Birhanu v. Wilkinson

990 F.3d 1242

• Court: Court of Appeals for the Tenth Circuit
• Decided: March 9, 2021
• Docket: 19-9599
• Status: Published

Opinion

FILED PUBLISH United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS March 9, 2021 FOR THE TENTH CIRCUIT Christopher M. Wolpert _________________________________ Clerk of Court THEWODROS WOLIE BIRHANU, a/k/a Thewodros Birhanu,

Petitioner,

v. No. 19-9599

ROBERT M. WILKINSON, Acting Attorney General of the United States,

Respondent. _________________________________

Petition for Review from the Board of Immigration Appeals _________________________________

Tania N. Valdez (Christopher N. Lasch, with her on the briefs), University of Denver Sturm College of Law, Immigration Law & Policy Clinic, Denver, Colorado, appearing for Petitioner.

Vanessa M. Otero, Trial Attorney, Office of Immigration Litigation (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, with her on the brief), United States Department of Justice, Washington, DC, appearing for Respondent. _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE, and BACHARACH, Circuit Judges. _________________________________

BRISCOE, Circuit Judge.

 On January 20, 2021, Robert M. Wilkinson became Acting Attorney General of the United States. Consequently, his name has been substituted for William P. Barr as Respondent, per Fed. R. App. P. 43(c)(2). _________________________________

Thewodros Wolie Birhanu petitions for review of a final order of removal

issued by the Board of Immigration Appeals (“BIA”). The BIA dismissed Mr.

Birhanu’s appeal from the decision of the Immigration Judge (“IJ”) finding him

removable. The BIA and the IJ ruled that Mr. Birhanu was removable as an alien

convicted of two or more crimes involving moral turpitude (“CIMTs”) not arising out

of a single scheme of criminal misconduct, that he was not entitled to asylum or

withholding of removal because his convictions qualified as particularly serious

crimes, and that he was not entitled to relief under the Convention Against Torture

(“CAT”). Exercising jurisdiction under 8 U.S.C. § 1252(a), we dismiss his claims

under Section 504 of the Rehabilitation Act as unexhausted and deny the balance of

his petition for review on the merits.

I

Mr. Birhanu is a citizen of Ethiopia. In 2007, he was admitted to the United

States as a lawful permanent resident. Mr. Birhanu also has a history of paranoid

schizophrenia. Although the record is unclear, Mr. Birhanu may have had his first

psychotic break as early as 1999, while living in Ethiopia. See AR at 988; but see

AR at 135 (Mr. Birhanu testifying he first noticed his symptoms in 2007). After

receiving lawful permanent resident status, Mr. Birhanu visited Ethiopia on at least

two occasions. Both times, Mr. Birhanu’s family sent Mr. Birhanu to a church for

“holy water treatment” for his mental illness. Both times, Mr. Birhanu was

physically and mentally abused, including being bound, hit, and isolated. Mr.

2 Birhanu was also struck by Ethiopian police when he sought help. When residing in

the United States, Mr. Birhanu is able to manage his illness with prescription

medication. He is unable to receive similar care in Ethiopia, however, where there is

only one mental hospital and where his prescription medication is unavailable.

In December 2016, Mr. Birhanu suffered a psychotic episode. At the time, Mr.

Birhanu was a student at Weber State University. During this episode, on December

21, Mr. Birhanu made threatening comments before entering a university

administration building, placing the university community in fear for their lives. In

response, the university was forced to lock down the building. On December 24, Mr.

Birhanu sent a threatening email to a university employee, stating he would kill and

dismember people should the university not meet his demands. Both instances

occurred during the same psychotic episode, and both were precipitated by Mr.

Birhanu’s ongoing dispute with the university over separate student code charges.

Mr. Birhanu was arrested and charged in the Second Judicial District Court of

Weber County, Utah, with making threats of terrorism in violation of Utah Code

Ann. § 76-5-107.3(1)(b)(ii), a third-degree felony. The state court initially found Mr.

Birhanu not competent to stand trial, but later found him restored to competency after

treatment at a state hospital. Mr. Birhanu subsequently pled “guilty but mentally ill”

to two counts of making threats of terrorism. AR at 942. The state court sentenced

Mr. Birhanu to an indeterminate term not exceeding five years, suspended his

sentence, and credited him for 596 days previously served. Id. at 946.

3 After Mr. Birhanu’s release from state custody for his state court convictions,

the Department of Homeland Security initiated removal proceedings against him,

alleging he was removable as an alien “convicted of two crimes involving moral

turpitude not arising out of a single scheme of criminal misconduct,” pursuant to 8

U.S.C. § 1227(a)(2)(A)(ii). AR at 1039. Mr. Birhanu appeared pro se before the IJ.

The IJ held a competency hearing, during which the IJ questioned Mr. Birhanu, but

did not appoint counsel or order an expert psychiatric evaluation. Upon being

satisfied after its inquiries, the IJ found Mr. Birhanu competent to proceed. The IJ

subsequently ordered Mr. Birhanu removable as an alien convicted of two CIMTs not

arising from a single scheme of criminal misconduct. In a separate order, the IJ also

denied Mr. Birhanu’s requests for asylum, withholding of removal, and protection

under the CAT. As regards his requests for asylum and withholding of removal, the

IJ ruled he was ineligible for relief because he had been convicted of a particularly

serious crime. The IJ noted Mr. Birhanu’s mental health was considered by the

criminal court, but the criminal court determined he was guilty of making threats of

terrorism and his mental health did not exculpate him.

Mr. Birhanu appealed the IJ’s orders to the BIA. The BIA, acting through a

single commissioner, affirmed the IJ. Mr. Birhanu has filed a timely petition for

review with this court.

II

We have jurisdiction under 8 U.S.C. § 1252(a) because the BIA’s order

denying relief from removal is an appealable final order of removal. Sosa-

4 Valenzuela v. Holder, 692 F.3d 1103, 1108 (10th Cir. 2012). Our review of a final

order of removal is limited to constitutional claims or questions of law because

eligibility for relief from removal is ordinarily an unreviewable matter of discretion

under 8 U.S.C. § 1252(a)(2)(C) & (D). Id. at 1108–09. We therefore review the

BIA’s legal determinations de novo, but we do not ordinarily review its exercise of

discretion. Id. at 1109.

In contrast, denial of CAT relief is not a “final order of removal”; thus, a CAT

order is reviewed for substantial evidence. Nasrallah v. Barr, 140 S. Ct. 1683, 1688

(2020). Under the substantial evidence standard, “[t]he agency’s findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to the

contrary.” Id. at 1692.

III

Mr. Birhanu presents four arguments in his petition for review: 1) the IJ denied

him due process “by requiring him to proceed pro se in immigration court without

procedures adequate to assure his competency.” Pet’r’s Br. at 9; 2) the BIA erred in

concluding that his convictions were CIMTs not arising out of a single scheme of

misconduct. Id. at 15, 18; 3) the BIA acted arbitrarily and capriciously in refusing to

consider his mental health in its “particularly serious crime” determination. Id. at 21;

and 4) the BIA failed to consider evidence in support of his application for CAT

relief. Id. at 27.

5 A. Safeguards to Assure Competency

1. Fundamental Due Process

As a preliminary matter, Mr. Birhanu’s challenge to the IJ’s competency

proceedings are reviewable by this court. To be clear, Mr. Birhanu does not

challenge the competency finding, but rather he contends “[t]he competency hearing

was constitutionally deficient . . . .” Pet’r’s Reply at 19 (emphasis added); see also

Pet’r’s Br. at 9 (asserting the competency hearing lacked “procedures adequate to

assure his competency”). This court has jurisdiction to review whether “removal

proceedings violated [a petitioner’s] Fifth Amendment due process rights because he

[was] mentally incompetent.” Brue v. Gonzales, 464 F.3d 1227, 1231 (10th Cir.

2006). Accordingly, we consider Mr. Birhanu’s petition to the extent he challenges

the safeguards implemented by the IJ, as opposed to the IJ’s final competency

findings.

The IJ’s competency proceedings did not violate Mr. Birhanu’s due process

rights. “An alien in removal proceedings is entitled only to the Fifth Amendment

guarantee of fundamental fairness.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th

Cir. 2005). Thus, an alien facing removal is entitled “only to procedural due process,

which provides the opportunity to be heard at a meaningful time and in a meaningful

manner.” Brue, 464 F.3d at 1233 (quoting Schroeck, 429 F.3d at 952). “[A]n

allegation of wholesale failure to consider evidence implicates due process,” and is

thus within our jurisdiction to review. Alzainati v. Holder, 568 F.3d 844, 851 (10th

Cir. 2009). In contrast, “a quarrel about the level of detail required in the BIA’s

6 analysis” does not implicate due process and thus lies beyond our jurisdiction. Id.

Further, “[t]o prevail on a due process claim, an alien must establish not only error,

but prejudice.” Id.

Our cases do not articulate what precisely an IJ must do to assure itself of an

alien’s competency. In Brue, we recognized that “the statute [8 U.S.C.

