On March 6, 2020, the Board of Immigration Appeals (BIA or Board) dismissed the appeal of an applicant whose requests for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) were denied by the Immigration Judge (IJ), who found serious reasons to believe that Respondent had committed a serious nonpolitical crime prior to entering the United States. On appeal, Respondent did not challenge the IJ’s denial of his CAT claim, so that issue was not before the BIA.
A native and citizen of El Salvador, Respondent had been placed into removal proceedings by DHS, which charged him with removability under INA §212(a)(6)(A)(i) for having entered without inspection. He conceded removability and applied for the above-referenced forms of relief. During proceedings, DHS submitted an Interpol Red Notice, showing that a warrant has been issued by the Magistrate Court of San Salvador for Respondent’s arrest regarding a violation of Article 345 of the Salvadoran Penal Code, which proscribes participation in an “illicit organization.” The Red Notice indicated that an investigation had previously been conducted and Respondent found to be a “gatillero” or “hitman” for the MS-13 gang. The IJ thus found that there are serious reasons to believe that Respondent had committed a serious nonpolitical crime before entering the U.S. and further concluded that Respondent had not met his burden of proving by a preponderance of the evidence “that the serious nonpolitical crime statutory bar does not apply to him.” Accordingly, the IJ found Respondent ineligible for the requested relief.
Further, in deciding that there are “serious reasons for believing” Respondent had committed a serious nonpolitical crime, the BIA concluded that, as he was seeking relief from removal, Respondent “has the burden to establish that he satisfies the applicable eligibility requirements” of his applications. As the commission of such a crime is a mandatory bar to relief, the regulations require that once DHS establishes that the evidence indicates that one or more grounds for mandatory denial exist, the applicant has the burden of “proving by a preponderance of the evidence that such ground does not apply.” 8 C.F.R.§1240.8(d). As to the Red Notice submitted by DHS, the IJ had noted that it could only be published “if it fulfills all conditions for processing information, which included the criteria that the offense concerned is a serious ordinary law crime and, if the person is sought, the conduct constituting an offense must be punishable by a maxim deprivation of liberty of at least two years.”
The IJ also found that DHS has contacted Interpol, which had confirmed that a match existed between the Red Notice and Respondent and that the Notice was active. The IJ indicated that the Form I-213 indicated that biographical information in the Notice matched the Respondent’s full name, date of birth, and place of birth, and it contained a photograph of the Respondent, identical to one on his El Salvadoran ID card.
The Respondent argued that the Red Notice did not have any probative value because the Notice is insufficient to establish probable cause for an arrest in the U.S. under the Fourth Amendment, but the BIA disagreed. In fact, the opinion pointed out, the IJ had found the Notice to be reliable for what it purported to be: a request by a member country to provisionally arrest a specific person pending extradition based on a valid national arrest warrant for a nonpolitical crime. The Board, therefore, affirmed the IJ’s determination that on this record, DHS had met its burden to show that the serious nonpolitical crime bar may apply to Respondent.
Additionally, Respondent had submitted a letter from an El Salvadoran attorney which indicated that the charges stemming from this incident were dismissed, but the IJ found the letter standing alone insufficient to show that the criminal charges had been dismissed; the IJ noted Respondent had not submitted official court documents confirming the dismissal. The IJ also found the Notice to be still active and the information on DHS’s Form I-213 presumptively trustworthy.
In analyzing the issue of a “serious nonpolitical crime”, the BIA first noted that Respondent had conceded that “his crime in El Salvador” was nonpolitical so it did not need to review the violation’s political nature. The only remaining issue was whether the crime qualified as “serious” under the INA. The IJ had concluded that a violation under Article 345 of the Salvadoran Penal Code “involved a substantial risk of violence and harm to persons.” Finding no clear error in this factual finding, the Board affirmed the IJ’s conclusion that Respondent’s crime was “serious”, that he was barred from asylum, withholding, and CAT relief, and dismissed the appeal. Matter of W-E-R-B-, 27 I&N Dec. 795 (BIA 2020).
