Attorney General Overrules Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014), Holds That Immigration Adjudicators May Consider A Respondent’s Mental Health In Determining Whether An Individual, “Having Been Convicted By A Final Judgement Of A Particularly Serious Crime, Constitutes A Danger To The Community Of The United States.” INA §208(b)(2)(A)(ii).
On May 9, 2022, Attorney General (AG) Merrick Garland reviewed and overruled a prior precedent decision by the Board of Immigration Appeals (BIA or Board), Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014). Explaining that under INA §§208(b)(2)(A)(ii), asylum and withholding of removal are unavailable to one who, “having been convicted by a final judgment of a particular serious crime, constitutes a danger to the community of the United States,” the AG noted that, in Matter G-G-S-, the BIA had determined “that a person’s mental health is not a factor to be considered in a particularly serious crime analysis.” In December 2021, AG Garland had directed the Board to refer the case to him and invited the parties and 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 §§208(b)(2)(A)(ii). Both Respondent and DHS agreed that G-G-S- was faulty and should be overturned.
The AG began his analysis by observing that 2 Courts of Appeal had rejected the BIA’s treatment of mental health in G-G-S- as inadequately reasoned and inconsistent with Board precedent; a third Federal appellate court had concluded that the case did not provide “the most obvious framework for determining whether an offense is a ‘particular serious crime’” and that criticisms of the decision “are well taken”, but felt that G-G-S- was entitled to deference. As such, in the 2 former Circuits (the 8th and 9th), 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.”
Explaining that the BIA has held that the essential key in a particular serious crime determination is whether the offense indicates that a Respondent poses a danger to the community, the AG found that in some circumstances, one’s mental health condition may indicate that he or she does not pose such a danger, e.g., 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”. In other words, the potential relevance of mental health to the “dangerousness inquiry” suffices to establish that such evidence not just be categorically disregarded, as mandated by G-G-S-. In fact, G-G-S- had recognized the Board’s prior holdings that a respondent’s motivation and intent can be relevant to the dangerousness inquiry.Because the “relevance of mental health evidence in any given case is best determined through the Board’s longstanding case-by-case approach,” G-G-S- was overruled. The BIA’s decision in the instant case was vacated, and the matter was remanded to the Immigration Judge for further proceedings consistent with this opinion. Matter of B-Z-R-, 28 I&N Dec.563 (A.G. 2022)
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