Guillermo Gomez-Sanchez v. Jefferson Sessions

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, OPINION Respondent. 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 2 GOMEZ-SANCHEZ V. SESSIONS Before: Kim McLane Wardlaw * and Michelle T. Friedland, Circuit Judges, and Janet Bond Arterton, ** District Judge. Opinion by Judge Arterton SUMMARY *** Immigration The panel granted Guillermo 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 crime” under 8 U.S.C. § 1231(b)(3)(B), and vacated and remanded. Gomez-Sanchez was convicted of assault with a non- deadly firearm weapon in violation of California Penal Code § 245(a)(1), which the BIA concluded constituted a particularly serious crime that prevented Gomez-Sanchez * 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 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. COUNSEL Bradis 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, ...

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