FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GUILLERMO GOMEZ-SANCHEZ,

Petitioner,

v.

JEFFERSON B. SESSIONS III, Attorney 

General,

Respondent.

No. 14-72506

Agency No.

A092-924-179

ORDER AND

AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted September 13, 2017

San Francisco, California

Filed April 6, 2018

Amended June 12, 2018
2 GOMEZ-SANCHEZ V. SESSIONS

Before: Kim McLane Wardlaw* and Michelle T. 

Friedland, Circuit Judges, and Janet Bond Arterton,**

District Judge.

Order;

Opinion by Judge Arterton

SUMMARY***

Immigration

The panel denied a petition for panel rehearing, and 

amended its April 6, 2018, opinion granting Guillermo 

Gomez-Sanchez’s petition for review.

In the amended opinion, the panel granted GomezSanchez’s petition for review of the published decision of 

the Board of Immigration Appeals, Matter of G-G-S-, 26 I. 

& N. Dec. 339 (BIA 2014), which concluded that GomezSanchez was statutorily ineligible for withholding of 

removal because he was convicted of a “particularly serious 

 * This case was submitted to a panel that included Judge Kozinski, 

who recently retired. Following Judge Kozinski’s retirement, Judge 

Wardlaw was drawn by lot to replace him. Ninth Circuit General Order 

3.2.h. Judge Wardlaw has read the briefs, reviewed the record, and 

listened to oral argument.

** The Honorable Janet Bond Arterton, United States District Judge 

for the District of Connecticut, sitting by designation.

*** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
GOMEZ-SANCHEZ V. SESSIONS 3

crime” under 8 U.S.C. § 1231(b)(3)(B), and vacated and 

remanded.

Gomez-Sanchez was convicted of assault with a deadly 

non-firearm weapon in violation of California Penal Code 

§ 245(a)(1), which the BIA concluded constituted a 

particularly serious crime that prevented Gomez-Sanchez 

from being eligible for withholding of removal. In reaching 

this decision, the BIA held that a petitioner’s mental health 

could not be considered when addressing whether he had 

committed a particularly serious crime.

The panel held that Matter of G-G-S- was not entitled to 

deference under Chevron U.S.A., Inc. v. N.R.D.C., Inc., 467 

U.S. 837 (1984). Under step one of Chevron, the panel 

concluded that Matter of G-G-S-’s blanket rule against 

considering mental health is contrary to Congress’s clearly 

expressed intent that the particularly serious crime 

determination, in cases where a conviction falls outside the 

only statutorily enumerated per se category of particularly 

serious crimes, requires a case-by-case analysis. The panel 

also concluded that, even if Matter of G-G-S- were to survive 

step one of Chevron, it would fail at step two because the 

BIA’s interpretation is not reasonable in that the BIA’s two 

rationales for its broad rule – 1) that the Agency could not 

reassess a criminal court’s findings, and 2) that mental health 

is never relevant to the particularly serious crime 

determination – are unpersuasive and are inconsistent with 

the law of this Circuit and the BIA’s own decisions. 
4 GOMEZ-SANCHEZ V. SESSIONS

COUNSEL

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.

ORDER

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 
GOMEZ-SANCHEZ V. SESSIONS 5

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).

 1 The Board uses the phrases “mental health,” “mental condition” 

and “mental illness” interchangeably in its decision.
6 GOMEZ-SANCHEZ V. SESSIONS

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).

 2 Although ineligible for withholding of removal, the IJ granted 

Petitioner deferral of removal pursuant to the CAT.
GOMEZ-SANCHEZ V. SESSIONS 7

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 
8 GOMEZ-SANCHEZ V. SESSIONS

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.” BlandinoMedina 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 EstradaEspinoza 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 (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 

(2011). Under Chevron, we afford deference to the Board’s 

reasonable interpretations of ambiguous statutes it is charged 
GOMEZ-SANCHEZ V. SESSIONS 9

with administering. Chevron, 467 U.S. at 844. 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).

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 
10 GOMEZ-SANCHEZ V. SESSIONS

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 Delgado v. 

Holder, 648 F.3d 1095, 1098 (9th Cir. 2011) (en banc)).

