Introduction

Attorney General Merrick Garland issued a precedential decision titled Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022) [PDF version] on May 9, 2022. The Attorney General held that when making a discretionary determination as to whether an alien seeking asylum [see category] or statutory withholding of removal [see article] “constitutes a danger to the community of the United States,” the adjudicator may consider the applicant’s mental health. In so doing, the Attorney General overruled a 2014 Board of Immigration Appeals precedent decision titled Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014) [PDF version], wherein the Board held that adjudicators could not consider an alien’s mental health in making a decision on dangerousness.

In this article, we will work through the relevant decisions and explain the circumstances in which an adjudicator may consider whether an alien’s mental health history mitigates concerns that he or she constitutes a danger to the community.

Understanding the Laws

Asylum is governed by section 208 of the Immigration Act. If an alien can establish that he or she has a well-founded fear of future persecution on a protected ground, he or she may be granted asylum, which provides the alien with a path to lawful permanent resident status. Withholding of removal is an alternative, lesser form of relief, that is only available to aliens already in removal proceedings. If an alien can establish that it is more likely than not that he or she would be persecuted in a particular country on account of a protected ground, withholding of removal precludes the alien’s removal to the country in question for so long as those conditions persist. Unlike asylum, withholding of removal does not provide the alien with a path to lawful permanent resident status.

There are several bars to eligibility for asylum and withholding of removal. Some of these bars are unique to asylum (e.g., the one-year time limit for filing) while others are common to both asylum and withholding of removal. One of the common bars that applies to both asylum and withholding of removal is the particularly serious crime bar.

The asylum statute provides that if the adjudicator determines that “the alien, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States” — then the alien is ineligible for asylum, notwithstanding the merits of his or her persecution claim. INA 208(b)(2)(A)(ii). The withholding of removal statute includes a nearly identical bar, with the only difference being that it substitutes the word “decides” for “determines” (“decides that” instead of “determines that”). INA 241(b)(3)(B)(ii).

Although the asylum and withholding statutes include mirror particularly serious crime bars, there is a significant difference in how they treat aggravated felonies. The term “aggravated felony” is defined in the immigration laws as any one of the offenses listed under INA 101(a)(43). These are considered among the most serious offenses for an alien seeking immigration benefits or relief.

For purpose of asylum, an aggravated felony is a per se particularly serious crime. INA 208(b)(2)(B)(i). This means that any aggravated felony conviction will result in an alien being disqualified from asylum under INA 208(b)(2)(A)(ii) — there is no separate dangerousness adjudication.

Conversely, for purposes of withholding of removal, one or more aggravated felony convictions will only bar an alien from relief if the alien was sentenced to an aggregate term of imprisonment of at least five years as a result of the conviction or convictions. INA 241(b)(3)(B)(iv). Thus, the automatic bar to withholding for aggravated felony conviction(s) only triggers if the alien was sentenced to five or more cumulative years in prison as a result of one or more aggravated felony convictions. If the alien’s single sentence or combined sentences for one or more aggravated felony convictions is less than five years, he or she is not automatically barred from withholding of removal for having been convicted of a particularly serious crime. However, the same statute provides that even if the alien is not automatically barred from withholding as a result of one or more aggravated felony convictions, he or she may nevertheless be found to constitute a “danger to the community of the United States,” which would result in the alien being held to be ineligible for withholding of removal under INA 241(b)(3)(B)(ii).

As a general matter, the Attorney General explained in Matter of B-Z-R- that “[t]he Board [of Immigration Appeals] has … [held] that, where the statute’s per se rules do not apply, adjudicators must determine on a case-by-case basis whether a conviction is for a particularly serious crime.” Matter of B-Z-R-, 28 I&N Dec. at 563, citing Matter of N-A-M, 24 I&N Dec. 336, 338 (BIA 2007) [PDF version]. This means that in a case where (A) the alien does not have aggravated felony conviction(s) that automatically trigger the particularly serious crime bar, and (B) the alien has convictions that raise questions about whether he or she presents a “danger to the community of the United States,” the Board’s position is that the adjudicator must engage in a case-specific inquiry into whether the alien’s conviction is for a particularly serious crime.

The Attorney General’s decision in Matter of B-Z-R- applies to particularly serious crime adjudications generally. However, it is most significant in the withholding of removal context in those cases when an alien has one or more aggravated felony convictions, but the one or more convictions do not trigger the automatic particularly serious crime bar due to the sentence or sentences not exceeding five years of imprisonment. These cases tend to present the closest questions regarding discretionary particularly serious crime determinations.

