Matter of Chairez, 27 I&N Dec. 21 (BIA 2017) ("Chairez IV"): "Peeking" at the Record to Determine if Statute is Divisible

Matter of Chairez


Introduction: Matter of Chairez, 27 I&N Dec. 21 (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 the its decision, the Board held that when determining whether a statute is “divisible” under the Supreme Court of the United States decision in Mathis v. United States, 136 S.Ct. 2243 (2016) [PDF version] [see article], Immigration Judges are permitted to “peek” at an alien's record of conviction only in order to discern whether alternatives in the statute of conviction define “elements” or “means.” The “elements” vs “means” question is relevant to whether the Immigration Judge must apply the “categorical approach” or the “modified categorical approach” in order to determine if the alien's conviction falls under a provision of the Immigration and Nationality Act (INA). The Board's decision makes clear that the initial “peek” into the circumstances of the alien's conviction may only be undertaken to ascertain the structure of the statute, and may only take place if State law is not otherwise clear on the structure of the statute.

Additionally, the Board also addressed the applicability of the Supreme Court's holding in Voisine v. United States, 136 S.Ct. 2272 (2016) [PDF version] [see article] to the 18 U.S.C. 16 crime of violence context in immigration proceedings. Specifically, the question was whether Voisine means that a crime with a minimum mens rea of “recklessness” is a crime of violence.

Chairez IV is the fourth published decision by the Board on this same matter, and the sixth published decision, including two Attorney General decisions, published on it overall. Please see our article on the Matter of Chairez, 26 I&N Dec. 819 (BIA 2016) [PDF version] [see article] (“Chairez III”), for the most recent published decision on the case that remains good law. The extensive litigation on Chairez has also been substantially affected by the Supreme Court decision in Mathis. Please see our comprehensive blog for a full collection of posts on all of our articles relating to the Chairez litigation [see blog]. Our previous articles on Chairez will shed more light on the full procedural history of the litigation than will the instant article. Please also see our article on a very interesting concurring opinion issued in the instant case [see article].

Overview of Facts and Procedural History: 27 I&N Dec. at 21-22

The respondent, a native and citizen of Mexico and a lawful permanent resident (LPR) of the United States, was convicted on December 3, 2012, of unlawfully discharging a firearm in violation of section 76-10-508.1 of the Utah Code. His conviction was a felony for which he was sentenced to an indeterminate term of imprisonment of up to five years. The issue in the first three Chairez cases was whether his conviction rendered him removable under section 237(a)(2)(A)(iii) of the INA as an alien convicted of an aggravated felony, in this case the aggravated felony crime of violence under section 101(a)(43)(F) of the INA, as defined in 18 U.S.C. 16.

Ultimately, in Chairez III, the Board held that 76-10-508.1 of the Utah Code does not categorically define a crime of violence because the language of the statute encompasses offenses committed with a mens rea (state of mind) of recklessness. Under the controlling precedent of the United States Court of Appeals for the Tenth Circuit in United States v. Zuniga-Soto, 527 F.3d 1110, 1122-24 (10th Cir. 2008) [PDF version], reckless conduct does not constitute the deliberate use of physical force required for a crime to constitute an aggravated felony crime of violence under 18 U.S.C. 16. In accord with Mathis, the Board found in Chairez III that section 76-10-508.1 of the Utah Code is not divisible with respect to the mens rea.

Please see our article on Chairez III for more background on the issues [see article].

Department of Homeland Security Motion to Reconsider: 27 I&N Dec. at 21-22

The Department of Homeland Security (DHS) filed a motion asking the Board to reconsider its decision in Chairez III. The DHS specifically sought reconsideration on two issues.

