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Interim Decision #3806

Matter of G-G-S-, Respondent

Decided July 17, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien’s mental health as a factor in a criminal act falls within the province of the

criminal courts and is not considered in assessing whether the alien was convicted of a

“particularly serious crime” for immigration purposes.

FOR RESPONDENT: Bardis Vakili, Esquire, Santa Ana, California

FOR THE DEPARTMENT OF HOMELAND SECURITY:

Attorney

Kerri Calcador, Senior

BEFORE: Board Panel: NEAL, Chairman; GREER, Board Member; KENDALL

CLARK, Temporary Board Member.

GREER, Board Member:

This case addresses whether an alien’s mental illness should be

considered when determining if his or her criminal conviction is for a

“particularly serious crime” within the meaning of section 241(b)(3)(B) of

the Immigration and Nationality Act, 8 U.S.C. § 1231(b)(3)(B) (2012). In a

decision dated December 8, 2011, an Immigration Judge determined that

the respondent has been convicted of a particularly serious crime and is

therefore ineligible for withholding of removal under both section

241(b)(3)(A) of the Act and the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR

Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force

June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against

Torture”). The respondent has appealed from the denial of his applications

for withholding of removal.

We hold that 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. Accordingly, because we conclude that the respondent has

been convicted of a particularly serious crime pursuant to section

241(b)(3)(B) of the Act and 8 C.F.R. § 1208.16(d)(2) (2013), we will

dismiss his appeal.

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Interim Decision #3806

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico who was admitted to

the United States as a lawful permanent resident. From an early age, he has

suffered from chronic paranoid schizophrenia. The Immigration Judge’s

finding that the respondent was mentally incompetent for purposes of his

removal proceedings is undisputed. In going forward with the respondent’s

removal proceedings, various procedural safeguards were implemented,

which included representation by legal counsel, the appearance of the

respondent’s mother on his behalf, and the release of the respondent from

custody to his family.

The respondent was convicted in 2004 of assault with a deadly weapon

in violation of section 245(a)(1) of the California Penal Code, for which he

was sentenced to 2 years in prison.1 The Immigration Judge found that the

respondent’s offense was a crime of violence aggravated felony under

section 101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2006).2 She

further determined that it was a particularly serious crime, which barred the

respondent from establishing eligibility for withholding of removal.

However, the Immigration Judge found that the respondent is eligible for

deferral of removal under the Convention Against Torture and granted his

application for that relief.3

1

At the time of the respondent’s conviction in 2004, section 245(a)(1) of the California

Penal Code proscribed “an assault upon the person of another with a deadly weapon or

instrument other than a firearm or by any means of force likely to produce great bodily

injury.” Section 240 of the California Penal Code, in turn, defined an “assault” as an

“unlawful attempt, coupled with a present ability, to commit a violent injury on the

person of another.” The term “deadly weapon,” as used in section 245(a)(1) of the

California Penal Code, means “any object, instrument, or weapon which is used in such a

manner as to be capable of producing and likely to produce, death or great bodily injury.”

People v. Aguilar, 945 P.2d 1204, 1207 (Cal. 1997) (quoting In re Jose D.R., 186 Cal.

Rptr. 898, 901 (Cal. Ct. App. 1982)) (internal quotation marks omitted).

2

Although the respondent stated without elaboration on the notice of appeal that his

conviction was not for an aggravated felony, he did not pursue that argument in his brief.

We will therefore not address this issue further. See Rizk v. Holder, 629 F.3d 1083, 1091

n.3 (9th Cir. 2011) (finding that issues not raised in a brief are deemed waived);

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (finding that an issue

referred to in an appellant’s statement of the case but not discussed in the body of the

brief is deemed waived); see also United States v. Grajeda, 581 F.3d 1186, 1196−97 (9th

Cir. 2009) (holding that “assault with a deadly weapon or by means of force likely to

produce great bodily injury under section 245(a)(1) is categorically a crime of violence”).

