27 I. & N. Dec. 795
BIA2020Background:
- Respondent, a native of El Salvador, entered the U.S. in 2012, conceded removability, and applied for asylum, withholding of removal, and CAT protection.
- DHS submitted an Interpol Red Notice (July 10, 2018) reflecting a 2016 arrest warrant in El Salvador alleging violation of article 345 (participation in an illicit organization) and identifying the respondent as an MS-13 "gatillero" (hit man).
- An IJ found the Red Notice and a matching DHS Form I-213 reliable, concluded there were "serious reasons for believing" the respondent committed a serious nonpolitical crime, and shifted the burden to the respondent.
- Respondent testified credibly about a 2010 melee in El Salvador (police injured, respondent shot, had a gun) and submitted an attorney letter claiming charges were dismissed, but did not provide official court records.
- The IJ concluded article 345 involves violent means and carries up to a 9-year maximum term, rendering it a "serious" nonpolitical crime; the Board affirmed and dismissed the appeal.
Issues:
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether an Interpol Red Notice can support "serious reasons for believing" the serious nonpolitical crime bar applies | Red Notice is not an arrest warrant under U.S. law and lacks probative value | Red Notice is reliable evidence of a foreign arrest warrant and may show a nonpolitical, serious crime | Red Notice is admissible and sufficiently reliable to support finding "serious reasons for believing" the bar may apply |
| Whether DHS met its burden to shift the evidentiary burden to respondent under 8 C.F.R. § 1240.8(d) | Respondent argued IJ relied too heavily on the Red Notice despite his credible testimony | DHS argued the Red Notice plus Form I-213 and corroboration met the "some evidence" standard to shift burden | DHS met the low threshold; burden properly shifted to respondent |
| Whether respondent rebutted the DHS case by preponderance (e.g., dismissal letter, testimony) | Credible testimony and attorney letter showing charges dismissed meant the bar does not apply | Record showed the Red Notice remained active, Form I-213 matched, and no official court dismissal was provided | Respondent failed to rebut; IJ correctly found he did not meet preponderance to avoid the bar |
| Whether violation of El Salvador article 345 is a "serious" nonpolitical crime | Respondent minimized offense as loitering and argued it was not "serious" or "atrocious" | DHS and IJ emphasized statute criminalizes participation in violent illicit organizations, with up to 9 years' imprisonment | Article 345 was "serious" (involves substantial risk of violence); crime met the seriousness requirement |
Key Cases Cited
- INS v. Aguirre-Aguirre, 526 U.S. 415 (1999) (deference to BIA framework for serious nonpolitical crime bar)
- McMullen v. INS, 788 F.2d 591 (9th Cir.) (1986) (serious nonpolitical crime bar applies to commission, not only conviction)
- Go v. Holder, 640 F.3d 1047 (9th Cir. 2011) (equating "serious reasons for believing" with probable cause)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (same standard)
- Zheng v. Holder, 698 F.3d 710 (8th Cir. 2012) (affirming seriousness where conduct posed violence to persons)
- Guan v. Barr, 925 F.3d 1022 (9th Cir. 2019) (describing Red Notice as closest instrument to an international arrest warrant)
- United States v. Mohamud, 843 F.3d 420 (9th Cir. 2016) (Interpol does not independently vet factual/legal justification for Red Notices)
- Marroquin-Retana v. Att'y Gen. U.S., [citation="675 F. App'x 216"] (3d Cir. 2017) (finding serious reasons based on Interpol notice and related evidence)