Aggravated Felonies

            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.