                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GUILLERMO GOMEZ-SANCHEZ,                 No. 14-72506
                    Petitioner,
                                         Agency No.
                v.                      A092-924-179

JEFFERSON B. SESSIONS III, Attorney
General,                                ORDER AND
                       Respondent.       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 Gomez-
Sanchez’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 Gomez-
Sanchez 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.” Blandino-
Medina 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 Estrada-
Espinoza 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.” Blandino-
Medina, 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,” Blandino-
Medina, 712 F.3d at 1345, because such categorical rules
undermine the ability of the agency to conduct a case-by-
case 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 post-
         conviction 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-M-
Board 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-M-
Board 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-A-
M-, 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 Marmolejo-
Campos, 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 case-
by-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.
