(Update: June 1, 2017): The Board issued a subsequent published decision on this case (“Chairez IV”) [see article]. The new decision clarifies when the Board may “peek” at the record of conviction, but does not change the central holding of the instant case, which remains good law. Please see our full overview of the Chairez litigation to learn more [see blog].

Introduction: Matter of Chairez, 26 I&N Dec. 819 (BIA 2016)

On September 28, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of Chairez, 26 I&N 819 (BIA 2016) [PDF version] (“Chairez III”). The case concerned when a statute defining a crime may be treated as “divisible.” In the instant case, an alien was convicted in violation of a Utah state law for felony discharge of a firearm. The Utah statute was written such that a conviction under either of two parts of the statute would be for an immigration aggravated felony [see article] for a crime of violence, but a conviction under a third part of the statute would not be. If the statute could be treated as divisible, adjudicators would be permitted to assess the record of conviction to determine which part of the statute covered the alien’s conduct. If the statute could not be treated as divisible, the alien would not be considered to have been convicted of an immigration aggravated felony for a crime of violence because it would not be conclusive that the conviction was for an aggravated felony crime of violence.

In accordance with the Supreme Court’s decisions in Mathis v. United States, 136 S.Ct. 2243 (2016) [PDF version] and Descamps v. United States, 133 S.Ct 2276 (2013) [PDF version], the Board held that the statute was not divisible and that the alien was not inadmissible for having been convicted of an immigration aggravated felony. A key point in the decision was that the statute did not require the mens rea (state of mind) of the defendant to be determined by the jury in order for the defendant to be convicted under the statute.

Case History and Procedural History

The instant decision is in fact the third time that the Board has addressed this case. First, in 2014, the Board issued a precedent decision in the Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) [PDF version] (“Chairez I”), wherein it held that the Utah state statute was not divisible because a jury would not be required to agree on the mental state of a defendant in order to convict under the statute. In so doing, the Board made its own interpretation of the Supreme Court decision in Descamps v. United States, 133 S.Ct 2276 (2013). However, in U.S. v. Trent, 767 F.3d 1046 (10th Cir. 2014) [PDF version], the Tenth Circuit interpreted Descamps differently, that Descamps did not make jury unanimity a requirement in order for a provision (in this case a mental state) to be considered an “element.” Rather, the Tenth Circuit held that a statute is divisible when it has “alternative statutory phrases.” Because Chairez arose from the jurisdiction of the Tenth Circuit, the Board issued a second precedent opinion in the case titled the Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) [PDF version] (“Chairez II”), wherein it found that, consistent with Trent, the Utah statute was divisible and the respondent had been convicted of an immigration aggravated felony. However, notwithstanding Chairez II, the Board stood by Chairez I for cases arising outside the jurisdiction of the Tenth Circuit.

Because of the confusion over the issue of divisibility, the Attorney General stayed the Board’s decision pending her review of the issues in Chairez II in the Matter of Chairez & Sama, 26 I&N Dec. 686 (AG 2015) [PDF version] (“Chairez & Sama I”).1 In the interim, the Supreme Court issued a decision regarding when a statute can be considered divisible in Mathis v. United States, 136 S.Ct. 2243 (2016). In Mathis, the Supreme Court’s held specifically that state law must require that every “element” of a crime included in the statutory definition of the crime be “proved beyond a reasonable doubt in order to sustain a conviction” (see syllabus for Mathis). Because the Supreme Court appeared to have resolved the issue, the Attorney General lifted her stay from Chairez & Sama I in a decision titled the Matter of Chairez & Sama, 26 I&N Dec. 796 (AG 2016) [PDF version] (“Chairez & Sama II”). In Chairez & Sama II, the Attorney General remanded Chairez II to the Board for “appropriate action” consistent with Mathis. The result of the remand is the decision in the instant case, Chairez III.

We have written extensively about the litigation on this site. To learn more about the issues involved, please refer to the list below for our collection of articles (presented in order of when the events occurred):

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]; and
Attorney General Lifts Stay in Chairez & Sama Regarding Use of Categorical/Modified Categorical Approach [see article].

Facts of the Case: 26 I&N Dec. at 818-21

To start, please see the previous section for an understanding of the procedural history of the case. In this section, we will examine briefly the facts of the case.

The respondent in the case is a native and citizen of Mexico and a lawful permanent resident (LPR) of the United States. In 2012, he was convicted for felony discharge of a firearm under section 76-10-508.1 of the Utah Code. His conviction was a felony under Utah State law, and he was sentenced to an indeterminate term of imprisonment not to exceed five years. The respondent was found to be removable under sections 101(a)(43)(F), 237(a)(2)(A)(iii), and 237(a)(2)(C) of the Immigration and Nationality Act (INA). Section 101(a)(43)(F) addresses the immigration aggravated felony for a crime of violence, and section 237(a)(2)(A)(iii) renders an alien who is convicted of such an aggravated felony deportable. Section 237(a)(2)(C), a deportability provision for a firearms offense, was not at issue in Chairez III (the Board notes in a footnote that neither Mathis nor Chairez & Sama II casts doubt on the Board’s determination from Chairez I that the statute the respondent was convicted of violating is a categorical firearms offense under section 237(a)(2)(C)).

