Can I Apply for Asylum With a Criminal Record?

A number of crimes create a mandatory bar to approval for asylum in the United States.

By , Associate Professor · Creighton University School of Law

If you are a non-citizen in the United States and you have a record that includes any of the following, you will not be eligible for asylum:

  1. conviction of a particularly serious crime
  2. commission of a serious non-political crime outside the U.S.
  3. reasons to believe that you are a danger to the security of the U.S.
  4. participation in terrorist activities, or
  5. persecution of others.

These criminal bars to asylum are mandatory. (See I.N.A. § 208(b)(2)(A) or 8 U.S.C. § 1158(b)(2)(A).) That is, even if you meet the legal definition of a "refugee," you will not be granted asylum once an Asylum Officer or an Immigration Judge finds that a criminal bar applies to you. Also, if you are applying "derivatively" through your spouse or parent who obtains asylum, but a criminal bar applies to you, you will not be eligible for asylum.

How the U.S. Government Discovers Your Criminal Record

When you apply for asylum, the U.S. government will seek information about your criminal history. Form I-589, the application for asylum, requires you to answer questions about your criminal record. Make sure to answer them truthfully and completely, and explain in detail the reasons for your criminal record. A lie on your asylum application can damage your credibility (believability) and result in nothing you say about what happened to you in the past or your fear of persecution being believed.

For more details about filling out Form I-589, see How to Prepare an Affirmative Asylum Application.

Also, the U.S. government will fingerprint and run a full criminal background check on you—it typically includes your record in and outside the United States.

Effect of Crimes Committed in the U. S. on Asylum Eligibility

A conviction of a "particularly serious crime" in the U.S. will bar you from obtaining asylum. For purposes of this bar, you will be considered to have been "convicted" only if:

  1. a judge or a jury found you guilty or you entered a plea of guilty or a plea of nolo contendere (that you are not disputing the charges against you) or you admitted enough facts to find you guilty, and
  2. the court ordered you to be punished or to pay a penalty, and
  3. the conviction is final (that is, you either waived your right to an appeal or you cannot appeal the conviction any further). Juvenile convictions do not count in this context.

"Particularly serious crimes" include:

  • Aggravated felony convictions: By statute, all aggravated felonies are automatically considered "particularly serious crimes." The U.S. immigration law's definition of "aggravated felony," which is different than the criminal law definition, includes these crimes: murder; drug/firearm/explosives trafficking; money laundering of more than $10,000; theft or violent crime with a sentence order of at least one year (it is irrelevant if it was suspended or if you had to serve only a part of it); sexual abuse of a minor or child pornography; spying; prostitution; fraud or tax evasion worth over $10,000; smuggling of undocumented aliens (except a first offense to help your immediate family members); illegal entry or reentry after a deportation based on an aggravated felony; perjury with a sentence of at least one year; and drug-related convictions (except possession for your own use of 30 grams or less of marijuana). (Also see I.N.A. § 101(a)(43).)
  • Violent or dangerous crime convictions: Violent or dangerous crimes might bar asylum. These crimes are not clearly defined in the immigration law, although they normally require evidence of intention to commit them, and that they caused harm or might have caused harm to people or property (for example, felony assaults, and sex crimes).
  • Other crimes, in some cases without an actual conviction: An Asylum Officer or Immigration Judge has discretion to determine that a crime, despite being neither an aggravated felony nor violent or dangerous, is "particularly serious." Such a finding can be made based on the particular facts of the case: the nature of the conviction; how long the sentence was; the type of sentence; the specific facts that led to conviction; whether the person is likely to be a danger to the community; work and criminal history; whether family members are U.S. citizens; how long the person has lived in the U.S.; and whether the person has been paying U.S. taxes. Using this analysis, immigration courts have barred people from asylum based on having committed crimes of domestic violence, driving while under the influence (DUI or DWI), identity theft, vehicular homicide, and more. A single conviction of a misdemeanor is normally not considered a "particularly serious crime."

    Regulations originally scheduled to take effect in late 2020 made additions to the above list, but a court subsequently put them on temporary hold, in the case of Pangea Legal Services v. DHS, 11/19/20). If the new rules survive this litigation, be prepared for them to specify that particularly serious crimes include any felony under federal or state law; alien smuggling or harboring; illegal reentry into the U.S.; any crime involving gang activity; driving while intoxicated (DUI or DWI); a domestic violence offense (even without a conviction, if an adjudicator finds the person to have engaged in these acts); a misdemeanor related to using false identification; unlawful receipt of public benefits; and possession or trafficking of a controlled substance (other than a single conviction of possession of 30 grams of marijuana for personal use).

    Effect of Crimes Committed Outside the U.S. on Asylum Eligibility

    A conviction of a "particularly serious crime" outside the United States will bar you from obtaining asylum. (See the discussion above.)

    You also cannot obtain asylum if you had committed some other crimes outside of the U.S., such as persecuting others or committing a serious nonpolitical crime in your country. Note that you can be barred from asylum even if you were not actually convicted of the following crimes:

    Persecuting Others

    You will not be eligible for asylum if you ordered, encouraged, or helped in any way in hurting or threatening (that is, "persecuting") others because of their "protected ground" (race, religion, nationality, membership in a particular social group, or political opinion). That is, even if you had been persecuted yourself because of a protected ground, you cannot meet the definition of a "refugee" if you also persecuted others.