§ 1229a(b)(3)] and the regulation [8 C.F.R. § 1240.4] facially appear to require no

procedural safeguards if an unrepresented, mentally incompetent alien is nevertheless

able to be present at his removal proceeding.” 464 F.3d at 1233 (emphasis added).

But in that case we declined to define what procedural safeguards the Fifth

Amendment requires because Mr. Brue was represented by counsel. We concluded

the fact that he was represented cured any potential due process violation. By

contrast, Mr. Birhanu appeared pro se at his removal hearing.

In Matter of M-A-M-, the BIA described a number of measures an IJ may take

to assess an alien’s competency. 25 I. & N. Dec. 474, 480–81 (BIA 2011). One such

measure would be to modify the questions posed by an immigration judge, such as

including “questions about where the hearing is taking place, the nature of the

proceedings, and the [alien’s] state of mind.” Id. at 480. The immigration judge may

also order a mental health competency evaluation by a psychiatrist. Id. at 481 (citing

Matter of J-F-F-, 23 I. & N. Dec. 912, 915 (A.G. 2006)). The BIA does not require

the immigration judge to take any particular measures, but does require the

immigration judge to “weigh the results from the measures taken and determine . . .

7 whether the [alien] is sufficiently competent to proceed with the hearing without

safeguards.” Id.

Here, the IJ took sufficient measures as contemplated in Matter of M-A-M-. In

at least two separate hearings, the IJ asked Mr. Birhanu competency-related questions

to determine whether he understood the nature of the proceedings. See AR at 131–55

(September 20, 2018 hearing); AR at 171–90 (November 26, 2018 hearing). Mr.

Birhanu informed the IJ that he understood the proceedings were to “decide whether

[he] can stay here legally or not.” AR at 134. He also testified that he could manage

his diagnosis with medication. AR at 152, 180. Nor did the IJ rely solely on Mr.

Birhanu’s testimony; the IJ also considered Mr. Birhanu’s medical records and a

letter submitted by his social worker. AR at 111; see also AR at 990 (psychologist

report concluding “Mr. Birhanu has found psychotropic medications that treat his

symptoms”). The IJ, recognizing “mental competency is not a static condition,” also

continued to evaluate Mr. Birhanu’s competency at subsequent proceedings. AR at

111.

The IJ also did not ignore evidence that pertained to Mr. Birhanu’s

competency. In fact, the record reveals that the IJ expressly considered the same

evidence Mr. Birhanu claims it “ignored.” For example, Mr. Birhanu points to his

testimony to show that he “expressed confusion, repeated himself, and told the IJ that

he hears voices that ‘disturb my thinking process.’” Pet’r’s Reply at 19. Yet, the IJ

described Mr. Birhanu’s demeanor at the hearing as “lucid, cogent, and responsive

during questioning.” AR at 110. Similarly, Mr. Birhanu asserts that the IJ ignored

8 the opinion expressed by his social worker, whose letter explained Mr. Birhanu’s

difficulty in completing his applications for relief. See Pet’r’s Reply at 19. Yet, the

IJ described that letter during the hearing, and in fact held an additional hearing to

assure itself of Mr. Birhanu’s competency. AR at 111, 173. In short, the record

shows the IJ carefully considered any competency issues presented in this case,

allowing Mr. Birhanu to be heard “at a meaningful time and in a meaningful

manner.” Brue, 464 F.3d at 1233.

2. Section 504 of the Rehabilitation Act

We decline to address Mr. Birhanu’s alternative argument that he was entitled

to appointment of counsel under Section 504 of the Rehabilitation Act of 1973

because his Section 504 claim is unexhausted. An alien challenging a removal order

must have “exhausted all administrative remedies available.” 8 U.S.C. § 1252(d)(1).

“[P]resenting a conclusion or request for relief to the BIA isn’t enough to exhaust

every potential argument for reaching that conclusion or winning that relief.”

Garcia-Carbajal v. Holder, 625 F.3d 1233, 1238 (10th Cir. 2010) (Gorsuch, J.)

(emphasis in original). Thus, to exhaust his claims, an alien has “a duty to present to

the BIA all of his specific legal theories for reversal.” Id.

In his appeal to the BIA, Mr. Birhanu, in a footnote, cited Section 504 and a

case from the Central District of California, stating that he “preserves a Section 504

claim.” AR at 19. He later also stated that he “should have been provided safeguards

. . . pursuant to Matter of M-A-M- and Section 504 of the Rehabilitation Act.” AR at

22. Mr. Birhanu’s two citations to Section 504, without specifically explaining why

9 Section 504 entitles him to relief, did not fairly present his legal theory to the BIA.

Thus, we dismiss this claim as unexhausted.1

B. Removability Under 8 U.S.C. § 1227(a)(2)(A)(ii)

Mr. Birhanu next asserts that the BIA erred in concluding that he was

removable as an alien convicted of two or more CIMTs not arising out of a single

scheme of criminal misconduct. Mr. Birhanu asserts that his convictions were not for

CIMTs because his offense required only reckless threatening. He also asserts that

his convictions arose from a single scheme because they were made in pursuit of the

same goal, and because his mental illness prevented him from disassociating or

reflecting after committing the first threat and before committing the second.

1. “Crimes Involving Moral Turpitude”

“Any alien who at any time after admission is convicted of two or more crimes

involving moral turpitude, not arising out of a single scheme of criminal misconduct,

regardless of whether confined therefor and regardless of whether the convictions

were in a single trial, is deportable.” 8 U.S.C. § 1227(a)(2)(A)(ii). In light of the

“nebulousness of moral turpitude,” the BIA’s interpretation of that term is entitled to

Chevron deference, “as long as it reflects a reasonable policy choice for the agency to

make.” De Leon v. Lynch, 808 F.3d 1224, 1228 (10th Cir. 2015) (discussing

Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 845 (1984)). The

1 Even if the Section 504 claim could be considered, it is without merit. Mr. Birhanu fails to show why his medication, which the IJ specifically inquired into and which Mr. Birhanu testified helped manage his symptoms, was an insufficient accommodation. 10 BIA’s interpretation must also be made in its lawmaking capacity—i.e., it must be

itself precedential or rely on a precedential decision “addressing the same question.”

Flores-Molina v. Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017) (emphasis in

original). If Chevron deference is unwarranted, the BIA’s interpretation is entitled to

Skidmore deference if it has “the power to persuade.” Id. (discussing Skidmore v.

Swift & Co., 323 U.S. 134 (1944)). However, no deference is accorded to the BIA’s

interpretation of “the substance of the state or local offense at issue.” Id. at 1157

(citing Efagene v. Holder, 642 F.3d 918, 921 (10th Cir. 2011)). In this case, we need

not decide whether the BIA’s decision is entitled to deference because we

independently conclude that Mr. Birhanu’s convictions were for CIMTs not arising

out of a single scheme of criminal misconduct.

Mr. Birhanu’s convictions were for CIMTs. Under the “categorical approach,”

determining whether an alien’s offense is a CIMT “requires ignoring a petitioner’s

actual conduct and examining only the minimum conduct needed for a conviction

under the relevant state or local law.” Flores-Molina, 850 F.3d at 1158. “Moral

turpitude reaches conduct that is inherently wrong, or malum in se, rather than

conduct deemed wrong only because of a statutory proscription, malum prohibitum.”

Efagene, 642 F.3d at 921. In addition to requiring conduct that entails a

“reprehensible act,” a CIMT also “necessarily involves an evil intent or

maliciousness in carrying out the reprehensible act.” Id. at 921–22; see also Flores-

Molina, 850 F.3d at 1159 (CIMT requires “some form of scienter”). “Corrupt

scienter is the touchstone of moral turpitude.” De Leon, 808 F.3d at 1228.

11 Here, Mr. Birhanu was convicted under Utah’s terrorist threat statute, which

provides:

(1) A person commits a threat of terrorism if the person threatens to commit any offense involving bodily injury, death, or substantial property damage; and . . .

(b) acts with intent to: . . .

(ii) prevent or interrupt the occupation of a building or a portion of the building, a place to which the public has access, or a facility or vehicle of public transportation operated by a common carrier.

Utah Code Ann. § 76-5-107.3(1)(b)(ii).

As the statute’s language makes clear, and as the parties agree, the statute

requires actual intent to “prevent or interrupt the occupation of a building.” The

statute does not, however, clearly define the mens rea required when “threaten[ing] to

commit any offense involving bodily injury, death, or substantial property damage.”

Because the statute does not define the requisite mens rea, “intent, knowledge, or

recklessness shall suffice to establish criminal responsibility.” Utah Code Ann. § 76-

2-102; State v. Vigil, 448 P.3d 738, 741 (Utah Ct. App. 2019) (recognizing same).

Accordingly, under the categorical approach, the minimum conduct required to

convict is reckless threatening to commit any offense involving substantial property

damage and acting with intent to interrupt the occupation of a portion of a building.

See Vigil, 448 P.3d at 741 & n.2 (Utah’s obstruction of justice statute requires acting

“recklessly,” and “with intent to” cause a certain result).

