Immigration courts will now be allowed to take into account the mental health history of an illegal immigrant convicted of an aggravated felony when considering their asylum claim or whether to withhold their deportation, Attorney General Merrick Garland said Monday.
Garland’s decision overturns a 2014 Board of Immigration Appeals ruling that, when judging the seriousness of the crime, “a person’s mental health is not a factor to be considered in a particularly serious crime analysis.” Judges were not to consider a person’s mental health as not to overrule the decisions of the criminal judge and because mental condition does not relate to the conviction and the facts that make them a danger to the community, Fox News reported.
Yet Garland said Monday: “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.”
The decision comes after Garland asked the board to send him a case for review involving a Mexican national convicted of burglary in New Jersey in 2017. The man, who was sentenced to four years in prison, argued that he should not be deported because he would be persecuted because of his sexual orientation and mental health condition in Mexico.
An immigration judge dismissed the man’s application because the judge did not take the immigrant’s mental health into account. Immigrants who have been convicted of a serious crime that represents a danger to the community are ineligible for asylum and withholding of removal under the Immigration and Nationality Act.
The Board of Immigration Appeals also dismissed the man’s appeal.
Garland said Monday that he had determined that it is appropriate to overrule the Board’s precedent-setting decision in the 2014 case, Matter of G-G-S, and thus vacated the Board’s decision in the case of the Mexican national convicted of burglary.
“In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community,” Garland wrote.
He cited several examples, such as a domestic violence victim who was convicted of assaulting their abuser and assaults which were influenced 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 said.”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.”