U.S. Attorney General Garland overturned a 2014 Board of Immigration Appeals (BIA) ruling stating courts can not consider a noncitizen’s mental health history. As such, immigration courts can now take into consideration a respondent’s mental wellness through the BIA’s case-by-case approach.

Previously, the BIA considered the criminal court’s ruling, presuming they included the individual’s mental health conditions when coming to their conclusion. Therefore, the BIA found they should not include mental health in their courts.

However, Garland disagreed. The issue at hand for BIA courts is whether the individual could be considered a danger to the country. For a variety of reasons, the mental health evidence of the individual may have not been presented in the criminal courts. Even if it was, the extent to which it is considered varies widely based on the jurisdiction and the charge itself. As such, BIA should consider the mental wellness of the noncitizen in their deliberation.

Discretionary deportation relief is barred for individuals convicted of a “particularly serious crime”. As such, asylum or withholding of removal are not options. The Immigration and Nationality Act further states that aggravated felonies with sentences of a minimum of five years are considered a particularly serious crime. As such, immigration courts must consider how to handle cases where sentences are under the five-year guide.

U.S. Immigration and Customs Enforcement (ICE) recently announced guidelines to protect individuals who are in immigration custody that may suffer from serious mental conditions or disorders. Tracking guidelines are provided to ICE employees who oversee individuals with serious mental conditions. The guidelines also provide rules for sharing information about the detainees with their legal representatives and the immigration court system. Further, the process of release or transfer is outlined for these individuals to ensure they are not subject to potential danger, or their treatment is not interrupted. Monthly reports are to be created and submitted to monitor these individuals’ treatment and immigration case status.

If you have questions about an immigration case that may be affected by mental wellness or any other immigration-related issue, contact us at ILBSG. We work with our clients to understand their specific situations and ensure they get the right advice.

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