A person who has been convicted of a “particularly serious crime” is considered under the U.S. immigration laws to constitute a danger to the community of the United States, and may not be granted asylum or withholding of removal. What constitutes a particularly serious crime?
A conviction for an aggravated felony is considered a conviction for a particularly serious crime. “Aggravated felony” is a term used in U.S. immigration law, and does not necessarily correspond to whether the conviction is a misdemeanor or felony under criminal law. Aggravated felonies include illicit trafficking in a controlled substance or firearms, crimes of violence, theft offenses, and many others crimes. A person who has been convicted of an aggravated felony may not be granted asylum. Denial of asylum in such a case is mandatory under the statute. The asylum officer or Immigration Court will not balance the positive and negative factors in the case, even where the person has a U.S. citizen spouse, parent, or child.
The U.S. Attorney General or U.S. Department of Homeland Security may designate other offenses (offenses that are not aggravated felonies) as particularly serious crimes. The Attorney General or Department of Homeland Security will generally decide on a case-by-case basis whether such an offense is considered a particularly serious crime.
To determine whether an offense is considered a particularly serious crime for purposes of withholding of removal, the Board of Immigrations Appeals has identified the following criteria to 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 (BIA 2007). Offenses such as menacing, drug convictions, and driving under the influence of alcohol have all been found to constitute particularly serious crimes.
If you or a loved one has been convicted of a crime, and either wish to apply for asylum/ withholding of removal or are now in removal proceedings, call our office today to schedule a consultation. We will conduct an in–depth review of your conviction and immigration history, and the immigration consequences of your conviction. We will determine what the best strategy is for you, how to fight the removal proceedings, and whether there is any relief from removal available to you.