12 In at least two unpublished decisions, this court has recognized that reckless

conduct coupled with an “aggravating factor” constitutes a CIMT. Although these

decisions are not precedential, we discuss them for their persuasive value. 10th Cir.

R. 32.1. In Marin-Gonzales v. Sessions, 720 F. App’x 496 (10th Cir. 2018)

(unpublished), this court recognized that “in the absence of any aggravating factors,

reckless offenses typically don’t constitute CIMTs.” 720 F. App’x at 498. The

Marin-Gonzales panel declined to apply that principle, however, because the

petitioner’s conviction for attempted public assistance fraud could not be committed

recklessly. Similarly, in Garcia v. Lynch, 668 F. App’x 843 (10th Cir. 2016)

(unpublished), this court recognized that an offense that “categorically permits a

conviction based only on ‘recklessly’ assaulting a person, without a further

requirement of the infliction of ‘serious bodily injury’” would “likely not constitute a

CIMT.” 668 F. App’x at 844. But the Garcia panel also declined to apply that

principle and instead remanded to the BIA to determine whether the statute at issue

was divisible, and thus whether the alien’s conviction may have required more than

recklessness. Both Garcia and Marin-Gonzales relied upon the same BIA decision—

Matter of Fualaau, 21 I. & N. Dec. 475 (BIA 1996). There, the BIA recognized that

“[s]imple assault is not considered to be a crime involving moral turpitude.” 21 I. &

N. Dec. at 477. In contrast, assault with a deadly weapon or assault on a peace

officer are CIMTs. Id. at 477–78.

We also note that two other circuits, when reviewing terroristic threat statutes

from other states, have concluded that violations of those statutes are CIMTs. In

13 Chanmouny v. Ashcroft, 376 F.3d 810 (8th Cir. 2004), the Eighth Circuit held that

violation of Minnesota’s terrorist threat statute is a CIMT. The Minnesota statute

made it a crime to “threaten[], directly or indirectly, to commit any crime of violence

with purpose to terrorize another.” Minn. Stat. § 609.713, subd. 1. The Eighth

Circuit reasoned that:

[T]he crime at issue in this case—threatening a crime of violence against another person with the purpose of causing extreme fear—[like aggravated stalking] falls within the category of offenses requiring a vicious motive or evil intent. This requisite intent to terrorize also serves to distinguish Chanmouny’s offense from simple assault, which the BIA and various courts have declined to classify as a crime of moral turpitude. Simple assault typically is a general intent crime, and it is thus different in character from those offenses that involve ‘a vicious motive, corrupt mind, or evil intent.’

Chanmouny, 376 F.3d 814–15.

The Eighth Circuit, relying on Chanmouny, later held that even threats made

with “reckless disregard of the risk of causing terror” satisfy the scienter requirement

for CIMTs. Avendano v. Holder, 770 F.3d 731, 734–36 (8th Cir. 2014).

In Javier v. Attorney General, 826 F.3d 127 (3d Cir. 2016), the Third Circuit

followed Chanmouny, and held that violation of Pennsylvania’s terroristic threat

statute is a CIMT. The Pennsylvania statute stated that “[a] person commits the

crime of terroristic threats if the person communicates, either directly or indirectly, a

threat to: [] commit any crime of violence with intent to terrorize another.” 18 Pa.

Cons. Stat. § 2706(a)(1). The Third Circuit held that the Pennsylvania statute’s

“specific intent requirement,” i.e., “with intent to terrorize another,” made the offense

14 a CIMT. Javier, 826 F.3d at 131. The court explained that its focus in determining

whether a statute is categorically a CIMT “is not the threatened ‘crime of violence,’

but the communication of the threat and its requisite scienter.” Id. The Third Circuit

recognized that threatening to commit an offense is “of a different character” than the

underlying offense, because the specific intent to terrorize evinces a “vicious motive

or a corrupt mind.” Id. at 131–32; but see Larios v. Att’y Gen., 978 F.3d 62, 71 n.4

(3d Cir. 2020) (New Jersey terroristic threat statute is not a CIMT because it only

criminalized “reckless threats,” without requiring “a specific intent to terrorize”).

We hold that recklessly threatening substantial property damage with the

intent of interrupting public access to a portion of a building is a CIMT. The threat

combined with the intended result to interrupt access constitutes a “reprehensible

act.” General recklessness combined with a specific intent to interrupt building

access constitutes an “evil intent.” Efagene, 642 F.3d at 921–22; Matter of Salad, 27

I. & N. Dec. 733, 735 (BIA 2020) (“Crimes that require specific intent are more

likely to be considered to involve moral turpitude because they are committed with

the evil intent or depraved mind associated with moral turpitude.”). Although

recklessness generally does not give rise to a CIMT, our precedent only requires

“some form of scienter.” Flores-Molina, 850 F.3d at 1159. And although our

unpublished decisions describing aggravating factors have generally focused on the

reprehensible act, such as causing serious bodily injury or death, our precedent

requires us to consider both the reprehensible act and the evil intent. Efagene, 642

F.3d at 921.

15 In this case, the specific intent requirement of the Utah terroristic threat statute

sufficiently “aggravates” the offense, such that the statute requires a “vicious motive

or corrupt mind.” Javier, 826 F.3d at 131–32; see also Chanmouny, 376 F.3d at 814

(Minnesota statute requires a “vicious motive or evil intent”). We recognize that

Utah’s terroristic threat statute, unlike its Minnesota or Pennsylvania analogues, does

not require an “intent to terrorize another.” All three statutes, however, require some

wrongful intent, even though the intended result may differ. This wrongful intent is

the “touchstone of moral turpitude.” De Leon, 808 F.3d at 1228. Further, threats,

whether made intentionally or recklessly, are harmful because of the fear and distress

they may cause. See Javier, 826 F.3d at 131 (recognizing the “psychological distress

that follows from an invasion of another’s sense of personal security”). Thus,

considering both elements of the Utah terroristic threat statute collectively (the intent

required and the result intended), we conclude Mr. Birhanu’s commission of this

offense involved acts of moral turpitude.

2. “Not Arising out of a Single Scheme of Criminal Misconduct”

Mr. Birhanu also contends his convictions arose from a single scheme of

criminal misconduct. The phrase “single scheme of criminal misconduct” “refers to

acts, which although separate crimes in and of themselves, were performed in

furtherance of a single criminal episode, such as where one crime constitutes a lesser

offense of another or where two crimes flow from and are the natural consequence of

a single act of criminal misconduct.” Nguyen v. I.N.S., 991 F.2d 621, 623 (10th Cir.

1993).

16 In Nguyen, this court held that shooting a police officer and possession of a

stolen vehicle were not part of a single scheme because at the time of the shooting,

the alien was “merely in the process of enjoying his ill-gotten gains [i.e., the stolen

car].” Id. at 625. We relied on the BIA’s prior decision in Matter of Adetiba, 20 I. &

N. Dec. 506 (BIA 1992). There, the BIA held that multiple fraudulent uses of

different credit cards were not part of single scheme because “[t]he further use of

other credit cards to obtain additional things of value was not necessary to the

success in obtaining things of value from any one individual card.” Id. at 512. The

panel in Nguyen and the BIA in Adetiba both cited favorably a First Circuit decision,

in which that court held that two breaking and entering incidents which occurred

during an alien’s continuous drinking binge were not committed pursuant to a single

scheme. Pacheco v. I.N.S., 546 F.2d 448, 452 (1st Cir. 1976), cert. denied, 430 U.S.

985 (1977).

Mr. Birhanu’s two threats separated by three days did not flow from one

another and were not the “natural consequence of a single act of criminal

misconduct.” Nguyen, 991 F.3d at 623. On December 21, 2016, Mr. Birhanu made

threatening comments before entering a public building, causing the building to be

locked down. AR at 113. On December 24, 2016, Mr. Birhanu sent a threatening

email to a university employee. Id. The single scheme inquiry “refers to acts,”

Nguyen, 991 F.3d at 623, and Mr. Birhanu’s threats, made on different days to

different persons, and communicated in different ways, were two distinct acts.

17 Whether Mr. Birhanu’s convictions arose from a single criminal “purpose” or

“objective” does not affect our analysis. We have previously rejected similar

arguments which focused on the defendant’s underlying motivation for his actions.

Nguyen, 991 F.2d at 625 (shooting officer hours after car theft was not part of a

single scheme); see also Adetiba, 20 I. & N. Dec. at 512 (“[I]t is of no consequence

that the respondent’s separate crimes of unauthorized use of a credit card with intent

to defraud . . . were committed pursuant to an elaborate plan and that the modus

operandi was the same in each instance.”). Mr. Birhanu’s argument is similar to the

rationale adopted by the Ninth Circuit that “takes a more inclusive view of ‘single

scheme,’ and requires only a common plan or intent pursuant to which multiple

crimes are committed.” Nguyen, 991 F.2d at 625 (discussing Gonzalez-Sandoval v.