In Matter of Frentescu, the BIA developed a multi-factor 

test for determining whether a crime was particularly 

serious, barring that individual from withholding of removal 

relief:

In judging the seriousness of a crime, we look 

to such factors as the nature of the conviction, 

the circumstances and underlying facts of the 

conviction, the type of sentence imposed, 

and, most importantly, whether the type and 

circumstances of the crime indicate that the 

[individual] will be a danger to the 

community.

18 I. & N. Dec. 244, 247 (BIA 1982). The Board noted that 

“[w]hile there are crimes which, on their face, are 

‘particularly serious crimes’ or clearly are not ‘particularly 

serious crimes,’ the record in most proceedings will have to 

be analyzed on a case-by-case basis.” Id.
GOMEZ-SANCHEZ V. SESSIONS 11

While Section 1231(b)(3)(B)(iv) has been amended 

since Frentescu, its test continues to be applied when 

determining whether a crime (other than aggravated felonies 

for which an alien receives a sentence of imprisonment of 

five years or more) is particularly serious. See Alphonsus v. 

Holder, 705 F.3d 1031, 1041 (9th Cir. 2013). In 2013, we 

articulated “the currently operative legal standard as follows: 

‘[A] crime is particularly serious if the nature of the 

conviction, the underlying facts and circumstances[,] and the 

sentence imposed justify the presumption that the convicted 

immigrant is a danger to the community.’” Id. (quoting 

Delgado, 648 F.3d at 1107).

Thus, dangerousness remains the “essential key” to 

determining whether the individual’s conviction was for a 

particularly serious crime. Id. However, “there is no 

statutory requirement for a separate determination of 

dangerousness focusing on the likelihood of future serious 

misconduct on the part of the alien.” Ramirez-Ramos v. 

I.N.S., 814 F.2d 1394, 1397 (9th Cir. 1987) (internal 

quotation marks omitted); see also Matter of Carballe, 19 I. 

& N. Dec. 357, 360 (BIA 1986). Rather, once an individual 

is found to have been convicted for committing a particularly 

serious crime, he or she “shall be considered to constitute a 

danger to the community.” 8 C.F.R. § 1208.16(d)(2) 

(emphasis added); see also Matter of Carballe, 19 I. & N. 

Dec. at 360 (those aliens who have been finally convicted of 

particularly serious crimes are presumptively dangers to this 

country’s community). There is no provision in the statute or 

regulations whereby an individual can rebut this 

presumption. Therefore once this determination is made, the 

individual is irrebuttably presumed to be a danger.
12 GOMEZ-SANCHEZ V. SESSIONS

B. Chevron Step One: The Intent of Congress

“Under Chevron, we first ask ‘whether the statute is 

silent or ambiguous with respect to the specific issue before 

[us].’” Anaya-Ortiz v. Holder, 594 F.3d 673, 677 (9th Cir. 

2010) (quoting Chevron, 467 U.S. at 843). We have 

previously held that Congress “clearly expressed its intent: 

the overall structure of the INA compels the conclusion that 

Section 1231(b)(3)(B)(iv) establishes but one category of 

‘per se’ particularly serious crimes, and requires the agency 

to conduct a case-by-case analysis of convictions falling 

outside the category established by Congress.” BlandinoMedina, 712 F.3d at 1345. Thus, we vacated a decision by 

the Board that barred the petitioner from withholding of 

removal relief because it determined, based solely on an 

analysis of the elements of the offense, that a conviction for 

lewd and lascivious acts with a child under the age of 

fourteen, in violation of California Penal Code § 288(a), 

“constitutes a ‘particularly serious crime’ per se.” Id. at 

1341.

Similarly, in Konou v. Holder, we considered a 

petitioner’s argument that a sentencing enhancement “is not 

part of the sentence for the conviction” and therefore that the 

Board and IJ were precluded from considering the 

enhancement when considering whether a crime was 

particularly serious. 750 F.3d 1120, 1128 (9th Cir. 2014). 

