Can a criminal record keep me from getting asylum?

This page is general information, not legal advice. Your record and your case need a lawyer's eyes. We know this question can keep you up at night. Most people who ask it have a clearer answer than they fear, once someone reads the actual court papers.

What if I was only arrested?

An arrest alone is not a conviction. The main crime bar to asylum applies to a person who was convicted by a final judgment of a particularly serious crime and is a danger to the community (8 USC 1158(b)(2)). If your case was dismissed, or you were never charged, that bar does not apply to that arrest.

An arrest can still matter in three ways:

• Honesty. You must answer every question about your record truthfully, on the form and at your interview or hearing. A hidden arrest that later shows up can hurt your credibility more than the arrest itself.
• Discretion. Asylum is a decision the officer or judge makes "in discretion" even when you qualify. They can weigh what happened, how long ago, and what you have done since.
• Detention. For people who entered without inspection or without valid papers, the Laken Riley Act (8 USC 1226(c)(1)(E)) requires immigration detention after being charged with, arrested for or convicted of theft, shoplifting, burglary, assaulting an officer, or a crime that caused death or serious injury. That is a detention rule, not an asylum bar, but it can change where you fight your case.

What counts as a conviction?

Immigration law has its own meaning of conviction. It covers a formal finding of guilt. It also covers a guilty or no contest plea, or an admission of enough facts, plus some kind of punishment or restraint, even when the court held off on a final judgment (USCIS Policy Manual, Vol. 12, Part F, Ch. 2).

That is why diversion and deferred entry programs need a careful look. Some end without a conviction for immigration. Others start with a plea that counts. Bring the court papers, not your memory of what the judge said.

Which crimes block asylum?

These are the main bars written into the asylum law (8 USC 1158(b)(2)(A)):

• A particularly serious crime. You were convicted by a final judgment of a particularly serious crime and are a danger to the community.
• An aggravated felony. For asylum, any aggravated felony conviction counts as a particularly serious crime (1158(b)(2)(B)(i)). "Aggravated felony" is an immigration term. It can include some crimes that are misdemeanors in California, such as theft with a one year sentence. See What an aggravated felony is and why it matters.
• A serious crime outside the United States. There are "serious reasons for believing" you committed a serious nonpolitical crime abroad before you arrived. This bar does not need a conviction.
• Other bars not about ordinary crime: helping persecute others, being a danger to US security, terrorism, and firm resettlement in another country.

What makes a crime "particularly serious"?

Outside of aggravated felonies, there is no complete list. A judge first asks whether the elements of the crime could make it particularly serious. If so, the judge looks at the nature of the conviction, the type of sentence, and the circumstances and facts of the crime, and can use any reliable information, including the court record (Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007)). The focus is on the crime itself, not on whether you might do something wrong in the future. Violent crimes and crimes against people are more likely to be found particularly serious. Many minor, nonviolent convictions are not.

For withholding of removal, the law sets one firm line: an aggravated felony with a total sentence of 5 years or more is always particularly serious (8 USC 1231(b)(3)(B)). A shorter sentence can still be found particularly serious. That is why the length of a sentence matters, even a suspended one.

If asylum is blocked, is there any other protection?

Often, yes. Two other kinds of protection have different rules (8 CFR 1208.16):

Deferral is weaker than asylum. It does not lead to a green card, and you can be held in detention or sent to a different country (8 CFR 1208.17). But it can stop removal to the country where you fear torture. Read Protection if you fear torture when sent back.

On the same I-589 form, you ask for all three at once. A lawyer can argue them in the alternative.

Can I clear my record in California first?

Clearing a record helps for jobs and housing. It does not always help for immigration.

• Expungement (dismissal under Penal Code 1203.4) usually still counts as a conviction for immigration.
• Vacating a conviction for a legal defect, such as not being told the immigration consequences before a plea, removes it for immigration purposes (USCIS Policy Manual, Vol. 12, Part F, Ch. 2). In California this is often a motion under Penal Code 1473.7, filed in the county where you were convicted.

Read Clearing your record in California when you have an immigration case before you file anything in criminal court. The wrong motion can waste time and money.

What should I gather?

• Your California record from the state DOJ, and your FBI record. Request your own. No one else can order it for you.
• Certified court papers for every case: the complaint, the plea form, the judgment and sentence, and proof of finished probation. Get them from the clerk of the court in each county.
• Police reports only if a lawyer asks. They can include claims that never became charges.
• Records from other countries, if you were ever arrested or charged abroad. Tell your lawyer even if you think it was political or false.
• Proof of who you are now: work, school, family, treatment, community letters. These matter for discretion.

What are the common mistakes?

• Leaving an arrest off the form. Disclose everything. Let your lawyer explain it.
• Taking a plea without immigration advice. A criminal defense lawyer must tell you the immigration consequences of a plea. Ask before you sign. See Before you take a plea deal.
• Waiting too long. The one year asylum deadline keeps running while you sort out your record. Withholding and torture protection have no filing deadline, but asylum does (8 USC 1158(a)(2)(B)).
• Trusting a notario or a friend's case. Two cases with the same charge can come out differently because of the sentence or the exact law. Only lawyers and DOJ accredited representatives can give you legal advice (EOIR).

Who can help?

Bay Area help (San Mateo and Santa Clara counties):

• Community Legal Services in East Palo Alto (CLSEPA): asylum and deportation defense for low income residents of San Mateo and Santa Clara counties. (650) 326-6440. Walk in Monday to Friday, 9 a.m. to 1 p.m., 1861 Bay Road, East Palo Alto (CLSEPA).
• Asian Law Alliance (San Jose): free or low cost immigration help. (408) 287-9710 (Asian Law Alliance).
• Catholic Charities of Santa Clara County: $50 consultation. (408) 468-0100 (Catholic Charities SCC).

Anywhere in the United States:

• Immigration court free legal services list, by court (EOIR pro bono list).
• More options on Free legal help in the Bay Area.

Contact them to confirm hours, languages and openings. Being listed here is not a referral or a promise of service.

Questions people ask

I was arrested 10 years ago and the charges were dropped. Do I still list it? Yes, if the form or officer asks about arrests. A dropped charge is not a conviction. Telling the truth protects you.

I have one DUI. Can I still apply? Under the asylum law itself, a single DUI is not listed as a bar. The 2020 rule tried to add it, and a court blocked that rule in 2020. The case is still listed as active, with no later ruling shown on its case page. Ask a lawyer before you file.

My conviction was in my home country, and it was a false charge by the government. Tell your lawyer. Political or fabricated charges are not "serious nonpolitical crimes," and the persecution behind them can be part of your claim.

I have a felony from years ago. Is asylum impossible? Not always. It depends on whether it is an aggravated felony or particularly serious. Even if asylum is blocked, withholding or torture protection may still be possible.

Can my children still get asylum through me? Only if you get asylum. If you get withholding or torture protection instead, your children need their own case. Ask about this early.

Is there a checklist I can print?

Yes. Print this and bring it to your first legal meeting.