Mental Disorders: Criminal Aliens’ Next Deportation Dodge?

U.S. Attorney General Merrick Garland is seeking to block removals of criminal aliens on mental health grounds – a dodgy move that circumvents the Administrative Procedure Act.

Deportations of criminal aliens have tumbled to historic lows as Homeland Security Secretary Alejandro Mayorkas, evidently on the same page as Garland, issued a memo directing U.S. Immigration and Customs Enforcement (ICE) officers to consider any “mental condition [as]mitigating factors that militate in favor of declining enforcement action.”

Mayorkas’ memo and Garland’s maneuver fly in the face of a 2014 case decided by the Board of Immigration Appeals (BIA). There, the panel categorically ruled, “Mental health is not a factor to be considered in assessing whether [the alien]has been convicted of a particularly serious crime.”

Angling to overturn the BIA, which operates under his Justice Department, Garland is attempting an end-run around the Administrative Procedure Act (APA). By referring the matter to himself through a process called “certification,” the attorney general intends to dispense with the legal requirements for publishing proposed changes in the Federal Register and inviting public comment.

The Trump administration suffered several legal smackdowns when it tried to execute orders outside the parameters of the APA.

If Garland’s shortcut is questionable on procedural grounds, it is even more problematic for public safety.

The U.S. Immigration and Nationality Act expressly bars admission of aliens who have a “mental disorder and behavior associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others.” The BIA reasoned that persons disqualified from entering the country for specific causes are also subject to removal on those same terms.

Andrew Arthur, at the Center for Immigration Studies, notes that removals of criminal aliens are “intended to protect the community. … The mental disorder is not the issue; the consequences of the alien’s actions are.”

“The INA should be enforced — and enforced impartially and objectively,” states Arthur, formerly an assistant general counsel at the old Immigration and Naturalization Service. “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.”

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