We rejected that argument, concluding that a sentencing 

enhancement is a “type of sentence,” which is one of the 

factors to be weighed under Frentescu. Konou, 750 F.3d at 

1128. In reaching that decision, we also noted that 

Congress’s

emphasis on case-by-case analysis instead of 

rulemaking for determining whether an 

offense that is not an aggravated felony [for 
GOMEZ-SANCHEZ V. SESSIONS 13

which the defendant has received a sentence 

of at least five years] nonetheless constitutes 

a particularly serious crime would be 

undercut if the BIA were required to apply a 

brightline rule to each case-by-case 

determination.

Id. Thus, we refused to create a rule that would have 

categorically barred consideration of sentencing 

enhancements in determining whether a crime is particularly 

serious. Id; see also Arteaga De Alvarez v. Holder, 704 F.3d 

730, 740 (9th Cir. 2012) (interpreting a different section of 

the INA, § 1229(b)(1)(D), and concluding that a rule 

categorically treating alternative means of immigrating as 

undermining claims of hardship was contrary to that statute’s 

requirement of “individualized enquiry in each case”).3

 3 We have also

held that the INA is ‘silent regarding the basis for 

determining whether a conviction is for a particularly 

serious crime’ under § 1231(b)(3)(B)(ii) and therefore 

the BIA’s interpretation of ‘what an IJ may refer to in 

deciding whether a prior offense is a particularly 

serious crime’ is entitled to deference under Chevron

so long as it is reasonable. See Anaya-Ortiz v. Holder, 594 F.3d 673, 677 

(9th Cir. 2010) (quoting Morales v. Gonzalez, 478 F.3d 972, 980, 982 

(9th Cir. 2007)). In Anaya-Ortiz, however, we considered a petitioner’s 

argument that the agency could not rely on testimony given at his 

removal hearing, id., not whether the agency could categorically bar 

consideration of certain categories of information contained in that 

testimony. See id. at 677-78 (deferring to the BIA’s determination in 

Matter of N-A-M, 24 I. & N. 336, 342 (BIA 2007), that “all reliable 

information may be considered in making a particularly serious crime 

determination, including the conviction records and sentencing 
14 GOMEZ-SANCHEZ V. SESSIONS

Against this backdrop, the BIA here announced and 

applied a blanket rule against considering an individual’s 

mental health as a factor when deciding whether his or her 

crime of conviction is particularly serious. Matter of G-G-S-,

26 I. & N. Dec. at 339, 347.4 This decision is contrary to 

Congress’s clearly expressed intent that the analysis of 

whether a crime is particularly serious “requires the agency 

to conduct a case-by-case analysis of convictions falling

outside the category established by Congress,” BlandinoMedina, 712 F.3d at 1345, because such categorical rules 

undermine the ability of the agency to conduct a case-bycase analysis in each case, see Konou, 650 F.3d at 1128; see 

also Arteaga De Alvarez, 704 F.3d at 740.

C. Chevron Step Two: The Board’s Interpretation is 

not Reasonable

Even if the Board’s decision were to survive step one of 

Chevron, it would fail step two. At step two of Chevron, we 

ask whether “the agency’s [interpretation] is based on a 

permissible construction of the statute.” 467 U.S. at 843; see 

also Mayo Found. for Med. Educ. and Research v. United 

States, 562 U.S. 44, 53 (2011) (stating that an agency’s rule 

fails step two of Chevron if it is “arbitrary or capricious in 

substance” (quoting Household Credit Servs., Inc. v. 

Pfennig, 541 U.S. 232, 242 (2004))).

 

information, as well as other information outside the confines of a record 

of conviction”).

4 The Board noted that its prohibition of mental health evidence 

applies in the context of withholding of removal and asylum, both of 

which have provisions which include the phrase “particularly serious 

crime.” This opinion addresses the Board’s rule in the context of 

withholding of removal only.
GOMEZ-SANCHEZ V. SESSIONS 15

The Board advanced two rationales for its broad rule 

precluding evidence of an individual’s mental health as a 

factor in the particularly serious crime analysis: 1) that the 

Agency could not “reassess” the criminal court’s findings, 

and 2) that mental health is never relevant. These rationales 

are unpersuasive and are inconsistent with the law of this 

Circuit and the Board’s own decisions interpreting the INA. 

Thus, we conclude that the Board’s interpretation of the INA 

is not reasonable and that the rule it created in this case is

therefore not entitled to deference and must be vacated.

