Noncitizens, Mental Health, and Immigration Adjudication

*J.D., University of Virginia School of Law, expected 2024. I would like to thank Professors Greg Mitchell and Amanda Frost for their advice on this Essay. Thank you as well to the members of the Virginia Law Review, including Michael Martinez and Heream Yang, for their thoughtful suggestions.Show More

When a noncitizen commits a crime in the United States, they become vulnerable to the possibility of the government instigating removal proceedings against them. According to the Immigration and Nationality Act, the noncitizen can argue in their defense that the crime they committed was not particularly serious. In this “particularly serious crime” determination, immigration judges are allowed to consider a variety of factors to determine the danger of the noncitizen to the community of the United States. However, prior to May of 2022, immigration judges were categorically barred from considering mental health evidence in their analysis. In Matter of B-Z-R-, this changed. The new ruling by Attorney General Merrick Garland presents itself as a potential sea change in the consideration of mental health in immigration adjudications, ridding the complete bar on mental health evidence in deportation relief proceedings. This Essay argues, however, that the full effects of the ruling will only be realized if more guidance and resources are provided to immigration judges. The Board of Immigration Appeals should set clear guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings. The three proposed guidelines in this Essay will ensure that the mental health of noncitizens is being adequately and fairly considered by judges when respondents are seeking relief from deportation.

Introduction

Refugees are at a higher risk of developing mental health symptoms or already having undiagnosed mental health disorders. The American Psychological Association has pointed to factors—like migration-related stress, trauma suffered in their countries of origin, language barriers, fear of deportation and family separation, rising detention rates, barriers to healthcare access, financial instability, and a lack of work opportunities and education—that make it more likely for immigrants to suffer from a mental illness.¹ 1.See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants).Show More These factors are linked to post-traumatic stress disorder, depression, anxiety, and emotional distress for migrants.² 2.See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder).Show More The immigration system in our country addresses some of these factors while noncitizens are pushed through the system, such as providing procedural safeguards when respondents are deemed incompetent or providing mental health services while a noncitizen is in detention.³ 3.See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB].Show More But should the immigration courts be considering these factors when deciding whether to deport noncitizens with mental health disorders that arise from prior to the immigration process?

On May 9, 2022, Attorney General Merrick Garland decided “yes” in the context of a noncitizen having committed a crime leading to their deportation, resulting in the overruling of Matter of G-G-S-.⁴ 4.Matter of B-Z-R-, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime).Show More Immigration judges may now 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.”⁵ 5.Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)).Show More If so, withholding of removal relief will be denied, and the respondent will be removed to their country of origin.⁶ 6.8 U.S.C. § 1158(c)(2)–(3).Show More

This Essay argues that the new ruling by the Attorney General in Matter of B-Z-R- has presented itself as a potential sea change in the consideration of mental health in immigration adjudications, but the full effects of the ruling will only be realized if clear operative guidelines and resources are provided to immigration judges. For noncitizens seeking deportation relief, this decision presents a pivotal opportunity to explain why their past criminal conduct does not make them a danger to the community of the United States at present. For immigration judges, this decision provides just another factor of many that can be considered in the deportation determination. However, with a backlog of cases,⁷ 7.Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them).Show More a lack of expertise about mental health,⁸ 8.See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns).Show More and an insufficient amount of resources and guidance to aid in their determination,⁹ 9.See id. at 50 (discussing shortfalls in funding and immigration judge training).Show More it is unlikely immigration judges will be motivated to adequately and fairly consider the noncitizen’s mental health at the time of the crime.

Noncitizens with mental illnesses are left vulnerable when navigating the immigration court system given the stigmatization and lack of understanding by those without expertise in mental health.¹⁰ 10.Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022).Show More To better ensure the consideration of mental health in the particularly serious crime analysis, the Board of Immigration Appeals (“BIA”) should set clear operative guidelines pertaining to the consideration of mental health evidence, and the Executive Office for Immigration Review should provide funding for forensic mental health evaluations and psychiatric support in removal proceedings.

Part I explains the “particularly serious crime” analysis in Section 241(b)(3) of the Immigration and Nationality Act. Part II discusses current issues that plague immigration adjudication when it comes to the consideration of mental health. Part III outlines three concrete guidelines the Board of Immigration Appeals should provide for immigration judges considering mental health in the particularly serious crime determination.

1.  See Virginia Barber-Rioja & Alexandra Garcia-Mansilla, Special Considerations When Conducting Forensic Psychological Evaluations for Immigration Court, 75 J. Clinical Psych. 2049, 2051 (2019) (canvassing the various circumstances resulting in greater mental health risks for immigrants). ↑
2.  See Irina Verhülsdonk, Mona Shahab & Marc Molendijk, Prevalence of Psychiatric Disorders Among Refugees and Migrants in Immigration Detention: Systematic Review with Meta-Analysis, 7 BJPsych Open 1, 1, 5 (2021) (reporting that among adult migrants, prevalence rates were 68% for depression, 54% for anxiety, and 42% for post-traumatic stress disorder). ↑
3.  See Matter of M-J-K-, 26 I. & N. Dec. 773, 773 (B.I.A. 2016); ICE Health Service Corps, U.S. Immigr. & Customs Enf’t (June 9, 2023), https://www.ice.gov/detain/ice-health-service-corps [https://perma.cc/2SJ3-MLJB]. ↑
4.  Matter of B-Z-R–, 28 I. & N. Dec. 563, 563, 567 (A.G. 2022) (overruling the Board of Immigration Appeals’ holding in Matter of G-G-S-, 26 I. & N. Dec. 339 (B.I.A. 2014), that adjudicators may not consider the mental health of a respondent in determining whether a respondent was convicted of a particularly serious crime). ↑
5.  Id. at 563 (quoting 8 U.S.C. § 1158(b)(2)(A)(ii)). ↑
6.  8 U.S.C. § 1158(c)(2)–(3). ↑
7.  Holly Straut-Eppsteiner, Cong. Rsch. Serv., R47077, U.S. Immigration Courts and the Pending Cases Backlog 1, 31 (2022) (noting that at the end of the first quarter of fiscal year (“FY”) 2022, the backlog reached an all-time high of 1.5 million cases, with 578 immigration judges on staff to adjudicate them). ↑
8.  See Amelia Wilson, Franco I Loved: Reconciling the Two Halves of the Nation’s Only Government-Funded Public Defender Program for Immigrants, 97 Wash. L. Rev. Online 21, 48–49 (2022) (discussing challenges in training immigration judges to evaluate mental health concerns). ↑
9.  See id. at 50 (discussing shortfalls in funding and immigration judge training). ↑

10.  Ayala Danzig & Marina Nakic, Appellate Court Clarifies That Immigration Judges Cannot Disregard Mental Health Professional Guidelines, 50 J. Am. Acad. Psychiatry & L. 158, 161 (2022). ↑