New Rules Regarding Determining Divisibility
On September 28, 2016, the Board of Immigration Appeals (BIA) issued an important precedent decision titled the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) (“Chairez III”) [PDF version]. The Board set forth new rules for determining when a criminal statute may be considered “divisible” for purposes of applying the modified categorical approach that are in accord with the Supreme Court decisions in Descamps v. United States, 133 S.Ct. 2276 [PDF version] and Mathis v. United States, 133 S.Ct. 2243 (2016) [PDF version]. On April 24, 2017, the Board clarified in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”) [PDF version] that Immigration Judges may “peek” at an alien's record of conviction only in order to determine whether statutory alternatives in a criminal statute define “elements” or “means.” In short, in the initial phase of determining whether a statute is divisible, an Immigration Judge is permitted to assess the record of conviction only to the extent that it may assist in determining whether the statute is divisible. However, if the statute is determined to be indivisible, the Immigration Judge must employ the categorical approach and cannot further rely upon the record of conviction.
These were in fact the third and fourth published decisions that the Board had issued on this same case. The Chairez case concerned determining whether a conviction in violation of a Utah State statute for felony discharge of a firearm was categorically a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act (INA). For the definition of “crime of violence,” the INA relies upon a federal criminal statute found in 18 U.S.C. 16 (the instant cases specifically deal with 18 U.S.C. 16(a) and not (b)). The issue in the case was that the Utah statute was “categorically overbroad” with respect to crime of violence provision in 18 U.S.C. 16(a). While most of the conduct proscribed by the statute fell clearly within the boundaries of 18 U.S.C. 16(a), it was possible that under one part of the statute for a conduct with a mens rea (state of mind) of recklessness to be sufficient for a conviction. The Board, following the precedent of the Tenth Circuit from which the cases arose, did not consider such conduct to be a crime of violence under 18 U.S.C. 16(a).
Accordingly, the question became whether the statute was “divisible.” If the statute was divisible, the Board would be able to assess the record of conviction to determine whether the conduct that led to the alien's conviction had been a crime of violence. However, if the statute was not divisible, the Board would be forced to assess only the language of the statute as a whole to determine if the conviction was for a crime of violence.
In the first two Chairez cases, the Board read Descamps in such a way as to find that the statute was divisible. In the first Chairez decision (Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [PDF version]), the Board found that the statute was not divisible because in order for the mental states to be considered “elements,” a jury would have to agree on the mental state to convict. However, after Chairez I, the Tenth Circuit held in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) that jury unanimity was not required by Mathis with respect to an element. Accordingly, the Board reversed its original decision in the second Chairez (Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [PDF version]). However, the Board did not change its position from Chairez I, deciding to continue applying its stricter standard for divisibility in cases arising outside of the jurisdiction of the Tenth Circuit.
Recognizing the inconsistent approach to divisibility, the Attorney General issued a stay of the second Chairez decision in late 2015, pending her review. In June of 2016, the Supreme Court issued a decision in an unrelated case in Mathis v. United States. In Mathis, the Court held that jury unanimity was required with respect to an element in order for a statute to be considered divisible. With the issue apparently resolved, the Attorney General lifted her stay shortly after Mathis was issued, and remanded to the Board to resolve the case in accordance with the rules set forth in Descamps and Mathis. Chairez III was decided on remand from the Attorney General. Chairez IV was decided on the basis of a motion to reconsider Chairez III filed by the alien. Chairez IV also featured an interesting concurring opinion discussing the application of the Supreme Court's approach to divisibility in civil immigration proceedings.
We have been posting about the Matter of Chairez at myattorneyusa.com since the Attorney General issued her stay last November. The following is a list of our articles on the two published Attorney General decisions and the third Matter of Chairez, along with our articles on Descamps and Mathis:
- Descamps v. United States and its Effects on Immigration Law [see article];
- Attorney General Refers two BIA Decisions to Herself for Review [see article];
- Mathis v. United States: SCOTUS Clarifies When the Categorical Approach Must be Used [see article];
- Attorney General Lifts Stay in Chairez & Sama Regarding Use of Categorical/Modified Categorical Approach [see article];
- Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) — Board Follows Mathis Regarding Determining Divisibility [see article];
- Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) (“Chairez IV”): “Peeking” at the Record to Determine if Statute is Divisible [see article]; and
- Concurring Opinion in Chairez IV: The Strict Approach to Divisibility in Immigration Proceedings [see article].
Additionally, please see our article about another recent BIA decision where the question of divisibility was an issue:
- Matter of Guzman-Polanco: BIA Holds that State Statute Requires “Violent” Physical Force to be a Crime of Violence [see article].
Chairez III references an interesting Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272, 2280 (2016) [PDF version]. Although neither Voisine nor Chairez resolve the issue, the question is whether certain crimes with a minimum mens rea of recklessness may be categorical crimes of violence. Chairez IV dove further into the issue of Voisine's applicability. In Chairez IV, the Board declined to apply Voisine because of contrary and controlling Tenth Circuit precedent. However, the Board did not preclude consideration of the issue if an appropriate case arises in a circuit where there is no such contrary and controlling precedent, merely finding that Chairez IV was not the appropriate case to consider the issue. The following are links to the two articles we have on site about this important question:
- Voisine v. U.S.: Question of Whether “Crime of Violence” Includes Reckless Conduct [see article]; and
- Update on Recklessness and Crimes of Violence After Voisine [see article].
The question of divisibility arises because state statutes are not written with federal laws, such as the INA and title 18 of the U.S. Code, in mind. Therefore, when determining whether a state offense falls under a punitive portion of the INA, it is possible that the state provision may cover more conduct than the INA provision, as was determined to be the case in the third Chairez decision.
We hope that our series of articles on this subject will help clarify the important and complicated issues presented in the case. The new Chairez decision is generally favorable to aliens with criminal convictions in that it allows adjudicators to look beyond the language of a criminal statute in much narrower circumstances than the second Chairez decision and the Tenth Circuit decision in U.S. v. Trent. If an alien is facing criminal charges or is facing removability due to a criminal conviction, it is essential that he or she consult with an experienced immigration attorney immediately.