Can You Apply for Asylum With a Criminal Record?

Yes you can apply for asylum with a criminal record, however a foreign national seeking asylum in the United States, who has engaged in criminal conduct and/or who has been convicted of a crime, may result in a case refusal. Furthermore, certain activities can prevent asylum seekers from even applying. Under certain circumstances, the foreign national will automatically be barred from receiving asylum in the U.S. even if they don’t have a criminal record. 

Criminal bars to asylum are mandatory, just as are the non-criminal ones. Therefore, individuals who may even legally be defined as a refugee will be denied asylum.

In this article, we review the potential bars from applying for asylum, criminal reasons for asylum refusal and the non-criminal reasons for inadmissibility.

Asylum Eligibility

Seeking asylum in the U.S. is a lawful pathway for persecuted individuals to become beneficiaries of certain protections while inside the U.S. Asylum is reserved only for foreign individuals who seek protection because they have suffered persecution, or fear they will be persecuted in the future, on account of any of the following:

  • Race
  • Religion
  • Nationality
  • Membership in a particular social group
  • Political opinion

Thus, a non-U.S. citizen may apply for asylum if he or she is already physically in the U.S., or if they are at a port of entry, no matter their immigration status. Even if the applicant is in the country illegally. Asylum seekers can only apply for asylum in the first country they’ve arrived in. Additionally, the Application for Asylum and for Withholding of Removal (Form I-589) must be done within one year of arrival to the U.S. Otherwise, the petition will unquestionably be denied. The application for asylum will also be denied if the individual is currently in removal proceedings.

There are specific extraordinary circumstances, however, that can potentially allow the individual to apply anyway. They include illnesses, physical, mental or legal disabilities, and/or ineffective counsel assistance.

It is important to note, asylum applicants must reveal all of their criminal history — both on their application and in their asylum interview. Failure to do so (committing perjury) will result in the referral of the applicant’s case to the immigration court, with the potential to conclude in fines and/or imprisonment. Asylum bars are discussed in more detail below.

Reasons for Asylum Refusals

The following reasons automatically deem any asylum seeker ineligible from applying for asylum:

  • Failure to comply with the one-year filing deadline
  • Previous asylum denial
  • Ability to move to a two-party or multi-party agreement country

Similarly, the following reasons bar an asylum seeker from being granted asylum — when the USCIS finds that he or she has:race

  • Participated in the persecution of any person based on their race, religion, nationality, membership in a particular social group, or political opinion
  • Committed or has been convicted of a particularly serious crime and/or non-political crime
  • Been deemed a danger to the U.S.
  • Already resettled in another country

Lastly, the asylum seeker is considered to be inadmissible, and therefore barred from asylum for the following reasons:

  • Engagement or participation in terroristic activity, including the persuasion of others to engage, participate or support such activity or terrorist organization(s)
  • Payment of a ransom to terrorist organizations
  • Possible engagement in terroristic activity after entering the U.S.
  • Have incited terrorist activity
  • Representation of any foreign terrorist organization
  • Membership in a terrorist organization
  • Beneficiary of any military style training from, or on behalf of, any terrorist organization
  • Is the spouse or child of a a previously-ruled inadmissible individual (within the last five years)

Persecuting Others

Ordering, encouraging, threatening, allowing, or helping to hurt others because of their race, religion, nationality, membership in a particular social group, or political opinion results in individuals being ineligible for asylum. Even if the applicant was persecuted, and even if the participation in persecution was against his or her will. 

Persecution can additionally be indirect. This implies being a police officers, jailer, military or guerrilla personnel, rebel, armed civilians, and even a recruited child (someone younger than 18 years of age). Though the activity may not be considered criminal in the foreigner’s homeland, abusing the human rights of others is an absolute bar for asylum.

Apply for Asylum With a Criminal Record And Particularly Serious CrimeS

If you try to apply for asylum with a criminal record from a particularly serious crime in the U.S. such as one that is an aggravated felony. Some of which may include the following: 

  • Trafficking drugs, firearms or explosives 
  • Money laundering
  • Theft
  • Murder
  • Sex crimes against adults and/or minors
  • Failure to appear in court
  • Violent crime with a sentence order of one year or more
  • Domestic violence
  • Driving while under the influence, or while intoxicated
  • Participation in a violent political demonstration(s)

To be convicted means the following:

  1. A judge (or jury) has found the individual to be guilty, or
    1. He or she has plead guilty, or
    2. He or she has pleaded nolo contendere (this means the individual does not dispute the charges against him or her), or 
    3. He or she has admitted such facts to find him or her guilty, and
  2. The court has ordered the individual to be punished and/or to pay a penalty, and
  3. The conviction is final (this means the individual has either given up their right to an appeal or the individual is unable to appeal the conviction)

Serious Non-Political Crimes

If an immigration officer determines that there is a reasonable belief that the asylum seeker supported or committed a serious non-political crime outside the U.S., he or she will be refused asylum in the U.S. Even when the applicant was never arrested or convicted for the crime.

Asylum seekers who have committed a serious non-political crime may contend that they didn’t commit the crime for political reasons. However, if there was assault or a considerable risk of violence, then the person may be barred from asylum.

Danger to the Security of the U.S.

If the U.S. government determines that the presence of the applicant would negatively affect the country on account of foreign relations, economic objectives, national security, and or defense, he or she will be denied asylum.

Apply for Asylum With a Criminal Record And Non-legal Bars

In addition to the above reasons, the interviewing officer (or a judge) can refuse asylum based on discretion. Meaning that upon evaluation the applicant possesses any atrocious or extremely unfavorable characteristics which overshadow the good ones.

In short, asylum seekers do not necessarily have to have a criminal record to be barred from applying for asylum in the U.S. Furthermore, engaging in the persecution of others, voluntarily or against the person’s will, will most likely be seen by the U.S. government as being involved in terrorism. 

Conversely, any individual seeking asylum through their parent or spouse will be denied if that individual meets any of the above criteria bars.

Though an asylum seeker must disclose his or her criminal history on their application, the U.S. government conducts their own investigation. Including biometrics, fingerprinting and a full criminal background check. If you try to apply for asylum with a criminal record, lying to the interviewing officer or judge can result in asylum denial.

Lastly, it is also important to understand that such criminal activities and/or convictions will most likely result in ineligibility for other U.S. visas in the future. And, if an asylum seeker is denied asylum in the U.S., it is better that he or she leave the country voluntarily, as opposed to being deported or removed. Such deportation will automatically result in the disqualification for future entry to the U.S. for up to 10 years, the first time. If the individual faces deportation for an aggravated felony, it’s probable that he or she will be unable to enter the U.S. — indefinitely. 

Wrapping Up Applying For Asylum With A Criminal Record

While applying for asylum with a criminal record presents significant challenges, it is not an absolute barrier. Each case is meticulously evaluated, considering the nature of the criminal conduct and the circumstances surrounding it. Understanding the strict guidelines and legal ramifications is crucial for any asylum seeker. It is imperative to disclose all pertinent information honestly and seek knowledgeable legal counsel to navigate this complex process. Ultimately, the path to asylum is fraught with hurdles, but with the right approach and adherence to legal requirements, it remains a viable option for those in genuine need of protection.