The Biden Administration’s Latest Attempt to Shield Criminal Aliens from Removal

AG considering a ‘mental health’ exception to the ‘particularly serious crime’ bars

By Andrew R. Arthur on December 14, 2021

On December 9, Attorney General (AG) Merrick Garland requested briefing on “[w]hether mental health may be considered when determining whether an” alien has been convicted of a “particularly serious crime”, which would bar the alien from asylum, statutory withholding, and protection under the Convention Against Torture (CAT). It is the latest salvo in the Biden administration’s attempts to shield criminal aliens from removal.

AG Certification: Rulemaking that Bypasses the Administrative Procedure Act. In requesting that briefing, the AG is plainly taking a page out of his immediate predecessors’ playbook. He is facially seeking advice in a case captioned Matter of B-Z-R-, a heretofore unpublished decision from the Board of Immigration Appeals (BIA), but his real goal is overturning Matter of G-G-S-, a precedent BIA decision issued in July 2014, during the Obama administration.

Normally, when a government agency decides to create new rules or change old ones, it must comply with the Administrative Procedure Act (APA) by publishing the proposed rules in the Federal Register and inviting public comment. The Center regularly offers its comments in response to such proposals.

Such “notice and comment rulemaking”, however, is not the only avenue that a regulatory agency has at its disposal to adopt new rules. As I have explained in the past, it can also do so by issuing precedent decisions, in the case of the AG in immigration matters by referring cases to himself under a process known as “certification”, which I explained in-depth in a December 2019 post. Here’s how.

Prior to March 2003, the Immigration and Naturalization Service (“INS”, which enforced the immigration laws) and the Executive Office for Immigration Review (“EOIR”, which has jurisdiction over immigration adjudicators in the immigration courts and BIA) were both in the Department of Justice (DOJ).

The Homeland Security Act of 2002, however, dissolved the INS effective March 1, 2003, and created the Department of Homeland Security (DHS). It moved the responsibility for enforcing U.S. immigration laws over to the new DHS but left the responsibility for adjudicating immigration cases involving aliens in removal proceedings with EOIR.

To reflect this partial change, the Homeland Security Act amended section 103(a)(1) of the Immigration and Nationality Act (INA) to retain the AG’s traditional authority to interpret the INA, including those sections of the INA involving immigration relief and humanitarian protections for aliens facing removal (like asylum, statutory withholding, and CAT).

Technically, all removal cases are decided by the AG, but most of the actual work is done by immigration judges (IJs) and the BIA. IJ decisions are not binding on other IJs, but they can be appealed as a matter of right to the BIA. The BIA has the authority to issue binding, precedential decisions interpreting the INA and regulations.

The AG maintains the authority to review BIA decisions (both precedential and nonprecedential) at the request of DHS. For example, I was the INS attorney in Matter of Haddam, cited by the AG in Matter of B-R-Z-, because I concluded that the BIA had erred in that case. Alien respondents cannot seek AG review but can have BIA decisions reviewed by the circuit courts; DHS’s sole appeal is to the AG.

The AG can also change the law by referring cases to himself, that is, “on certification”, which is what AG Garland has done in Matter of B-R-Z-. By taking up a case on certification, an AG can rewrite prior interpretations of the INA without complying with the APA.

Reinterpretation of the asylum provisions in the INA through certification was a popular option under the Trump administration for AG Jeff Sessions and AG William Barr. Of course, what one AG does another AG can undo, and AG Garland has, reversing his predecessors’ asylum decisions in Matter of A-B- and Matter of L-E-A-.

The “Particularly Serious Crime” Bar. Under section 208 of the Immigration and Nationality Act (INA), an alien can establish eligibility for asylum by showing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

There are various bars to asylum, but the one at issue in Matter of B-R-Z- is in section 208(b)(2)(A)(ii) of the INA, which prevents an IJ from granting asylum to an alien who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States”.

Any alien who has been convicted of an “aggravated felony” (as defined in section 101(a)(43) of the INA) has been convicted of a particularly serious crime for purposes of this bar, but other crimes can also be found to be “particularly serious”.

There is a similar bar for aliens seeking withholding of removal under section 241(b)(3) of the INA. Such statutory withholding is akin to asylum, but for removal to be withheld under this provision, the alien must show that it is “more likely than not” that he or she will be subject to persecution if removed.

Section 241(b)(3)(B) of the INA bars statutory withholding, however, where “the alien, having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States”.