INS, 910 F.2d 614, 616 (9th Cir. 1990)). Yet this court in Nguyen rejected that

approach and declined to follow the Ninth Circuit. Id.

Mr. Birhanu’s ongoing mental illness also does not affect whether his two

convictions were the “natural consequence of a single act of criminal misconduct.”

Nguyen, 991 F.2d at 623. As described above, this circuit’s “single scheme” inquiry

focuses on the alien’s acts. An alien’s opportunity to “disassociate and reflect” may

be relevant in determining whether two criminal events are really a single “act.” See

Adetiba, 20 I. & N. Dec. at 509–10 (“[T]o be a ‘single scheme,’ the scheme must take

place at one time, meaning there must be no substantial interruption that would allow

the participant to disassociate himself from his enterprise and reflect on what he has

done.”). Here, however, three days separated Mr. Birhanu’s threats. Thus, although

18 Mr. Birhanu’s mental illness may have prevented him from personally disassociating

and reflecting, his mental illness does not alter the fact that the two threats are

temporally distinct acts, nor does it result in our concluding that the two threats

arose from a “single scheme.” Accordingly, we conclude that the BIA correctly ruled

that Mr. Birhanu was removable as an alien convicted of two or more CIMTs not

arising from a single scheme of criminal misconduct.

C. Withholding of Removal Under 8 U.S.C. § 1231(b)(3)(B)(ii)

Mr. Birhanu next asserts that the BIA applied the wrong legal standard in

determining whether his convictions were for “particularly serious crimes,” and thus

whether he was eligible for withholding of removal. The BIA here, in affirming the

IJ, relied on its prior decision in Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014).

In Matter of G-G-S-, the BIA held that an alien’s mental health is not a factor to be

weighed in determining whether the crimes violated are particularly serious. Mr.

Birhanu claims that the BIA’s holding in Matter of G-G-S- unreasonably conflicts

with its prior holding in Matter of N-A-M- that an immigration judge may consider

“all reliable evidence,” and is thus arbitrary and capricious.

Matter of G-G-S- is a precedential BIA opinion addressing the “same

question” Mr. Birhanu raises: whether an IJ may consider an alien’s mental health in

its particularly serious crime analysis. Thus, we first consider whether the BIA’s

decision is entitled to deference. See Flores-Molina, 850 F.3d at 1157–58

(discussing Chevron, 467 U.S. 837). Under Chevron, we defer to the BIA’s

construction of § 1231 so long as the statute is “silent or ambiguous” on the question

19 at issue, and so long as the BIA’s construction is not “arbitrary, capricious, or

manifestly contrary to the statute.” Chevron, 467 U.S. at 844, 842–45; N-A-M v.

Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (“[T]he BIA or the Attorney General is

authorized to develop a reasonable construction [of ‘particularly serious’ crime

under] § 1231 to which we defer under Chevron.”). We uphold the agency’s

reasonable interpretation of an ambiguous statute, even if the agency’s interpretation

“differs from what the court believes is the best statutory interpretation.” Nat’l Cable

& Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005).

“An unexplained deviation from past practice can render an agency’s decision

arbitrary and capricious, but inconsistency with past practice ‘is not a basis for

declining to analyze the agency’s interpretation[s].’” WildEarth Guardians v. EPA,

770 F.3d 919, 941 (10th Cir. 2014) (quoting Brand X, 545 U.S. at 981). Accordingly,

the BIA does not need to show that “the reasons for the [alleged] new policy are

better than the reasons for the old one; it suffices that the [alleged] new policy is

permissible under the statute, that there are good reasons for it, and that the agency

believes it to be better, which the conscious change of course adequately indicates.”

F.C.C. v. Fox Television Stations, 556 U.S. 502, 515 (2009) (emphasis in original).

If Chevron deference is unwarranted, the BIA’s interpretation is entitled to

Skidmore deference if it has “the power to persuade.” Flores-Molina, 850 F.3d at

1158 (discussing Skidmore, 323 U.S. 134).

20 1. Whether the Statute Is Ambiguous or Silent

Title 8 U.S.C. § 1231(b)(3)(B)(ii) prohibits withholding of removal for an

alien who “having been convicted by a final judgment of a particularly serious crime

is a danger to the community of the United States.” Mr. Birhanu appears to concede

that § 1231 is “ambiguous or silent” as to whether immigration courts may consider

an alien’s mental health. Rather, Mr. Birhanu focuses his challenge on whether “the

BIA has inexplicably departed from its prior decisions regarding the standard for

particularly serious crime determinations in an unreasoned, arbitrary, and capricious

manner.” Pet’r’s Br. at 21. Thus, we assume, without deciding, that § 1231 is

“ambiguous or silent” as to the issue at hand.2

2. Whether the Agency’s Interpretation is Reasonable

Turning to the heart of Mr. Birhanu’s challenge on appeal, we hold that the

BIA’s decision in Matter of G-G-S- was not arbitrary or capricious and is thus

entitled to Chevron deference. In Matter of N-A-M-, the BIA held that “all reliable

information may be considered in making a particularly serious crime determination,

2 Section 1231 is likely ambiguous as to what factors immigration courts may consider in their particularly serious crime analysis. As this court has previously observed, “apart from the designation of certain aggravated felonies as ‘particularly serious’ offenses, the statute contains no limiting language restricting the Attorney General’s discretion to label other crimes as ‘particularly serious.’” N-A-M v. Holder, 587 F.3d at 1056. We recognize, however, the Ninth Circuit’s contrary ruling in Gomez-Sanchez v. Sessions, in which that court held that a blanket rule against considering an alien’s mental health is “contrary to Congress’s clearly expressed intent . . . because such categorical rules undermine the ability of the agency to conduct a case-by-case analysis in each case.” 892 F.3d 985, 992 (9th Cir. 2018). 21 including but not limited to the record of conviction and sentencing information.” 24

I. & N. Dec. 336, 338 (BIA 2007). Matter of N-A-M- did not open the door to

information on all topics, however, and, as is relevant here, it made no mention of

whether an alien’s mental health should be considered. In fact, the BIA in Matter of

N-A-M- explained that “factors that are subsequent and unrelated to the commission

of the offense, such as cooperation with law enforcement authorities,” as well as

“offender characteristics,” may bear on sentencing, but not on the particularly serious

crime determination. Id. at 343. “All reliable information” thus describes the

sources of information an immigration judge may consider which focus solely on the

particularly serious crime determination. The BIA held that an immigration judge

may consider sources of information not used in a criminal proceeding “because there

is no reason to restrict the use of reliable information to that used in sentencing once

the strictures of the categorical approach are deemed not to apply.” Id. at 345.

In Matter of G-G-S-, the BIA held 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.” 26 I. & N. Dec. at 339. The BIA reasoned that:

A particularly serious crime analysis is centered on the crime that was committed. Consequently, the inquiry does not involve an examination of an alien’s personal circumstances and equities, such as family or community ties or any risk of persecution in the country of removal. The presence or absence of harm to the victim is also a pertinent factor in evaluating whether a crime was particularly serious. The language of the statute provides the ‘essential key’ to determining whether a crime is particularly serious, which is

22 ‘whether the nature of the crime is one which indicates that the alien poses a danger to the community.’ Once an offense is determined to be particularly serious, no separate determination of danger to the community is required.

Id. at 343–44 (citations omitted) (emphasis added).

The BIA then concluded “[w]hether and to what extent 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” where “[s]uch fact

finders have expertise in the applicable State and Federal criminal law, are informed

by the evidence presented by the defendant and the prosecution, and have the benefit

of weighing all the factors firsthand.” Id. at 345. The BIA recognized that criminal

courts consider mental health in a variety of circumstances, including competency

determinations, insanity defenses, mens rea elements including specific intent, and

sentencing. Id. The BIA alternatively held that a petitioner’s mental condition is

irrelevant to “whether the nature of his conviction, the sentence imposed, and the

circumstances and underlying facts indicate that he posed a danger to the

community.” Id. at 346. The BIA further reasoned that claiming a violent act was a

result of mental illness “does not lessen the danger that his actions posed to others

and is therefore not relevant to [whether] his offense is a particularly serious crime.”

Id.

a. Deviation from Past Practice

The BIA’s interpretation of § 1231 in Matter of G-G-S- did not deviate from

its prior interpretation in Matter of N-A-M-, as the two decisions are not in conflict.

23 As Matter of G-G-S- makes clear, although an immigration court may consider

evidence “outside the confines of the record of conviction,” the particularly serious

crime inquiry is still “centered on the crime that was committed.” 26 I. & N. Dec. at

343. Thus, even “reliable” evidence of an alien’s mental health is not relevant to the

serious crime analysis. Further, Matter of G-G-S- clarified that Matter of N-A-M-

only held that “all reliable information that is relevant to the [particularly serious

crime] determination may be considered.” Id. (citing Matter of N-A-M-, 24 I. & N.

