Serious Non-Political Crime

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OVERVIEW

INA ?208(b)(2)(A)(iii), before arriving in the United States. See INA ?208(b)(2)(A)(iii). See also INA ?241(b)(3)(B)(iii). Neither the Immigration and Nationality Act (INA) nor the Federal Regulations provide any further guidance as to what constitutes serious reasons for believing that the alien committed a serious nonpolitical crime[.]" INA ?208(b)(2)(A)(iii). See also INA ?241(b)(3)(B)(iii); and 8 C.F.R. ?1208.13(c). How does an alien know whether he or she would be barred from asylum for committing a serious nonpolitical crime before their arrival to the United States? The Board of Immigration Appeals (BIA) recently provided some guidance as to how to assess whether serious reasons exists to believe the asylum applicant committed a serious nonpolitical crime in the Matter of E-A-, 26 I&N Dec. 1 (BIA 2012).

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BIA guidence

INA ?208(b)(2)(A)(iii), before arriving in the United States. See INA ?208(b)(2)(A)(iii). See also INA ?241(b)(3)(B)(iii). Neither the Immigration and Nationality Act (INA) nor the Federal Regulations provide any further guidance as to what constitutes serious reasons for believing that the alien committed a serious nonpolitical crime[.]" INA ?208(b)(2)(A)(iii). See also INA ?241(b)(3)(B)(iii); and 8 C.F.R. ?1208.13(c). How does an alien know whether he or she would be barred from asylum for committing a serious nonpolitical crime before their arrival to the United States? The Board of Immigration Appeals (BIA) recently provided some guidance as to how to assess whether serious reasons exists to believe the asylum applicant committed a serious nonpolitical crime in the Matter of E-A-, 26 I&N Dec. 1 (BIA 2012).

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Analysis

The first step in the inquiry into whether the asylum applicant's conduct constitutes a serious nonpolitical crime is to determine whether the criminal conduct was of "an atrocious nature." Matter of McMullen, 19 I&N at 98. Conduct that is atrocious in nature is considered a serious nonpolitical crime. While there is no exhaustive list of what criminal conduct is considered atrocious, murder and terrorism have specifically been found to be atrocious in nature. Id. at 4. Criminal conduct that is considered atrocious in nature will result in a finding that the asylum applicant is statutorily barred from asylum and/or withholding of removal. As such, the only remaining inquiry would be whether serious reasons exist to believe the asylum applicant engaged in said conduct.

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Serious Reasons

With not "an atrocious nature", criminal acts, the next inquiry is to "balance the seriousness of the criminal acts against the political to see if applicant's acts outweighs their political character." Matter of E-A-, 26 I&N at 3 citing Aguirre-Aguirre, 526 U.S. at 429-431. No serious physical harm needs to occurs for conduct to rise to the level of a serious nonpolitical crime. Id. at 5. However, "[t]he fact that civilians were placed at risk of serious harm is a significant consideration in [the] analysis." Id.

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Political Nature

To assess the political nature of the criminal conduct, the adjudicator must consider whether (1) the act or acts were directed at a governmental entity or political organization, as opposed to a private or civilian entity; (2) they were directed toward modification of the political organization of the State; and (3) there is a close and direct causal link between the crime and its political purpose. Id. at 3 discussing McMullen v. INS, 788 F.2d 591, 597-98 (9th Cir. 1986) overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005). See also Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). It is important to keep in mind "even where there is "a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical." Id. citing Aguirre-Aguirre, 526 U.S. at 432. See also Efe v. Ashcroft, 293 F.3d at 906.

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Final Step

The final step in the inquiry is to determine whether there is serious reason to believe the asylum applicant committed a serious nonpolitical crime. There is no requirement that the asylum applicant be convicted of a serious nonpolitical crime. Rather, the BIA has interpreted the phrase "serious reasons for believing" to be equivalent of the probable cause standard. Id. An asylum applicant's own testimony can be sufficient to establish probable cause that he or she engaged in conduct that would constitute a serious nonpolitical crime. Id.

Additional Resources

For more detailed analysis please visit immigration blog at www.myattorneyusa.com

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