Sec. 105. Exceptions
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Paragraph
(2)of section 208(b) of the Immigration and Nationality Act ( 8 U.S.C. 1158(b)(2) ) is amended to read as follows: Paragraph
(1)shall not apply to an alien if the Secretary of Homeland Security or the Attorney General determines that— the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion; the alien has been convicted of any felony under Federal, State, tribal, or local law; the alien has been convicted of any misdemeanor offense under Federal, State, tribal, or local law involving— the unlawful possession or use of an identification document, authentication feature, or false identification document (as those terms and phrases are defined in the jurisdiction where the conviction occurred), unless the alien can establish that the conviction resulted from circumstances showing that— the document or feature was presented before boarding a common carrier; the document or feature related to the alien’s eligibility to enter the United States; the alien used the document or feature to depart a country wherein the alien has claimed a fear of persecution; and the alien claimed a fear of persecution without delay upon presenting himself or herself to an immigration officer upon arrival at a United States port of entry; the unlawful receipt of a Federal public benefit (as defined in section 401(c) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 ( 8 U.S.C. 1611(c) )), from a Federal entity, or the unlawful receipt of similar public benefits from a State, tribal, or local entity; or possession or trafficking of a controlled substance or controlled substance paraphernalia, as those phrases are defined under the law of the jurisdiction where the conviction occurred, other than a single offense involving possession for one’s own use of 30 grams or less of marijuana (as marijuana is defined under the law of the jurisdiction where the conviction occurred); the alien has been convicted of an offense arising under paragraph (1)(A) or
(2)of section 274(a), or under section 276; the alien has been convicted of a Federal, State, tribal, or local crime that the Attorney General or Secretary of Homeland Security knows, or has reason to believe, was committed in support, promotion, or furtherance of the activity of a criminal street gang (as defined under the law of the jurisdiction where the conviction occurred or in section 521(a) of title 18, United States Code); the alien has been convicted of an offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs), without regard to whether the conviction is classified as a misdemeanor or felony under Federal, State, tribal, or local law, in which such intoxicated or impaired driving was a cause of serious bodily injury or death of another person; the alien has been convicted of more than one offense for driving while intoxicated or impaired, as those terms are defined under the law of the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs), without regard to whether the conviction is classified as a misdemeanor or felony under Federal, State, tribal, or local law; the alien has been convicted of a crime— that involves conduct amounting to a crime of stalking; of child abuse, child neglect, or child abandonment; or that involves conduct amounting to a domestic assault or battery offense, including— a misdemeanor crime of domestic violence, as described in section 921(a)(33) of title 18, United States Code; a crime of domestic violence, as described in section 40002(a)(12) of the Violence Against Women Act of 1994 ( 34 U.S.C. 12291(a)(12) ); or any crime based on conduct in which the alien harassed, coerced, intimidated, voluntarily or recklessly used (or threatened to use) force or violence against, or inflicted physical injury or physical pain, however slight, upon a person— who is a current or former spouse of the alien; with whom the alien shares a child; who is cohabitating with, or who has cohabitated with, the alien as a spouse; who is similarly situated to a spouse of the alien under the domestic or family violence laws of the jurisdiction where the offense occurred; or who is protected from that alien’s acts under the domestic or family violence laws of the United States or of any State, tribal government, or unit of local government; the alien has engaged in acts of battery or extreme cruelty upon a person and the person— is a current or former spouse of the alien; shares a child with the alien; cohabitates or has cohabitated with the alien as a spouse; is similarly situated to a spouse of the alien under the domestic or family violence laws of the jurisdiction where the offense occurred; or is protected from that alien’s acts under the domestic or family violence laws of the United States or of any State, tribal government, or unit of local government; the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States; there are serious reasons for believing that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; there are reasonable grounds for regarding the alien as a danger to the security of the United States; the alien is described in subclause (I), (II), (III), (IV), or
(VI)of section 212(a)(3)(B)(i) or section 237(a)(4)(B) (relating to terrorist activity), unless, in the case only of an alien inadmissible under subclause