Dec. at 342) (emphasis added). In other words, Matter of G-G-S- and Matter of N-A-

M- address distinct, albeit related, issues. Whereas Matter of N-A-M- defines the

evidentiary rules for what sources of information an immigration court may consider

in its particularly serious crime inquiry, Matter of G-G-S- emphasizes that the scope

and focus of the inquiry is upon the “type and circumstances of the crime” and not

the personal circumstances of the alien. Id. at 341 (emphasis added).

Further, the BIA has historically permitted excluding certain evidence, or

limiting the particularly serious crime inquiry to certain factors. Indeed, in Matter of

N-A-M-, the BIA expressly observed that it had, in some instances “focused

exclusively on the elements of the offense, i.e., the nature of the crime.” 24 I. & N.

Dec. at 342. This court has similarly held that the BIA is permitted to forego a

separate danger-to-the-community assessment once a crime is deemed particularly

24 serious. N-A-M v. Holder, 587 F.3d at 1057. Thus, the BIA’s exclusion of mental

health evidence does not deviate from its past practice.3

Accordingly, we are unpersuaded by the Ninth Circuit’s contrary conclusion in

Gomez-Sanchez v. Sessions, 892 F.3d 985 (9th Cir. 2018).4 There, the Ninth Circuit

held that the BIA’s decision in Matter of G-G-S- “to constrain the evidence IJs may

consider when making a serious crime determination is at least inconsistent with, if

not directly in contradiction with its earlier holding permitting consideration of ‘all

reliable information.’” Id. at 995 (citing Matter of N-A-M-, 24 I. & N. Dec. at 338,

342). As discussed above, the BIA’s approval of “all reliable evidence” in Matter of

N-A-M- does not permit immigration courts to consider irrelevant evidence. Because

the BIA in Matter of G-G-S- determined that an alien’s mental health is irrelevant

3 The dissent’s characterization of mental health evidence as a “singular exception,” Dissent at 12, is only accurate if mental health is indeed relevant to the particularly serious crime analysis. Yet, the BIA reasoned that an alien’s mental health “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 (emphasis added). Further, even if mental health evidence were relevant, the BIA alternatively determined that criminal courts are in a better position than immigration courts to evaluate that evidence in a reliable manner. Id. at 345. Although we may question the bases for those decisions, the decisions themselves do not deviate from the BIA’s past practices. 4 After oral argument, the parties filed Rule 28(j) letters acknowledging the Eighth Circuit’s decision in Shazi v. Wilkinson, __ F.3d __, 2021 WL 503288 (8th Cir. Feb. 11, 2021). In Shazi, the Eighth Circuit agreed with the Ninth Circuit’s conclusion that “the BIA’s categorical bar of consideration of mental health evidence, as contemplated in Matter of G-G-S-, is an arbitrary and capricious construction of 8 U.S.C. § 1231.” Id. at *5. 25 when addressing whether the crime at issue is a particularly serious crime, that

decision does not deviate from the BIA’s reliability analysis in Matter of N-A-M-.

b. Whether Any Deviation Is Adequately Explained

Further, even if Matter of G-G-S- deviated from Matter of N-A-M-, the BIA

sufficiently explained its reasoning in Matter of G-G-S-. We reiterate that our review

is one of reasonableness. N-A-M v. Holder, 587 F.3d at 1056. The BIA does not

need to show that its interpretation is the “best” interpretation, or even merely

“better” than its prior interpretation. See Brand X, 545 U.S. at 980; Fox Television

Stations, 556 U.S. at 515.

We conclude that it is not arbitrary or capricious for immigration courts to

defer to criminal courts regarding an alien’s mental health at the time the crime was

committed given the criminal court’s “expertise in the applicable State and Federal

criminal law,” that court’s firsthand consideration of the evidence, and other factors

presented in an adversarial proceeding. Matter of G-G-S-, 26 I. & N. Dec. at 345.

Whether immigration courts also have the institutional capacity to consider issues of

mental health does not make deference to criminal court rulings unreasonable.

Alternatively, it is not arbitrary and capricious for immigration courts to treat mental

health evidence as irrelevant when determining whether a crime is a particularly

serious crime.

Accordingly, we must again disagree with the Ninth Circuit’s conclusion that

BIA’s reasoning in Matter of G-G-S- was “flawed.” Gomez-Sanchez, 892 F.3d at

993. First, the Ninth Circuit reasoned that an immigration court should not need to

26 defer to a criminal court’s fact finding because the immigration court may look to

mental health evidence without reassessing “criminal culpability or the validity of

conviction.” Id. Instead, according to the Ninth Circuit, the immigration court may

consider mental health “as part of the separate determination of dangerousness,” and

that dangerousness determination may indicate “ultimately whether the individual

committed a particularly serious crime.” Id. at 993–94. Second, the Ninth Circuit

indicated that deference to the criminal court was unreasonable because “the mental

health evidence the individual wishes to offer in the immigration court may never

have been presented to the criminal court.” Id. at 994.

The BIA’s reasoning in Matter of G-G-S- was not flawed. It was not arbitrary

or capricious for the BIA to conclude that immigration courts may not reconsider

mental health evidence “as part of the separate determination of dangerousness.” Id.

at 993–94. As this court recognized in N-A-M v. Holder, § 1231(b)(3)(B)(ii) requires

only an inquiry into whether the alien has committed a particularly serious crime and

“no separate danger-to-the-community assessment is required under the statute.” 587

F.3d at 1057. If an immigration court determines that an alien’s offense is

particularly serious, mental health evidence bearing on the alien’s dangerousness

becomes irrelevant.

Nor was it arbitrary or capricious for the BIA to conclude that immigration

courts must limit their consideration of mental health evidence to that presented

before the criminal court. Matter of G-G-S- recognized that allowing immigration

courts to consider mental health evidence not admitted in the criminal court is

27 problematic because only the criminal court has “the benefit of weighing all the

factors firsthand.” 26 I. & N. Dec. at 345. Further, the BIA recognized that the

criminal court may consider mental health evidence at a variety of stages in a variety

of contexts, including competency determinations, affirmative defenses, sentencing,

and post-conviction appeals. Id. Permitting immigration courts to consider mental

health evidence that the criminal court did not review firsthand, despite ample

opportunity to do so, may lead to the second-guessing of the criminal court’s rulings

which the BIA sought to avoid. Again, although there may be good policy reasons

for immigration courts to consider evidence not presented to the criminal court, the

BIA did not act arbitrarily or capriciously in limiting immigration courts to a criminal

court’s “firsthand” consideration.

The Ninth Circuit and Mr. Birhanu criticize the BIA for limiting its

consideration of mental health, while still considering evidence of “evil intent or

fraud” or whether conduct was “inherently base, vile, or depraved.” See Gomez-

Sanchez, 892 F.3d at 996. Yet, the BIA considered this issue, determining that “since

the focus in a particularly serious crime analysis is whether the offense justifies a

determination that the respondent ‘is a danger to the community,’ an inquiry

regarding evil intent or fraud is not necessarily dispositive.” Matter of G-G-S-, 26 I.

& N. Dec. at 347. Although the BIA could certainly have determined that mental

health, like evil intent, may (or even should) be pertinent, and thus considered, its

determination to the contrary was not arbitrary or capricious. As the BIA reasoned, a

28 claim that an alien’s “violent act was a result of his mental illness does not lessen the

danger that his actions posed to others.” Id. at 346.

That “the presence of mental disability undoubtedly could affect the

[immigration] court’s perception of the nature of the crime and therefore the

determination of dangerousness” is also inapposite. Pet’r’s Br. at 25. As discussed

above, the BIA was reasonably concerned that immigration courts might otherwise

perceive the nature of the crime differently than criminal courts, and thus

immigration courts should be “constrained by how mental health issues were

addressed as part of the criminal proceedings.” Matter of G-G-S-, 26 I. & N. Dec. at

349. Further, the BIA reasonably analogized mental health evidence to other

sentencing factors, such as cooperation with law enforcement or “offender

characteristics,” because both mental health evidence and sentencing factors bear on

the culpability of the defendant, but “do not diminish the gravity of a crime.” Matter

of N-A-M-, 24 I. & N. Dec. at 343 (emphasis added). Here, Mr. Birhanu’s mental

illness similarly may have affected his sentence, but, at least arguably, did not affect

the seriousness of the crimes charged.

In short, Matter of G-G-S- may not provide the most obvious framework for

determining whether an offense is a “particularly serious crime.” Further, Mr.

Birhanu’s criticisms of that decision, as well as the criticism voiced by the Ninth

Circuit in Gomez-Sanchez, are well taken. But, “[o]ur precedent requires us to defer

to the BIA’s reasonable construction of § 1231, and we abide by it here.” N-A-M v.

Holder, 587 F.3d at 1060 (Henry, J., concurring).

29 Because we afford the BIA deference under Chevron, we decline to address

whether deference under Skidmore is appropriate.