The respondent argued that the statute he was convicted of violating, section 76-10-508.1 of the Utah Code, is not a categorical crime of violence as defined in the INA.

Relevant Statutes: 26 I&N Dec. at 820-21

First, we must examine section 76-10-508.1 of the Utah Code. In its decision, the Board excerpted the relevant parts of the provision:

1. Except as [otherwise] provided … , a person who discharges a firearm is guilty of a third degree felony punishable by imprisonment of a term of not less than three years nor more than five years if:

a. the actor discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered by the discharge of the firearm;
b. the actor, with intent to intimidate or harass another or with intent to damage a habitable structure … , discharges a firearm in the direction of any person or habitable structure; or
c. the actor, with intent to intimidate or harass another, discharges a firearm in the direction of any vehicle.

As we will discuss, the determinative issue at hand is that part 1(a) of section 76-10-508.1 of the Utah Code does not describe an immigration aggravated felony because it does not require proof that the perpetrator fired a weapon with a specific state of mind, while parts (b) and (c) are because they require proof of, respectively, knowledge of/reason to believe a person may be endangered and intent to intimidate /harass. The provision for an immigration aggravated felony is found in section 101(a)(43)(F) of the INA. Section 101(a)(43)(F) states that a person who is convicted of a “crime of violence” for which the term of imprisonment is at least one year. For the definition of a “crime of violence,” the statute relies upon 18 U.S.C. 16, which provides that an offense is a crime of violence if it is:

a. An offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
b. Any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of the offense.

On September 19, 2016, the Tenth Circuit held that 18 U.S.C. 16(b) is unconstitutionally vague in the context of the INA’s reliance upon it in section 101(a)(43)(F) (see Golicov v. Lynch, No. 16-9530 (10th Cir. 2016) [PDF version]. Accordingly, the Board was restricted to determining whether section 76-10-508.1 of the Utah Code was categorically a crime of violence as defined in 18 U.S.C. 16(a).

Analysis and Decision: 26 I&N Dec. at 821-25

The respondent was convicted of violation section 76-10-508.1(1) of the Utah Code under a guilty plea. The respondent pled guilty to the full text of the provision and not specifically to part 1(a), (b), or (c). Furthermore, the charging document in the case did not allege that the respondent violated any one portion of the statute to the exclusion of any other portions of the statute.

The Board explained that in the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) [PDF version] [see article], the Court held that the word “use” in 18 U.S.C. 16(a) means “volition.” The Board the Supreme Court decision in Johnson v. United States, 559 U.S. 133, 140 (2010) [PDF version] to explain that “the ‘physical force’ means violent force-that is, force capable of causing physical pain or injury to another person. To this effect, the Board also cited to its precedent decision in the Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016) [PDF version] [see article and article].

Based on the Supreme Court’s definition of a “crime of violence” as defined in section 101(a)(43)(F) and 18 U.S.C. 16(a), the Board found that section 76-10-508.1 of the Utah Code is “categorically overbroad.” This means that the provision encompasses both conduct that is a crime of violence and conduct that is not. Specifically, subsections (b) and (c) of the Utah state provision are categorical crimes of violence because “they have elements of intentional use of violent physical force against the person or property of another…” However, subsection (a) does not describe a categorical crime of violence because “it permits conviction if the firearm was intentionally, knowingly or recklessly.” Specifically, the Board explained that subsection (a) is not a categorical crime of violence because it does not specify a mental state “with which the firearm must be discharged.” Under Tenth Circuit precedent found in United States v. Zuniga-Soto, 527 F.3d 1110, 1122-24 (10th Cir. 2008) [PDF version], reckless conduct does not involve the deliberate use of force as required by Leocal. The Board also recognized this in Chairez I. To learn more about the questions regarding a crime of violence under 18 U.S.C. 16(a) and “reckless” conduct, please see the relevant section of this article [see section].

Because section 76-10-508.1 of the Utah Code was not a categorical crime of violence, and because the respondent did not plead guilty to any one part of the statute to the exclusion of the others, the case would come down to whether the Board could use the categorical approach or the modified categorical approach. Under the categorical approach, the Board would be required to look at the statute as a whole to determine whether the statute was categorically an aggravated felony for a crime of violence. The Board found the categorical approach appropriate in Chairez I when it found that the statute was not divisible. However, in Chairez II, following Trent, the Board applied the modified categorical approach, wherein it looked at the record of the case, including evidence of the respondent’s conduct that constituted the crime, to determine whether the respondent had been convicted of an aggravated felony. There, the Board followed the Tenth Circuit’s rules in holding that the statute was divisible because it listed multiple types of conduct constituting the crime in the disjunctive.

