Concurring Opinion in Chairez IV: The Strict Approach to Divisibility in Immigration Proceedings

Matter of Chairez


Introduction: Matter of Chairez, 27 I&N Dec. 21, 25-26 (BIA 2017)

On April 24, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) [PDF version] (“Chairez IV”). In this decision, the fourth precedent decision issued by the Board on the Chairez case, the Board held that Immigration Judges may “peek” at an alien's conviction record “only to discern whether statutory alternatives define 'elements' or 'means' provided State law does not otherwise resolve the question.”

The question of whether statutory alternatives define “elements” of an offense or “means” of committing an offense determines what type of approach adjudicators may use to determine whether the alien's offense constitutes an immigration violation under the INA. If statutory alternatives define elements, adjudicators may look at the evidence in the record of conviction to determine whether the alien was convicted of one provision of the statute at the exclusion of the others. This is called the “modified categorical approach.” Conversely, if the statutory alternatives define means of committing an offense, adjudicators must employ the categorical approach, which asks if the minimum conduct that the statute proscribes would fall under the relevant immigration provision.

The “categorical” and “modified” categorical inquiries were set forth in a line of Supreme Court decisions involving criminal proceedings. For a detailed discussion, please see our articles on Descamps v. United States, 133 S.Ct. 2276 (2013) [see article], and Mathis v. United States, 136 S.Ct. 2243 [see article]. This line of cases has been applied to civil immigration proceedings by lower federal courts even though the cases themselves only dealt directly with criminal proceedings.

In Chairez IV, Judge Garry D. Malphrus of the BIA issued an interesting concurring opinion. First, he agreed with the result reached by the Board in the case. However, Judge Malphrus raised interesting questions regarding the application of the Supreme Court decisions — that regard with the use of the categorical and modified categorical inquiries in criminal proceedings — to immigration proceedings. In this post, I will discuss Judge Malphrus's opinion.

Please see our full article to read about the decision of the Board in Chairez IV before reading this post [see article]. Furthermore, please see our article which includes an overview of the history of the litigation on Chairez, along with a list of all of our articles on the subject and on important related Supreme Court decisions [see article].

Judge Malphrus' Concurring Opinion: 27 I&N Dec. at 25-26

Judge Malphrus began by stating that he agreed with both the Board's reasoning and the result in Chairez IV. For a brief overview, the case concerned a conviction under a statute for felony discharge of a firearm that listed different mental states that the offense could be committed with. The Department of Homeland Security (DHS) had argued that the respondent's admission to committing the offense with a specific culpable mental state in the plea agreement was dispositive for showing that the statute was divisible, which would allow adjudicators to look at the respondent's specific conduct to determine whether he had committed an aggravated felony crime of violence. This argument was rejected by the Board in accord with Mathis — and correctly so in the opinion of Judge Malphrus.

However, Judge Maphrus noted that the DHS was correct in stating that the respondent's plea agreement did show that he pled to knowingly, as opposed to recklessly, discharging a firearm in the direction of a person. Judge Malphrus noted that this intentional act would constitute a crime of violence under 18 U.S.C. 16. For immigration purposes, the definition found in 18 U.S.C. 16 is incorporated into the Immigration and Nationality Act (INA) for its definition of “crime of violence” at section 101(a)(43)(F).

Judge Malphrus explained that under controlling Supreme Court precedent in Mathis and Descamps, which extended the Supreme Court's reasoning with regard to divisibility articulated in Taylor v. United States, 495 U.S. 575 (1990) [PDF version], and Shepard v. United States, 544 U.S. 13 (2005) [PDF version], the Board was not permitted to look at a respondent's conviction records unless the statute of conviction is divisible. This, of course, is why the Board rejected the DHS's motion to reconsider in Chairez IV with regard to its assertion that the respondent's statute of conviction was divisible because the respondent had pled to knowingly discharging a firearm. Judge Maphrus cited to Mathis, 13 S.Ct. at 2256, wherein the Court stated that “how a defendant actually committed [the] offense” is not relevant to an analysis of whether the statute proscribing the offense is divisible.

Judge Maphrus noted, citing to a concurring opinion by Justice Anthony Kennedy and a dissenting opinion by Justice Samuel Alito in Mathis, that it is not at all clear whether Congress intended the result the Supreme Court reached in the line of cases beginning with Taylor. In fact, bBoth Justices Kennedy and Alito took the position that Congress did not intend this approach when the record makes it clear that the defendant committed the generic crime.

Judge Malphrus then reached the key point if his analysis. Taylor, Shepard, Descamps, and Mathis all dealt with criminal statutes. As Judge Malphrus explained, “[t]he Supreme Court's approach to divisibility in Taylor and Shepard was created to protect Sixth Amendment rights in the context of Federal sentencing proceedings and to prevent 'the specter of mini-trials' on collateral issues during sentencing.” However, unlike the criminal sentencing proceedings addressed in the Taylor line of cases, immigration proceedings are civil, rather than criminal, in nature. Citing to Judge Dennis W. Shedd's dissenting opinion in Prudencio v. Holder, 669 F.3d 472, 490 (4th Cir. 2012) (Shedd, J., dissenting) [PDF version], Judge Malphrus noted that the concerns the Supreme Court addressed in the Taylor line of cases do not actually apply in the same way in the civil context.