3. Application of Matter of G-G-S-

Mr. Birhanu’s alternative assertion that the BIA misapplied Matter of G-G-S-

is without merit. Specifically, Mr. Birhanu faults the BIA for failing to consider his

mental health to the extent it was considered by the criminal court in his plea of

“guilty but mentally ill.” Pet’r’s Br. at 26. Although the BIA did not itself

specifically explain its reasoning in its decision, the BIA “adopt[ed] and affirm[ed]

the [IJ’s] determination that [Mr. Birhanu’s] convictions bar him from asylum and

withholding of removal.” AR at 8. Because the BIA explicitly incorporated the IJ’s

determination, we may look to the IJ’s reasoning “to better understand the BIA’s

decision.” Brue, 464 F.3d at 1234 n.5.

The IJ correctly applied Matter of G-G-S-. First, the IJ recognized Mr.

Birhanu’s plea of “guilty but mentally ill,” yet also recognized that under Utah law,

his plea “was a consideration limited to sentencing and not [Mr. Birhanu’s]

culpability.” AR at 113; see also Utah Code Ann. §§ 77-16a-103, -104. The IJ also

noted that Mr. Birhanu’s “mental health was considered by the criminal court, but it

was determined that [Mr. Birhanu] was guilty of making threats of terrorism and did

not exculpate him.” Id. at 115 (citing Matter of G-G-S-, 26 I. & N. Dec. 339).

Second, the IJ recognized the sentence imposed by the criminal court, ostensibly

reflecting the criminal court’s consideration of Mr. Birhanu’s plea and mental health.

Yet, the IJ “[found] significant that [Mr. Birhanu] was sentenced to an indeterminate

30 sentence not to exceed five years.” Id. Thus, the IJ properly applied Matter of G-G-

S- by only considering the criminal court’s treatment of Mr. Birhanu’s mental illness

as reflected in his plea and sentence, and by declining to independently consider Mr.

Birhanu’s mental illness in its serious crime analysis. To the extent Mr. Birhanu

asserts the IJ should have weighed the mental health evidence reflected in his plea

and sentence differently, “we cannot reweigh the evidence to determine if the crime

was indeed particularly serious.” Brue, 464 F.3d at 1232.5

On nearly identical grounds, Mr. Birhanu also challenges the BIA’s

determination that he is ineligible for asylum. Under 8 U.S.C. § 1158(a)(2)(A)(ii)

any alien who, “having been convicted by a final judgment of a particularly serious

crime, constitutes a danger to the community of the United States” is ineligible for

asylum. Neither party asserts that the particularly serious crime determination for

5 The dissent asserts: “The Board uncritically applied a precedent, G-G-S-, which barred consideration of mental illness as inconsistent with a finding of guilt.” Dissent at 6–7. This argument is unexhausted and without merit. As the dissent points out, Mr. Birhanu argued before the BIA, “[j]ust as the Utah court considered Mr. Birhanu’s mental illness in his criminal proceedings, so should the immigration court here.” Dissent at 8 (quoting AR at 32). Yet, this argument is not a request that the BIA decline to apply Matter of G-G-S-. Rather, it is a request that the BIA apply Matter of G-G-S-, and do so correctly. Similarly, Mr. Birhanu’s request that the BIA “apply the proper standards” leaves unclear whether Mr. Birhanu wanted the BIA to distinguish Matter of G-G-S- from his particular case, or to merely apply Matter of G-G-S- “properly.” AR at 32. We conclude that the former argument is unexhausted because it was not made with sufficient specificity. See Garcia-Carbajal, 625 F.3d at 1238 (“To satisfy [the exhaustion requirement under] § 1252(d)(1), an alien must present the same specific legal theory to the BIA before he or she may advance it in court.”) (emphasis in original). Further, nothing in Matter of G-G-S- indicates that it is meant to apply only to certain types of convictions in certain states. Thus, the BIA’s decision to apply its own binding precedent was not “arbitrary.” 31 Mr. Birhanu’s asylum claim differs from that for his withholding of removal claim.

Further, although Matter of G-G-S- focused its attention on withholding of removal

under § 1231, the BIA remarked that its decision “would also apply to aliens who

may be eligible for asylum.” 26 I. & N. Dec. at 347 n.6. Because we afford the

BIA’s ruling in Matter of G-G-S- deference under Chevron for the reasons set forth

above, we must also affirm the BIA’s ruling that Mr. Birhanu is ineligible for

asylum.

We decline to consider Mr. Birhanu’s claim that Section 504 of the

Rehabilitation Act requires the BIA to consider evidence of his mental health. As

discussed above, Mr. Birhanu’s Section 504 claim was not administratively

exhausted, and is thus subject to dismissal.

D. Relief Under the CAT

Finally, Mr. Birhanu asserts that the IJ either failed to consider, or

misconstrued, evidence in denying his CAT claim. To warrant relief under the CAT,

an applicant must show it is more likely than not he will be subject to torture in his

country by, at the instigation of, or with the acquiescence of a public official or one

acting in an official capacity. 8 C.F.R. §§ 1208.16–18. We review the agency’s

determination of a CAT claim for substantial evidence. Nasrallah, 140 S. Ct. at

1688.

The IJ’s conclusion was supported by substantial evidence. The IJ found that

Mr. Birhanu “has family support to access treatment that would diminish the

likelihood that [he] would regress back to when he was not taking medication.” AR

32 at 118. In support, the IJ relied on Mr. Birhanu’s testimony that his uncle and sister

took him to a hospital for treatment; that Mr. Birhanu understands the importance of

managing his mental health; and that “mentally ill persons with no kind of family

structure are even worse hit and end up on the street and ultimately a burden on

society.” AR at 118. The IJ also found that Mr. Birhanu is unlikely to be imprisoned

or institutionalized even after acknowledging reports of “police misconduct and

severe prison conditions.” Id. Although Mr. Birhanu correctly identifies

impediments to treatment in Ethiopia and how lack of treatment may expose him to

abuse, a reasonable adjudicator could find Mr. Birhanu’s family support and access

to other medications make it less likely than not that Mr. Birhanu will be tortured.

Nor did the IJ overlook or misconstrue contrary evidence in reaching its

conclusion. The IJ expressly noted Mr. Birhanu’s testimony that “he was required to

sit all day, did not have others to interact with, and, on one occasion, a man slapped

him claiming to have done so because he was slapping the devil.” AR at 116. The IJ

also recognized that evidence “that Ethiopia’s security forces engage in unlawful

conduct and that prison conditions are a concern.” AR at 118. The IJ also

considered “evidence that there is societal discrimination against persons with

disabilities.” Id. The IJ also expressly considered Mr. Birhanu’s psychologist’s

report and testimony, as well as the human rights reports and articles about health

care and human rights in Ethiopia. AR at 117–18. Further, the IJ recognized that

Mr. Birhanu’s medication “is not as easily accessible in Ethiopia [as it is in the

United States].” AR at 117. In short, our review of the record leads us to conclude

33 the IJ carefully weighed the evidence presented, even if the IJ did not discuss that

evidence with the granularity Mr. Birhanu might prefer.

IV

For the foregoing reasons, we DISMISS petitioner’s claims under Section 504

of the Rehabilitation Act as unexhausted and DENY the balance of his petition for

review.

34 Thewodros Wolie Birhanu v. Robert M. Wilkinson, 19-9599 BACHARACH, J., concurring in part and dissenting in part.

I join all of the majority’s opinion except Part III(C). In this part, the

majority upholds the Board of Immigration Appeals’ categorical disregard

for any evidence of mental illness when determining whether a crime is

particularly serious. In upholding the Board’s disregard for evidence of

mental illness, the majority creates a circuit split. See Shazi v. Wilkinson,

No. 19-2842, slip op. at 4–10 (8th Cir. Feb. 11, 2021) (to be published);

Gomez v. Sessions, 892 F.3d 985, 990–96 (9th Cir. 2018). The other

circuits’ approach makes particular sense here.

When considering whether a crime is particularly serious, the Board

of Immigration Appeals generally permits immigration judges to consider

all of the circumstances of the crime as relevant. But the Board applies a

single exception—mental illness—even when the criminal court finds that

the noncitizen offender was mentally ill at the time of the offense.

The Board created this exception when considering a conviction in

California, where a finding of guilt might conflict with a finding of mental

illness. Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014). But Mr.

Birhanu was convicted in Utah, which authorizes the criminal court to find

that a person is guilty and was mentally ill when the offense took place.

Utah Code Ann. § 77-16a-103(3)(a), (4). Based on this authorization, Mr. Birhanu pleaded guilty but mentally

ill; and the criminal court accepted his plea with a finding that he was

mentally ill when he committed the offenses. Despite this finding, the

Board of Immigration Appeals refused to permit independent consideration

of Mr. Birhanu’s mental illness, reasoning in part that the criminal court’s

finding of guilt conflicted with the presence of a mental illness. This

reasoning made no sense because the criminal court had found that Mr.

Birhanu was mentally ill when he committed the offenses.

The Board also reasoned that mental illness is always irrelevant. But

the Board continues to allow consideration of the noncitizen’s intent when

committing the offense. How is one mental state (intent) relevant and

another mental state (mental illness) always irrelevant?

Respectfully, I think that both of the Board’s rationales are arbitrary.

