Monday, April 9, 2018
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Ninth Circuit:
Can’t Deport Felon Without Considering Mental Illness
Opinion Says Board of Immigration Appeals Can’t Brand a Crime as ‘Particularly Serious,’ Rendering Alien Ineligible for Withholding of Removal, Without Reference to Mental Heath
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday held that a Mexican who was convicted in California of a “particularly serious crime”—assault with a deadly non-firearm weapon—is not automatically ineligible for being spared deportation, and his application for relief must be determined taking into account his mental illness.
The opinion, by District Judge Janet Bond Arterton of the District of Connecticut, sitting by designation, orders that an opinion of the Board of Immigration Appeals (“BIA”) be vacated and the matter be remanded to the board.
Under the BIA’s view, expressed in a 2014 published opinion, “a person’s mental health is not a factor to be considered in a particularly serious crime analysis and that adjudicators are constrained by how mental health issues were addressed as part of the criminal proceedings.”
Persecution, Torture
Guillermo Gomez-Sanchez, who had entered the U.S. legally, had applied for withholding of removal based on the contentions that if returned to Mexico, he would be subjected to persecution and possibly torture based on his mental illness and there were deplorable conditions in the hospitals and prisons.
Arterton faulted the BIA for creating a “blanket rule against considering an individual’s mental health as a factor when deciding whether his or her crime of conviction is particularly serious,” saying that Congress has expressed a intent that seriousness be determined on a case-by-case basis.
She added:
“The Board advanced two rationales for its broad rule precluding evidence of an individual’s mental health as a factor in the particularly serious crime analysis: 1) that the Agency could not ‘reassess’ the criminal court’s findings, and 2) that mental health is never relevant. These rationales are unpersuasive and are inconsistent with the law of this Circuit and the Board’s own decisions interpreting the INA. Thus, we conclude that the Board’s interpretation of the INA is not reasonable and that the rule it created in this case is therefore not entitled to deference and must be vacated.”
Consider All Information
The visiting jurist declared:
“It is irrebuttably presumed that once a crime is determined to be particularly serious, the individual who committed that crime presents a danger to the community such that he or she is not entitled to protection by this country from persecution in another country. Given this narrow focus and in light of this severe consequence, the Agency must take all reliable, relevant information into consideration when making its determination, including the defendant’s mental condition at the time of the crime, whether it was considered during the criminal proceedings or not. This ensures that the Agency will in fact examine the circumstances of each conviction individually, taking into account all of the circumstances, as required under the case- by-case approach.”
The case is Gomez-Sanchez v. Sessions, No. 14-72506.
The matter harks to a 2004 altercation in Los Angeles. Gomez-Sanchez was held at fault and sentenced to two years in prison, with deportation proceedings instituted.
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