As I reported in December, Attorney General (AG) Merrick Garland will review “[w]hether mental health may be considered when determining whether an ”alien has been convicted of a “particularly serious crime”, barring the alien from asylum, statutory withholding, and protection under the Convention Against Torture (CAT). The Supreme Court may also consider this issue, though you wouldn’t know it from a recent DOJ filing. Both the AG and the Court should, however, move cautiously in upsetting current law.
The Particularly Serious Crime Bar to Asylum, Statutory Withholding, and CAT. Asylum, statutory withholding, and CAT are all forms of protection available to aliens facing removal from the United States. Many aliens — including certain criminals — are barred from receiving those protections, however.
For example, section 208 of the Immigration and Nationality Act (INA), which governs asylum, contains various bars that prevent the AG (and his delegates, immigration judges (IJs) and Board of Immigration Appeals (BIA) members) from granting such protection.
Specifically, section 208(b)(2)(A)(ii) of the INA bars a grant of asylum where the AG or his delegate “determines that ... the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States”.
Aggravated felonies are automatically deemed particularly serious crimes for purposes of asylum, but that still leaves many criminal offenses that are inherently “particularly serious” and otherwise not specifically listed.
There is a similar bar for aliens seeking statutory withholding under section 241(b)(3) of the INA. Statutory withholding is akin to asylum, though an applicant for statutory withholding bears a higher burden of proof.
Section 241(b)(3)(B) of the INA bars statutory withholding, 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.” Despite the slight differences in verbiage between the two bars, the analysis is the same.
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 such offenses, but again the court can find that other crimes are “particularly serious” and bars to statutory withholding.
The 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.
What is a “Particularly Serious Crime”? “Particularly serious crimes” have been bars to immigration protection for decades, but neither the legislative history of those bars nor the international documents that are the basis for those forms of protection offer much help in assessing which crimes are “particularly serious”.
In its 1982 landmark decision in Matter of Frentescu, the BIA helped fill in many of these blanks. It held that IJs should determine whether a crime is particularly serious on a “case-by-case basis” focusing on the crime itself, after examining:
such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the alien will be a danger to the community. [Emphasis added.]
That is a straightforward calculus and one that, as an IJ, I had no difficulty applying.
Mental Health as a Factor. More than 32 years after Matter of Frentescu, the BIA returned to its “particularly serious crime” analysis in Matter of G-G-S-. The respondent in that case, a native and citizen of Mexico, had been convicted of assault with a deadly weapon under California state law, for which he had received a two-year sentence.
The IJ found that the crime was an aggravated felony and that the respondent was removable. As relief from removal, the respondent applied for statutory withholding and withholding under CAT.
The respondent argued that his crime did not bar those protections and that the court should consider that he had suffered from chronic paranoid schizophrenia from an early age, which, he argued, mitigated the seriousness of his offense.
The BIA concluded that determining whether “[a]n alien’s mental health is a factor in a criminal act falls within the province of the criminal courts and is not considered in assessing whether the alien was convicted of a ‘particularly serious crime’ for immigration purposes.”
Two federal courts of appeal have disagreed with the BIA’s conclusion in Matter of G-G-S-.
G-G-S- himself filed a petition for review of that decision, and in Gomez-Sanchez v. Sessions, the Ninth Circuit held that the BIA’s “rationale — that evidence of an individual's mental condition at the time he or she committed the crime of conviction is categorically irrelevant — is unreasonable.”
The circuit court held that IJs should be allowed to consider mental health evidence in making the “dangerousness” determination, and disputed whether, as the BIA concluded, criminal courts would take an alien’s mental health into consideration during trial and sentencing.
Following the Ninth Circuit’s lead, the Eighth Circuit in Shazi v. Wilkinson rejected the BIA’s categorical bar of mental health evidence in assessing whether crimes are particularly serious, as contemplated in Matter of G-G-S-.
There are differing views, however. In Birhanu v. Wilkinson, the Tenth Circuit deferred to the BIA’s determination in Matter of G-G-S- that the appellant’s mental health could not be considered in the particularly serious crime analysis. Significantly, the circuit court held:
Permitting immigration courts to consider mental health evidence that the criminal court did not review firsthand, despite ample opportunity to do so, may lead to the second-guessing of the criminal court's rulings which the BIA sought to avoid.
Birhanu has filed a petition for certiorari with the Supreme Court. DOJ has now filed three motions to extend the time to respond to that petition.
Timing of the AG’s Review of Matter of B-Z-R-. In DOJ’s latest request for an extension, filed on January 6, it asserted: “This extension is necessary because the attorneys with principal responsibility for final preparation of the government’s response has [sic] been heavily engaged with the press of other matters before the Court.”
Ignoring the grammatical error in that sentence, the department’s position raises an interesting issue. The AG’s request for briefing in Matter of B-Z-R- is, in essence, a potential departmental reconsideration of the BIA’s decision in Matter of G-G-S-.
Similarly, Birhanu’s petition for certiorari is, at its core, a request that the Supreme Court review Matter of G-G-S-, as well.
I have no doubt about, and do not question, the validity of the basis for DOJ’s request for an extension in Birhanu. Logically, however, counsel for DOJ would be at least aware that the AG is considering revisiting Matter of G-G-S-, the BIA decision that underpins the Tenth Circuit’s decision. If it were reversed, Birhanu could at the least request a remand of his case back to the BIA without bothering the Court.