3

This finding has not been challenged by the Department of Homeland Security and is

not before us on appeal.

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Interim Decision #3806

II. ISSUE

The issue before us is whether an alien’s mental health at the time he or

she committed a crime should be considered in determining if the alien was

convicted of a particularly serious crime for immigration purposes.

III. ANALYSIS

A. Evolution of the Particularly Serious Crime Analysis

The Act does not define the phrase “particularly serious crime.” We

first articulated the framework for determining whether a crime was

particularly serious under former section 243(h)(2)(B) of the Act, 8 U.S.C.

§ 1253(h)(2)(B) (1982), in Matter of Frentescu, 18 I&N Dec. 244 (BIA

1982). At that time, we held that in judging the seriousness of a crime, “we

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 alien will be a danger to the community,” as provided in the statute. Id.

at 247 (emphasis added). We further found that offenses against persons

are more likely to be categorized as particularly serious crimes but

recognized that there may be instances where crimes against property will

be considered particularly serious. Id.

In subsequent decisions, we have held that once an alien is found to

have been convicted of a particularly serious crime, there is no need for a

separate determination whether he or she is a danger to the community. See

Matter of N-A-M-, 24 I&N Dec. 336 (BIA 2007), aff’d, N-A-M- v. Holder,

587 F.3d 1052 (10th Cir. 2009), cert. denied, 131 S. Ct. 898 (2011); Matter

of Q-T-M-T-, 21 I&N Dec. 639, 646–47 (BIA 1996); Matter of K-, 20 I&N

Dec. 418, 423–24 (BIA 1991); Matter of Carballe, 19 I&N Dec. 357, 360

(BIA 1986). Our interpretation has been accepted by the courts that have

addressed this issue. See N-A-M- v. Holder, 587 F.3d at 1057 (collecting

cases); Ramirez-Ramos v. INS, 814 F.2d 1394, 1397 (9th Cir. 1987).

Since our decision in Matter of Frentescu, the provision that bars aliens

with particularly serious crimes from being granted withholding of

deportation or removal has been amended three times. Congress first

amended former section 243(h)(2) of the Act in 1990, providing that

aggravated felonies are to be categorically considered particularly serious

crimes and obviating the need for an individualized analysis of the

underlying facts of the aggravated felony conviction. Immigration Act of

1990, Pub. L. No. 101-649, § 515(a)(2), 104 Stat. 4978, 5053 (effective

Nov. 29, 1990); Matter of L-S-, 22 I&N Dec. 645, 650 (BIA 1999).

However, in 1996 Congress gave the Attorney General discretionary

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authority to override the categorical bar that designated every aggravated

felony as a particularly serious crime. Antiterrorism and Effective Death

Penalty Act of 1996, Pub. L. No. 104-132, § 413(f), 110 Stat. 1214, 1269

(effective Apr. 24, 1996) (“AEDPA”). Interpreting the effect of the

amended provision in Matter of Q-T-M-T-, 21 I&N Dec. at 654, we applied

a rebuttable presumption in section 243(h) cases that an aggravated felony

was a particularly serious crime.

Months after the passage of the AEDPA, Congress again revised the

“particularly serious crime” clause, eliminating the categorical bar to

withholding of removal for aliens convicted of an aggravated felony and

undermining our rationale for applying a rebuttable presumption in Matter

of Q-T-M-T-. Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Div. C of Pub. L. No. 104-208, § 305(a), 110 Stat. 3009-546,

3009-597, 3009-602 (effective Apr. 1, 1997) (amending former section

243(h)(2) and recodifying it as section 241(b)(3)(B) of the Act, 8 U.S.C.

§ 1231(b)(3)(B) (Supp. II 1996)); Matter of L-S-, 22 I&N Dec. at 650–51;

Matter of S-S-, 22 I&N Dec. 458, 463 (BIA 1999), overruled in part by

Matter of Y-L-, A-G- & R-S-R-, 23 I&N Dec. 270, 273–74 (A.G. 2002).

