Considering a noncitizen’s mental health in determining whether the noncitizen was convicted of a particularly serious crime

In Asylum and Withholding of Removal cases, Immigration Courts have previously held that “the essential key” in determining whether an offense is particularly serious is whether it indicates that a noncitizen poses a danger to the community. We have previously discussed Asylum and Withholding cases here. However, although the Courts have emphasized that all reliable information may be considered in making a particularly serious crime determination, the Courts determined that a person’s mental health is not a factor to be considered in a particularly serious crime analysis. We have previously discussed particularly serious crimes here.

In recent decision, the Attorney General of the United States ruled that in some circumstances, a noncitizen’s mental health condition may indicate that the noncitizen does not pose a danger to the community. The Attorney General went further in providing an example where the noncitizen’s mental health should be considered such as when a noncitizen who was convicted of assaulting his abuser but suffered from intimate violence from the partner and possessed such reliable evidence including evidence showing that the noncitizen was diagnosed with post-traumatic stress disorder that had played a substantial motivating role in the assault.

The Attorney General further clarified that a noncitizen 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 be categorically disregarded.

The Attorney General further reasoned that 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.”

Furthermore, for various potential reasons, the mental health evidence offered in the immigration context might never have been raised in the underlying criminal proceeding.  Specific mental states may not be required for certain convictions, such as strict liability crimes. For other criminal convictions, mental health may not be a defense.

However, mental health evidence might bear on the seriousness of a crime or dangerousness of an individual for immigration purposes.

The bottom line is that a noncitizen’s mental health condition may bear directly on whether the respondent poses a danger to the community.