria for Determining Refugee Status states that "a serious' crime must be a capital crime or a very grave punishable act." Handbook, 155, HCR/IP/4/ENG/REV.1 (Jan.1992).").

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME - CONVICTION OF DRIVING UNDER THE INFLUENCE IS NOT A PARTICULARLY SERIOUS CRIME FOR PURPOSES OF ASYLUM
Delgado v. Holder, 563 F.3d 863 (9th Cir. Apr. 17, 2009) (superseding earlier opinion, 546 F.3d 1017 (9th Cir. October 8, 2008) (three convictions for felony DUI, one of which involved an injury accident, and two of which resulted in prison terms of less than five years each, did not constitute particularly serious crimes for purposes of barring asylum: it was an abuse of discretion to hold otherwise, because "they do not exceed the 'capital or grave' standard of 'serious' nonpolitical crimes, and Frentescu indicates that particularly serious crimes should exceed that standard.").

ASYLUM - PARTICULARLY SERIOUS CRIME - DANGER TO THE COMMUNITY
Anaya-Ortiz v. Mukasey, 553 F.3d 1266 (9th Cir. Jan. 27, 2009) ("The BIA's approach to determining whether a crime is particularly serious has evolved since Matter of Frentescu. Matter of N-A-M-, 24 I. & N. Dec. at 342. As Matter of N-A-M-, explains, once an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether the alien is a danger to the community. Id. Thus, [o]nce the INS makes a finding that an offense constitutes a particularly serious crime, a separate determination of danger to the community is not required. Kankamalage v. INS, 335 F.3d 858, 861 n. 2 (9th Cir.2003). This revised approach is contained in the current BIA regulations, which provide that an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community. 8 C.F.R. 1208.16(d)(2); see also Matter of Carballe, 19 I. & N. Dec. 357, 360 (BIA 1986) (explaining that a separate determination of dangerousness focusing on the likelihood of future serious misconduct on the part of the alien is not required by the statute because, when determining whether a conviction is for [a particularly serious] crime, the essential key is whether the nature of the crime is one which indicates that the alien poses a danger to the community).

RELIEF " POLITICAL ASYLUM
Valencia v. Mukasey, 548 F.3d 1261 (9th Cir. Dec. 4, 2008) (Immigration Judge has no duty to inform a respondent of his right to apply for asylum, withholding of removal or relief under the convention against torture unless the respondent specifically and affirmatively expresses a fear of return to his country of origin).

RELIEF - ASYLUM - PARTICULARLY SERIOUS CRIME
Morales v. Gonzales, 472 F.3d 689 (9th Cir. Jan. 3, 2007) (IJ erred in relying on facts in a Washington appellate court's opinion to determine whether petitioner's prior conviction was for a particularly serious crime, but a large portion of the facts relied upon applied to offenses for which she was not convicted). http://caselaw.lp.findlaw.com/data2/circs/9th/0570672p.pdf

RECORD OF CONVICTION - PARTICULARLY SERIOUS CRIME - LIMITED TO RECORD OF CONVICTION
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) ("only the record of conviction and sentencing information may be considered in determining whether Morales's conviction was for a particularly serious crime."), citing In re L-S-, 22 I. & N. Dec. 645, 651 (BIA 1999).

RELIEF - ASYLUM - WITHHOLDING - PARTICULARLY SERIOUS CRIME - MISDEMEANOR CONVICTION OF COMMUNICATION WITH MINOR FOR IMMORAL PURPOSES CONSTITUTED CMT BUT WAS NOT FOUND TO BE PARTICULARLY SERIOUS CRIME
Morales v. Gonzales, 472 F.3d 689, 2007 WL 10033 (9th Cir. Jan. 3, 2007) (Washington conviction of communication with a minor for immoral purposes, in violation of Wash. Rev. Code 9.68A.090, constituted crime of moral turpitude, but was not found to be particularly serious crime to bar applications for asylum and withholding of deportation by Immigration Judge, so question was not presented on appeal or petition for review).

RELIEF - ASYLUM - WITHHOLDING OF REMOVAL - PARTICULARLY SERIOUS CRIME - PRESUMPTION THAT DRUG TRAFFICKING OFFENSE WITH SENTENCE UNDER FIVE YEARS IS PSC
Miguel-Miguel v. Gonzales, ___ F.3d ___, 2007 WL 2429377 (9th Cir. 2007) ("We hold that the Attorney General's construction of 1231(b)(3)(B) as providing him with discretion to create a strong presumption that drug trafficking offenses are particularly serious crimes is not impermissible. [A]fter Matter of Y-L-, a Frentescu analysis is no longer required with regard to drug trafficking offenses. ... We agree that the BIA applied Matter of Y-L- retroactively to Miguel, and that it was forbidden from doing so by Montgomery Ward.").

