An alien who may otherwise be eligible for asylum or withholding of removal may be barred from obtaining asylum and withholding of removal when “there are serious reasons for believing that the alien committed a serious nonpolitical crime”, INA §208(b)(2)(A)(iii), before arriving in the United States. See INA §208(b)(2)(A)(iii). See also INA §241(b)(3)(B)(iii). Neither the Immigration and Nationality Act (INA) nor the Federal Regulations provide any further guidance as to what constitutes serious reasons for believing that the alien committed a serious nonpolitical crime.” INA §208(b)(2)(A)(iii). See also INA §241(b)(3)(B)(iii); and 8 C.F.R. §1208.13(c). How does an alien know whether he or she would be barred from asylum for committing a serious nonpolitical crime before their arrival to the United States? The Board of Immigration Appeals (BIA) recently provided some guidance as to how to assess whether serious reasons exists to believe the asylum applicant committed a serious nonpolitical crime in the Matter of E-A, 26 I&N Dec. 1 (BIA 2012).

The BIA had previously held when “evaluating the political nature of a crime, we consider it important that the political aspect of the offense outweigh its common law character, which would not be the case if the crime is grossly out of proportion to the political objective or if it involves acts of an atrocious nature.” Matter of McMullen, 19 I&N Dec. 90, 97-98 (BIA 1984) aff’d McMullen v. Immigration and Naturalization Service, 788 F.2d 591 (9th Cir. 1986). This requires the decision-maker to balance the seriousness of the criminal acts against the political nature of the conduct to decide whether the criminal aspect of the asylum applicant’s conduct overshadows its political nature. Matter of E-A-, 26 I&N at 3. See also INS v. Aguirre-Aguirre, 526 U.S. 415, 429-431 (1999). As such, the determination of whether an asylum applicant has committed a serious nonpolitical crime is made on “case-by-case basis considering the facts and circumstances presented.” Id.

The first step in the inquiry into whether the asylum applicant’s conduct constitutes a serious nonpolitical crime is to determine whether the criminal conduct was of “an atrocious nature.” Matter of McMullen, 19 I&N at 98. Conduct that is atrocious in nature is considered a serious nonpolitical crime. While there is no exhaustive list of what criminal conduct is considered atrocious, murder and terrorism have specifically been found to be atrocious in nature. Id. at 4. Criminal conduct that is considered atrocious in nature will result in a finding that the asylum applicant is statutorily barred from asylum and/or withholding of removal. As such, the only remaining inquiry would be whether serious reasons exist to believe the asylum applicant engaged in said conduct.

If the criminal conduct was not of “an atrocious nature”, Id., the next step in the inquiry is to “balance the seriousness of the criminal acts against the political aspect of the conduct to determine whether the criminal nature of the applicant’s acts outweighs their political character.” Matter of E-A-, 26 I&N at 3 citing Aguirre-Aguirre, 526 U.S. at 429-431. There is no requirement that serious physical harm occurs for conduct to rise to the level of a serious nonpolitical crime. Id. at 5. However, “the fact that civilians were placed at risk of serious harm is a significant consideration in the analysis.” Id. To assess the political nature of the criminal conduct, the adjudicator must consider whether:

(1) the act or acts were directed at a governmental entity or political organization, as opposed to a private or civilian entity;
(2) they were directed toward modification of the political organization of the State; and
(3) there is a close and direct causal link between the crime and its political purpose.

Id. at 3 discussing McMullen v. INS, 788 F.2d 591, 597-98 (9th Cir. 1986) overruled on other grounds by Barapind v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005). See also Efe v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). It is important to keep in mind “even where there is “a clear causal connection, a lack of proportion between means and ends may still render a crime nonpolitical.” Id. citing Aguirre-Aguirre, 526 U.S. at 432. See also Efe v. Ashcroft, 293 F.3d at 906.

The final step in the inquiry is to determine whether there is serious reason to believe the asylum applicant committed a serious nonpolitical crime. There is no requirement that the asylum applicant be convicted of a serious nonpolitical crime. Rather, the BIA has interpreted the phrase “serious reasons for believing” to be equivalent of the probable cause standard. Id. An asylum applicant’s own testimony can be sufficient to establish probable cause that he or she engaged in conduct that would constitute a serious nonpolitical crime. Id.

In the Matter of E-A, the BIA “agreed with the applicant that the conduct in this case did not involve acts of an ‘atrocious nature’.” Id. at 4. After weighing the seriousness of the applicant’s criminal conduct against its political nature, the BIA concluded “the applicant’s criminal conduct was disproportionate to its political character and that he therefore committed a serious nonpolitical crime.” Id. While the BIA found “some of the acts, such as throwing rocks, would not alone meet the definition of a serious nonpolitical crime”, these actions coupled together “with the applicant’s other actions, particularly the burning of buses and cars, the activity reaches the level of serious criminal conduct that would trigger the bar under sections 208(b)(2)(A)(iii) and 241(b)(3)(B)(iii) of the Act.” Id. The BIA focused on the inherent substantial risk of death or serious bodily harm associated with arson as well as the fact that the applicant’s destructive conduct was disruptive to day-to-day life. Id. at 5. The BIA further concluded the asylum applicant “was not a mere bystander during these events and was not simply a group member who was absent and disengaged from these activities while they were being perpetrated”, Id. at 7, as “his involvement and participation in the group’s criminal acts materially contributed to its ability to accomplish the destructive behavior.” Id.

In balancing the asylum applicant’s criminal conduct with its political nature, the BIA focused on the fact that “while the PDCI group’s conduct had an overall political objective of damaging the reputation of the opposition party, its disruptive acts were not directed at deterring oppressive action of a ruling governmental entity,” Id. at 5, but rather “the harmful acts were aimed at members of the general public, who did not appear to be allied with any particular political party.” Id. The BIA also focused on the fact that the asylum applicant’s conduct was part of an effort to discredit the political opposition “in the minds of the public by engaging in deceptive misconduct that the group hoped would be attributed to the opposing party”, Id. at 6, rather than direct opposition to specific government policies. Id. As such, the causal link between the criminal conduct and the political purpose is less clear and direct. Id.

The BIA concluded the “circumstances and cumulative effect of the multiple violent, destructive, and destabilizing acts, particularly the intentional acts of arson that placed innocent civilians at risk of serious harm, are sufficient to trigger the serious nonpolitical crime bar.” Id. at 8. Thus, the applicant in the Matter of E-A was not eligible for asylum and/ or withholding of removal. This decision emphasizes the need to retain an experienced immigration attorney to assist you in filing an I-589 Application for Asylum and for Withholding of Removal. Activities and conduct related to your fear of persecution could at the same time result in a finding you are ineligible for asylum and withholding of removal. An experienced immigration attorney can ensure the proper corroborative evidence and legal arguments are presented on your behalf to show either there is insufficient evidence to meet the serious reason to believe standard or the conduct does not rise to the level of serious nonpolitical crime.