Serious Nonpolitical Crimes in the Withholding of Removal Context

 

Introduction: Serious Nonpolitical Crime Denial Ground for Withholding

Nonpolitical Crimes in the Withholding of Removal ContextSection 241(b)(3) of the Immigration and Nationality Act (INA) specifies several mandatory denial grounds for withholding of removal. Under section 241(b)(3)(iii), an alien for whom the Attorney General has serious reasons to believe committed a serious nonpolitical crime outside of the United States will be ineligible for withholding of removal. In this article, we will examine the administrative and judicial precedent regarding serious nonpolitical crimes in the withholding of removal context. To learn about the other mandatory denial grounds for withholding of removal, please see our full article [see article]. To learn about serious nonpolitical crimes in the asylum context, please see our full article [see section].

Additionally, please see our selection of articles on issues involving withholding of removal:

  • Seeking Withholding of Removal [see article]
  • Eligibility for Statutory Withholding of Removal [see article]
  • Eligibility for Withholding of Removal and Deferral Removal under the Convention Against Torture [see article]
  • Issues for Aliens who have been Granted Deferral of Removal [see article]

Applicable Statute

Section 241(b)(3)(B)(iii) of the INA states that if the Attorney General decides that there are serious reasons to believe that an alien has committed a serious nonpolitical crime outside of the United States, he or she shall be subject to the mandatory denial of a withholding of removal application.

Adjudicative Principles for Serious Nonpolitical Crime Outside of the United States

In the Matter of E-A-, 26 I&N Dec. 1 (BIA 2012) [PDF version], the Board held that “serious reasons for believing” is equivalent to “probable cause.” This followed circuit decisions in Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) [PDF version], and Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) [PDF version]. The Matter of E-A- established a three-part test to determine if an offense is “political in nature”:

  1. Whether the act or acts were directed at a governmental entity or political organization;
  2. Whether they were directed toward modification of the political organization of the state; and
  3. Whether there is a close and direct causal link between the crime and its political purpose.

However, even if the crime is determined to be political in nature, the Board held that the “seriousness of the criminal acts” must be balanced against “the political aspect of the conduct” in order “to determine whether the criminal nature of the acts outweighs their political character.” The Board here followed the Matter of McMullen, 19 I&N Dec. 90 (BIA 1984) [PDF version], where it held that even if a crime meets the standard of having its “political aspects” outweigh its “common-law character,” the crime may still disqualify an applicant for asylum and withholding if “the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.” The Supreme Court upheld McMullen in INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) [PDF version], and held that, if it is found that the acts were not political in nature based on lack of proportion, the Board does not need to analyze “the political necessity and success” of the alien's methods.

The Supreme Court held in Aguirre-Aguirre that the Department of Homeland Security (DHS) is not required to balance the “criminal acts against the risk of persecution if [the alien] would face if returned.” This principle is also found in BIA precedent in the Matter of Rodriguez-Coto, 19 I&N Dec. 208 (BIA 1985) [PDF version].

Claim of Self-Defense

The Sixth Circuit held in Berhane v. Holder, 606 F.3d 819 (6th Cir. 2010) [PDF version], that a claim of “self-defense” may be weighed in determining the criminal nature of an offense and thereby in weighing the criminal nature of an offense against the political nature of the offense. The Sixth Circuit held in Berhane that the Board must address the balance between self-defense and the criminal nature of an offense when a claim of self-defense is brought in determining whether the conduct is a serious nonpolitical crime.

Participation in a Coup

In general, prosecution for participation in an attempt to overthrow a lawfully constituted government will not constitute persecution. In the Matter of Izatula, 20 I&N Dec. 149 (BIA 1990) [PDF version], the Board followed a District Court ruling in Dwomoh v. Sava, 696 F.Supp 970 (S.D.N.Y. 1988) [PDF version], which held that participation in a coup is not per se a serious nonpolitical crime in a country “where a coup is the only means through which a change in the political regime can be effected.” However, the Board held in the Matter of S-K, 23 I&N Dec. 936 [PDF version], that an alien who gives financial support to an organization defined as a terrorist organization may be found to be ineligible for withholding of removal for presenting a danger to the security of the United States. The Attorney General upheld the Matter of S-K- in the Matter of S-K-, 24 I&N Dec. 289 (AG 2007) [PDF version], but it also held that an alien may nevertheless be found to have not committed a serious nonpolitical offense if the alien is granted a waiver (in this case under section 212(d)(3)(B)(i)) and is found to be not subject to the material support bar.

Recruitment of Child Soldiers

Under statute (PL 110-340, Sec. 1(d)), Congress requires that the DHS/Attorney General promulgate regulations that any alien who is found deportable under section 237(a)(4)(F) or inadmissible under section 212(a)(3)(G) of the INA for recruitment of child soldiers “shall be considered an alien with respect to whom there are serious reasons to believe that the alien has committed a serious nonpolitical crime.”

