B-Z-R

Cite as 28 I&N Dec. 563 (A.G. 2022) Interim Decision #4045

Matter of B-Z-R-, Respondent

Decided by Attorney General May 9, 2022

U.S. Department of Justice

Office of the Attorney General

(1) Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014), is overruled.

(2) Immigration adjudicators may consider a respondent’s mental health in determining

whether an individual, “having been convicted by a final judgment of a particularly

serious crime, constitutes a danger to the community of the United States.” 8 U.S.C.

§ 1158(b)(2)(A)(ii); see id § 1231(b)(3)(B)(ii).

BEFORE THE ATTORNEY GENERAL

Under the Immigration and Nationality Act (“INA”), asylum and

withholding of removal are unavailable to a non-citizen who, “having been

convicted by a final judgment of a particularly serious crime, constitutes

a danger to the community of the United States.” INA § 208(b)(2)(A)(ii),

8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 241(b)(3)(B)(ii), 8 U.S.C.

§ 1231(b)(3)(B)(ii). The INA specifies that aggravated felony convictions

are per se particularly serious crimes for purposes of asylum, id.

§ 208(b)(2)(B)(i), 8 U.S.C. § 1158(b)(2)(B)(i), and that aggravated felonies

are per se particularly serious crimes for purposes of withholding of removal

if the respondent was sentenced to an aggregate term of imprisonment of at

least five years, id. § 241(b)(3)(B), 8 U.S.C. § 1231(b)(3)(B). For all other

offenses, the INA does not specify when a crime qualifies as particularly

serious. The Board has filled that statutory gap by holding 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 N-A-M-, 24 I&N Dec. 336, 338 (BIA 2007); see, e.g., Denis v. Att’y

Gen. of U.S., 633 F.3d 201, 214–17 (3d Cir. 2011) (deferring to this

interpretation); Delgado v. Holder, 648 F.3d 1095, 1097–98 (9th Cir. 2011)

(en banc) (same); Gao v. Holder, 595 F.3d 549, 554 (4th Cir. 2010) (same);

N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (per curiam) (same).

The Board has held that “the essential key” in determining whether an

offense is particularly serious is whether it “indicates that the [respondent]

poses a danger to the community.” Matter of Carballe, 19 I&N Dec. 357,

360 (BIA 1986); see Gomez-Sanchez v. Sessions, 892 F.3d 985, 991 (9th Cir.

2018) (explaining that “dangerousness” is “the ‘essential key’ to determining

whether the individual’s conviction was for a particularly serious crime”

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(quoting Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013)). 1 Thus,

“in judging the seriousness 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 L-S-, 22 I&N Dec. 645, 649 (BIA 1999); see

Carballe, 19 I&N Dec. at 360; Matter of Frentescu, 18 I&N Dec. 244, 247

(BIA 1982). The Board has emphasized that “all reliable information may

be considered in making a particularly serious crime determination,”

including “information outside the confines of a record of conviction.”

N-A-M-, 24 I&N Dec. at 342.

In Matter of G-G-S-, however, the Board determined “that a person’s

mental health is not a factor to be considered in a particularly serious crime

analysis.” 26 I&N Dec. 339, 339 (BIA 2014). This determination rested on

two rationales. First, the Board reasoned 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.” Id. at 345. Second, the Board concluded that a non-citizen’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.” Id. at 346.

Three Courts of Appeals have reviewed the Board’s decision in G-G-S-.

The Eighth and Ninth Circuits have rejected the Board’s treatment of mental

health in G-G-S- as inadequately reasoned and inconsistent with Board

precedent. Shazi v. Wilkinson, 988 F.3d 441, 448–50 (8th Cir. 2021);

Gomez-Sanchez, 892 F.3d at 992–97. The Tenth Circuit has held that, while

G-G-S- “may not provide the most obvious framework for determining

whether an offense is a ‘particularly serious crime,’” and although “criticisms

of that decision . . . are well taken,” the Board’s decision is nonetheless

entitled to deference. Birhanu v. Wilkinson, 990 F.3d 1242, 1263–64 (10th

Cir. 2021), cert. petition pending, No. 21-539; see also id. at 1266–72

(Bacharach, J., concurring in part and dissenting in part) (arguing that

G-G-S- is “arbitrary” and should be overturned). Accordingly, in the Eighth

1

Respondent and certain amici have asked me to revisit the Board’s holding in Carballe

that the particularly serious crime analysis focuses only on the nature and circumstances of

the crime at issue, and not on an additional assessment of whether the respondent is likely

to engage in future serious misconduct. But I did not request briefing on that issue, see

Matter of B-Z-R-, 28 I&N Dec. 424 (A.G. 2021), and I accordingly decline to address the

Board’s existing body of law on that subject.

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and Ninth Circuits, adjudicators may consider mental health evidence when

making a particularly serious crime determination, but in the rest of the

country immigration adjudicators are constrained by G-G-S- to disregard

such evidence.

