Criminal convictions can significantly impact whether an alien can remain in the United States. An alien is ineligible for a grant of asylum if he/she has “been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA §208(b)(2)(A)(ii). See also 8 C.F.R. §208.13(c)(1). For purposes of eligibility for asylum, the Immigration and Nationality Act (INA) provides “an alien who has been convicted of an aggravated felony shall be considered to have been convicted of a particularly serious crime.” INA §208(b)(2)(B)(i). Similarly, an alien will be ineligible for withholding of removal pursuant to INA §241(b)(3)(B)(ii) as an alien convicted of a particularly serious crime if he/she “has been convicted of an aggravated felony (or felonies) for which the alien has been sentenced to an aggregate term of imprisonment of at least 5 [.] ” INA §241(b)(3)(B). Regardless of the sentence imposed by the criminal court the Attorney General may determine the alien has been convicted of a particularly serious crime. Id. The Federal Regulations provide that “an alien who has been convicted of a particularly serious crime shall be considered to constitute a danger to the community.” 8 C.F.R. §208.16(d)(2).

There is no further statutory or regulatory guidance as to what constitutes a “particularly serious crime” for purposes of determining eligibility for asylum or withholding of removal under INA §241(b)(3). To determine whether a conviction constitutes a “particularly serious crime”, the Board of Immigration Appeals (BIA) has held that “such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community”, Matter of Frentescu, 18 I. & N. Dec. 244, 246 (BIA 1982), are to be examined. Another important factor to be considered is whether the victim was physically harmed by the alien’s criminal conduct. See Matter of R-A-M-, 25 I. & N. Dec. 657, 661 (BIA 2012); Matter of N-A-M-, 24 I. & N. Dec. 336, 343 (BIA 2007); and Matter of L-S-, 22 I. & N. Dec. 645, 655-656 (BIA 1999). The “particularly serious crime” inquiry focuses on the crime committed not the “alien’s personal circumstances and equities, such as family or community ties or any risk of persecution in the country of removal.” Matter of G-G-S-, 26 I. & N. Dec. 339, 343 (BIA 2014) citing Matter of L-S-, 22 I. & N. at 651.

In the Matter of G-G-S-, the BIA was tasked with determining “whether an alien’s mental illness should be considered when determining if his or her criminal conviction is for a ‘particularly serious crime'[.]” Id. at 339. The alien was a lawful permanent resident who suffered from chronic paranoid schizophrenia from an early age. Id. at 340. He was convicted of assault with a deadly weapon under California Penal Code and sentenced to a term of imprisonment of two years. Id. While the BIA “recognize[d] the significance of the respondent’s mental health struggles and sympathize[d] with the resulting hardships he ha[d] faced”, Id. at 344, it nonetheless concluded his “conviction for assault with a deadly weapon was for a particularly serious crime.” Id. The BIA declined to consider the alien’s mental health as a factor in determining whether his conviction was for a “particularly serious crime”. Id. at 345. According to the BIA, “[w]hether and to what extent an individual’s mental illness or disorder is relevant to his or her commission of an offense and conviction for the crime are issues best resolved in criminal proceedings by the finders of fact.” Id. These factfinders are in the best position to make such a determination, because they “have expertise in the applicable State and Federal criminal law, are informed by the evidence presented by the defendant and the prosecution, and have the benefit of weighing all the factors firsthand.” Id. A criminal defendant’s mental condition can be raised at various points during the criminal proceedings including determination of competency to stand trial, presentation of an affirmative defense of not guilty due to mental illness or disorder, arguments that there was an absence of the specific intent required for conviction, mitigation for purposes of sentencing, and post-conviction filings. Id. The BIA has effectively declined to reassess determinations regarding criminal culpability due to mental illness of disorder.

The take away from decisions like the Matter of G-G-S- is to involve an experienced immigration attorney as early as possible in the criminal proceedings. An experienced immigration attorney may be able to provide guidance to minimize the potential immigration consequences of a criminal conviction.