Joe Biden’s Attorney General Merrick Garland announced Monday that federal immigration courts will be allowed to consider the mental health history of illegal immigrants convicted of aggravated felonies when deciding asylum claims.
This week’s decision reverses an appeals ruling by the Board of Immigration Appeals in 2014. That earlier ruling held that when evaluating the seriousness of a criminal conviction of an asylum applicant, mental health is not an allowed factor for consideration. Immigration judges were to consider the conviction standing alone, as the criminal court had already had the opportunity to weigh the offender’s mental status.
The change announced by Garland means that immigration judges may now consider an illegal immigrant’s mental health when determining if conviction of a “particularly serious crime” means the person “constitutes a danger to the community of the United States.”
The change follows a request made by Garland to review the case of a Mexican national convicted of burglary in 2017 in New Jersey. Upon his release, the man told the court that he should not be deported to Mexico because he would be persecuted there over his mental health status and sexual orientation.
His application for asylum was dismissed because the immigration court did not consider his mental health condition as a factor. The applicable rule provides that applicants who have been convicted of serious crimes that pose a danger to the community are ineligible for asylum. The man’s appeal of that decision was denied by the Board of Immigration Appeals.
Garland’s announcement indicated that he determined it is appropriate to overturn the 2014 precedent, thereby vacating the Board’s dismissal of the man’s asylum application. Garland wrote that an applicant’s mental health condition “in some circumstances” can indicate the person “does not pose a danger to the community.”
Garland cited examples of mental health conditions that would not disqualify a felon from seeking asylum, including a domestic violence victim convicted of assaulting their abuser or convicts “influenced by post-traumatic stress disorder.”
Garland’s announced change does not consider the fact that each convicted illegal alien has already had the opportunity to show that their mental condition should have had a bearing on their criminal case.