28 I. & N. Dec. 563
BIA2022Background
- Under the INA, asylum and withholding are unavailable to a noncitizen who, having been convicted of a "particularly serious crime," "constitutes a danger to the community." 8 U.S.C. §§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii).
- The BIA has historically applied a case-by-case test (Matter of N-A-M-, Matter of Carballe, Matter of L-S-) looking to whether the conviction indicates dangerousness; it also allowed consideration of information outside the record of conviction.
- In Matter of G-G-S-, the BIA held mental health is not a factor in the "particularly serious crime" analysis, reasoning immigration adjudicators cannot reassess criminal culpability and mental condition is unrelated to dangerousness.
- Respondent (Mexican national) was convicted of burglary in 2017, sentenced to four years; an IJ and the BIA denied withholding based on a finding the crime was "particularly serious," excluding mental-health evidence under G-G-S-; the BIA remanded only for CAT deferral consideration.
- The Attorney General invited briefing, both respondent and DHS agreed G-G-S- was erroneous; the AG overruled G-G-S-, holding mental-health evidence may be considered in the particularly serious crime/dangerousness inquiry and remanded the case to the IJ for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether mental-health evidence may be considered in the "particularly serious crime" determination | Mental-health evidence is probative of dangerousness and should be considered case-by-case | G-G-S-: mental health is irrelevant and adjudicators cannot reassess criminal culpability | Overruled G-G-S-; mental-health evidence may be considered when assessing whether a conviction indicates dangerousness |
| Whether considering mental health would impermissibly relitigate criminal culpability | The particularly serious crime inquiry is distinct from criminal culpability; immigration adjudicators may consider information outside the conviction record | Criminal proceedings are the proper forum for mens rea/culpability issues; immigration adjudicators should not "go behind" criminal judgments | Rejected: the AG held the inquiry is distinct and consideration of mental-health evidence does not equate to relitigating guilt |
| Remedy for respondent | Vacate BIA denial and remand for full consideration of mental-health evidence in withholding analysis | BIA had affirmed denial except remanded for CAT deferral | BIA decision vacated; case remanded to IJ for proceedings consistent with opinion |
Key Cases Cited
- Denis v. Att'y Gen. of U.S., 633 F.3d 201 (3d Cir. 2011) (deference to BIA’s case-by-case particularly serious crime framework)
- Delgado v. Holder, 648 F.3d 1095 (9th Cir. 2011) (same)
- Gao v. Holder, 595 F.3d 549 (4th Cir. 2010) (same)
- N-A-M- v. Holder, 587 F.3d 1052 (10th Cir. 2009) (recognizing BIA’s particularly serious crime analysis)
- Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) (discussing dangerousness as central to the inquiry)
- Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018) (holding mental-health evidence may be relevant to dangerousness)
- Shazi v. Wilkinson, 988 F.3d 441 (8th Cir. 2021) (criticizing G-G-S- as inconsistent with prior BIA precedent)
- Birhanu v. Wilkinson, 990 F.3d 1242 (10th Cir. 2021) (upholding G-G-S- under deference but questioning its reasoning)