However, in the Supreme Court decision in Mathis, the Court provided an important clarification of its decision in Descamps, upon which the Board relied in both Chairez I and II.

First, the Board explained that the Supreme Court held that the mere existence of “disjunctive statutory language” does not mean that a statute is divisible and amenable to the modified categorical approach. First, the Supreme Court distinguished between “elements” and “facts.” An element is a part of the crime’s legal definition that must be proven or admitted in order to sustain a conviction. A fact is something separate from the crime’s legal requirements, that is, the circumstances of the defendant’s conduct. A fact need not be found by a jury nor admitted by the defendant in order to sustain a conviction.

In a second key point, the Supreme Court distinguished between “elements” and “means.” Certain statutes provide different means by which one can commit an offense. However, the mere listing of different means does not render a statute divisible. In Mathis, the Court made clear that if a statute merely lists different means of committing an offense, the statute is not divisible, and the Court or adjudicative body may not look at the record of conviction in using the modified categorical approach. The test set forth by the Board was that in order for thing X to be an “element” rather than a “mean,” the prosecution would have to prove X in order to sustain a conviction. However, if the statute lists X, Y, and Z, but the prosecutor need not prove whether the defendant did X, Y, or Z at the exclusion of one or two of the other things, it is a means of committing an offense, but not an element necessary to sustain a conviction.

In the instant case, the Board held that the Utah State statute would only be divisible into three separate offenses (for parts a, b, and c of section 76-10-508.1(1) of the Utah Code) if the law required a unanimous jury verdict “as to the particular mental state with which the accused discharged the firearm.” To this effect, the Board noted that while there is no definitive Utah State precedent, it had found in Chairez I that the Utah Supreme Court has not required jury unanimity “where the single crime of second-degree murder can be committed in any of three separate manners, each with a different mens rea.” While that precedent refers to a different statute, the Board found it suggestive both in Chairez I and in the instant case that Utah courts would not require a unanimous jury verdict with regard to the mental state of a defendant when discharging a firearm in order to sustain a conviction under section 76-10-508.1 of the Utah Code. Additionally, the Board noted that the amended information to which the respondent entered his guilty plea “contains no mens rea allegation at all with respect to [his] discharge of a firearm, much less an allegation of one particular mental state to the exclusion of all others.”

For these reasons, the Board found that the respondent’s conviction was not for an aggravated felony under section 101(a)(43)(F) of the INA, and therefore that the respondent was not removable as an alien who had committed an immigration aggravated felony under section 237(a)(2)(A)(iii) of the INA. The Board remanded the record to Immigration Court for consideration of the respondent’s eligibility for cancellation of removal and any other relief that may be available to him. The Board accordingly clarified both Chairez I and II.

Question With Regard to Reckless Conduct: 26 I&N Dec. 822 at ftn 4

The Board briefly touched on the question of whether the Supreme Court decision in Voisine v. United States, 136 S.Ct. 2272, 2280 (2016) [PDF version] [see article]. In Voisine, the Supreme Court held that a federal domestic violence statute encompassed reckless conduct. However, as it did in Leocal, the Court left open the question of whether reckless conduct falls within 18 U.S.C. 16(a). To learn more about this issue, please see our short article on the subject [see article].

Conclusion

Chairez III finally resolves a case that has now been the subject of three BIA published decisions and two Attorney General published decisions. As we predicted in our article about Mathis, both the Attorney General and the Board found that the Mathis decision resolved the issue that the Board faced in Chairez I and II. Going forward, Chairez III is a far more favorable result for aliens in immigration proceedings than Chairez II. The new precedent greatly restricts the ability of immigration adjudicators and federal courts to look beyond the language of the statute that an alien was convicted of violating to determine whether he or she ran afoul of a punitive provision of the INA. Under Chairez III, immigration adjudicators are only permitted to look beyond the statutory language of a conviction if the statute contains different elements of a crime in the disjunctive, with each part requiring jury unanimity in order to sustain a conviction. Adjudicators may not do so if the statute merely sets forth alternative means of committing the same crime without requiring a unanimous jury finding of the particular means utilized by the defendant

Aliens with criminal issues should consult immediately with an experienced immigration attorney. An experienced immigration attorney will be able to assess the situation and advise an alien on the potential immigration ramifications that different outcomes to his or her criminal proceedings may have. If an alien is in removable proceedings and charged as inadmissible or removable due to a criminal conviction, he or she should consult with an experienced immigration attorney for expert guidance on whether there is an available avenue to contest the charges.

To learn more about these issues, please see the links to other articles on our site provided in this article.

  1. The Matter of Sama was a non-precedent BIA decision outside of the Tenth Circuit in which, subsequent to Chairez II, the Board applied its precedent from Chairez I regarding divisibility. The case highlighted that the Board was applying a different standard to divisibility outside of the jurisdiction of the Tenth Circuit (and where there was no circuit precedent not in accord with the Board’s preferred position from Chairez I).