Examples of Cases Finding Serious Nonpolitical Crimes

In the Matter of E-A-, 26 I&N Dec. 1 (BIA 2012), the Board held that an applicant who was a member of a group that burned passenger buses and cars, threw stones, and destroyed the merchandise of merchants at a market in order to disrupt the economic activity of an opposition party had committed a serious nonpolitical crime.

In Urbina-Mejia v. Holder, 597 F.3d 360 (6th Cir. 2010) [PDF version], the Sixth Circuit held that an alien who had committed criminal actions as a member of a gang, including hitting a man on the back of the head with a baseball bat and extorting people for money on the street, had committed a serious nonpolitical crime. Although the applicant did not argue that his crimes had any political aspect, he did argue that the immigration judge should have considered evidence that he was a juvenile at the time of the crimes, and that he was coerced into joining the gang. However, the Sixth Circuit held that “the immigration judge was not compelled to apply the additional analysis [suggested by the applicant] by Supreme Court precedent.”

In Zheng v. Holder, 698 F.3d 710 (8th Cir. 2013) [PDF version], the Eight Circuit found that there were serious reasons to believe that an alien who had assaulted a family planning official in China over a property dispute had committed a serious nonpolitical crime. In so doing, the Eight Circuit stated that a “remote causal link [between China's family planning policies and the assault] does not compel a finding that an after-hours planned assault of one official was part of [the applicant's] 'other resistance.'”

In Go v. Holder, 640 F.3d 1047 (9th Cir. 2011), the Ninth Circuit held that drug trafficking is a serious nonpolitical crime. However, the Ninth Circuit noted that the applicant in this case presented no evidence to suggest that his drug trafficking had “some political aspect or objective.”

In Guo Qi Wang v. Holder, 583 F.3d 86 (9th Cir. 2009) [PDF version], the Ninth Circuit held that participation in a scheme to deceive prisoners and their families in order to see organs on the black market is a serious nonpolitical crime.

In Chay Velasquez v. Ashcroft, 367 F.3d 751 (8th Cir. 2004) [PDF version], the Eighth Circuit held that an alien who had, among other things, burned buses that served the civilian population, broke windows, and fought police, had committed “violent acts out of proportion to any political aspect of his conduct.” The Eighth Circuit also did not weigh the applicant's argument that he was a juvenile at the time that he committed the crimes.

In Danielyan v. Mukasey, 270 Fed.Appx. 592 (9th Cir. 2008) (unpublished), the Ninth Circuit held that an alien who collected money from businesses as part of a protection racket, threatened individuals who did not pay, and observed that his associates engaged in a variety of criminal activities relating to the protection racket, had committed a serious nonpolitical crime. The Ninth Circuit also noted that the applicant failed to demonstrate any links between his crimes and a political purpose.

There are several interesting precedent decisions interpreting the hold section 243(h) with regard to serious nonpolitical crimes. In the Matter of Rodriguez-Palma, 17 I&N Dec. 465 (BIA 1980) [PDF version], the Board found that a conviction for robbery is a serious nonpolitical crime. In the Matter of Ballesta-Garcia, 17 I&N 592 (BIA 1980) [PDF version], the Board held that a robbery that had been planned several weeks in advance and involved late night entry into a building was a serious nonpolitical crime. In the Matter of Castellon, 17 I&N Dec. 616 (BIA 1981) [PDF version], the Board held that a conviction for embezzlement was a serious nonpolitical crime. Although the applicant argued that his conviction was the result of politically motivated entrapment, the Board held that “he has not supported that allegation with any evidence other than his own account of the events which led to his imprisonment.”

Burden of Proof

Under 8 C.F.R. 208.16(d)(2), when the evidence indicates that there is serious reason to believe that an alien committed a serious nonpolitical crime, the burden lies with the alien to prove by a preponderance of the evidence that he or she did not commit a serious nonpolitical crime.

An alien may seek judicial review after being administratively found to have committed a particularly serious crime.

Conclusion: Serious Nonpolitical Crime Denial Ground for Withholding of Removal

If it is found that there are serious reasons to believe that an alien committed a serious nonpolitical crime outside the United States, he or she will be eligible for withholding of removal. In determining whether there are serious reasons to believe that an alien has committed a serious nonpolitical crime outside the United States, adjudicators will first look at the severity of the criminal acts. If the alien argues that the crime had a political aspect, the political aspects of the crime, adjudicators will consider the political aspects of the offense and weigh them (if applicable) against the nature of the criminal aspects of the offense. An alien in removal proceedings should always consult with an experienced immigration attorney. If the alien stands accused of having committed a serious nonpolitical crime outside the United States, an experienced immigration attorney will be able to assess the case and determine whether the evidence will support an argument to rebut the government's position that there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States.

Resources and materials:

Kurzban, Ira J. Kurzban's Immigration Law Sourcebook: A Comprehensive Outline and Reference Tool. 14th ed. Washington D.C.: AILA Publications, 2014. 670-72, Print. Treatises & Primers.