The Biden administration has said that judges may take into consideration the mental health of criminal illegal immigrants who have been convicted of “particularly serious crimes” when considering asylum cases.
Under the Immigration and Nationality Act, illegal immigrants seeking entry into the country would be made ineligible for both asylum and withholding of removal—whereby illegal immigrants remain in the United States after demonstrating that they would likely face persecution in their country of origin due to their race, nationality, religion, or political opinion, among others—if they have been convicted of a “particularly serious crime” and are found to be a danger to the community of the United States.
However, Attorney General Merrick Garland ruled on May 9 that judges considering such cases may now take into consideration the mental health of these immigrants in their rulings.
That determination rested on two factors, the first one being “whether and to what extent an individual’s mental illness or disorder is relevant to his or her commission of an offense and conviction for a crime are issues best resolved in criminal proceedings by finders of fact,” and the fact that immigration adjudicators “cannot go behind the decisions of the criminal judge and reassess any ruling on criminal culpability.”
The second factor is that the board concluded that an illegal alien’s “mental condition does not relate to the pivotal issue in a particularly serious crime analysis, which is whether the nature of his convictions he sentence imposed, and the circumstances and underlying facts indicate that he posed a danger to the community.”
The “Matter of G-G-S” case involved a Mexican man who was convicted in 2004 of assault with a deadly weapon and sentenced to two years in prison.
From an early age, the man suffered from chronic paranoid schizophrenia, according to an interim decision on the case. The immigration judge found that the man’s offense was a “crime of violence aggravated felony,” and further determined that it was a “particularly serious crime,” which barred him from establishing eligibility for withholding of removal.
However, the man sought to block his deportation by stating that his mental health condition should be a factor in determining whether his offense was a particularly serious crime and claimed that “his mental illness prevented him from solving a complex social situation such as being aggressively challenged by a stranger” and consequently resulted in him being violent.
Garland in December directed the board to send him the case for review.
On Monday, Garland said that he had determined that “it is appropriate to overrule the Board’s decision in G-G-S-.”
“In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community,” he said, citing examples such as where the individual had suffered from “intimate partner violence” and was convicted of assaulting their partner, or where “reliable evidence” showed that the individual’s assault had been motivated by post-traumatic stress disorder.
“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,” he noted. “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.”
“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,” he said.
“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.”
Garland’s decision comes as U.S. Border Patrol agents are preparing for an influx of illegal immigrants attempting to enter the country when the Trump-era Title 42 policy is lifted later this month.
That policy had allowed agents to turn illegal aliens back to Mexico immediately if they were deemed to pose a health threat amid the COVID-19 pandemic.
But the Biden administration says it believes that an increase in health tools such as vaccinations has helped to combat the spread of the virus and therefore those restrictions will be terminated on May 23.
