and Submitted September 13, 2017 San Francisco, California
Petition for Review of an Order of the Board of Immigration
Appeals Agency No. A092-924-179
Vakili (argued), ACLU Foundation of San Diego & Imperial
Counties, San Diego, California; Ahilan T. Arulanantham, ACLU
Foundation of Southern California, Los Angeles, California;
A. Morgan (argued), Trial Attorney; Shelley R. Goad,
Assistant Director; Office of Immigration, Civil Division,
United States Department of Justice, Washington, D.C., for
Before: Kim McLane Wardlaw [*] and Michelle T. Friedland, Circuit
Judges, and Janet Bond Arterton, [**] District Judge.
panel denied a petition for panel rehearing, and amended its
April 6, 2018, opinion granting Guillermo Gomez-Sanchez's
petition for review.
amended opinion, the panel granted Gomez-Sanchez's
petition for review of the published decision of the Board of
Immigration Appeals, Matter of G-G-S-, 26 I. &
N. Dec. 339 (BIA 2014), which concluded that Gomez-Sanchez
was statutorily ineligible for withholding of removal because
he was convicted of a "particularly serious crime"
under 8 U.S.C. § 1231(b)(3)(B), and vacated and
was convicted of assault with a deadly non-firearm weapon in
violation of California Penal Code § 245(a)(1), which
the BIA concluded constituted a particularly serious crime
that prevented Gomez-Sanchez from being eligible for
withholding of removal. In reaching this decision, the BIA
held that a petitioner's mental health could not be
considered when addressing whether he had committed a
particularly serious crime.
panel held that Matter of G-G-S- was not entitled to
deference under Chevron U.S.A., Inc. v. N.R.D.C.,
Inc., 467 U.S. 837 (1984). Under step one of
Chevron, the panel concluded that Matter of
G-G-S-'s blanket rule against considering mental
health is contrary to Congress's clearly expressed intent
that the particularly serious crime determination, in cases
where a conviction falls outside the only statutorily
enumerated per se category of particularly serious crimes,
requires a case-by-case analysis. The panel also concluded
that, even if Matter of G-G-S- were to survive step
one of Chevron, it would fail at step two because
the BIA's interpretation is not reasonable in that the
BIA's two rationales for its broad rule - 1) that the
Agency could not reassess a criminal court's findings,
and 2) that mental health is never relevant to the
particularly serious crime determination - are unpersuasive
and are inconsistent with the law of this Circuit and the
BIA's own decisions.
opinion filed on April 6, 2018 is amended, and an amended
opinion is filed. With these amendments, we deny the petition
for panel rehearing. No future petitions for rehearing or
petitions for rehearing en banc will be entertained. The
mandate shall issue forthwith.
IS SO ORDERED.
ARTERTON, DISTRICT JUDGE.
Gomez-Sanchez, a native and citizen of Mexico, petitions for
review of the published decision by the Board of Immigration
Appeals ("BIA" or "the Board") affirming
the Immigration Judge's ("IJ") finding that
Gomez-Sanchez is statutorily ineligible for withholding of
removal because he was convicted of a "particularly
serious crime, " and holding that an applicant's
"mental health as a factor in a criminal act falls
within the province of the criminal courts and is not a
factor to be considered in a particularly serious crime
analysis." Matter of G-G-S-, 26 I. & N.
Dec. 339, 345 (BIA 2014).
reasons set forth below, we vacate and remand to the Board
for reconsideration of Petitioner's application for
withholding of removal in light of this opinion.
has lived in the United States since 1990 as a lawful
permanent resident. As a teenager, he developed symptoms of a
serious mental disability and was diagnosed with
schizophrenia, for which he began receiving treatment. He has
taken medication for his mental illness for the vast majority
of his life.
2004, Petitioner pled guilty to assault with a deadly
non-firearm weapon in violation of California Penal Code
§ 245(a)(1) for physically assaulting a storeowner by
swinging a weightlifting bell, which grazed the top of the
storeowners' head and resulted in an injury requiring
stitches. During the criminal proceedings, the storeowner
testified that after tackling Petitioner he "noticed
that [Petitioner] was not all there." Gomez-Sanchez was
sentenced to the two-year statutory minimum. Subsequently, he
was charged with removability under the Immigration and
Nationality Act ("INA") as an alien convicted of an
aggravated felony. Immigration and Nationality Act §
237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii).
January 8, 2010 Petitioner filed an application for
withholding of removal and relief under the Convention
Against Torture ("CAT"), contending that he would
be subject to persecution or torture in Mexico due to his
chronic mental illness, would lack access to medication and
psychiatric treatment in Mexico, and would be subject to
deplorable conditions in Mexican public psychiatric hospitals
found that Petitioner was ineligible for withholding of
removal because he had been convicted of a particularly
serious crime. She noted that that "[b]y its nature,
swinging a weight bell at a person's head is a dangerous
act capable of causing grave injuries, " and that indeed
the storeowner had received several stitches as a result of
being struck. These facts, in conjunction with
Petitioner's two-year sentence and the fact that his
"conviction arose from the physical assault on a person,
" led the IJ to conclude his offense was particularly
Gomez-Sanchez timely appealed to the BIA, challenging the
finding that he could not seek withholding of removal because
he had been convicted of a particularly serious crime. On
July 17, 2014 a three-member panel of the BIA issued a
published decision holding 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." Matter of G-G-S-, 26 I.
& N. Dec. 339, 339 (BIA 2014).
Board, while sympathizing with Petitioner's significant
mental health struggles, stated that based on its
"assessment of the nature of [Petitioner's]
conviction, the prison sentence imposed, and the
circumstances of his offense" the IJ was correct in
finding that Petitioner's conviction for assault with a
deadly weapon was for a particularly serious crime.
Specifically, the Board noted that "'crimes against
persons' are more likely to be categorized as
particularly serious crimes." The Board then concluded
"[t]his was a dangerous act capable of causing grave
injuries, " whose gravity "is also reflected in his
2-year sentence to prison."
Board explained that "consideration of an alien's
mental health as a factor in the criminal act falls within
the province of the criminal courts, " and that
"[w]hether and to what extent an [alien'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." The Board further pointed out that issues
concerning an individual's mental condition can be raised
in criminal proceedings at various stages. Thus, the Board
reasoned that it "cannot go behind the decisions of the
criminal judge and reassess any ruling on criminal
to the Board, Petitioner'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 [its] determination that his offense is a
particularly serious crime." Although assault with a
deadly weapon under the California statute at issue in this
case is a general intent crime, the Board concluded that the
fact that no specific intent to injure another is required
"does not diminish the dangerousness of [the] acts
committed in violation of this statute." To the
contrary, the Board concluded that assault with a deadly
weapon is an "inherently dangerous offense"
warranting a finding that Petitioner is a danger to the
community, "even if he did not intend to commit a
particularly serious crime."
timely petitioned for review of the BIA decision.