1. The Board’s Concerns of Going Behind the 

Criminal Court’s Findings

The Board’s primary explanation for precluding mental 

health-related evidence as a factor in a criminal act when 

determining whether an individual was convicted of a 

particularly serious crime is that the Agency “cannot go 

behind the decisions of the criminal judge and reassess any 

ruling on criminal culpability.” Matter of G-G-S-, 26 I. & N. 

Dec. at 345. According to the Board, the extent to which “an 

individual’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.” Id.

a. The Board’s Reasoning Rests on a Flawed 

Assumption

The Board reasons that a defendant has ample 

opportunity throughout various phases of the criminal 

proceedings to raise the issue of his or her mental condition 

at the time the crime was committed. Id.

For instance, evidence of a defendant’s 

mental condition may give rise to a reason to 
16 GOMEZ-SANCHEZ V. SESSIONS

doubt his or her competency to stand trial.

Further, such evidence may be submitted to 

establish an affirmative defense of not guilty 

by reason of insanity, to show the absence of 

specific intent or other mental states required 

for a conviction, or to be a mitigating factor 

for sentencing purposes. The defendant’s 

mental condition may also be raised in postconviction motions, appeals, and petitions.

Id. (footnotes omitted). The Board assumes that undertaking 

its own consideration of mental health-related evidence 

would undermine the criminal court’s findings by requiring 

the Board to “reassess” those findings. This assumption is 

faulty for at least two reasons.

First, consideration of mental health-related evidence, 

like consideration of other underlying facts and 

circumstances surrounding a crime, does not require IJs to 

assess criminal culpability or the validity of the conviction.5

Rather, IJs may consider this evidence, where reliable, as 

part of the separate determination of dangerousness. The IJ 

is not retrying the question of guilt but assessing whether the 

circumstances of the crime are so serious as to justify 

removal to a country where there is a significant risk of 

persecution.6 Therefore, an IJ, as a fact finder focused on that 

 5 Indeed, IJs lack the power to undertake such review in removal 

proceedings. As the Board noted in Matter of Martinez Espinoza, 

“removal proceedings are not a venue for the relitigation of criminal 

prosecutions.” 25 I. & N. Dec. 118, 125 (BIA 2009), abrogated on other 

grounds by Mellouli v. Lynch, 135 S. Ct. 1980 (2015) (citing Matter of 

Ruiz-Massieu, 22 I. & N. Dec. 833, 844 (BIA 1999)).

6 Congress’s use of the word “particularly,” in “particularly serious 

crime,” is significant. The definition of “particularly” is “to a higher 
GOMEZ-SANCHEZ V. SESSIONS 17

question, may choose to examine what he or she deems 

reliable evidence of mental health and decide whether such 

evidence bears on the dangerousness determination, and 

ultimately whether the individual committed a particularly 

serious crime, without disturbing, or “reassessing” the 

criminal court’s findings.

Second, the Board’s assumption that consideration of 

mental health would implicate reassessment of the criminal 

court’s finding is flawed because the mental health evidence 

the individual wishes to offer in the immigration court may 

never have been presented to the criminal court.7 Examining 

the phases of criminal proceedings that the Board identifies 

as those in which the defendant could raise the issue of his 

or her mental health, we conclude that there are any number 

of reasons why such evidence might not be offered and 

therefore never be taken into consideration by the criminal 

court—meaning that consideration of mental health in 

immigration proceedings would not require reconsideration 

of anything from the criminal case. For example, no specific 

mental state is required as an element of strict liability 

offenses, and similarly, mental illness is not a defense to 

crimes that require only negligence; and at sentencing judges 

 degree than is usual or average[,]” setting apart these crimes from those 

which are serious only. See Particularly, Oxford Dictionaries,

http://en.oxforddictionaries.com/definition/us/ particularly (last visited

December 11, 2017). The criminal court undertakes no analysis of 

whether a crime is serious, let alone particularly serious, simply 

determining whether a defendant may be convicted for whatever crime 

is charged. Thus, the IJ’s determination does not duplicate or retry the 

criminal court proceedings.

