Immigration Article of the Day: Noncitizens, Mental Health, and Immigration Adjudication by Mishan Kara

Abstract

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.

KJ