Birhanu v. Wilkinson, 990 F.3d 1242

Background

Petitioner Thewodros Birhanu, an Ethiopian national and U.S. lawful permanent resident, has a history of paranoid schizophrenia treated effectively with medication in the U.S.; treatment and conditions in Ethiopia are limited.
In December 2016, during a psychotic episode, Birhanu made two separate terroristic threats: (Dec. 21) threatening comments at a university building that prompted a lockdown, and (Dec. 24) a threatening e-mail to a university employee.
He pled "guilty but mentally ill" to two counts of making threats of terrorism under Utah law and received an indeterminate sentence (up to five years) that was suspended with credit for time served.
DHS commenced removal proceedings, charging removability under 8 U.S.C. § 1227(a)(2)(A)(ii) as an alien convicted of two or more crimes involving moral turpitude (CIMTs) not arising from a single scheme; the IJ found him competent after pro se competency hearings, ordered removal, and denied asylum/withholding (as convictions were "particularly serious") and CAT relief; the BIA affirmed.
On review, the Tenth Circuit addressed (1) due process of the IJ’s competency safeguards and an unexhausted Section 504 Rehabilitation Act claim, (2) whether the convictions are CIMTs and arose from a single scheme, (3) whether the BIA improperly excluded mental-health evidence in the "particularly serious crime" analysis, and (4) denial of CAT relief.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Adequacy of IJ competency safeguards; Section 504 claim	Birhanu: IJ’s competency hearing lacked procedures adequate to assure competency and he should have had appointed counsel under Section 504.	IJ/DHS: IJ conducted repeated competency questioning, considered medical records and social-worker letter, continued to monitor competency; Section 504 claim not properly presented to BIA.	Court: Due process satisfied—IJ took sufficient safeguards; Section 504 claim dismissed as unexhausted.
Whether convictions are CIMTs	Birhanu: Offense requires only reckless threatening, so lacks requisite moral turpitude.	DHS/BIA: Utah statute requires intent to interrupt occupation plus mens rea (intent/knowledge/recklessness); specific intent to interrupt plus threat constitutes immoral, culpable conduct.	Court: Convictions qualify as CIMTs (reckless threat aggravated by specific intent to interrupt access).
Whether convictions arose from a single scheme	Birhanu: Two threats were part of same scheme/goal and mental illness prevented disassociation between acts.	DHS/BIA: Acts were temporally separated (three days), different victims and modes — distinct acts not natural consequence of a single act.	Court: Not a single scheme — separate acts on different days are distinct for § 1227(a)(2)(A)(ii).
Whether BIA wrongly excluded mental-health evidence in "particularly serious crime" analysis (asylum/withholding)	Birhanu: BIA’s Matter of G-G-S- rule (categorically excluding independent consideration of mental illness) is arbitrary here because his Utah conviction expressly recognized mental illness ("guilty but mentally ill").	DHS/BIA: Matter of G-G-S- is a reasonable BIA construction of § 1231; immigration courts should focus on the crime’s nature/circumstances and defer to how criminal courts addressed mental health; deference under Chevron applies.	Court: Affirms BIA; Matter of G-G-S- reasonable and entitled to Chevron deference; BIA properly relied on criminal-court treatment of mental health; dissent would remand.
CAT relief (risk of torture on return)	Birhanu: IJ overlooked or misconstrued evidence about abuse and lack of treatment in Ethiopia, making torture likely.	DHS/IJ: IJ considered medical reports, family support, country reports, limited access to meds, and concluded family support/alternate meds make torture less likely than not.	Court: Substantial-evidence standard; IJ’s denial supported by record—CAT relief denied.

Key Cases Cited

Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT claims reviewed for substantial evidence)
Brue v. Gonzales, 464 F.3d 1227 (10th Cir. 2006) (due-process review for competency in removal proceedings)
Schroeck v. Gonzales, 429 F.3d 947 (10th Cir. 2005) (procedural due process requires meaningful opportunity to be heard)
Garcia-Carbajal v. Holder, 625 F.3d 1233 (10th Cir. 2010) (exhaustion requires presenting specific legal theories to the BIA)
De Leon v. Lynch, 808 F.3d 1224 (10th Cir. 2015) (definition of moral turpitude and BIA deference)
Flores-Molina v. Sessions, 850 F.3d 1150 (10th Cir. 2017) (limits on deference to BIA and when Chevron applies)
Efagene v. Holder, 642 F.3d 918 (10th Cir. 2011) (CIMT requires reprehensible act plus evil intent/scienter)
Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004) (terroristic-threat statute classified as a CIMT)
Javier v. Attorney General, 826 F.3d 127 (3d Cir. 2016) (threat statutes with specific intent to terrorize are CIMTs)
Nguyen v. I.N.S., 991 F.2d 621 (10th Cir. 1993) (test for "single scheme of criminal misconduct")
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984) (agency deference framework)
Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005) (agency interpretations can be upheld even if differing from courts')
Fox Television Stations v. FCC, 556 U.S. 502 (2009) (requirements for reasonable explanation when agency changes course)