1. The Board analyzed the facts involved in Mr. Birhanu’s crimes to conclude that they were particularly serious.

A noncitizen is ineligible for asylum and withholding of removal

when convicted of a “particularly serious crime.” 8 U.S.C.

§ 1231(b)(3)(B)(ii) (withholding of removal); 8 U.S.C. § 1158(b)(2)(A)(ii)

(asylum). A crime is considered particularly serious based on

(1) a statutory characterization as an aggravated felony, 8 U.S.C. § 1231(b)(3)(B)(ii) (withholding of removal); 8 U.S.C. § 1158(b)(2)(B)(i) (asylum),

2 (2) a regulatory characterization as a per se particularly serious crime, 8 U.S.C. § 1158(b)(2)(B)(ii) (asylum), or

(3) the underlying facts, N-A-M- v. Holder, 587 F.3d 1052, 1056 (10th Cir. 2009) (withholding of removal); Matter of G-G-S-, 26 I. & N. Dec. at 343, 347 n.6 (discussing withholding of removal and observing that the same analysis applies to asylum). 1

Mr. Birhanu’s offenses consisted of threatening terrorism at the

university he attended. These offenses didn’t qualify as aggravated

felonies or per se particularly serious crimes, so the Immigration Judge

and the Board considered the underlying facts, including

 how long Mr. Birhanu’s sentences had been,

 what he had said when making the threats,

 how long the criminal conduct had lasted, and

 how the university had responded to the threats.

Immigration Judge’s Ruling at 8; see Board Decision at 6 (adopting the

Immigration Judge’s decision and reasoning). 2

1 Like the majority, I would apply the same standard when determining Mr. Birhanu’s eligibility for asylum and withholding of removal. See Bastardo-Vale v. Att’y Gen., 934 F.3d 255, 265–67 (3d Cir. 2019) (en banc) (applying the same standard when determining whether a crime is particularly serious for eligibility for asylum or withholding of removal); Vetcher v. Barr, 953 F.3d 361, 369 (5th Cir. 2020) (concluding that classification of a crime as “particularly serious” should be the same for eligibility involving asylum and withholding of removal). 2 The Court reviews the Board’s decision as the final agency determination. Flores-Molina v. Sessions, 850 F.3d 1150, 1157 (10th Cir. 2017). But we consult the “[Immigration Judge’s] opinion to the extent that the [Board] relied upon or incorporated it.” Sarr v. Gonzales, 474 F.3d 783, 3 2. Our review is de novo.

We conduct de novo review of the Board’s legal interpretation of a

“particularly serious crime.” N-A-M- v. Holder, 587 F.3d 1052, 1055 n.2

(10th Cir. 2009).

3. Two kinds of deference exist.

In conducting de novo review, the majority assumes that the statute

is ambiguous or silent on whether the Immigration Judge can consider a

noncitizen’s mental illness when determining whether a crime is

particularly serious. Maj. Op. at 20–21 & n.2. I too would make this

assumption.

With this assumption, we must decide whether to defer to the Board’s

application of the exception for mental illness. Deference may be required

under the Supreme Court’s opinion in Chevron, U.S.A., Inc v. Natural

Resources Defense Council, Inc., 467 U.S. 837 (1984) or Skidmore v. Swift

& Co., 323 U.S. 134 (1944).

An unpublished Board decision, like the one here, is not ordinarily

entitled to Chevron deference. Flores-Molina v. Sessions, 850 F.3d 1150,

1157 (10th Cir. 2017). But the Board relied on a published opinion: Matter

790 (10th Cir. 2007). Here the Board “adopt[ed] and affirm[ed]” the Immigration Judge’s conclusion that Mr. Birhanu had committed particularly serious crimes “[f]or the reasons stated in [the Immigration Judge’s] decision.” Board Decision at 6.

4 of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014). In G-G-S-, the Board had

addressed the same question that arises here: the potential relevance of a

noncitizen’s mental illness when determining whether a crime is

particularly serious. Board Decision at 7; Matter of G-G-S-, 26 I. & N.

Dec. at 345–47. Because that question is the same as ours, we must

consider the availability of Chevron deference. Flores-Molina, 850 F.3d at

1157–58.

Chevron deference would be appropriate only if the Board’s

construction of the statute were permissible. Chevron U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). We’d consider the

construction of the statute impermissible if the Board’s reasoning was

arbitrary or capricious. Mayo Found. for Med. Educ. & Research. v. United

States, 562 U.S. 44, 53 (2011).

If we decide not to defer under Chevron, we must consider whether

deference would be appropriate under Skidmore. See Flores-Molina v.

Sessions, 850 F.3d 1150, 1158 (10th Cir. 2017) (discussing Skidmore v.

Swift & Co., 323 U.S. 134 (1944)). We defer under Skidmore only if

persuaded by the Board’s reasoning. Gonzales v. Oregon, 546 U.S. 243,

268–69 (2006).

5 4. We should decline to defer under Chevron because the Board arbitrarily applied its prior precedent in G-G-S- despite the difference in Mr. Birhanu’s circumstances.

In determining whether a crime is particularly serious, the Board

starts with the elements of the crime. If the elements might bring the

offense within the ambit of a particularly serious crime, the Board can

independently consider the underlying circumstances. In Re N-A-M-, 24 I.

& N. Dec. 336, 337–38, 342 (BIA 2007). The Board has generally taken an

expansive approach, embracing consideration of the “totality of the

circumstances . . . concerning th[e] crime.” Matter of Frentescu, 18 I. & N.

Dec. 244, 247 (BIA 1982).

From these circumstances, however, the Board has carved out one

exception—mental illness—prohibiting an immigration judge from

considering the existence or impact of mental illness when deciding

whether a crime is particularly serious. Matter of G-G-S-, 26 I. & N. Dec.

at 339, 345–48 (BIA 2014). The Board acted arbitrarily by applying this

exception to Mr. Birhanu.

A. Consideration of Mr. Birhanu’s mental illness would not have required the Board to second guess the criminal court.

Though immigration judges can consider every other circumstance of

the crime, they cannot ever independently consider a mental illness. Why

this singular exception? The Board uncritically applied a precedent, G-G-

6 S-, which barred consideration of mental illness as inconsistent with a

finding of guilt.

G-G-S- addressed a conviction in California. Under California law,

“it is fundamental . . . that an individual with a mental condition that

renders that person legally ‘insane’ cannot be convicted of acts performed

while suffering from that condition.” Matter of G-G-S-, 26 I. & N. Dec.

339, 346 (BIA 2014) (citing People v. Kelly, 516 P.2d 875, 881-83 (Cal.

1973)). And the G-G-S- Board pointed out that “[n]o such finding [had

been] made in the [noncitizen’s] criminal case.” Matter of G-G-S-, 26 I. &

N. Dec. 339, 346 (BIA 2014). So the G-G-S- Board concluded that

independent consideration of mental illness would always involve second

guessing the criminal court. Id. at 345–46.

But not all convictions are from California or are silent on the

existence of a mental illness. For example, we are determining whether to

defer to the Board’s application of G-G-S- to Utah convictions based on a

finding of “guilt[] with a mental illness at the time of the offense.” Utah

Code Ann. § 77-16a-103(3)(a).

Mr. Birhanu invoked this provision in Utah law, pleading guilty but

mentally ill. The criminal court accepted the plea, entering convictions and

finding that Mr. Birhanu was mentally ill when he committed the offenses.

See Utah Code Ann. § 77-16a-103(3)(a), (4).

7 Given that finding, Mr. Birhanu argues that it made no sense for the

Board to view assessment of a mental illness as inconsistent with the

criminal court’s finding of guilt. The majority denies exhaustion of this

argument, stating that Mr. Birhanu didn’t argue to the Board that it should

decline to apply G-G-S- in his case. Maj. Op. at 31 n.5.

I respectfully disagree with the majority’s interpretation of the brief

that Mr. Birhanu submitted to the Board. There he made two arguments. He

first challenged the correctness of G-G-S-. R. at 30–31. But he then argued

that even if G-G-S- had been correctly decided as to the petitioner in that

case, G-G-S- didn’t create “the proper standard[]” here because the

reasoning made no sense when applied to his conviction:

Additionally, the Utah criminal court explicitly recognized that Mr. Birhanu’s case should be treated differently from the ordinary criminal case, as Mr. Birhanu was treated at the Utah State Hospital rather than sent to jail. The criminal court also accepted Mr. Birhanu’s plea as “guilty, but mentally ill.” Mr. Birhanu was initially charged with a second-degree felony, but the severity was lowered . . . . Just as the Utah court considered Mr. Birhanu’s mental illness in his criminal proceedings, so should the immigration court here.

Moreover, considering information that relates to Mr. Birhanu’s mental health does not require the [Immigration Judge] to consider his culpability or second-guess the conviction. The [Immigration Judge] instead is considering Mr. Birhanu’s mental health at the time of the commission of the crime in order to determine whether he currently poses a danger to anyone for purposes of the [particularly serious crime] determination . . . . The Board should apply the proper standards and find that Mr. Birhanu’s conviction is not a [particularly serious crime].