An alien convicted of one or more aggravated felonies is barred under this provision if the alien has been “sentenced to an aggregate term of imprisonment of at least” five years for those offenses, but again the court can find that any other crime is “particularly serious” and a bar to statutory withholding.

This particularly serious crime bar to statutory withholding also applies to aliens seeking withholding under CAT.

If an alien proves that it is more likely than not that he or she will be tortured if removed to a specific country or countries, the alien can be granted CAT withholding, but by regulation, a conviction for a particularly serious crime under section 241(b)(3)(B) of the INA bars such a grant.

Matter of G-G-S-. The alien respondent in Matter of G-G-S- was a Mexican national and lawful permanent resident of the United States. In 2004, he was convicted of assault with a deadly weapon in violation of section 245(a)(1) of the California Penal Code, for which he received a two-year sentence.

He was placed into removal proceedings, and the IJ concluded that the respondent’s assault conviction was a particularly serious crime, barring him from statutory withholding. The respondent contended, however, that he suffered from chronic paranoid schizophrenia, and that the IJ erred in not considering his mental illness in determining whether his crime was “particularly serious”.

In their precedent decision, a three-member panel of the BIA held: “An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not [to be] considered in assessing whether the alien was convicted of a ‘particularly serious crime’ for immigration purposes.”

To clarify, a criminal defendant in criminal proceedings could argue, for example, that he or she is incompetent to stand trial due to mental health issues, or could plead not guilty by reason of insanity to prove the lack of intent necessary to be convicted for the offense, or offer mental illness as a mitigating factor in sentencing.

State courts have the resources to make those determinations as an initial matter, and while IJs must ensure that the appropriate safeguards are in place so that a respondent suffering from mental illness receives due process, they have neither the time nor the skills to relitigate the underlying criminal case to determine whether the respondent’s mental health issues provide an “out” for removal purposes, or defeat the “particularly serious crime bar”.

What’s more, as the BIA underscored in Matter of G-G-S- and the statutory cites above reveal, the focus under the INA in determining whether an alien has been convicted of a particularly serious crime is whether the alien poses “a danger to the community”.

Regardless of whatever specific mental diagnosis the alien has received, it is the nature of the criminal offense itself and the potential danger that the alien poses to the public that drives the “particularly serious crime” inquiry, not any mental illness that the alien may have been suffering from when he committed the offense.

Biden Administration Attempts to Use Mental Illness to Shield Criminal Aliens from Removal. Matter of B-R-Z- is not the Biden administration’s first attempt to use considerations of criminal aliens’ mental conditions to shield them from removal.

In a February 18 memo limiting ICE immigration enforcement actions, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities”, Acting ICE Director Tae Johnson directed ICE officers and attorneys to consider “mitigating factors, including ... health and medical factors” before questioning, arresting, detaining, prosecuting, and removing otherwise removable aliens.

“Mental health” is plainly a subset of “health”, but the Tae Johnson memo did not specifically tell ICE employees to take criminal aliens’ mental health issues into consideration when taking (or not taking) enforcement actions.

That happened in a subsequent (non-)enforcement memo, issued by DHS Secretary Alejandro Mayorkas on September 30 and captioned “Guidelines for the Enforcement of Civil Immigration Law”.

In his memo, Mayorkas limited the ability of ICE officers to enforce the INA against criminal aliens under the pretense of setting “priorities” for enforcement.

As I have explained many times in the past, the Biden administration has only three such priorities: “threats to national security” (spies and terrorists); “threats to public safety” (usually, but not exclusively aliens with criminal convictions); and “threats to border security” (aliens who entered illegally on or after the arbitrary date of November 1, 2020).

With respect to aliens who pose a threat to public safety, the Mayorkas memo requires ICE officers to consider any “mental condition that may have contributed to the criminal conduct” as a “mitigating factor” that would weigh against taking enforcement action against a criminal alien.

Thus, if an alien received a two-year sentence for assault with a deadly weapon (as G-G-S- did) as well as a diagnosis for chronic paranoid schizophrenia (ditto), an ICE officer considering even questioning the alien would have to assess the degree to which the alien’s mental illness contributed to the alien’s criminality.

Problems with the Biden Administration’s Approach to the Mental Health of Criminal Aliens. There are several problems related to the Biden administration’s approach in using criminal aliens’ mental conditions as a mitigating factor in immigration enforcement and, potentially, the granting of humanitarian protections.

The first has to do with the INA itself, the grounds of removability in which are written in mandatory terms. Accordingly, if an alien is inadmissible under section 212 of the INA or deportable under section 237 of the INA, DHS is supposed to remove the alien, unless he or she is eligible for some immigration relief or protection.

