Gomez-Sanchez v. Sessions

• Decision Date: 06 April 2018
• Docket Number: No. 14-72506,14-72506
• Parties: Guillermo GOMEZ–SANCHEZ, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

892 F.3d 985

Guillermo GOMEZ–SANCHEZ, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-72506

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 13, 2017, San Francisco, California

Filed April 6, 2018

Amended June 12, 2018

Bardis Vakili (argued), ACLU Foundation of San Diego & Imperial Counties, San Diego, California; Ahilan T. Arulanantham, ACLU Foundation of Southern California, Los Angeles, California; for Petitioner.

Carmel A. Morgan (argued), Trial Attorney; Shelley R. Goad, Assistant Director; Office of Immigration, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before: Kim McLane Wardlaw^* and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton,^** District Judge.

ORDER AND AMENDED OPINION

The 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.

IT IS SO ORDERED.

OPINION

ARTERTON, District Judge:

Guillermo 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).¹

For the 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.

I. BACKGROUND

Petitioner 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.

In 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).

On 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 and/or prisons.

The IJ 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 serious.²

Mr. 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).

The 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."

The 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 culpability."

According 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."

Petitioner timely petitioned for review of the BIA decision. See 8 U.S.C. § 1252(b)(1).

II. STANDARD OF REVIEW AND CHEVRON DEFERENCE

Mr. Gomez–Sanchez contends that the Board committed legal error in interpreting the INA to establish the categorical rule that mental health can never be considered in determining whether a conviction constitutes a particularly serious crime. "Whether the BIA applied the proper legal standard in determining whether [Petitioner’s] crime was ‘particularly serious’ raises a question of law." Blandino–Medina v. Holder , 712 F.3d 1338, 1342–43 (9th Cir. 2013). While we " ‘cannot reweigh evidence to determine if the crime was indeed particularly serious, [we] can determine whether the BIA applied the correct legal standard.’ " Id. at 1343 (quoting Afridi v. Gonzales , 442 F.3d 1212, 1218 (9th Cir. 2006), overruled in part on other grounds by Estrada–Espinoza v. Mukasey , 546 F.3d 1147, 1160 n.15 (9th Cir. 2008) (en banc) ).

Where, as here, the Board issues a published decision interpreting the INA, we apply the test derived from Chevron U.S.A., Inc. v. N.R.D.C., Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Delgado v. Holder , 648 F.3d 1095, 1102 (9th Cir. 2011) (en banc); see also Judulang v. Holder , 565 U.S. 42, 52 n.7, 132 S.Ct. 476, 181 L.Ed.2d 449 (2011). Under Chevron , we afford deference to the Board’s reasonable interpretations of ambiguous statutes it is charged with administering. Chevron , 467 U.S. at 844, 104 S.Ct. 2778. This requires us to

determine whether ‘the intent of Congress is clear.’ If it is [we] ‘must give effect to the unambiguously expressed intent of Congress.’ If the statute is ‘silent or ambiguous,’ however ... [we must ask] ‘whether the agency’s answer is based on a permissible construction of the statute.’

Delgado , 648 F.3d at 1102 (citing Chevron , 467 U.S. at 842–43, 104 S.Ct. 2778 ).

III. DISCUSSION

A. Statutory Framework

The grant of withholding of removal is mandatory if an individual proves that his "life or freedom would be threatened in [the] country [to which he or she would be removed] because of [his or her] race, religion, nationality, membership in a particular social group, or political opinion." INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). Individuals convicted of particularly serious crimes, however, are barred from obtaining withholding of removal. See INA § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii). The protection of withholding of removal is not extended to any individual who "having been convicted by a final judgment of a particularly serious crime is a danger to the community of the United States." 8 U.S.C. 1231(b)(3)(B)(ii). An individual

who has been convicted of an aggravated felony (or felonies) for which [he or she] has been sentenced to an aggregate term of imprisonment of at least 5 years shall be considered to have committed a particularly serious crime. The previous sentence shall not preclude the Attorney General from determining that, notwithstanding the length of sentence imposed, an alien has been convicted of a particularly serious crime.

8 U.S.C. 1231(b)(3)(B)(iv). "[B]ecause the term ‘particularly serious crime’ is not otherwise defined by statute, the Attorney General may also ‘designate offenses as particularly serious crimes through case-by-case adjudication ....’ " See Avendano–Hernandez v. Lynch , 800 F.3d 1072, 1077 (9th Cir. 2015) (quoting ...