Attorney General Merrick Garland has ruled that judges considering asylum cases can take into consideration the mental health of criminals attempting to come into the country.
Under the Immigration and Nationality Act, illegal immigrants seeking entry into the country would be made ineligible for both asylum and withholding of removal if they have been convicted of a "particularly serious crime," and pose a "danger to the community of the United States."
In a decision handed down by Garland, judges considering these cases can now take into consideration the mental health of these immigrants in their rulings.
In a specific matter ruled on in 2014, titled Matter of G-G-S-, the Board had determined "that a person’s mental health is not a factor to be considered in a particularly serious crime analysis."
This decision rested on two factors: first being that "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 that immigration adductors "cannot go behind the decisions of the criminal judge and reassess any ruling on criminal culpability."
The second reasoning being that the Board said an immigrants "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 specific case before Garland involved a Mexican man who had been convicted of burglary in April of 2017, and served four years of imprisonment.
The man attempted to seek a withholding of removal, with the memo stating that the man said "if he returned to Mexico, he would be persecuted on the basis of his sexual orientation and mental health condition."
The judge ultimately decided against the man's appeal, with the Board upholding the decision.
The Board however "remanded the case for further consideration of respondents application for deferral of removal under the Convention Against Torture based on additional evidence showing respondent’s worsening mental health symptoms," the memo stated.
In response to the case, Garland said that "both respondent and the Department of Homeland Security now agree that G-G-S- is erroneous and should be overruled." Garland had directed the board to send the case to him for review in December.
"In some circumstances, a respondent's mental health condition may indicate that the respondent does not pose a danger to the community," Garland wrote, using the example of a victim of domestic abuse that is convicted of assaulting their abuser.
"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 removal may apply," he continued.
"But the potential relevance of mental health evidence to the dangerousness inquiry sufficed to establish such evidence should not categorically be disregarded, as G-G-S- held."
Originally, the act stated that those convicted of aggravated felonies are considered serious crimes in cases where asylum is being sought, and these felonies are considered serious crimes if the defendant was sentenced for at least five years in prison for the purposes of withholding removal.
"For all other offenses, the INA does not specify when a crime qualifies as particularly serious, The Board has filed that statutory gap by holding that, where the statute’s per se rules do not apply, adductors must determine on a case-by-case basis whether a conviction is for a particularly serious crime," the decisions states.
It states that the Board says the "essential key" in determining these cases is whether the offense is serious enough that it "indicated that the [respondent] poses a danger to the community."
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