7 The administrative record here does not reveal what evidence was 

before the criminal court regarding Petitioner’s mental health.
18 GOMEZ-SANCHEZ V. SESSIONS

may exercise their discretion and choose not to consider 

mental illness in making their decision.8

b. The Board’s Reasoning is Inconsistent With 

its Earlier Decision

Moreover, the Board’s conclusion here that considering 

mental health for immigration purposes could constitute 

improper reassessment of the criminal court findings 

conflicts with its decision in In re N-A-M-. The N-A-MBoard found that “all reliable information may be considered 

in making a particularly serious crime determination, 

including the conviction records and sentencing information, 

as well as other information outside the confines of a record 

of conviction.” 24 I. & N. Dec. 336, 342. As the N-A-MBoard explained:

It has been our practice to allow both parties 

to explain and introduce evidence as to why 

a crime is particularly serious or not. We see 

 8 The Board lists competency to stand trial as one opportunity for 

mental illness to be considered. However, competency relates to the 

defendant’s mental state during criminal proceedings, and has nothing to 

do with his or her mental state at the time of the offense. See Dusky v. 

United States, 362 U.S. 402 (1960) (per curiam) (holding that the 

standard for competence to stand trial is whether the defendant has 

“sufficient present ability to consult with his lawyer with a reasonable 

degree of rational understanding” and has “a rational as well as factual 

understanding of the proceedings against him.” (internal quotation marks 

omitted)).

Additionally, a defendant may choose not to pursue an affirmative 

defense of not guilty by reason of insanity due to concerns of being 

stigmatized, or in light of the research indicating that those defendants 

who raise insanity defenses get significantly longer sentences than those 

convicted without arguing insanity. Fatma Marouf, Assumed Sane, 

101 Cornell L. Rev. Online 25, 30 (2016).
GOMEZ-SANCHEZ V. SESSIONS 19

no reason to exclude otherwise reliable 

information from consideration in an analysis 

of a particularly serious crime once the nature 

of the crime, as measured by its elements, 

brings it within the range of a ‘particularly 

serious’ offense.

Id. at 344. We previously deferred to this interpretation as 

reasonable under step two of Chevron. See Anaya-Ortiz, 

594 F.3d at 677.

Here, the Board cited In re N-A-M- approvingly, as if 

applying it. See Matter of G-G-S-, 26 I. & N. Dec. at 343. 

However, in reality, its decision to constrain the evidence IJs 

may consider when making a particularly serious crime 

determination is at least inconsistent with, if not directly in 

contradiction with its earlier holding permitting 

consideration of “all reliable information.” See In Re N-AM-, 24 I. & N. Dec. at 338, 342. Petitioner’s case makes this 

inconsistency clear—despite not disputing the reliability of 

the information Petitioner submitted concerning his mental 

illness, the Board entirely precluded consideration of that 

evidence. Given that the Board made no attempt to address 

the apparent inconsistencies between its earlier rule and the 

rule at issue here, we find its current interpretation to be 

unreasonable and thus decline to afford it deference. See 

Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 

(2016) (“[A]n ‘[u]nexplained inconsistency’ in agency 

policy is ‘a reason for holding an interpretation to be an 

arbitrary and capricious change from agency practice,’” and 

thus finding that the interpretation is not entitled to Chevron 

deference. (quoting Nat’l Cable & Telecommunications 

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)));

see also Marmolejo-Campos v. Holder, 558 F.3d 903, 920 

n.2 (9th Cir. 2009) (en banc).
20 GOMEZ-SANCHEZ V. SESSIONS

Given the severe repercussions of being found to have 

committed a particularly serious crime, the risk of 

precluding relevant evidence that might alter that 

determination is unreasonable. Furthermore, this risk is 

readily avoided by permitting the IJ to use his or her 

discretion in weighing relevant, reliable evidence of mental 

health rather than categorically barring this evidence in all 

cases.

For all of these reasons the Board’s interpretation of the 

INA does not warrant deference under Chevron.