Citing to Justice Stephen Breyer's dissenting opinion in Mathis, Judge Malphrus argued that “[i]t is not at all clear that holding a mini-trial to determine what conduct-within the range of conduct punished by a statute-an alien actually committed is any more onerous than deciding whether a particular statute provides separate elements of a crime or alternative means of committing the offense.” Justice Breyer himself argued that it is often unclear as to whether a fact is an element or a means. Mathis 136 S.Ct. at 2264.

Judge Malphrus noted that, in other contexts, Immigration Judges “make findings on collateral issues.” For example, Immigration Judges make findings on collateral issues when determining whether an offense constitutes a “particularly serious crime” when adjudicating applications for asylum (see section 208(b)(2)(A)(ii) of the INA). Citing to the Matter of Silva-Trevino, 26 I&N Dec. 826, 837 (BIA 2016) [see article], Judge Malphrus explained that “Immigration Judges routinely consider probative evidence of facts and circumstances outside the conviction record when considering whether a respondent with a criminal history warrants relief from removal in the exercise of discretion.”

In Chairez IV, because of the structure of the statute, the Board was required to presume that the respondent committed the least of the acts criminalized within the range of conduct punishable under the statute of conviction. The Board was required to make this assumption, in accordance with the categorical approach, notwithstanding the fact that the respondent's plea agreement indicated that he had done more than the least of the punishable conduct in the statute of conviction (in this case, that the plea agreement indicated that he knowingly discharged a firearm in the direction of another person rather than recklessly discharging a firearm).

Judge Maphrus explained that the approach to divisibility outlined in Descamps and Mathis “will result in immigration proceedings being terminated for many aliens who have committed serious crimes in the United States.” He concluded by stating that “[i]t is for Congress to determine whether this approach is consistent with its intent regarding the immigration consequences of such criminal conduct.”


Judges often write concurring opinions to highlight issues that were not addressed in the main opinion. We discuss several other examples of this on site. For example, in the Matter of Cervantes, 22 I&N Dec. 560 (BIA 1999) [see article], Judge Lory Diana Rosenberg wrote a concurring/dissenting opinion wherein she expanded on factors that should be considered in making extreme hardship determinations. As we discuss in our article, her opinion has arguably been more influential than the opinion of the Board in that same case. In Gutierrez-Brizuela v. Lynch, 834 F.3d 1142 (10th Cir. 2016) [see article], Judge Neil Gorsuch, who is now an Associate Justice of the Supreme Court of the United States, wrote a concurring opinion expressing his reservations with Chevron deference.

Judge Malphrus' concurring opinion in Chairez IV highlights interesting questions regarding the application of the Supreme Court's approach to divisibility — which was established specifically for proceedings involving Federal criminal sentencing enhancement statutes — to the civil immigration context. His first point was that many of the problems the Supreme Court sought to ameliorate with regard to criminal proceedings do not exist in civil immigration proceedings. His second point was that the strict approach to divisibility, when applied to immigration proceedings, allows proceedings against criminal aliens to be terminated even when the record strongly indicates that the alien's actual conduct falls under a provision of the INA even if the minimum conduct addressed by the statute of conviction does not. To see an example of a case where this was relevant, please see our brief discussion of Larios-Reyes v. Lynch, 843 F.3d 146 (4th Cir. 2016) [PDF version], where the Fourth Circuit held that a conviction for a “Third Degree Sex Offense” under Maryland law did not qualify as aggravated sexual abuse of a minor under section 101(a)(43)(A) of the INA because, upon application of the categorical approach, under the statute of conviction it was not necessary to prove that the abuse of the child was perpetrated for the purpose of sexual gratification [see section]. See also Ramirez v. Lynch, 810 F.3d 1127, 1134-38 (9th Cir. 2016) [PDF version], which was cited to as an example by Judge Malphrus in his opinion.

Judge Malphrus' concurring opinion ended with a call to Congress to examine the issues he discussed and determine whether the strict approach to divisibility should apply in the immigration context. In Mathis, Justice Kennedy issued a similar concurring opinion, suggesting to Congress that in a subsequent case, he may reassess his view on divisibility if it does not address the concerns he has with the ramifications of the Court's current approach to divisibility in light of the text of the Armed Career Criminals Act (ACCA) [see section].

The issue of whether the strict approach to divisibility should apply in immigration proceedings is consequential in the criminal aliens context. As Judge Malphrus alluded to, the strict approach to divisibility makes it significantly more difficult — and often impossible — for the government to establish that an alien's criminal conviction is covered by a provision of the INA, even when the record of conviction establishes or strongly indicates that the alien's conduct would be covered if not for the structure of the statute and relevant State legal authorities. Were Immigration Judges and courts permitted to look to the record of conviction more liberally, it would subject many aliens to the possibility of immigration consequences for criminal issues who are not subject due to the current strict approach to divisibility. For this reason, any future litigation or legislation on this issue is worth watching very closely.