AG Garland to Require Immigration Judges to Consider Aliens’ Mental Condition If Convicted of Serious Crimes in the U.S.

FAIR Take | May 2022

The Attorney General issued a decision this week that, going forward, will further clog up the immigration courts’ backlogs and help removable aliens who have been convicted of “particularly serious crimes” avoid deportation and receive asylum. The Attorney General’s decision requires immigration judges to consider evidence regarding an alien’s mental health condition at the time of the crime to determine whether the alien should be subject to the “particularly serious crime” bar to asylum or protection of removal. Prior to this decision, immigration judges deferred to the judgement of the criminal court that issued the conviction with regards to whether an alien’s mental state mitigated seriousness of the alien’s offense.

The case, Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022), dealt with a deportable alien who was determined to be barred from receiving asylum or withholding of removal in the United States because his criminal history contained a burglary conviction. The immigration judge who heard the case determined that the alien should be subject to the statutory “particularly serious crime” bar because of the high risk of harm his unlawful entry onto a residential property posed. The immigration judge believed that the alien’s four-year prison sentence was additional evidence supporting the seriousness of the alien’s offense.

Relying on Board of Immigration Appeals (BIA) precedent (Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014)),  the immigration judge did not consider evidence of the alien’s mental health at the time he committed the burglary to determine whether the offense “indicates that the [alien] poses a danger to the community.” The BIA has held, however, that the threat an alien poses is “the essential key” in determining whether the offense is a “particularly serious crime,” for immigration purposes. See Matter of Carballe, 19 I&N Dec. 357, 360 (BIA 1986).

The Attorney General’s decision in Matter of B-Z-R- overrules the BIA’s prior rule and will now require immigration judges to consider evidence of an alien’s mental health as a relevant factor when determining whether the “particularly serious crime” bar applies to a criminal’s request for deportation relief.

The Attorney General’s decision in Matter of B-Z-R- is yet another Biden administration action aimed at weakening immigration enforcement by adding exceptions to the law Congress has not approved. This ruling will further clog the immigration courts’ already-backlogged docket by requiring immigration judges to make fact-intensive determinations on whether a removable alien’s mental condition mitigates the serious crimes they have been convicted of, all while prolonging expensive immigration proceedings and leaving the bill for U.S. taxpayers.

Even more concerning, the ruling will allow immigration judges to create exceptions to the law without Congressional approval and will inevitably help even more criminal aliens remain in the United States.