8 Id. at 31–32 (citations omitted) (emphasis added).

I agree with Mr. Birhanu. As the majority points out, G-G-S- said

that when deciding whether to classify a crime as particularly serious,

immigration judges “are constrained by how mental health issues were

addressed as part of the criminal proceedings.” Maj. Op. at 22 (quoting

Matter of G-G-S-, 26 I. & N. Dec. 339 (BIA 2014)). But Mr. Birhanu’s

criminal court found that he was mentally ill when he committed the

offenses; he just wanted the Immigration Judge and the Board to consider a

circumstance of the crimes that the criminal court had specifically found.

Given the marked difference between consideration of mental illness

in criminal proceedings in California and Utah, reliance on G-G-S- to

prohibit consideration of Mr. Birhanu’s mental illness was arbitrary,

preventing Chevron deference. See Mellouli v. Lynch, 135 S. Ct. 1980,

1989 (2015) (“Because it makes scant sense, the BIA’s interpretation . . . is

owed no [Chevron] deference . . . .”).

B. The Board lacks a cogent explanation for continuing to consider intent potentially relevant but prohibiting any consideration of mental illness.

In G-G-S-, the Board also reasoned that the existence of a mental

illness does not lessen the danger to others. Matter of G-G-S-, 26 I. & N.

Dec. 339, 346 (2014). But this reasoning also made no sense, for the Board

continues to consider intent to harm in determining whether a crime is

particularly serious. See id. at 347 (recognizing that it may be appropriate

9 to consider whether a crime was particularly serious because it was

“inherently base, vile, or depraved”); Matter of L-S-, 22 I. & N. Dec. 645,

655–56 (BIA 1999) (considering a lack of intent to harm when assessing

whether a crime is particularly serious); Matter of Frentescu, 18 I. & N.

Dec. 244, 247 (BIA 1982) (stating that intent to commit theft bears on

whether the crime is particularly serious); In Re: Paul Ojekwe, 2007 WL

2463951, at *2 (BIA Aug. 3, 2007) (unpublished) (considering intent to

defraud as pertinent to classification of a crime as particularly serious);

see generally Fatma Marouf, A Particularly Serious Exception to the

Categorical Approach, 97 B.U. L. Rev. 1427, 1448 (2017) (stating that

“the [Board of Immigration Appeals] has indicated that evil intent is

relevant to the particularly serious crime determination”). Why would

intent be relevant and mental illness always be irrelevant? See Sauers v.

Salt Lake Cty., 1 F.3d 1122, 1129–30 (10th Cir. 1993) (stating that mental

illness is relevant to the existence of an intent to violate the Fourteenth

Amendment); see also Gomez-Sanchez v. Sessions, 892 F.3d 985, 995–96

(9th Cir. 2018) (vacating Matter of G-G-S- in part on this ground).

The majority maintains that G-G-S- explained the anomaly by

observing that an “inquiry regarding evil intent or fraud is not necessarily

dispositive” when considering whether a crime is particularly serious. Maj.

Op. at 28 (quoting Matter of G-G-S-, 26 I. & N. Dec. at 347). But this

observation does not explain the Board’s prohibition against independent

10 consideration of mental illness. We know from the Board that evil intent is

relevant even if it isn’t “necessarily dispositive.” See pp. 9–10, above.

Why would mental illness be any different? See Shazi v. Wilkinson, No. 19-

2842, slip op. at 10 (8th Cir. Feb. 11, 2021) (to be published) (“[W]e fail

to understand how a petitioner’s mental health can never be relevant to

‘the circumstances and underlying facts’ of the conviction, especially as

the BIA noted, in light ‘of the impact mental health can have on an

individual’s behavior.’” (emphasis in original)).

Because intent remains pertinent, one would expect the Board to

allow consideration of all of the circumstances bearing on intent, including

the offender’s mental illness. But the Board treats intent and mental illness

far differently. Perhaps an explanation exists. But the Board hasn’t

provided an explanation, and I can’t imagine what it would be.

C. The Board’s practice invites independent consideration of all circumstances involving the crime (apart from the offender’s mental illness), not just “sources of information” deemed reliable.

Mr. Birhanu points out that the Board has allowed immigration

judges to consider “all reliable information.” In re N-A-M-, 24 I. & N. Dec.

336, 337–38 (BIA 2007). The majority reasons that the Board was simply

referring to evidentiary rules about the sources of information for an

immigration judge. For example, the majority states that the Board has

suggested that it will disregard sentencing information and offender

11 characteristics when determining whether a crime is particularly serious. I

respectfully disagree with the majority.

The Board has said that immigration judges may independently

consider all of the relevant case-specific circumstances of the underlying

offense. See Matter of R-A-M-, 25 I. & N. Dec. 657, 659 (BIA 2012)

(stating that the Board considers “the circumstances and underlying facts

of the conviction” (quoting Matter of N-A-M-, 24 I. & N. Dec. 336, 342

(BIA 2007))); Matter of L-S-, 22 I. & N. Dec. 645, 649 (BIA 1999) (stating

that the Board considers whether “the circumstances and underlying facts

of the conviction” indicate that the noncitizen is a danger to the

community); Matter of Frentescu, 18 I. & N. Dec. 244, 247 (BIA 1982)

(stating that the Board considers “the totality of the circumstances . . .

concerning [the] crime” to determine whether it was particularly serious).

Indeed, the Board has recognized that “[i]mmigration judges are often

called upon to examine the facts underlying a conviction to determine

whether the alien is ineligible for . . . withholding of removal as one

convicted of a ‘particularly serious crime.’” In the Matter of Jonet

Dominguez-Rodriguez, 26 I. & N. Dec. 408, 413 n.9 (BIA 2014).

So whatever the Board meant when referring to “all reliable

information,” the Board has broadly permitted independent consideration

of all relevant case-specific circumstances of the offense. The G-G-S-

Board created a singular exception, the existence of a mental illness,

12 without explanation. 3 This singular exception is arbitrary. Shazi v.

Wilkinson, No. 19-2842, slip op. at 10 (8th Cir. Feb. 11, 2021) (to be

published).

D. The Board doesn’t exclude consideration of sentencing factors in effect at the time of the offense.

The majority also observes that some of the case-specific

circumstances might affect the sentence but lack any bearing on the

seriousness of the crime. For example, the majority notes that an

offender’s cooperation with law enforcement can reduce the sentence

without bearing on the seriousness of the crime. Matter of N-A-M-, 24 I. &

N. Dec. 336, 343 (BIA 2007). The same is true of some offender

characteristics. For example, “the fact that [a noncitizen] has no prior

3 The majority contends that

 the Board permits, but does not require, independent consideration of the facts underlying a noncitizen’s offense and

 the G-G-S- Board did not deviate from past practice by categorically prohibiting independent consideration of the facts of a noncitizen’s mental health.

Maj. Op. at 24–25 But permitting disregard of a fact is different from prohibiting consideration. The G-G-S- Board didn’t just permit disregard of mental illness; the Board prohibited its consideration.

13 convictions is irrelevant to the ‘particularly serious crime’ calculus.” In re

Matter of Y-L-, A-G-, & R-S-R-, 23 I. & N. Dec. 270, 277 (AG 2002).

But the Board has never categorically prohibited immigration judges

from considering sentence-related factors. Indeed, both the Immigration

Judge and the Board considered Mr. Birhanu’s sentences as pertinent to the

seriousness of his crimes.

* * *

The Board has continued to embrace an inclusive approach when

considering whether a crime is particularly serious. To the Board, all of the

circumstances bearing on the crime are potentially relevant except for the

offender’s mental illness. The Board reasoned that (1) consideration of

mental illness would conflict with the conviction and (2) intent isn’t

dispositive. In my view, this reasoning is arbitrary.

When Mr. Birhanu was convicted, his criminal court found a mental

illness at the time of his offenses. Yet the Board refused to allow

consideration of Mr. Birhanu’s mental illness in part to avoid a conflict

with the criminal court’s findings. This reasoning disregards the criminal

court’s finding that Mr. Birhanu was mentally ill when he committed the

offenses.

The Board also reasoned that intent wasn’t dispositive. But the Board

has continued to consider intent as potentially relevant. In my view, it’s

arbitrary to permit consideration of one mental state (intent) and prohibit

14 immigration judges from considering another mental state (mental illness).

So Chevron deference does not apply.

5. Because the Board arbitrarily applied the exception for mental illness, we should decline to defer under Skidmore.

The arbitrariness of the Board’s reasoning also prevents deference

under Skidmore. See Flores-Molina v. Sessions, 850 F.3d 1150, 1167 (10th

Cir. 2017) (concluding that Skidmore deference did not apply for the same

reasons that Chevron deference did not apply).

6. Conclusion

Given the arbitrariness of the Board’s decision to exclude

consideration of Mr. Birhanu’s mental illness, I would remand for the

Board to reconsider his eligibility for asylum and withholding of removal.