DOJ’s request for an extension was unopposed, so logically Birhanu is aware of the pendency of the AG’s review, as well.
Should an Alien’s Mental Health Issues Excuse Criminal Misconduct? All of that said, I believe that Matter of G-G-S- was correctly decided, for reasons I set forth in my December post. Opening the door to the consideration of the mental health issues of an applicant for asylum, statutory withholding, and CAT in assessing whether that applicant’s crime is particularly serious raises all sorts of issues.
First, a better-heeled alien criminal would likely be able to afford a mental health professional whose assessment could ascribe that alien’s criminal conduct to some underlying mental issue from which that alien suffers. Two systems of justice are anathema to our principles.
Second, allowing such evidence in removal proceedings would drag out what would normally be a straightforward determination. As of October 19, there were almost 1.4 million cases pending before the nation’s 559 IJs — more than 2,500 cases per judge.
Nearly half (more than 623,500) of those cases are applications for asylum — 1,115-plus asylum cases per IJ. In the ideal case, applications for asylum, statutory withholding, and CAT can be completed in about three hours.
Doubling that in just a handful of cases for mental health assessments would strain immigration courts already digging themselves out from pandemic-related shutdowns. And allowing consideration of mental health issues that the alien may suffer from would prompt many more such claims.
Third, and with due respect to my former colleagues, IJs lack the experience and expertise to weigh such mental-health-related evidence. State and federal criminal court judges do have that experience and expertise, because as Matter of G-G-S- explains, they deal with such issues all the time.
Fourth, in that vein, and as I explained in my earlier post, 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”. Many could be used in an attempt to minimize criminal activity, like sexual abuse of a minor (possibly covered by “pedophilic disorder”).
How exactly would an IJ determine whether such a mental illness renders an otherwise “particularly serious crime” not serious? And does mental illness excuse criminal activity regardless of whether the respondent will re-offend? That would appear to be inconsistent with Congress’s directive that aliens who pose a “danger to the community” not receive protection.
Which leads me to the fifth issue, the ability of ICE attorneys (who represent the United States in immigration court) to rebut such evidence. Their funding is limited, as is their time (and I would know, as a former IJ and INS trial attorney). They have neither the bandwidth nor the resources to counter mental health evidence in most cases in which such a defense would be raised by an alien criminal.
Sixth, logically mental health issues cut both ways, but will AG Garland allow ICE to introduce evidence showing that the perpetrator of a borderline particularly serious crime actually poses a danger to the community because that alien respondent suffers from a mental health disorder?
G-G-S-/Gomez-Sanchez alleged that “his mental illness prevented him from solving a complex social situation such as being aggressively challenged by a stranger”, which is why he swung a weightlifting barbell at his victim, grazing the victim’s head and “result[ing] in a laceration that required stitches”.
What if G-G-S- had missed the victim and been charged with a lesser offense? Could ICE have argued that the alien’s mental illness “prevented him from solving a complex social situation such as being aggressively challenged by a stranger”, and that therefore his lesser crime was particularly serious?
That would allow ICE to relitigate the underlying criminal matter in much the same way that the Eighth and Ninth Circuit decisions allow aliens to do. AG Garland may not permit ICE to use an alien’s mental health condition in such a way, but an AG under a future President Kristi Noem likely would. Will the federal courts allow them to do so?
Congress’ Responsibility. This brings me to the legislative branch. Congress must be as specific as possible when it comes to drafting the immigration laws for the simple reason that litigation inevitably follows any dispute as to its intent in the INA.
In FY 2019, appeals from BIA decisions accounted for 85 percent of administrative agency appeals before the federal circuit courts and were the largest category of administrative agency appeals filed in each circuit court except the D.C. Circuit (which has only limited jurisdiction over immigration).
Why are there so many immigration appeals? As the Supreme Court has explained, “in a deportation proceeding ... as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” Circuit court appeals allow aliens to prolong their stays in the United States.
The “particularly serious crime” bar dates back to the Refugee Act of 1980, when there were just a fraction of the immigration cases that there are today. That is likely why Congress left it to DOJ to sort out what that bar meant. As the asylum statistics above reveal, however, that act and its successors are a major factor in the backlog that is burdening IJs today.
When and if Congress revisits the asylum and statutory withholding provisions in the INA, it will be incumbent on the “first branch” to provide additional guidance for adjudicators in applying that bar.
Immigration Adjudicators Should Leave Mental Health Issues Alone. In the interim, Matter of Frentescu and its progeny (including Matter of G-G-S-) allow IJs to dispense with mental health questions and focus instead on whether the facts of the applicant’s crime are such that the applicant does or does not constitute a danger to the community.
IJs know how to apply laws to facts; they have no expertise in viewing laws and facts through a lens of nearly 300 mental health disorders, nor do they have the time to do so where such disorders were already considered by state and federal judges in determining whether the criminal alien had the mens rea required to have been found guilty of violating the criminal statute.
The AG and the Supreme Court should move cautiously before overturning the rule that IJs and the BIA are to exclude evidence concerning an alien’s mental health disorders in determining whether the alien is barred from protection because that alien has been convicted of a particularly serious crime.