This last revised version of the particularly serious crime clause remains in

effect and applies to the respondent’s case.

B. Current Law

The Act currently provides that an alien is ineligible for withholding of

removal if “the Attorney General decides that . . . the alien, having been

convicted by a final judgment of a particularly serious crime, is a danger to

the community of the United States.” Section 241(b)(3)(B)(ii) of the Act;

see also 8 C.F.R. § 1208.16(d)(2) (providing that an “alien who has been

convicted of a particularly serious crime shall be considered to constitute a

danger to the community”). Section 241(b)(3)(B) further states that “[f]or

purposes of [section 241(b)(3)(B)(ii)], an alien who has been convicted of

an aggravated felony . . . for which the alien has been sentenced to an

aggregate term of imprisonment of at least 5 years shall be considered to

have committed a particularly serious crime.” However, the Attorney

General is not precluded from determining that the alien has been convicted

of a particularly serious crime, regardless of the sentence imposed. Id.

Moreover, an offense need not be an aggravated felony to be a particularly

serious crime. See Delgado v. Holder, 648 F.3d 1095, 1097 (9th Cir. 2011)

(en banc) (deferring to Matter of N-A-M-, 24 I&N Dec. at 337).

We have held that for an alien who has not been convicted of an

aggravated felony or whose aggravated felony conviction did not result in

an aggregate term of imprisonment of 5 years or more, it is necessary to

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examine the nature of the conviction, the type of sentence imposed, and the

circumstances and underlying facts of the conviction to determine whether

the crime was particularly serious. Matter of N-A-M-, 24 I&N Dec. at 342.

As the Ninth Circuit has noted, we have identified “‘dangerousness,’ [as]

the pivotal standard by which particularly serious crimes are judged.”

Alphonsus v. Holder, 705 F.3d 1031, 1041 (9th Cir. 2013) (citing Matter of

N-A-M-, 24 I&N Dec. at 341–43).

If the elements of an offense are found to potentially bring it within the

ambit of a particularly serious crime, all reliable information that is relevant

to the determination may be considered. Matter of N-A-M-, 24 I&N Dec. at

342. This may include the conviction records and sentencing information,

as well as other information outside the confines of a record of conviction.

Id.; see also Anaya-Ortiz v. Holder, 594 F.3d 673, 678–79 (9th Cir. 2010)

(deferring to our interpretation of the evidence that may be considered in a

particularly serious crime determination).

A particularly serious crime analysis is centered on the crime that was

committed. Matter of Carballe, 19 I&N Dec. at 360. Consequently, the

inquiry does not involve an examination of an alien’s personal

circumstances and equities, such as family or community ties or any risk of

persecution in the country of removal. Matter of L-S-, 22 I&N Dec. at 651;

Matter of Q-T-M-T-, 21 I&N Dec. at 656; Matter of K-, 20 I&N Dec. at 418

(stating that a particularly serious crime analysis “relates only to the nature

of the crime and does not vary with the nature of the evidence of

persecution”); Matter of Rodriguez-Coto, 19 I&N Dec. 208, 209–10 (BIA

1985).

The presence or absence of harm to the victim is also a pertinent factor

in evaluating whether a crime was particularly serious. See, e.g., Alphonsus

v. Holder, 705 F.3d at 1043 (recognizing “that harm to persons is the usual

requisite danger” relevant in a particularly serious crime analysis); Matter

of R-A-M-, 25 I&N Dec. 657, 661 (BIA 2012) (finding that possession of

child pornography was a particularly serious crime and noting “that the

primary victims of the distribution of child pornography are the people who

are depicted in the pornographic materials” (citing United States v. Stevens,

197 F.3d 1263, 1269 n.6 (9th Cir. 1999))); Matter of N-A-M-, 24 I&N Dec.

at 343 (finding that felony menacing was a particularly serious crime

because it is an offense against a person, and the statute of conviction

clearly required a serious threat to others); cf. Matter of L-S-, 22 I&N Dec.

at 655–56 (finding that an alien smuggling conviction, which resulted in a

3½-month sentence, was not for a particularly serious crime and noting that

the statute did not require proof of any endangerment, harm, or intended

harm and the smuggled alien suffered no actual harm).

