B-Z-R , 28 I. & N. Dec. 563 ( 2022 )

Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045
Matter of B-Z-R-, Respondent
Decided by Attorney General May 9, 2022
U.S. Department of Justice
Office of the Attorney General
(1) Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014), is overruled.
(2) Immigration adjudicators may consider a respondent’s mental health in determining
whether an individual, “having been convicted by a final judgment of a particularly
serious crime, constitutes a danger to the community of the United States.” 8 U.S.C.
§ 1158(b)(2)(A)(ii); see id § 1231(b)(3)(B)(ii).
BEFORE THE ATTORNEY GENERAL
Under the Immigration and Nationality Act (“INA”), asylum and
withholding of removal are unavailable to a non-citizen who, “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),
8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 241(b)(3)(B)(ii), 8 U.S.C.
§ 1231(b)(3)(B)(ii). The INA specifies that aggravated felony convictions
are per se particularly serious crimes for purposes of asylum, id.§ 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B)(i), and that aggravated felonies
are per se particularly serious crimes for purposes of withholding of removal
if the respondent was sentenced to an aggregate term of imprisonment of at
least five years, id. § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B). For all other
offenses, the INA does not specify when a crime qualifies as particularly
serious. The Board has filled that statutory gap by holding that, where the
statute’s per se rules do not apply, adjudicators must determine on a
case-by-case basis whether a conviction is for a particularly serious crime.
Matter of N-A-M-, 24 I&N Dec. 336, 338 (BIA 2007); see, e.g., Denis v. Att’y
Gen. of U.S., 633 F.3d 201, 214–17 (3d Cir. 2011) (deferring to this
interpretation); Delgado v. Holder, 648 F.3d 1095, 1097–98 (9th Cir. 2011)
(en banc) (same); Gao v. Holder, 595 F.3d 549, 554 (4th Cir. 2010) (same);
N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (per curiam) (same).
The Board has held that “the essential key” in determining whether an
offense is particularly serious is whether it “indicates that the [respondent]
poses a danger to the community.” Matter of Carballe, 19 I&N Dec. 357,
360 (BIA 1986); see Gomez-Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir.
2018) (explaining that “dangerousness” is “the ‘essential key’ to determining
whether the individual’s conviction was for a particularly serious crime”
563
Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045
(quoting Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013)). 1 Thus,
“in judging the seriousness of a crime, [adjudicators] look to 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 respondent is a danger
to the community.” Matter of L-S-, 22 I&N Dec. 645, 649 (BIA 1999); see
Carballe, 19 I&N Dec. at 360; Matter of Frentescu, 18 I&N Dec. 244, 247
(BIA 1982). The Board has emphasized that “all reliable information may
be considered in making a particularly serious crime determination,”
including “information outside the confines of a record of conviction.”
N-A-M-, 24 I&N Dec. at 342.
In Matter of G-G-S-, however, the Board determined “that 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). This determination rested on
two rationales. First, the Board reasoned that “[w]hether and to what extent
an individual’s mental illness or disorder is relevant to his or her commission
of an offense and conviction for the crime are issues best resolved in criminal
proceedings by the finders of fact,” and immigration adjudicators “cannot go
behind the decisions of the criminal judge and reassess any ruling on criminal
culpability.” Id. at 345. Second, the Board concluded that a non-citizen’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.
Three Courts of Appeals have reviewed the Board’s decision in G-G-S-.
The Eighth and Ninth Circuits have rejected the Board’s treatment of mental
health in G-G-S- as inadequately reasoned and inconsistent with Board
precedent. Shazi v. Wilkinson, 988 F.3d 441, 448–50 (8th Cir. 2021);
Gomez-Sanchez, 892 F.3d at 992–97. The Tenth Circuit has held that, while
G-G-S- “may not provide the most obvious framework for determining
whether an offense is a ‘particularly serious crime,’” and although “criticisms
of that decision . . . are well taken,” the Board’s decision is nonetheless
entitled to deference. Birhanu v. Wilkinson, 990 F.3d 1242, 1263–64 (10th
Cir. 2021), cert. petition pending, No. 21-539; see also id. at 1266–72
(Bacharach, J., concurring in part and dissenting in part) (arguing that
G-G-S- is “arbitrary” and should be overturned). Accordingly, in the Eighth
1
Respondent and certain amici have asked me to revisit the Board’s holding in Carballe
that the particularly serious crime analysis focuses only on the nature and circumstances of
the crime at issue, and not on an additional assessment of whether the respondent is likely
to engage in future serious misconduct. But I did not request briefing on that issue, see
Matter of B-Z-R-, 28 I&N Dec. 424 (A.G. 2021), and I accordingly decline to address the
Board’s existing body of law on that subject.
564
Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045
and Ninth Circuits, adjudicators may consider mental health evidence when
making a particularly serious crime determination, but in the rest of the
country immigration adjudicators are constrained by G-G-S- to disregard
such evidence.
