was brought in proceedings he came to the united states in the mid ninety's as a result of operation pacific he then he had previously helped the united states government military in the  burns over the majority part of his body to face arms legs and saw untold ores on the battlefield as a result and fortunately he  now suffers from severe p t s d which led to eventually after being given asylum in guam and transferred and transported here to the lower forty eight  removed to iraq there are two bases in which we contend this position true poor view should be granted one is on the immigration judge inboards erroneous reliance on effect reconcile them and should we then go by g s s we should go by and i am the i still like the c s s when you're looking at its exclusion of the mental health issues it's comes a question on does deference as well so are we giving the immigration agency chevron their part of homeland security chevron difference over questions of consul criminal claims of criminal matters of mental health issues you know the procedures in criminal court are significantly different in significantly different from the immigration procedures before the board i think it was there is some you know there was a supreme court case matter of it chevron their friends because of the analysis because of you know the statue's not a chameleon it doesn't change from one to the other whether it's civil or criminal it does change its meaning and while you know bargaining in burns of proof and all these these these questions that arise that make the proceedings before a criminal court in the city before immigration court found to be a particular serious crime where is the defense counsel said basically often you know there's an officer off the record discussion as he was dying the verbiage that had to be stated  there was an off the record discussion and then he eventually under you know very leading questions and made it to what facts were necessary for him to sustain the plea coll all you know it's just kind of unfortunately one of the ways things do with what we have a lot of plea agreements in the criminal court so you're taking out of that out of that without allowing the immigration judge then look at the real mental health issue which of the defendant slash now respondent who's being removed and what was his mental health i mean and then and that kind of leads into something i also wanted to mention that the there's a real poison pill i guess for an analogy in the immigration judges decision and i think it's iraq back in the mid ninety's and then he has blackouts etc in throughout his work he describes blackouts there as testimony can recall things and there's in consistencies but she then says she's going  that the government and the respondent have to have their burdens of proof are both clear and convincing evidence standards but in removal proceedings the department has of their initial recent most recent offenses leading up to this there's some discussion on the record that we provided is in the proceedings discussion on the record in the criminal case that we provided for the proceedings before the immigration judge where the judges noting you're getting a nd chance because of what has happened to you in the past your diagnoses your mental health issues that you have to keep working on so yes there were medical records in the in the yama in the record for the judge to look at but she discard discounted those and kind of when they held them to this  the in this circuit there's been a i think six cases now that have addressed or touched on this rollup and i would state that this one is different this one is different in that there is evidence that was provided to the board after the individual hearing mostly from april two thousand thank you if i believe and that evidence is material to  identity documents that we are you he will be tortured upon returning to iraq and not having because of whether he believes he's not an iraqi citizen because saddam hussein stripped him of his citizenship on t v in iraq in the ninety's whether or not that's true but he would not there's evidence in there about how it difficult it would be him deferred for him to get in iraqi identification the agency has been met and that the response cannot sustain are the factual there would have then the factual finding by the board the board's interpretations of the particularly serious crime terms in the withholding of removal stature there's actually two interpretations that are being challenge and are at issue and they are complementary to each danger in this of the individual what the statute requires is to look at whether this person has been convicted of a particularly serious crime and if he has any is there or considered a danger to the community of the united states it's an inquiry into only the nature of the criminal actions them selves the danger that dangerousness ness of the actions that he committed we are not looking at the individual and trying to project the likelihood of future macc misconduct as such we don't look into personal characteristics such as rehabilitation or other activities and so with that interpretation in mind which was reinforced to reiterate it in the matter  committed his crime it is one where the evidence cannot be considered unless it came up in the criminal proceeding if this was a reasonable policy choice not an ambiguous term that the attorney general had the discretion to set forth guidelines rule counsel let me ask you just looking at the g s itself right now a couple of the key sentences that psych just what you talked about say mental health does not relate to the pivotal issue in the serious crime analysis and then it says circumstances and facts of what happened and it says that two paragraphs later  it seems to me that that's part of the circumstances and facts of what happened i see what you're asking you're under the circumstances and facts that are relevant inward looking to what that person was thinking at the time he or she committed this crime and that doesn't change the outward dangerousness missed doesn't lessen the dangerousness of say here is a terroristic threat or in a case of an that cites in am doesn't cite g g s as a twenty one thousand case of this court right and it says that all reliable information will be considered the course the conviction records of course sentencing information as well as other information outside the confines of the record of