Report: Merrick Garland pursues ‘mental health’ option to protect ‘particularly serious’ criminal aliens

Analysis by WorldTribune Staff, December 22, 2021 247 Real News

Biden administration Attorney General Merrick Garland is displaying his actual malice toward this nation again.

The man who wanted to treat parents as probable domestic terrorists because they dared to question their local school board officials is attempting to further jeopardize the safety of American citizens in their own communities.

Attorney General Merrick Garland / C-SPAN

Andrew R. Arthur, a Resident Fellow in Law and Policy for the Center for Immigration Studies, penned an alarming post Dec. 14 on Garland’s determination to find ways to protect the status of illegal aliens guilty of other serious crimes.

The piece is written in an extremely dense and hard-to-read lawyerly style but its importance cannot be overstated. Merrick Garland wants to let dangerous criminal aliens into this country, using mental health as a dodge:

On December 9, Attorney General (AG) Merrick Garland requested briefing on “[w]hether mental health may be considered when determining whether an” alien has been convicted of a “particularly serious crime,” which would bar the alien from asylum, statutory withholding, and protection under the Convention Against Torture (CAT). It is the latest salvo in the Biden administration’s attempts to shield criminal aliens from removal.

The spirit of hostility against the American people cannot be missed here. Deporting criminal aliens is about protecting U.S. communities and the lawful citizens who reside there, Arthur notes:

Under section 208 of the Immigration and Nationality Act (INA), an alien can establish eligibility for asylum by showing a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

There are various bars to asylum, but the one at issue in Matter of B-R-Z- is in section 208(b)(2)(A)(ii) of the INA, which prevents an [immigration judge] from granting asylum to an alien who “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.”

Arthur highlights a case example: This is iniquitous. Those who want to claim illegal immigration is not a crime want to apply rights afforded to defendants in criminal trials to the deportation hearings of foreigners who pose a threat to the well-being of the citizens of this country:

The alien respondent in Matter of G-G-S- was a Mexican national and lawful permanent resident of the United States. In 2004, he was convicted of assault with a deadly weapon in violation of section 245(a)(1) of the California Penal Code, for which he received a two-year sentence.

He was placed into removal proceedings, and the [immigration judge] concluded that the respondent’s assault conviction was a particularly serious crime, barring him from statutory withholding. The respondent contended, however, that he suffered from chronic paranoid schizophrenia, and that the [immigration judge] erred in not considering his mental illness in determining whether his crime was “particularly serious.”

In their precedent decision, a three-member panel of the [Board of Immigration Appeals] held: “An alien’s mental health as a factor in a criminal act falls within the province of the criminal courts and is not [to be] considered in assessing whether the alien was convicted of a ‘particularly serious crime’ for immigration purposes.”

To clarify, a criminal defendant in criminal proceedings could argue, for example, that he or she is incompetent to stand trial due to mental health issues, or could plead not guilty by reason of insanity to prove the lack of intent necessary to be convicted for the offense, or offer mental illness as a mitigating factor in sentencing.

Again, this is the crux of the matter:

[T]he focus under the [Immigration and Nationality Act] in determining whether an alien has been convicted of a particularly serious crime is whether the alien poses “a danger to the community.”

Regardless of whatever specific mental diagnosis the alien has received, it is the nature of the criminal offense itself and the potential danger that the alien poses to the public that drives the “particularly serious crime” inquiry, not any mental illness that the alien may have been suffering from when he committed the offense.

Arthur reveals how this attempted pivot is part of a concerted administration effort:

In a February 18 memo limiting [U.S. Immigration and Customs Enforcement]  immigration enforcement actions, captioned “Interim Guidance: Civil Immigration Enforcement and Removal Priorities,” Acting ICE Director Tae Johnson directed ICE officers and attorneys to consider “mitigating factors, including… health and medical factors” before questioning, arresting, detaining, prosecuting, and removing otherwise removable aliens.

“Mental health” is plainly a subset of “health,” but the Tae Johnson memo did not specifically tell ICE employees to take criminal aliens’ mental health issues into consideration when taking (or not taking) enforcement actions.

The author explains how paralyzing this would be to those trying to enforce the immigration laws of this nation:

With respect to aliens who pose a threat to public safety, the [Biden Homeland Security Secretary Alejandro] Mayorkas memo requires ICE officers to consider any “mental condition that may have contributed to the criminal conduct” as a “mitigating factor” that would weigh against taking enforcement action against a criminal alien.

Thus, if an alien received a two-year sentence for assault with a deadly weapon (as G-G-S- did) as well as a diagnosis for chronic paranoid schizophrenia (ditto), an ICE officer considering even questioning the alien would have to assess the degree to which the alien’s mental illness contributed to the alien’s criminality.

The legal implications are calamitous…

Arson is a common law offense and a federal and state crime. If an alien is convicted of arson in the third degree under New York State law for intentionally damaging a building by starting a fire, should ICE seek to remove the alien for that conviction, which the Supreme Court has held is an aggravated felony as defined in section 101(a)(43)(E)(i) of the INA?

The obvious answer is yes, but under the Biden administration’s logic, a diagnosis finding that the alien is a pyromaniac would be a mitigating factor for an ICE officer considering the alien’s conviction, one militating in favor of not placing the alien into removal proceedings. That would be true regardless of whether that disorder makes the alien liable to act again. Does that make sense?

Arthur’s conclusion is spot-on and only basic common sense:

Requiring ICE officers or immigration judges to consider whether criminal aliens have any of the nearly 300 identified mental disorders in taking enforcement actions on the one hand or extending protection on the other poses a significant risk to the people of the United States and will lead to unequal justice — both of which we should all oppose.

But it’s never been about common sense, has it?

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