The Risks Of Asylum

The Risks Of Asylum For People Who Are Not In Immediate Danger

A man who fled his home country for fear of being persecuted yet finds himself in the United States is likely to be very grateful for the opportunity to stay. He will probably want to show this gratitude by living as law-abiding a life as possible. However, like all people, he may find it difficult to resist breaking some laws out of ignorance or even recklessness.

If he does break laws and finds himself charged with criminal offenses (not simply violations), how might this threaten his ability to remain in the United States? This article considers two issues: first, whether certain types of convictions can bar an applicant from the asylum; second, what other legal problems could arise if someone should commit crimes during the time that their asylum application is pending.

Conviction of certain crimes can make someone ineligible for asylum.

The very first ground of inadmissibility to the U.S., contained within section 212(a)(2) of the Immigration and Nationality Act, provides that “[e]xcept as otherwise provided in this Act, any alien who…is convicted of a crime involving moral turpitude committed within five years…after the date of admission” shall be inadmissible.

Conviction means that a person has either pleaded guilty to or been found guilty beyond a reasonable doubt via trial by jury or judge (usually called the guilt phase). Whether an offense involves moral turpitude is determined by reference to both state criminal law and federal immigration law. Generally, the most difficult aspect of determining whether a conviction is a crime involving moral turpitude is figuring out which offenses fall within the definition.

There are some types of crimes that will almost always be considered crimes involving moral turpitude, regardless of jurisdiction or offense statute. In particular, a conviction for murder or any attempt or conspiracy to commit murder requires an alien to be barred from asylum eligibility.

Likewise, once someone has been convicted of a narcotics trafficking aggravated felony under immigration laws (that is, at least one year imprisonment with five years supervised release), they cannot qualify for asylum. Many specific criminal statutes contain elements requiring proof of moral turpitude—for example, false statements made under oath to obtain benefits from the government, perjury, bribery, and black market operations.

In addition to these types of crimes that automatically render an alien ineligible for asylum, courts have found many other offenses involving moral turpitude. In all cases, it is a question of fact whether a conviction involves moral turpitude and thus makes a person inadmissible.

Some examples of crimes that may be considered crimes involving moral turpitude include: cruelty toward spouse or child; homicide attempt; manslaughter; robbery with threat or use of violence; destruction of property with explosives/fire/arson; possession or cut-possession with intent to sell drugs such as LSD, heroin, cocaine, etc.; filing false documents to conceal facts from the U.S., such as concealing one’s true nationality; receiving stolen property; perjury; false testimony or evidence; forgery; counterfeiting or alteration of documents with intent to defraud (this includes using a false social security number); bribery (although one could argue that this is not always a crime involving moral turpitude); making, drawing, or uttering check without sufficient funds to cover it with intent to defraud; tax evasion; failure to appear in court on criminal charges when release is provided for by bond, etc.

However, even if an offense normally falls within the definition of crimes involving moral turpitude, it will not necessarily render someone ineligible for asylum if they can show that it lacks the required element of fraud or deceit—that they did not act with knowledge of wrongdoing or criminal intent. This is called the “defacto” requirement.

An alien may be ineligible for asylum if he or she committed a serious nonpolitical crime outside the U.S., before arrival in this country, even if it doesn’t meet the definition of crimes involving moral turpitude. The seriousness of the crime will be weighed against possible hardship to family members who are either American citizens or have already received asylum, among other factors.

What constitutes a “serious nonpolitical crime” is not defined precisely in statute or regulation, but there are some offenses that qualify, such as murder and rape. Some examples of crimes that might fall within this category include terrorism; sabotage; arms trafficking; espionage; genocide; money laundering over $10,000; violent crimes with a sentence of one year or more.

One way to find out whether a conviction is a crime involving moral turpitude is to file an I-589 Application for Asylum and Withholding of Removal when you enter the U.S., before your credible fear interview at the asylum office. If it turns out that a judge later determines you were not convicted of a CIMT, then your application will automatically be considered by an immigration judge under ordinary rules. However, if USCIS grants your application for asylum or withholding based on your being convicted of a CIMT, then there is no review by an immigration judge—the becomes final immediately. If you file an I-589 Application for Asylum and Withholding of Removal after your credible fear interview, then there will be no opportunity to argue that your conviction does not involve moral turpitude.

On the other hand, even if a court (or USCIS via asylum grant) determines that one has been convicted of a CIMT, this crime alone will not make an alien ineligible for withholding of removal or protection under the Convention Against Torture (CAT). The immigration judge would look at the totality of circumstances in determining whether to grant withholding or CAT protection based on the commission of such crimes. To find the alien ineligible for these forms of relief, it must be shown that he committed particularly serious crimes and shows utter disregard for human life and dignity.

An additional complication is cases involving domestic violence. A review of Board of Immigration Appeals (BIA) decisions involving an application for asylum or withholding based on a crime of domestic violence suggests that the BIA tends to find such crimes as not involving moral turpitude, even if they involve physical force against the person with whom the alien has a child in common—such as, perhaps, an ex-spouse or current steady girlfriend/boyfriend. As long as there was no use of a weapon and no infliction of serious injury it will be hard to establish CIMT involved in domestic violence cases. This is true whether you apply for relief under regular rules (after your credible fear interview is over), or apply for withholding or CAT protection.

If one has been convicted of a CIMT, there is no “self-filing” remedy under the new expedited removal rules. If you have been convicted of a crime involving moral turpitude and think you might qualify as a member of a special class of aliens who can apply for asylum or withholding without first going through a credible fear interview, then you should talk to an experienced immigration lawyers in Houston about your case immediately.