Non-U.S. citizens at risk of deportation are often able to claim asylum in the U.S. or “withholding of removal.” They can do so if they would face persecution or torture in their home country.
An alien is not eligible for such relief, however, if he or she has been convicted of an offense considered a “particularly serious crime.”1
To help you better understand what counts as a “particularly serious crime,” our California immigration lawyers discuss the following, below:
- 1. The legal definition of “particularly serious crime”
- 2. How is a particularly serious crime determined?
- 3. Examples of particularly serious crimes
The term “particularly serious crime” is not defined by statute. The only offenses that automatically count as particularly serious crimes for purposes of immigration law are those classified as “aggravated felonies.” These include serious offenses such as
- child pornography, and
- drug trafficking.
An alien convicted of an aggravated felony an alien is ineligible for asylum.2
An alien is also ineligible for withholding of removal if a conviction for one or more aggravated felonies results in an aggregate (total) sentence of 5 years or more.3
However, a crime does not have to be an aggravated felony or carry a sentence of more than 5 years for it to be considered a particularly serious crime.4
Immigration judges have fairly wide discretion to deem other crimes particularly serious.
Except for aggravated felonies — which are automatically considered particularly serious crimes — whether an offense is considered particularly serious is within the discretion of the immigration judge.
In determining whether a crime is particularly serious, the judge will take into account:
- The nature of the conviction;
- The circumstances and facts underlying the conviction; and
- The type of sentence (including sentencing enhancements) imposed.5
Positive factors – such as ties to the community and employment history — are not factored into the analysis.6
Crimes against people (as opposed to property) are more likely to be categorized as particularly serious.7 These include crimes that involve an intent to deprive a person of property through the use of force, violence, assault, or putting the victim in fear.8
Examples of crimes that have been held to be particularly serious in the immigration context include (without limitation):
- Assault and battery with great bodily injury,9
- Felony menacing,10
- First degree burglary,11 and
- Non-consensual oral sex on a victim.12
Denied relief as a refugee? Call us for help…
If you or someone you know has been declared ineligible for relief as a refugee due to a conviction for a particularly serious crime, we invite you to contact us for a free consultation.
Our Los Angeles, California immigration and criminal attorneys have the experience and knowledge to challenge the immigration judge’s decision. You may also be eligible for protection under the U.N. Convention Against Torture (CAT), the Violence Against Women Act (VAWA), or another visa program for victims.
Call us or fill out the form on this page to discuss your case with a lawyer.
- 8 U.S. Code § 1158 (b)(2)(A)(ii), also known as Section 208(b)(2)(A)(ii) of the Immigration and Nationality Act or “INA”; 8 U.S. Code § 1231 (b)(3)(B)(ii), also known as INA 241(b)(3)(B)(ii).
- 8 USC § 1158 (b)(2)(B)(i).
- 8 USC § 1231 (b)(3)(B)(iv).
- Matter of N–A–M–, 24 I&N Dec. 336, 336 (BIA 2007), aff’d, N–A–M– v. Holder, 587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011).]
- Konou v. Holder, (9th Cir. 2014).
- Matter of R–A–M–, 25 I&N Dec. 657, 662 (BIA 2012); Matter of L–S–, 22 I&N Dec. 645, 650–51 (BIA 1999).
- Konou v. Holder, endnote 5; Matter of L-S-, endnote 6.
- Matter of S-V-, 22 I&N Dec. 1306, 1309 (BIA 2000) overruled on other grounds Zheng v. Ashcroft, 332 F.3d 1186 (9th Cir. 2003).
- Konou v. Holder, endnote 5.
- Matter of N–A–M–, endnote 4.
- Matter of Garcia-Garrocho, 19 I&N Dec. 423 (BIA 1986).
- Matter of L-S-, endnote 6.