What Goes Into a Discretionary Particularly Serious Crime Determination?

The Attorney General worked through the existing case law for discretionary particularly crime determinations. He noted that the Board had held that “the essential key” for determining whether an offense is a “particularly serious crime” is whether the offense “indicates that the [respondent] poses a danger to the community.” Matter of B-Z-R-, 28 I&N Dec. at 563, citing Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986) [PDF version]. How does the Board determine whether a crime indicates that an alien poses a danger to the community? The Attorney General quoted from past BIA precedent: “[I]n judging the serousness of a crime, [adjudicators] look to such factors as the nature of the conviction, the circumstances and underlying facts of the conviction, the type of sentence imposed, and, most importantly, whether the type and circumstances of the crime indicate that the respondent is a danger to the community.” Matter of B-Z-R, 28 I&N Dec. at 564, quoting Matter of L-S-, 22 I&N Dec. 645, 649 (BIA 1999) [PDF version]; see also Matter of Carballe, 19 I&N Dec. at 360; Matter of Frentescu, 18 I&N Dec. 244, 247 (BIA 1982) [PDF version]. The Attorney General noted that the Board has held that “all reliable information may be considered in making a particularly serious crime determination.” Matter of B-Z-R-, 28 I&N Dec. at 564, quoting Matter of N-A-M, 24 I&N Dec. at 342. This includes “information outside the confines of a record of conviction.” Id.

Examining the Now Overruled Rule

In this section, we will examine in brief the rule that the Attorney General overruled in Matter of B-Z-R-.

The Board held in 2014 “that a person’s mental health is not a factor to be considered in the particularly serious crime analysis.” Matter of G-G-S-, 26 I&N Dec. at 339. The Attorney General identified the “two rationales” underpinning the Board’s decision in Matter of G-G-S-. Firstly, the Board stated that “'[w]hether and to what extent an individual’s mental illness or disorder is relevant to his or her commission of an offense and conviction for the crime are issues best resolved in criminal proceedings by the finders of fact’ and immigration adjudicators ‘cannot go behind the decisions of the criminal judge and reassess any ruling on criminal culpability.’” Matter of B-Z-R-, 28 I&N Dec. at 564, quoting Matter of G-G-S-, 26 I&N Dec. at 345. Secondly, the Board asserted that the alien’s “mental condition does not relate to the pivotal issue in a particularly serious crime analysis, which is whether the nature of his conviction, the sentence imposed, and the circumstances and underlying facts indicate that he posed a danger to the community.” Matter of B-Z-R-, 28 I&N Dec. at 564, quoting Matter of G-G-S-, 26 I&N Dec. at 346.

The Attorney General noted that several circuit courts had reached different conclusions on whether the Board’s decision in Matter of G-G-S- was entitled to deference by the Federal judiciary. The United States Courts of Appeals for the Eighth and Ninth Circuits rejected Matter of G-G-S-, meaning that it did not apply to cases under the jurisdiction of those circuits [see article] subsequent to the negative decisions of those courts. Immigration adjudicators had continued to apply Matter of G-G-S- outside of the Eighth and Ninth Circuits.

Facts of Matter of B-Z-R-

The Attorney General did not review in isolation the Board’s former precedent in Matter of G-G-S. Instead, he reviewed it in the context of a particular case. Below, we will briefly list the details of the case at issue in Matter of B-Z-R- because it provides an interesting example of where the decision in Matter of B-Z-R- will come into play. The Attorney General’s discussion of Matter of B-Z-R- is found at Matter of B-Z-R-, 28 I&N Dec. at 565.

The respondent, a native and citizen of Mexico, had been convicted in 2017 of burglary in New Jersey (N.J. Stat. Ann. sec. 2C:18-2(a)(1)). He was sentenced to a term of imprisonment of four years. The respondent was placed in removal proceedings. Note that the respondent’s conviction, which was for an aggravated felony, constituted a per se bar to asylum, but it was not a bar to withholding because he was sentenced to less than five years in prison.

The respondent sought withholding of removal from Mexico on the ground that he would be persecuted in Mexico on account of his membership in a particular social group.

The immigration judge denied the respondent’s application for withholding of removal upon finding that the conviction was for a particularly serious crime. In so doing, the immigration judge expressly declined to consider the respondent’s mental health, citing to the precedent in Matter of G-G-S-. The Board affirmed the immigration judge’s decision. In so doing, the Board acknowledged evidence of the respondent’s mental health condition, but held that consideration of the respondent’s mental health was foreclosed by Matter of G-G-S-.

