Attorney General Holds That Adjudicators Can Consider a Noncitizen’s Mental Health in Applying the Particularly Serious Crime Bar
A recent decision issued by the Attorney General provides greater protection to asylum and withholding of removal applicants who have been convicted of certain crimes. The decision eliminates an unjust rule that barred adjudicators from taking evidence related to mental health into account when determining whether a conviction rendered the applicant ineligible for the relief. Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022).
Under the Immigration and Nationality Act, or INA, a noncitizen is barred from both asylum and withholding of removal if the noncitizen, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” INA §§ 208(b)(2)(A)(ii), 241(b)(3)(B)(ii). The statute specifies that aggravated felony convictions are per se particularly serious crimes for purposes of asylum, and per se particularly serious crimes for purposes of withholding of removal if the noncitizen was sentenced to an aggregate term of imprisonment of at least five years. For all other offenses, adjudicators must decide on a case-by-case basis whether a conviction is for a particularly serious crime.
The key consideration is whether the crime indicates that the noncitizen “poses a danger to the community.” Matter of B-Z-R-, 28 I&N Dec. at 563. Longstanding precedent from the Board of Immigration Appeals, or Board, allowed adjudicators to consider factors including the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and whether the type and circumstances of the crime show that the noncitizen is a danger to the community. Id. at 564.
In Matter of G-G-S-, however, the Board stated: “a person’s mental health is not a factor to be considered in a particularly serious crime analysis.” 26 I&N Dec. 339, 339 (BIA 2014). The Board’s faulty rationale for this holding was that: (1) the relevance of a person’s mental illness to their criminal culpability is an issue best resolved by factfinders in criminal proceedings and (2) a noncitizen’s “mental condition does not relate to the pivotal issue in a particularly serious crime analysis, which is whether the nature of his conviction, the sentence imposed, and the circumstances and underlying facts indicate that he posed a danger to the community.” Id. at 346.
Matter of B-Z-R-
The Attorney General’s decision in Matter of B-Z-R- expressly overruled the Board’s Matter of G-G-S- decision and held that immigration adjudicators may consider a noncitizen’s mental health when determining whether the particularly serious crime bar applies.
The Attorney General found the Board’s reasoning in Matter of G-G-S- flawed. First, the Attorney General stressed that the inquiry into whether a conviction is “particularly serious” does not require any reevaluation of criminal culpability. The question is quite different: whether a noncitizen, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” Matter of B-Z-R-, 28 I&N Dec. at 566.
Additionally, the mental health evidence that a noncitizen seeks to introduce in the immigration context may never have been raised in the underlying criminal proceeding:
Although a non-citizen’s mental health may arise in the context of mens rea elements, insanity defenses, or competency determinations, the applicability of such evidence in criminal proceedings varies considerably depending on the charge and jurisdiction. A specific mental state may not be required for certain convictions, such as strict liability crimes. For other criminal convictions, mental health may not be a defense. Similarly, mental health evidence might bear on the seriousness of a crime or dangerousness of an individual for immigration purposes but not on, for example, competency to stand trial. Id.
The Attorney General went on to conclude that “a respondent’s mental health condition may bear directly on whether the respondent poses a danger to the community.” Id. at 567. He strongly rebuked the Board, stating, “The Board provided no sound reason why mental health evidence should be treated differently from other evidence pertinent to a respondent’s mental state.” Id.
By allowing the admission of evidence related to a noncitizen’s mental health, Matter of B-Z-R- provides adjudicators the flexibility needed to come to a fair conclusion regarding whether a person truly poses a danger to the community. The decision is an important step toward better protecting the rights of noncitizens with mental illness.