Considering mental health for immigrant asylum claims: Is AG Garland right?
- On May 9, 2022, Attorney General Merrick Garland decided to allow immigration courts to analyze the mental health of undocumented immigrants convicted of aggravated felonies when considering their asylum claim. This will overturn the 2014 Board of Immigration Appeals, “Matter of G-G-S,” that took mental health out of decision-making.
- According to a 2021 study reported by the American Psychological Association, “If a person has a severe mental illness, [they] may have other risk factors for violent behavior [...] So, it may not be mental illness that is driving the violence at all, but rather factors like having been abused as a child, being unemployed, or living in a high-crime neighborhood.”
- The American Psychiatric Association lists mental health risk factors of undocumented immigrants: trauma (escape from violence and natural disasters), abandonment, racism, microaggression, social isolation, and other issues.
- US Customs and Border Protection reported the number of migrant apprehensions at 221,303 in March 2022. The numbers shifted 33.4% since February with 165,054 migrant encounters.
Attorney General Merrick Garland announced that immigration judges can now consider the mental health status of an illegal immigrant who has been convicted of an aggravated felony. This would apply when judges consider asylum claims or determine whether to withhold their deportation. As with much of Garland's DOJ, this makes no sense.
This policy flies in the face of a prior DOJ ruling from the Obama administration in 2014 that states 'a person's mental health is not a factor to be considered in a particularly serious crime analysis.' Keep in mind that this relates to illegal immigrants convicted of serious crimes. Before Garland changed direction, immigration judges were not to go beyond the decisions made by the criminal judge.
Garland is not taking the safety of Americans with this ruling seriously. Judges can now refuse to order deportation or withholding of removal for illegal immigrants convicted of serious crimes by including that person's mental state. If the mental condition of the individual was not relevant to the criminal conviction and the nature of the crime makes that individual a danger to the community, Garland is putting the safety and well-being of illegal immigrants convicted of crimes ahead of law-abiding Americans. That is harmful and a policy prescription that puts America last.
As Republicans have rightly claimed in the past, rules, and policies like these are designed to make more people eligible for asylum who would otherwise not be eligible. There can be no rational reason to grant asylum to an illegal immigrant who has been convicted of a serious crime while in the United States. This is yet another bad decision that Americans will ultimately pay the price for.
Judges are used in cases involving decisions on whether an immigrant is at too great of a risk of persecution in their country of origin to be deported or not because discretion is necessary. Judges look at all of the facts in someone's case when weighing up the seriousness of their crime, the danger they may face at home, and their current state. It only makes sense that something as major as the mental health of the person in question would be examined.
If someone was suffering from a mental health problem causing them to behave in ways beyond their control, this is certainly an important consideration and Attorney General Garland is right to tell judges to do so. This is especially important considering the group of people who will be affected by this decision. Many have faced terrible violence and crushing poverty in their home countries, and those experiences combined with the stresses and difficulties of moving to a new country could weigh heavily on someone's mental health.
Mental health is already considered widely throughout the legal system, with leniency sometimes being granted to the afflicted. This trend has increased as we have learned more about mental health disorders, and stigmas around treatments have been reduced. It makes sense that immigration judges should follow similar criteria to judges in other courts. However, it is important to recognize that this does not mean leniency will automatically be granted.
Finally, we should recognize that these immigrants are humans before whatever other labels may be applied to them and are deserving of compassion and humanity; AG Garland is right to instruct judges to consider their mental health.