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The language of the statute provides the “essential key” to determining

whether a crime is particularly serious, which is “whether the nature of the

crime is one which indicates that the alien poses a danger to the

community.” Matter of Carballe, 19 I&N Dec. at 360. Once an offense is

determined to be particularly serious, no separate determination of danger

to the community is required. 8 C.F.R. § 1208.16(d)(2); see also

Anaya-Ortiz v. Holder, 594 F.3d at 679.

C. Application to the Respondent

The respondent was convicted of assault with a deadly weapon.

Because he was not sentenced to a term of imprisonment of more than

5 years, the respondent is not barred from establishing eligibility for relief

under section 241(b)(3)(B) of the Act. We therefore evaluate the nature of

the conviction, the type of sentence imposed, and the circumstances and

underlying facts of his assault with a deadly weapon conviction to

determine whether his crime was particularly serious. See Anaya-Ortiz

v. Holder, 594 F.3d at 679; Matter of R-A-M-, 25 I&N Dec. at 659;

Matter of N-A-M-, 24 I&N Dec. at 342; Matter of Frentescu, 18 I&N Dec.

at 247.

As previously noted, we have long recognized that “crimes against

persons” are more likely to be categorized as particularly serious crimes.

See, e.g., Matter of R-A-M-, 25 I&N Dec. at 662; Matter of N-A-M-,

24 I&N Dec. at 343; Matter of L-S-, 22 I&N Dec. at 649; Matter of

Frentescu, 18 I&N Dec. at 247; see also Matter of L-S-J-, 21 I&N Dec. 973,

974−75 (BIA 1997) (finding robbery with a deadly weapon, a handgun, to

be a particularly serious crime).

In considering the circumstances of the respondent’s offense, the

Immigration Judge relied on sworn testimony given by the respondent’s

victim during the preliminary criminal hearing. According to the victim,

the respondent physically assaulted him by swinging a weightlifting bell

and grazing the side of his head, which resulted in a laceration that required

stitches. This was a dangerous act capable of causing grave injuries. The

gravity of the respondent’s offense is also reflected in his 2-year sentence to

prison.

We recognize the significance of the respondent’s mental health

struggles and sympathize with the resulting hardships he has faced.

However, based on our assessment of the nature of the respondent’s

conviction, the prison sentence imposed, and the circumstances of his

offense, we concur with the Immigration Judge that the respondent’s

conviction for assault with a deadly weapon was for a particularly serious

crime.

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The respondent argues on appeal that his mental condition should be a

factor in determining whether his offense was a particularly serious crime

for purposes of section 241(b)(3)(B) of the Act. He claims that “his mental

illness prevented him from solving a complex social situation such as being

aggressively challenged by a stranger” and consequently resulted in his use

of violence. We are unpersuaded by this contention and conclude that

consideration of an alien’s mental health as a factor in the criminal act falls

within the province of the criminal courts and is not a factor to be

considered in a particularly serious crime analysis.

Whether 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. Such

fact finders have expertise in the applicable State and Federal criminal law,

are informed by the evidence presented by the defendant and the

prosecution, and have the benefit of weighing all the factors firsthand. We

cannot go behind the decisions of the criminal judge and reassess any ruling

on criminal culpability.

Issues concerning a defendant’s mental condition at the time a crime

was committed can be raised at different phases of the criminal proceedings.