Respondent is a native and citizen of Mexico who was convicted in April
2017 of burglary in violation of N.J. Stat. Ann. § 2C:18-2(a)(1) (West) and
sentenced to four years of imprisonment. Following the initiation of removal
proceedings, respondent sought withholding of removal on the ground that,
if returned to Mexico, he would be persecuted on the basis of his sexual
orientation and mental health condition. The immigration judge denied
respondent’s application because the judge determined that respondent’s
conviction was for a particularly serious crime. Relying on G-G-S-, the
immigration judge did not consider respondent’s mental health in making the
particularly serious crime determination. The Board upheld the immigration
judge’s decision and dismissed respondent’s appeal. Matter of B-Z-R-, slip
op. at *4–5 (BIA Dec. 3, 2020). The Board acknowledged that “[t]he record
includes evidence that the respondent has been diagnosed with a serious
mental disorder,” id. at *1, but concluded that G-G-S- foreclosed
consideration of respondent’s mental health in determining whether he was
convicted of a particularly serious crime, id. at *4. The Board, however,
remanded the case for further consideration of respondent’s application for
deferral of removal under the Convention Against Torture based on
additional evidence showing respondent’s worsening mental health
symptoms. Id. at *4–5. 2
On December 9, 2021, I directed the Board to refer this case for my
review, see 8 C.F.R. § 1003.1(h)(1)(i), and invited the parties and any
interested amici to submit briefs addressing whether mental health may be
considered when determining whether an individual was convicted of a
“particularly serious crime” within the meaning of 8 U.S.C.
§§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii). Matter of B-Z-R-, 28 I&N Dec.
424 (A.G. 2021). Both respondent and the Department of Homeland
Security now agree that G-G-S- is erroneous and should be overruled.
Respondent’s Opening Br. at 5–11 (Jan. 31, 2022); U.S. Dep’t of Homeland
Security’s Opening Br. at 6–13 (Jan. 31, 2022).
I have determined that it is appropriate to overrule the Board’s decision
in G-G-S-. As noted, the Board has held that “the essential key” in
determining whether an offense is particularly serious is whether it “indicates
that the [respondent] poses a danger to the community.” Carballe, 19 I&N
Dec. at 360. In some circumstances, a respondent’s mental health condition
2
While withholding of removal under the Convention Against Torture (“CAT”) is
unavailable for non-citizens convicted of a particularly serious crime, deferral of removal
under CAT is available. 8 C.F.R. §§ 1208.16(d)(2), 1208.17(a).
565
Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045
may indicate that the respondent does not pose a danger to the community—
for instance, where the respondent “suffered from intimate partner violence,
was convicted of assaulting his or her abuser, and reliable evidence showed
that the individual’s diagnosed post-traumatic stress disorder had played a
substantial motivating role in the assault.” Gomez-Sanchez, 892 F.3d at 996
n.10. Of course, an individual may pose a danger to the community
notwithstanding a mental health condition, and in those cases, the
“particularly serious crime” bar to asylum and withholding of removal may
apply. But the potential relevance of mental health evidence to the
dangerousness inquiry suffices to establish that such evidence should not
categorically be disregarded, as G-G-S- held.
Neither of the rationales the Board offered in G-G-S- justifies its
exclusion of mental health evidence. First, G-G-S- reasoned that
immigration adjudicators “cannot go behind the decisions of the criminal
judge and reassess any ruling on criminal culpability.” 26 I&N Dec. at 345.
But the inquiry into whether a conviction is “particularly serious” does not
involve any reassessment of criminal culpability. It concerns a distinct
question: whether a respondent, “having been convicted by a final judgment
of a particularly serious crime, constitutes a danger to the community of the
United States.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 1231(b)(3)(B)(ii);
Shazi, 988 F.3d at 450; Gomez-Sanchez, 892 F.3d at 993–94. Moreover, for
a variety of reasons, the mental health evidence that a non-citizen may seek
to offer in the immigration context might never have been raised in the
underlying criminal proceeding. See N-A-M-, 24 I&N Dec. at 342
(explaining that immigration judges may consult “information outside the
confines of a record of conviction”). 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.
Second, G-G-S- reasoned that a respondent’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.” 26 I&N Dec. at 346. But, as explained above, a respondent’s
mental health condition may bear directly on whether the respondent poses a
danger to the community. Indeed, the Board’s decision in G-G-S- recognized
the Board’s prior holdings that a respondent’s motivation and intent can be
566
Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045
relevant to the inquiry into dangerousness. See id. at 347 (recognizing that it
may “be appropriate to consider whether . . . conduct was ‘inherently base,
vile, or depraved’ in deciding whether a crime is particularly serious”
(quoting Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999)). The Board
provided no sound reason why mental health evidence should be treated
differently from other evidence pertinent to a respondent’s mental state.
Although G-G-S- went on to observe that considerations regarding a
respondent’s mental state are “not necessarily dispositive,” id., the standard
for determining whether evidence should be considered is whether that
evidence is probative, not whether it is dispositive. See Matter of Y-S-L-C-,
26 I&N Dec. 688, 690 (BIA 2015). The relevance of mental health evidence
in any given case is best determined through the Board’s longstanding case-
by-case approach.
Accordingly, G-G-S- is overruled. Going forward, immigration
adjudicators may consider a respondent’s mental health in determining
whether a respondent, “having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of the
United States.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 1231(b)(3)(B)(ii).
The Board’s decision in respondent’s matter is vacated and the case is
remanded to the immigration judge for further proceedings consistent with
this opinion.
567