(IV)of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in the Secretary’s or the Attorney General's discretion, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; the alien was firmly resettled in another country prior to arriving in the United States; or there are reasonable grounds for concluding the alien could avoid persecution by relocating to another part of the alien’s country of nationality or, in the case of an alien having no nationality, another part of the alien’s country of last habitual residence. For purposes of subparagraph (A)(x), the Attorney General or Secretary of Homeland Security, in their discretion, may determine that a conviction constitutes a particularly serious crime based on— the nature of the conviction; the type of sentence imposed; or the circumstances and underlying facts of the conviction. In making a determination under subclause (I), the Attorney General or Secretary of Homeland Security may consider all reliable information and is not limited to facts found by the criminal court or provided in the underlying record of conviction. In making a determination under subclause (I), an alien who has been convicted of a felony (as defined under this section) or an aggravated felony (as defined under section 101(a)(43)), shall be considered to have been convicted of a particularly serious crime. In making a determination under subparagraph (A)(xi), an Interpol Red Notice may constitute reliable evidence that the alien has committed a serious nonpolitical crime outside the United States. A finding under subparagraph (A)(vi) does not require the Attorney General or Secretary of Homeland Security to find the first conviction for driving while intoxicated or impaired (including a conviction for driving while under the influence of or impaired by alcohol or drugs) as a predicate offense. The Attorney General or Secretary of Homeland Security need only make a factual determination that the alien previously was convicted for driving while intoxicated or impaired as those terms are defined under the jurisdiction where the conviction occurred (including a conviction for driving while under the influence of or impaired by alcohol or drugs). In making a determination under subparagraph (A)(viii), including determining the existence of a domestic relationship between the alien and the victim, the underlying conduct of the crime may be considered, and the Attorney General or Secretary of Homeland Security is not limited to facts found by the criminal court or provided in the underlying record of conviction. In making a determination under subparagraph (A)(ix), the phrase battery or extreme cruelty includes— any act or threatened act of violence, including any forceful detention, which results or threatens to result in physical or mental injury; psychological or sexual abuse or exploitation, including rape, molestation, incest, or forced prostitution, shall be considered acts of violence; and other abusive acts, including acts that, in and of themselves, may not initially appear violent, but that are a part of an overall pattern of violence. An alien who was convicted of an offense described in clause
(viii)or
(ix)of subparagraph
(A)is not ineligible for asylum on that basis if the alien satisfies the criteria under section 237(a)(7)(A). Paragraph
(1)shall not apply to an alien whose claim is based on— personal animus or retribution, including personal animus in which the alleged persecutor has not targeted, or manifested an animus against, other members of an alleged particular social group in addition to the member who has raised the claim at issue; the applicant’s generalized disapproval of, disagreement with, or opposition to criminal, terrorist, gang, guerilla, or other non-state organizations absent expressive behavior in furtherance of a discrete cause against such organizations related to control of a State or expressive behavior that is antithetical to the State or a legal unit of the State; the applicant’s resistance to recruitment or coercion by guerrilla, criminal, gang, terrorist, or other non-state organizations; the targeting of the applicant for criminal activity for financial gain based on wealth or affluence or perceptions of wealth or affluence; the applicant’s criminal activity; or the applicant’s perceived, past or present, gang affiliation. For purposes of this paragraph: The term felony means— any crime defined as a felony by the relevant jurisdiction (Federal, State, tribal, or local) of conviction; or any crime punishable by more than one year of imprisonment. The term misdemeanor means— any crime defined as a misdemeanor by the relevant jurisdiction (Federal, State, tribal, or local) of conviction; or any crime not punishable by more than one year of imprisonment. For purposes of this paragraph, whether any activity or conviction also may constitute a basis for removal is immaterial to a determination of asylum eligibility. For purposes of this paragraph, all references to a criminal offense or criminal conviction shall be deemed to include any attempt, conspiracy, or solicitation to commit the offense or any other inchoate form of the offense. No order vacating a conviction, modifying a sentence, clarifying a sentence, or otherwise altering a conviction or sentence shall have any effect under this paragraph unless the Attorney General or Secretary of Homeland Security determines that— the court issuing the order had jurisdiction and authority to do so; and the order was not entered for rehabilitative purposes or for purposes of ameliorating the immigration consequences of the conviction or sentence. For purposes of item (aa)(BB), the order shall be presumed to be for the purpose of ameliorating immigration consequences if— the order was entered after the initiation of any proceeding to remove the alien from the United States; or the alien moved for the order more than one year after the date of the original order of conviction or sentencing, whichever is later. An immigration judge is not limited to consideration only of material included in any order vacating a conviction, modifying a sentence, or clarifying a sentence to determine whether such order should be given any effect under this paragraph, but may consider such additional information as the immigration judge determines appropriate. The Secretary of Homeland Security or the Attorney General may by regulation establish additional limitations and conditions, consistent with this section, under which an alien shall be ineligible for asylum under paragraph (1). There shall be no judicial review of a determination of the Secretary of Homeland Security or the Attorney General under subparagraph (A)(xiii). .
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