RELIEF - POLITICAL ASYLUM - REFUGEE MAY BE REMOVED EVEN IF REFUGEE STATUS HAS NEVER BEEN TERMINATED
Kaganovich v. Gonzales, ___ F.3d ___, 2006 WL 3623131 (9th Cir. Dec. 12, 2006) (a noncitizen who arrives in the United States as a refugee may be removed even if their refugee status has never been terminated pursuant to 8 U.S.C. 1157(c)(4)). http://caselaw.lp.findlaw.com/data2/circs/9th/0470625p.pdf

RELIEF - ASYLUM - WITHHOLDING - PARTICULARLY SERIOUS CRIMES
Almaghzar v. Gonzales, 450 F.3d 415 (9th Cir. Jun. 8, 2006) (court lacks jurisdiction to review claim that IJ erred in concluding that alien's felony convictions constituted particularly serious crimes).

Tenth Circuit

RELIEF - WITHHOLDING OF DEPORTATION - PARTICULARLY SERIOUS CRIME
N-A-M v. Holder, 587 F.3d 1052 (10th Cir. Nov. 20, 2009) (Colorado conviction of felony menacing, in violation of Colo.Rev.Stat. 18-3-206(1)(a), (b), may constitute a particularly serious crime, for purposes of barring withholding, even though it is not an aggravated felony), disagreeing with Alaka v. Atty. Gen'l of the U.S., 456 F.3d 88, 104 (3d Cir.2006) ("The plain language and structure (i.e., context) of the statute indicate that an offense must be an aggravated felony to be sufficiently serious.").

RELIEF -WITHHOLDING OF DEPORTATION - PARTICULARLY SERIOUS CRIME - SEPARATE DETERMINATION OF DANGER TO THE COMMUNITY NOT REQUIRED
N-A-M v. Holder, 587 F.3d 1052, 1057 (10th Cir. Nov. 20, 2009) ("Section 1231(b)(3)(b)(ii) empowers the Attorney General to deny withholding to alien petitioners upon a determination that the petitioner "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." The BIA construes this provision as requiring only an inquiry into whether the alien has committed a particularly serious crime. "[O]nce an alien is found to have committed a particularly serious crime, we no longer engage in a separate determination to address whether an alien is a danger to the community." 24 I. & N. Dec. at 342." This is a reasonable interpretation of the statute).

Eleventh Circuit

RELIEF " ASYLUM " INA 209(c) WAIVER " VIOLENT OR DANGEROUS CRIME RELIEF " INA 212(h) WAIVER " VIOLENT OR DANGEROUS
Makir-Marwil v. Atty' Gen., 681 F.3d 1227 (11th Cir. May 22, 2012) (Matter of Jean standard for "violent or dangerous" crimes may be determined by either a categorical or factual analysis of the offense; IJ and BIA erred in failing to consider individual hardship, including country conditions, in determining that applicant would suffer exceptional and extremely unusual hardship).

Other

RELIEF - ASYLUM - POST CON RELIEF - REHABILITATIVE RELIEF MAY BE EFFECTIVE TO ELIMINATE A CONVICTION FOR PURPOSES OF ELIGIBILITY FOR RELIEF - ASYLUM OR WITHHOLDING OF REMOVAL
Argument: An expungement or other rehabilitative relief should be effective to eliminate any conviction for purposes of eligibility for asylum or withholding of removal, because these statutes use the term "judgment of conviction" rather than "conviction." Since INA 101(a)(48)(A) merely defines "conviction," and discusses when a disposition that is not a judgment of conviction will constitute a "conviction" for immigration law, it arguably do not define what constitutes a "judgment of conviction" and 101(a)(48)(A) does not control in asylum and withholding context. Therefore, Matter of Roldan and subsequent cases holding that rehabilitative relief does not eliminate a conviction do not apply in this context. Thanks to Manny Vargas. Immigration counsel can also argue that post-conviction relief effectively eliminates the conviction. Thanks to Katherine Brady.