For instance, evidence of a defendant’s mental condition may give rise to a

reason to doubt his or her competency to stand trial. 4 Further, such

evidence may be submitted to establish an affirmative defense of not guilty

by reason of insanity, to show the absence of specific intent or other mental

states required for a conviction, or to be a mitigating factor for sentencing

purposes. 5 The defendant’s mental condition may also be raised in

post-conviction motions, appeals, and petitions.

4

As the Supreme Court has noted, it “has long been accepted that a person whose

mental condition is such that he lacks the capacity to understand the nature and object of

the proceedings against him, to consult with counsel, and to assist in preparing his

defense may not be subjected to a trial.” Indiana v. Edwards, 554 U.S. 164, 169–70

(2008) (emphasis omitted) (quoting Drope v. Missouri, 420 U.S. 162, 171 (1975)); see

also Dusky v. United States, 362 U.S. 402, 402 (1960) (per curiam) (defining the

competency standard as including whether the defendant “has sufficient present ability to

consult with his lawyer with a reasonable degree of rational understanding—and whether

he has a rational as well as factual understanding of the proceedings against him”

(quoting the Solicitor General) (internal quotation mark omitted)).

5

See Clark v. Arizona, 548 U.S. 735, 749–52 (2006) (noting that most States recognize

some variant of the insanity defense); United States v. Christian, 749 F.3d 806, 813

(9th Cir. 2014) (finding that the trial court erroneously excluded expert testimony that

could have “provided some evidentiary basis for inferring” a link between the

defendant’s mental illness and his defense that he lacked the specific intent required by

the charged offense); Caro v. Woodford, 280 F.3d 1247, 1254–56 (9th Cir. 2002) (finding

ineffective assistance where counsel failed to investigate and present evidence of the

(continued . . .)

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It is fundamental to California’s jurisprudence that an individual with a

mental condition that renders that person legally “insane” cannot be

convicted of acts performed while suffering from that condition. See

People v. Kelly, 516 P.2d 875, 881−83 (Cal. 1973) (finding that the

defendant was not guilty of assault with a deadly weapon by reason of

insanity where evidence showed that she was psychotic at the time of the

offense and was incapable of understanding that her act was wrong).

However, the respondent has not made a claim that he entered a plea of

guilty by reason of insanity at his criminal proceedings, nor has he

presented any evidence of such a plea. See People v. Mills, 286 P.3d 754,

758–61 (Cal. 2012) (explaining California law on the insanity defense and

proof of the defendant’s mental state). Insanity at the time the offense was

committed was a factual question to be decided by the trier of fact during

his criminal proceedings. See People v. Kelly, 516 P.2d at 881. No such

finding of fact was made in the respondent’s criminal case.

The record reflects that the respondent’s mental disorder warranted the

application of procedural safeguards in removal proceedings to ensure the

protection of his right to a fair hearing. See Matter of M-A-M-, 25 I&N Dec.

474, 479–81, 483 (BIA 2011). However, his 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. Section 241(b)(3)(B)(ii) of the Act; Alphonsus v. Holder, 705

F.3d at 1041 (citing Matter of N-A-M-, 24 I&N Dec. at 341–43; Matter of

Carballe, 19 I&N Dec. at 360); Delgado v. Holder, 648 F.3d at 1107. The

respondent’s claim that his violent act was a result of his mental illness

does not lessen the danger that his actions posed to others and is therefore

not relevant to our determination that his offense is a particularly serious

crime.

The respondent also asserts that section 245(a)(1) of the California

Penal Code “does not necessarily require evil intent or fraud” and contends

that as a result of his mental disorder, he “did not act with the requisite

intent to render his crime particularly serious.” Whether an offense

requires evil intent or fraud is often a relevant factor in determining

whether a crime involves moral turpitude. See Matter of Solon, 24 I&N

Dec. 239, 240–41 (BIA 2007); Matter of Torres-Varela, 23 I&N Dec. 78,

_______________________________

defendant’s brain damage as a mitigating factor during the penalty phase); People

v. DeHoyos, 303 P.3d 1, 33 (Cal. 2013) (noting that the California Penal Code “permit[s]

introduction of evidence of mental illness when relevant to whether a defendant actually

formed a mental state that is an element of a charged offense”).