None of the grounds of removability directs DHS to take the alien’s mental state into consideration before initiating removal proceedings. In fact, section 212(a)(1)(A)(iii)(I) of the INA expressly bars the admission of aliens who are determined to have a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others”.

Similarly, aliens are inadmissible under section 212(a)(1)(A)(iii)(II) if they have had a “mental disorder and a history of behavior associated with the disorder, which behavior has posed a threat to the property, safety, or welfare of the alien or others and which behavior is likely to recur or to lead to other harmful behavior”.

Removability on this ground does not end once an alien has been lawfully admitted to the United States. Section 237(a)(1)(A) of the INA directs the deportation of “[a]ny alien who at the time of entry or adjustment of status was within one or more of the classes of aliens inadmissible by the law existing at such time”. That includes under sections 212(a)(1)(A)(iii) of the INA.

And, as noted, the "particularly serious crime" bars to asylum, statutory withholding, and CAT withholding in the INA are specifically intended to protect the community from criminal aliens who pose a danger.

That may sound harsh to some (including those calling the immigration shots in the White House), but not only is it the law, it is also common sense.

Take the example of G-G-S-, diagnosed with chronic paranoid schizophrenia. His claim was that “his mental illness prevented him from solving a complex social situation such as being aggressively challenged by a stranger”, resulting in his recourse to the use of violence.

In that situation, his mental disorder makes him more of a danger to a community that is not aware of his specific condition than a person who does not have the same condition. Simply put, the mental disorder is not the issue; the consequences of the alien’s actions are.

Taking this all one step further, there are almost 300 mental disorders in the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), the “handbook used by health professionals to help identify and diagnose mental illness”. They range from the relatively benign (obsessive-compulsive disorder) to “disruptive, impulse control, and conduct disorders” like pyromania.

Arson is a common law offense and a federal and state crime. If an alien is convicted of arson in the third degree under New York State law for intentionally damaging a building by starting a fire, should ICE seek to remove the alien for that conviction, which the Supreme Court has held is an aggravated felony as defined in section 101(a)(43)(E)(i) of the INA?

The obvious answer is yes, but under the Biden administration’s logic, a diagnosis finding that the alien is a pyromaniac would be a mitigating factor for an ICE officer considering the alien’s conviction, one militating in favor of not placing the alien into removal proceedings. That would be true regardless of whether that disorder makes the alien liable to act again. Does that make sense?

Or what about an alien convicted of sexual abuse of a minor under 18 U.S.C. § 2243, which the Supreme Court has used to define the aggravated felony of the same name in section 101(a)(43)(A) of the INA.

Plainly, an alien convicted of such an egregious offense should be removed. The DSM-5, however, contains a list of so-called “paraphilic disorders”, including “pedophilic disorder”.

The Merck Manual explains:

Pedophilic disorder is characterized by recurrent, intense sexually arousing fantasies, urges, or behaviors involving prepubescent or young adolescents (usually ≤ 13 years); it is diagnosed only when people are ≥ 16 years and ≥ 5 years older than the child who is the target of the fantasies or behaviors. [Emphasis added.]

If the alien receives a sentence of fewer than five years for that conviction, should the IJ consider a diagnosis of pedophilic disorder to determine that the crime is not a particularly serious one? Most objective and reasonable observers would say “no”, and that such offenses are among the most serious.

What will AG Garland say? I am not sure, but there would be serious due process concerns if an alien like G-G-S- was given a break, but the alien with pedophilic disorder convicted of sexual abuse of a minor were not.

The Merck Manual also explains: “Predatory pedophiles, many of whom have antisocial personality disorder, may use force and threaten to physically harm the child or the child’s pets if the abuse is disclosed.”

It states that “[a]ntisocial personality disorder is characterized by a pervasive pattern of disregard for consequences and for the rights of others. Diagnosis is by clinical criteria.” What if our offender is well-heeled, and thus able to afford such a diagnosis? The Mayorkas memo requires ICE to consider such a diagnosis, and it is possible that AG Garland will require IJs to do so, as well.

Conclusion. The INA should be enforced — and enforced impartially and objectively. Requiring ICE officers or immigration judges to consider whether criminal aliens have any of the nearly 300 identified mental disorders in taking enforcement actions on the one hand or extending protection on the other poses a significant risk to the people of the United States and will lead to unequal justice — both of which we should all oppose.