2. The Board’s Conclusion That Mental Health 

Evidence is Always Irrelevant

The Board also concluded that Petitioner’s “mental 

condition does not relate to the pivotal issue in a particularly 

serious crime analysis, which is whether the nature of his 

conviction, the sentence imposed, and the circumstances and 

underlying facts indicate that he posed a danger to the 

community.” Matter of G-G-S-, 26 I. & N. Dec. at 346 

(citations omitted). In so finding, the Board reasoned that 

Petitioner’s 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.” Id.9

We find the Board’s conclusion to be unreasonable 

because it is inconsistent with its own precedent recognizing 

the relevance of motivation and intent to the particularly 

serious crime determination. See Alphonsus, 705 F.3d at 

 9 In order for the Board to have reached this conclusion on any 

factual basis, it would have had to actually consider Petitioner’s mental 

illness in the context of his crime of conviction, which is the very thing 

the Board’s blanket rule purports to prohibit.
GOMEZ-SANCHEZ V. SESSIONS 21

1048 (“The BIA acts arbitrarily when it disregards its own 

precedents and policies without giving a reasoned 

explanation for doing so.” (quoting Israel v. I.N.S., 785 F.2d 

738, 740 (9th Cir. 1986))). In Matter of L-S-, the Board 

found significant that an individual convicted of alien 

smuggling did not intend to harm the victim. 22 I. & N. Dec. 

645, 655–56 (BIA 1999). Indeed, the Government concedes 

that a particularly serious crime analysis permits 

consideration of an individual’s motivation. See Alphonsus, 

705 F.3d at 1048 (finding no intent to harm either the 

arresting officer or members of the public).

And in its decision in this case, the Board noted that it 

might be “appropriate to consider whether an [individual’s] 

conduct was ‘inherently base, vile, or depraved’ in deciding 

whether a crime is particularly serious.” Matter of G-G-S-, 

26 I. & N. Dec. at 347 (quoting In re Ajami, 22 I. & N. Dec. 

949, 950 (BIA 1999)). Although it clarified that “an inquiry 

regarding evil intent or fraud is not necessarily dispositive,” 

the Board’s acknowledgement that an individual’s “evil 

intent” might bear on the particularly serious crime 

determination inherently contradicts its conclusion that 

mental condition is never relevant to that analysis, especially 

given that Respondent does not dispute that an individual’s 

mental illness might impact his or her intent. See id.

Thus, it necessarily follows that an individual’s mental 

health could be relevant to the determination of whether a 

crime is particularly serious, contrary to the Board’s 

reasoning here.10 We accordingly find the Board’s 

 10 Consider, for instance, a situation in which an individual, who had 

suffered from intimate partner violence, was convicted of assaulting his 

or her abuser, and reliable evidence showed that the individual’s 

diagnosed post-traumatic stress disorder had played a substantial 
22 GOMEZ-SANCHEZ V. SESSIONS

rationale—that evidence of an individual’s mental condition 

at the time he or she committed the crime of conviction is 

categorically irrelevant—is unreasonable. See MarmolejoCampos, 558 F.3d at 920.

IV. CONCLUSION

It is irrebuttably presumed that once a crime is 

determined to be particularly serious, the individual who 

committed that crime presents a danger to the community 

such that he or she is not entitled to protection by this country 

from persecution in another country. Given this narrow 

focus and in light of this severe consequence, the Agency 

must take all reliable, relevant information into 

consideration when making its determination, including the 

defendant’s mental condition at the time of the crime, 

whether it was considered during the criminal proceedings 

or not. This ensures that the Agency will in fact examine the 

circumstances of each conviction individually, taking into 

account all of the circumstances, as required under the caseby-case approach.

Because the Board’s rule in this case conflicts with these 

principles, we find that the Agency’s interpretation is 

unreasonable and not entitled to deference under Chevron. 

 motivating role in the assault. Such a set of facts might well provide no 

defense to criminal conviction, even while bearing substantially on an 

IJ’s determination of whether that individual poses a danger to the 

community.
GOMEZ-SANCHEZ V. SESSIONS 23

For the foregoing reasons, we vacate and remand to the BIA 

for further proceedings consistent with this decision.11

Petition GRANTED.

 11 In light of this disposition, we do not address Petitioner’s claim 

that the BIA’s categorical prohibition discriminates against individuals 

with mental disabilities in violation of Section 504 of the Rehabilitation 

Act, 29 U.S.C. § 794 and implementing regulation 28 C.F.R. 39.130.