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Immigration Law

Birhanu Remanded to BIA (mental health)

Birhanu v. Garland

"Our ruling in this case, in which Judge Bacharach concurred and dissented, [990 F.3d 1242, 2021 U.S. App. LEXIS 6770 Birhanu v. Wilkinson] has been vacated by the Supreme Court [2022 U.S. LEXIS 3172 Birhanu v. Garland] and the matter remanded for our consideration of the Attorney General’s recent decision in Matter of B-Z-R-, 28 I&N Dec. 563 (A.G. 2022). The panel majority relied on Matter of G-G-S-, 26 I&N Dec. 339 (BIA 2014), which has now been overruled by Matter of B-Z-R-. We in turn remand the matter to the Board of Immigration Appeals to reconsider Mr. Birhanu’s eligibility for asylum and withholding of removal in light of Matter of B-Z-R-, which permits immigration authorities to determine in the first instance the relevance of mental health evidence on a case-by-case basis. As is relevant here, the Board may consider Mr. Birhanu’s mental health in determining whether he, “having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States.” 8 U.S.C. § 1158(b)(2)(A)(ii); see id. § 1231(b)(3)(B)(ii). Remanded for further consideration in light of Matter of B-Z-R-."

[Hats off to Elaine Goldenberg, the late Christopher Lasch, Tania Linares Garcia, Teresa Reed Dippo, Tania Nickens Valdez and Keren Hart Zwick!]