Overruling Matter of B-Z-R-

Both the respondent and the Department of Homeland Security (DHS) asked the Attorney General to overrule Matter of G-G-S-. The Attorney General referred Matter of B-Z-R- to himself for review and subsequently determined that Matter of G-G-S- should and must be overruled. Below, we will examine the new rules regarding mental health in particularly serious crime determinations.

New Rules For Mental Health in Particularly Serious Crime Determinations

Under the new rules, immigration judges will be permitted to consider whether “a respondent’s mental health condition may indicate that [he or she] does not pose a danger to the community…” Matter of B-Z-R-, 28 I&N Dec. at 566. The Attorney General cited to a hypothetical example offered by the United States Court of Appeals for the Ninth Circuit: “[F]or instance, 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 played a substantial motivating role in the assault.’” Matter of B-Z-R-, 28 I&N Dec. at 566, quoting Gomez-Sanchez v. Sessions, 892 F.3d 985, 996 n.10 (9th Cir. 2018) [PDF version].

The question for adjudicators — to be clear — is not whether the alien’s mental health conditions support his or her applications for relief. That is, the issue is not whether the mental health conditions support a case for asylum and/or withholding of removal. The question is whether the mental health conditions suggest that notwithstanding a serious criminal conviction, the alien does not present a danger to the community of the United States. “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.” Matter of B-Z-R-, 28 I&N Dec. at 566.

The Attorney General rejected both rationales offered by the Board in support of its 2014 precedent in Matter of G-G-S-. Regarding the Board’s assertiion that issues of mental health are issues for criminal proceedings, the Attorney General opined that the mental health questions may not have been aired in the underlying criminal proceeding. Id. Moreover, the Attorney General noted that the relevance of a criminal defendant’s mental health conditions to different arguments that he or she may raise in criminal proceedings varies from jurisdiction to jurisdiction. Regarding the Board’s former conclusion that a respondent’s mental health condition does not weigh on whether the facts of the conviction and the sentence imposed suggest that the alien is a danger to the community, the Attorney General again disagreed. The Attorney General took the position that an alien’s mental health condition may indeed be directly relevant to whether the alien presents a danger to the community — referring back to the domestic violence example that he cited to earlier in the decision. Id. at 566-67. The Attorney General further explained that evidence of the alien’s mental health conditions can be considered in a manner similar to the consideration of evidence relating to whether an alien’s conduct was “inherently base, vile, or depraved” — the pertinent question in determining whether a conviction is for a crime involving moral turpitude — in the dangerousness context.

Conclusion

Matter of B-Z-R- is a significant decision for a subset of asylum and withholding cases. As we noted earlier in the article, the decision is most likely to be relevant in withholding of removal cases wherein the respondent has at least one aggravated felony conviction but was not sentenced to five or more years in prison. However, it may also come up in asylum cases where there is a question as to whether a non-aggravated felony conviction is a particularly serious crime.

It is important to note the limitations of the decision. On its face, Matter of B-Z-R- provides that adjudicators are free to consider whether an alien’s mental health conditions suggest that he or she, notwithstanding criminal conduct, does not present a prospective danger to the community. In cases where these questions arise, it will be incumbent on the alien to provide evidence establishing that his or her mental health conditions suggest that he or she does not present a danger to the community. The main body of analysis in Matter of B-Z-R- itself suggests that the Attorney General envisions the decision applying primarily to cases wherein the alien’s mental health conditions weighed directly on his or her commission of the underlying criminal conduct. For example, the significance of the domestic violence example, as written by the Ninth Circuit, would be that the alien in such a case does not present a generalized, prospective danger to the community, because his or her criminal conduct was motivated by his or her having been the victim of domestic violence, and his or her criminal conduct was directed at the domestic violence abuser.

However, it remains to be seen how adjudicators will apply the new rules going forward to various mental health claims raised by aliens with serious criminal convictions.

If you are seeking asylum (regardless of whether you are in removal proceedings) or withholding of removal in proceedings, it is essential to work with an experienced immigration attorney in the area of asylum law. This is all-the-more crucial if you are facing questions about you are eligible for asylum on account of a criminal record — because basic eligibility issues must be resolved in order for the adjudicator in question to determine whether you merit asylum or require a grant of withholding of removal.