conviction that it quotes and i am i don't think it quotes g g s at all the way the panel bound by that statement you are bound by by that statement but in that case matter g d s did not come up because no no question about the person's mental condition or mental status at the time of his proceeding at the time he committed his crime was at issue what matter d s really what it says is the board made a reasonable policy decision that says yes we look at all reliable d information about these facts and circumstances and relevant information to that question of whether the crime was dangerous but mental health evidence is not they did cite the board decided that it is should not be considered reliable or relevant unless the mental health was such a substance substantive question that it did come up in the criminal courts the board believed that the criminal courts were in the best position to judge whether that mental health had an effect on say the the the intent element of the crime or the sentencing some sentencings are very casual to the max degree some sentences take days and there's no transcript and not required many state courts trust me is is that any kind of us way to the particular serious crime determination it is the aliens burden to establish that he's not think convicted of one so he needs to put forth the elephant the relevant pertains to the inward looking inquiry into into why this person committed the crime why your c acted the way he did at the time that's not what the in crime as a proxy to determine this person whether this person is a danger or not to the community and this was a reasonable and held would meet you're saying that you believe that under g t s the immigration court could look at what happened at his sentencing if in fact there was a record for review is that what you're saying yes yes i say you know how does that comport with what you've just said because that's looking inward onto why the person did it and what an appropriate sentence might be based on their intention or motive or psychological so i'm not really sure how your position of inward versus outward can can to part with this sort of oh but look at it if it's at a sentencing i think what i'm trying to say is if it was in the sense they are means it will be taken under consideration to the question is is is then  when weighing of these factors does it doesn't have the did it have the effect of lessening the dangers this is of the actions in most circumstances it's not this mental health is being entered to try to mitigate negate the culpability of one's actions but it's the actions themselves that we are looking at so the board left some availability or an inquiry into mental help it didn't want to make a blanket ban because as we all know you can't predict all the possible circumstances where there might be a situation where some months mental health but have lessened the dangerousness the dangerousness that was posed the matter of stasis argument that that he's saying his mental health condition was a i mean his violent actions were the result of his mental condition and they both recently came to the inclusion that yes that may be true but that didn't lessen the dangerousness that his actions in this case opposed to the mother of his child in the presence of his shop or in any case lessons the dangerousness to me can you show me where in g s s it acts like that you could take information i have an answer sutton from the sentencing and put it and i like judge kelly thought we you draw a bright line here in matter of g d s says that the the information mental health information is not to be considered unless that it unless it was raised in the criminal court proceedings itself have a i thought they were saying that's how the criminal justice system what hamlet where does it say what you're saying that then after it's in the criminal justice system i realize your burden argument i get they ask but where does  looking at it like you are so i don't i just don't see that you're welcome to do a twenty eight day letter so i wouldn't spend all our time with you and me look at it ok say i'm sorry i think it is actually it is the very at the very beginning that sums it up on page three hundred and thirty nine the nd paragraph says we hold that a person's mental health is not a factor to be considered in a particularly serious crime analysis and adjudicators meeting the is is is much more kin to a personal characteristics such as rehabilitation or other equities the question about a particular serious crime now this is looking at the nature of those criminal actions themselves whether those actions whether those outward actions posed a danger to others that's what we're looking for because this particular serious crime determination is being served as a proxy for whether someone is a danger to the community this is a reasonable policy determination by the attorney general it was congress international treaty obligations to protect people have been persecuted but other times to perfect our own citizens from aliens to who committed dangerous crimes and should not be allowed to remain in the country on the streets than the reasons presented  consideration of an alien's mental health as a factor in criminal in the criminal act falls within the providence province of the criminal courts and is not a factor to be considered in any particular career serious crime analysis to me that pretty much sounds like a bright line and i was there when judge mazie her decision and i recall that it being pretty we can't consider this argument believe there are objections from the government stating that mental health is not a factor to be considered in that particular serious crime analysis and as to just kelly asked a question earlier if any of the mental health issues were in the record that's flipping through a page eighty four of the record there's transcripts from a sensing regarding that's where they're just having a discussion on the record of mr shah's mental health and treatment and accept or etc so there is mental health issues raised in sentencing so even assuming there there was no bright line rule then and taking mr newell's argument then the court should have considered it because the evidence was in there the court however decli that that is not a pro career should not be given deference one hundred chevron to the board and into the agency in and analyzing us for the multitude of reasons that have been mentioned lack of