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82–84 (BIA 2001). It may also be appropriate to consider whether an

alien’s conduct was “inherently base, vile, or depraved” in deciding

whether a crime is particularly serious. Matter of Ajami, 22 I&N Dec. 949,

950 (BIA 1999) (defining moral turpitude). However, since the focus in a

particularly serious crime analysis is whether the offense justifies a

determination that the respondent “is a danger to the community,” an

inquiry regarding evil intent or fraud is not necessarily dispositive. Section

241(b)(3)(B)(ii) of the Act; see also Alphonsus v. Holder, 705 F.3d at 1041;

Matter of N-A-M-, 24 I&N Dec. at 341–43; 8 C.F.R. § 1208.16(d)(2).

Assault with a deadly weapon under section 245(a)(1) of the California

Penal Code is a general intent crime, which does not require any specific

intent to injure another. California courts have nevertheless recognized that

the statute’s general intent requirement does not diminish the

dangerousness of acts committed in violation of this statute. See, e.g.,

People v. Aznavoleh, 148 Cal. Rptr. 3d 901, 908–09 (Cal. Ct. App. 2012)

(observing that running a red light while racing another vehicle on a busy

city street was inherently dangerous to others); In re Gavin T., 77 Cal. Rptr.

2d 701, 703 (Cal. Ct. App. 1998) (stating that to be found guilty of criminal

assault, “one must have a general criminal intent to do an act which is

inherently dangerous to human life”). Because the respondent’s assault

with a deadly weapon is an inherently dangerous offense, his commission

of the crime warrants a finding that he is “a danger to the community,” even

if he did not intend to commit a particularly serious crime. Section

241(b)(3)(B)(ii) of the Act.

IV. CONCLUSION

Although we are mindful of the impact mental illness can have on an

individual’s behavior, we conclude that an alien’s mental health is not a

factor to be considered in assessing whether he or she has been convicted of

a particularly serious crime under section 241(b)(3)(B) of the Act.6 Upon

our de novo review, we conclude that the respondent did not satisfy his

burden of establishing that his conviction for assault with a deadly weapon

was not for a particularly serious crime. See 8 C.F.R. § 1240.8(d) (2013)

6

An alien who, “having been convicted by a final judgment of a particularly serious

crime, constitutes a danger to the community of the United States” is similarly barred

from establishing eligibility for asylum under section 208(b)(2)(A)(ii) of the Act, 8 U.S.C.

§ 1158(b)(2)(A)(ii) (2012). Our analysis in this case would also apply to aliens who may

be eligible for asylum. The respondent is not eligible for asylum because he has been

convicted of an aggravated felony. See section 208(b)(2)(B)(i) of the Act; 8 C.F.R.

§ 1208.13(c)(1) (2013).

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(providing that an applicant for relief from removal has the burden of

proving by a preponderance of the evidence that a ground for mandatory

denial of an application does not apply). Because the respondent has been

convicted of a particularly serious crime, he is ineligible for withholding of

removal under both the Act and the Convention Against Torture. However,

he remains eligible for deferral of removal under the Convention Against

Torture, and the Immigration Judge’s grant of that relief has not been

contested on appeal. Accordingly, the respondent’s appeal will be

dismissed and the record will be remanded solely for the purpose of

completing the requisite background checks.

ORDER: The respondent’s appeal is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.1(d)(6) (2013),

the record is remanded to the Immigration Judge for the purpose of giving

the Department of Homeland Security the opportunity to complete or

update identity, law enforcement, or security investigations or examinations,

for further proceedings, if necessary, and for the entry of an order as

provided by 8 C.F.R. § 1003.47(h) (2013).

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