Garland says judges may consider criminal illegal immigrants' mental health when considering asylum claims

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Attorney General Merrick Garland on Monday said that immigration judges can now consider the mental health status of an illegal immigrant convicted of an aggravated felony when considering their asylum claim or whether to withhold their deportation -- overruling a prior decision by a top immigration appeals board.

The Immigration and Nationality Act makes illegal immigrants ineligible for both asylum and withholding of removal -- where illegal immigrants are not returned because they have a fear of persecution if returned to their country of origin -- if they have been convicted of a "particularly serious crime" that constitutes a danger to the community. 

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The DOJ’s Executive Office for Immigration Review’s Board of Immigration Appeals had previously ruled in 2014 (in a case known as "Matter of G-G-S") that, when judging that seriousness of the crime, "a person’s mental health is not a factor to be considered in a particularly serious crime analysis" given that judges are not to go beyond the decisions of the criminal judge, and that mental condition does not relate to the conviction and the facts that make them a danger to the community.

Jan 5, 2022: U.S. Attorney General Merrick Garland speaks at the Department of Justice in Washington, DC. Garland addressed the January 6, 2021 attack on the U.S. Capitol. (Photo by Carolyn Kaster-Pool/Getty Images)

The case before Garland involved a Mexican national convicted in April 2017 of burglary in New Jersey and sentenced to four years in prison. He sought to block his deportation by claiming he would be persecuted because of his sexual orientation and a mental health condition if deported to Mexico.

The immigration judge dismissed the application because he did not consider the immigrant’s mental health. A subsequent appeal was also dismissed by the Board of Immigration Appeals.

Garland had in December directed the board to send him the case for review, and said on Monday that: "I have determined that it is appropriate to overrule the Board’s decision in G-G-S."

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"In some circumstances, a respondent’s mental health condition may indicate that the respondent does not pose a danger to the community," he said, giving the example of a domestic violence victim who was convicted of assaulting their abuser, or that an assault was influenced by post-traumatic stress disorder.

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"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."

Garland also vacated the Board’s decision in the case of the Mexican burglar.

"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," he said.

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The ruling comes as both the Department of Justice and Department of Homeland Security are moving forward with a final rule to streamline asylum claims by moving adjudication from immigration judges to U.S. Citizenship and Immigration Services officers. That rule has seen significant opposition from Republicans, who say it is a rule designed to make more people eligible for asylum who would otherwise be ineligible.