RELIEF - ASYLUM - WITHHOLDING - PARTICULARLY SERIOUS CRIME
In determining whether a conviction constitutes a "particularly serious crime" ("PSC") sufficient to disqualify a noncitizen from asylum or withholding of removal, there are two basic tests. First, if the offense is considered an aggravated felony, the noncitizen is disqualified for asylum, and is disqualified from withholding if the sentence imposed is for five years or more. INA 208(b)(2)(A); 241(b)(3)(B). Even if a conviction is found not to be a particularly serious crime under this test, the conviction may still be found by the IJ to be a PSC by looking at the factors described in Matter of Frentescu, 20 I. & N. Dec. 244, 247 (BIA 1982). These factors include: 1) nature of the conviction; 2) circumstances and underlying facts of the conviction; 3) type of sentence imposed; and "most importantly" 4) "whether the type and circumstances of the crime indicate that the alien will be a danger to the community." Id. This test does not involve "an examination of the respondents family or community ties, the risk of persecution in the aliens native country" or going "behind the record of conviction to redetermine the aliens innocence or guilt." Matter of L-S-, 22 I&N Dec. 645, 651 (BIA 1999). A misdemeanor normally should not be considered a PSC. See Matter of Juarez, Int. Dec. 3066 (BIA 1988) (misdemeanor assault with deadly weapon). The BIA has noted that "[c]rimes against the person are more likely to be categorized as particularly serious crimes." Id. The Attorney General, in Matter of Jean, 23 I. & N. Dec. 373, 385 (A.G. 2002), has additionally held that, even where the conviction is not considered an aggravated felony, "except . . . in extraordinary circumstances, such as those involving national security or foreign policy considerations, or in cases in which the alien clearly demonstrates that the denial of relief would result in exceptional and extremely unusual hardship" any "violent or dangerous" crimes will be considered PSC. Matter of Jean involved a second-degree manslaughter conviction arising from an incident where the asylum applicant had shaken and otherwise injured a baby in an attempt to make the baby stop crying. There are relatively few cases where the BIA has actually determined whether an offense is a PSC: "The BIA has found the following to be particularly serious crimes: burglary of a dwelling which included aggravating circumstances, Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986); shooting with intent to kill, Nguyen v. INS, 991 F.2d 621, 626 (10th Cir. 1993); and robbery, Matter of Carballe, 19 I&N Dec. 357 (BIA 1986); Cepero v. BIA, 882 F.Supp. 1575, 1580 (D. Kan. 1995). The courts have held that possession of cocaine for sale and possession of heroin with intent to distribute are particularly serious crimes. Crespo-Gomez v. Richard, 780 F.2d 932 (11th Cir. 1986) [Cocaine]; Mahini v. INS, 779 F.2d 1419, 1421 (9th Cir. 1986) [Heroin], but simple possession of cocaine is not, Matter of Toboso-Alfonso, 20 I&N Dec. 819 (A.G. 1994). The BIA takes the view that any drug trafficking crime as defined under federal law, no matter how small, is a particularly serious crime. Matter of U-M-, 20 I&N Dec. 327 (BIA 1991). But see Beltran-Zavala v. INS, 912 F.2d 1027 (9th Cir. 1990) [Rejecting view that all drug crimes are per se "particularly serious" and requiring that BIA view them on a case-by-case basis]. Handbook 152-156." Kurzbans Immigration Law Sourcebook, 357 (Ninth Ed. 2004).

RELIEF - POLITICAL ASYLUM - RESEARCHING COUNTRY CONDITIONS
Criminal defense counsel should consider investigating the human rights situation in the client's country of origin. If the client may be persecuted or tortured if deported back, the criminal prosecutor or court may be more open to allowing a non-deportable plea bargain or granting post-conviction relief to eliminate a deportable prior conviction. Immigration counsel may already have investigated a claim under the political asylum, withholding of deportation, or Convention Against Torture immigration laws and may already have factual materials indicating the client's family members have been beaten or persecuted on account of race, religion, or other asylum characteristics. Note that for use in the criminal courts, a case can be made that deportation would be a disaster for the client even if the situation does not fit within the restrictions of these immigration law claims. One of the best books on the subject of asylum (although somewhat outdated) is D. ANKER, THE LAW OF ASYLUM IN THE UNITED STATES (3d ed. 1999), with 2002 Supplement. The Department of Justice has the State Department Country Reports, including general information on human rights abuses country by country, at usdoj.gov/eoir/ in the Virtual Law Library. An excellent resource for researching country conditions is maintained by the Univerisity of Washington School of Law Library at http://lib.law.washington.edu/ref/asylum.html#.