Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
339
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: Kerri Calcador, Senior
Attorney
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.Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
340
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.Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
341
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 discretionaryCite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
342
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 toCite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
343
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).Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
344
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.Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
345
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 . . .)Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
346
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”).Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
347
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).Cite as 26 I&N Dec. 339 (BIA 2014) Interim Decision #3806
348
(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).