    There is some uncertainty whether the persecutor bar applies even if you were forced to be involved in the persecution of others. If the U.S. government argues that this bar applies to you, you can improve your chances of obtaining asylum by showing that you did not know about the full scope of activities of the people who were forcing you to help them, and that your involvement with them was in no way related to their persecution of others.

    Serious Non-Political Crimes

    You might not be granted asylum if there is good reason to believe that you had committed a serious nonpolitical crime outside the U.S. before arriving here. A "serious nonpolitical crime" is defined as follows:

    • you did not commit it for purely political reasons or to try to change the political structure of a country, and
    • there is no direct connection between your crime and any alleged political purpose.

    Even if you committed a crime for purely political reasons, it might bar your asylum claim if your actions were disproportionate in comparison to your objectives (that is, if your acts were atrocious or barbaric).

    There is no requirement that you were actually convicted of a serious non-political crime. You can be barred from asylum eligibility if an Asylum Officer or an Immigration Judge finds "probable cause" (that is, reasonable belief) that you had committed such a crime. Also, you need not have personally carried out the crime: If you provided support to others committing a crime, you might be barred from asylum.

    Conviction of a Crime That Forms a Basis of Your Own Asylum Claim

    Many asylum applicants had been arrested, convicted, and spent time in jail in their home countries simply because their governments were persecuting them. That forms a basis for many asylum claims. If you were convicted of a crime in your home country, and that conviction is part of the persecution you had suffered, be sure to explain this in great detail in your asylum application.

    You should attach a detailed declaration in which you clearly state the circumstances of your conviction, and explain how you were convicted purely on account of a "protected ground." This is something a lawyer can help you with.

    Danger to the Security of the U.S. and/or Terrorist Activities

    If there are reasons to believe that you are a danger to the security of the U.S., you will not be granted asylum. There is little guidance on what facts can bring a person under this bar, and it often overlaps with the terrorist bar.

    You will not be granted asylum if the terrorist bar applies to you; that is, if any of the following are true:

    • you have engaged in terrorist activity
    • there is reasonable ground to believe that you would engage in terrorism in the U.S.
    • you ever encouraged terrorist activity (expressing an intention to cause death or serious harm)
    • you are a member of a foreign terrorist organization or a group that encourages terrorism
    • you personally endorse or support terrorism, or
    • you have been trained by or for any group that was at that time a terrorist organization.

    The U.S. government publishes a list of groups that it considers to be terrorist organizations. In addition, Asylum Officers and Immigration Judges can find other groups to be terrorists.

    There is a lot of controversy about how broadly "terrorist activity" and "terrorism" are defined. To reduce your chances of being subject to the terrorist bar, you should show that you did not know that a group you were helping was involved in terrorist activities, or that you did not know that persons you were helping were members of such a group. Also, you might want to show that your "help" to them was indirect or very insignificant, and in no way related to their terrorist activities. Showing that you were forced to help them might also be helpful.

    Because the law in this area is unclear, you should consult an attorney if you think that this bar might apply to you.

    Backup Forms of Relief Possible Even With Criminal Convictions

    In addition to asylum, remember to apply for the following forms of relief:

    • withholding of removal, and
    • protection under the U.N. Convention Against Torture ("CAT").

    Even if you are barred from obtaining asylum because of a criminal record, you might be eligible for those two forms of protection. Withholding of removal is barred by an aggravated felony conviction only if its total sentence of imprisonment was at least five years. Withholding is also probably barred by an aggravated felony conviction involving drug trafficking.

    Criminal convictions do not entirely bar eligibility for CAT protection. However, if you committed a particularly serious crime, you might receive only "deferral of removal," which is considered temporary, rather than the longer-term "withholding of removal."

    Also Keep In Mind If You Have a Criminal Record

    A criminal conviction—either in the U.S. or in another country—could have additional negative effects on your eligibility for immigration benefits beyond your asylum claim. It might, for example, make you ineligible to re-enter the U.S. after travel, to obtain a green card, or to receive U.S. citizenship. You could be deported or removed at various stages of your immigration proceedings if you have a criminal record.

    A conviction of an aggravated felony will also bar voluntary departure (which allows you to leave the U.S. voluntarily, at your own expense instead of being removed). Voluntary departure has great advantages over removal, if you have no other likely defense: If you are deported, you will not be allowed to enter the U.S. for five or ten years (depending on the reason for your removal). If you are deported a second time, you will be not be allowed to enter for 20 years. (If you are deported for an aggravated felony, you will probably never be allowed to re-enter.) Voluntary departure does not result in those prohibitions. If you have no defense to removal, try to be removed based on your unlawful presence instead of based on your criminal record, and seek voluntary departure.

    Getting Legal Help

    Once the U.S. government presents evidence that one of the criminal bars applies to you, you will then have to show by a "preponderance of the evidence" that it does not: That is, you will have to prove that it is more than 50% likely that the bar does not apply. Therefore, you must provide information during your asylum interview or when you are before an Immigration Judge that helps to explain your criminal record.

    For these and all the reasons mentioned above, if you have a criminal record, you really should consult an experienced attorney. (as well as a criminal attorney). If possible, ask the criminal court to vacate (erase) your conviction or lower your sentence, assuming you have good reasons for doing so (for example, if you had pleaded guilty without realizing that it would lead to your deportation). If your criminal case is ongoing while you are seeking immigration benefits, make sure to file a motion to continue your immigration case until after your criminal trial is completed.

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