Respondent is a native and citizen of Mexico who was convicted in April

2017 of burglary in violation of N.J. Stat. Ann. § 2C:18-2(a)(1) (West) and

sentenced to four years of imprisonment. Following the initiation of removal

proceedings, respondent sought withholding of removal on the ground that,

if returned to Mexico, he would be persecuted on the basis of his sexual

orientation and mental health condition. The immigration judge denied

respondent’s application because the judge determined that respondent’s

conviction was for a particularly serious crime. Relying on G-G-S-, the

immigration judge did not consider respondent’s mental health in making the

particularly serious crime determination. The Board upheld the immigration

judge’s decision and dismissed respondent’s appeal. Matter of B-Z-R-, slip

op. at *4–5 (BIA Dec. 3, 2020). The Board acknowledged that “[t]he record

includes evidence that the respondent has been diagnosed with a serious

mental disorder,” id. at *1, but concluded that G-G-S- foreclosed

consideration of respondent’s mental health in determining whether he was

convicted of a particularly serious crime, id. at *4. The Board, however,

remanded the case for further consideration of respondent’s application for

deferral of removal under the Convention Against Torture based on

additional evidence showing respondent’s worsening mental health

symptoms. Id. at *4–5. 2

On December 9, 2021, I directed the Board to refer this case for my

review, see 8 C.F.R. § 1003.1(h)(1)(i), and invited the parties and any

interested amici to submit briefs addressing whether mental health may be

considered when determining whether an individual was convicted of a

“particularly serious crime” within the meaning of 8 U.S.C.

§§ 1158(b)(2)(A)(ii) and 1231(b)(3)(B)(ii). Matter of B-Z-R-, 28 I&N Dec.

424 (A.G. 2021). Both respondent and the Department of Homeland

Security now agree that G-G-S- is erroneous and should be overruled.

Respondent’s Opening Br. at 5–11 (Jan. 31, 2022); U.S. Dep’t of Homeland

Security’s Opening Br. at 6–13 (Jan. 31, 2022).

I have determined that it is appropriate to overrule the Board’s decision

in G-G-S-. As noted, the Board has held that “the essential key” in

determining whether an offense is particularly serious is whether it “indicates

that the [respondent] poses a danger to the community.” Carballe, 19 I&N

Dec. at 360. In some circumstances, a respondent’s mental health condition

2

While withholding of removal under the Convention Against Torture (“CAT”) is

unavailable for non-citizens convicted of a particularly serious crime, deferral of removal

under CAT is available. 8 C.F.R. §§ 1208.16(d)(2), 1208.17(a).

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may indicate that the respondent does not pose a danger to the community—

for 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 had played a

substantial motivating role in the assault.” Gomez-Sanchez, 892 F.3d at 996

n.10. 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. 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.

Neither of the rationales the Board offered in G-G-S- justifies its

exclusion of mental health evidence. First, G-G-S- reasoned that

immigration adjudicators “cannot go behind the decisions of the criminal

judge and reassess any ruling on criminal culpability.” 26 I&N Dec. at 345.

But the inquiry into whether a conviction is “particularly serious” does not

involve any reassessment of criminal culpability. It concerns a distinct

question: 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.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 1231(b)(3)(B)(ii);

Shazi, 988 F.3d at 450; Gomez-Sanchez, 892 F.3d at 993–94. Moreover, for

a variety of reasons, the mental health evidence that a non-citizen may seek

to offer in the immigration context might never have been raised in the

underlying criminal proceeding. See N-A-M-, 24 I&N Dec. at 342

(explaining that immigration judges may consult “information outside the

confines of a record of conviction”). Although a non-citizen’s mental health

may arise in the context of mens rea elements, insanity defenses, or

competency determinations, the applicability of such evidence in criminal

proceedings varies considerably depending on the charge and jurisdiction.

A specific mental state may not be required for certain convictions, such as

strict liability crimes. For other criminal convictions, mental health may not

be a defense. Similarly, mental health evidence might bear on the

seriousness of a crime or dangerousness of an individual for immigration

purposes but not on, for example, competency to stand trial.

Second, G-G-S- reasoned that a respondent’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.” 26 I&N Dec. at 346. But, as explained above, a respondent’s

mental health condition may bear directly on whether the respondent poses a

danger to the community. Indeed, the Board’s decision in G-G-S- recognized

the Board’s prior holdings that a respondent’s motivation and intent can be

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relevant to the inquiry into dangerousness. See id. at 347 (recognizing that it

may “be appropriate to consider whether . . . conduct was ‘inherently base,

vile, or depraved’ in deciding whether a crime is particularly serious”

(quoting Matter of Ajami, 22 I&N Dec. 949, 950 (BIA 1999)). The Board

provided no sound reason why mental health evidence should be treated

differently from other evidence pertinent to a respondent’s mental state.

Although G-G-S- went on to observe that considerations regarding a

respondent’s mental state are “not necessarily dispositive,” id., the standard

for determining whether evidence should be considered is whether that

evidence is probative, not whether it is dispositive. See Matter of Y-S-L-C-,

26 I&N Dec. 688, 690 (BIA 2015). The relevance of mental health evidence

in any given case is best determined through the Board’s longstanding case-

by-case approach.

Accordingly, G-G-S- is overruled. 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.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 1231(b)(3)(B)(ii).

The Board’s decision in respondent’s matter is vacated and the case is

remanded to the immigration judge for further proceedings consistent with

this opinion.

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