1. The DHS argued that the Board should have extended the Supreme Court's holding in Voisine v. United States, 136 S.Ct. 2272 (2016) [PDF version]. Specifically, the DHS argued that the Board should have found that Voisine necessitated finding that even the “reckless” discharge of a firearm under section 76-10-508.1 of the Utah Code is a crime of violence, notwithstanding the otherwise controlling Tenth Circuit decision in Zuniga-Soto. Please see our full articles on Voisine [see article] and the brief discussion of Voisine in Chairez III [see article] to learn more about the underlying issues before we examine them as discussed in Chairez IV.
2. The DHS argued that even if the Board reaffirmed that section 76-10-508.1 of the Utah Code does not categorically define a crime of violence, it misapplied Mathis on two points. Firstly, the DHS argued that the Board was wrong in inferring that section 76-10-508.1 of the Utah Code is indivisible from the fact that the relevant Utah law does not require the jury to be unanimous about the mens rea of a defendant who is convicted of second-degree murder. Secondly, the DHS argued that the Board should have considered the terms of the respondent's plea agreement as evidence of the divisibility of section 76-10-508.1 of the Utah Code.

The Board ultimately denied the DHS's motion for reconsideration because it found that the DHS did not identify an adequate reason for reconsideration. In the subsequent sections, we will examine the Board's reasoning for rejecting the DHS's arguments.

Voisine Inapplicable to Instant Case: 27 I&N Dec. at 22-23

The Board explained that it has the authority to extend intervening Supreme Court precedent that supersedes contrary controlling circuit court authority. However, in the instant case, the DHS asked the Board to extend the rationale of Voisine in the face of the contrary Tenth Circuit precedent of Zuniga-Soto. To this effect, it is important to note that Voisine dealt with a different criminal statute than 18 U.S.C. 16. Furthermore, the majority decision explicitly stated that Voisine did not touch on 18 U.S.C. 16. The Board explained that it does not have the authority “to extend the rationale of a Supreme Court decision in the face of contrary precedent from the controlling circuit…” To this effect, the Board cited to its published decision in the Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 385, 387-88 (BIA 2007) [PDF version], aff'd, Carachuri-Rosendo v. Holder, 570 F.3d 263 (5th Cir. 2009), rev'd on other grounds, 560 U.S. 563 (2010).

The Board noted that because the Voisine decision entailed “no necessary conflict” with Zuniga-Soto, it was obliged to follow Zuniga-Soto unless it is overruled either by the Tenth Circuit or the Supreme Court. The Board concluded by stating that “[t]his is not a proper case for us to express an opinion on the merits of the DHS's arguments as to how the law may or should evolve after Voisine.

Rejecting DHS Assertion of Misapplication of Mathis, and “Peeking”: 27 I&N Dec. 23-24

First, the Board rejected the DHS's assertion that it had erred in drawing a “reasonable inference” that the statute of conviction in Chairez (section 76-10-508.1 of the Utah Code) is indivisible “by looking to analogous Utah case law in the context of second-degree murder.” Under Mathis, the Board is required to determine whether State law establishes statutory alternatives that are “elements” of an offense (in which case the modified categorical approach applies), or whether State law establishes statutory alternatives that are “means” of committing an offense (in which case the categorical approach applies). The Board explained that where State law is unclear with respect to a specific statute — as the Board found that it was with respect to section 76-10-508.1 — it saw “nothing unreasonable or impermissible about seeking guidance in cases interpreting statutes with similar language and structure.”

Second, the Board rejected the DHS's argument that the respondent's plea agreement was probative evidence of the divisibility of section 76-10-508.1 of the Utah Code. The plea agreement indicated that the respondent's offense involved the “knowing” discharge of a firearm. However, the Board explained that under Mathis, it may only “peek” at a respondent's record of conviction for the “sole and limited purpose” of deciding whether alternatives set forth in the statute of conviction define discrete “elements” or “means.” Mathis also only allows “peeking” where the State law is not clear as to whether statutory alternatives are “elements” or “means.” The Board explained that, at the “peeking” stage of inquiry, the only concern is ascertaining what facts need to be proven in order to convict under the statute. The Board does not conduct a modified categorical inquiry at the “peeking” stage. Rather, the Board may only go on to conduct a modified categorical inquiry if it determines that the statute sets forth discrete elements constituting the offense rather than alternative means of committing the offense.

The Board explained that the language of the respondent's plea was not sufficient by itself to establish that the admitted fact of “knowingly” having discharged a firearm was an “element” of section 76-10-508.1 of the Utah Code. The Board explained that it may only view any such findings or admissions “in conjunction with the charges to which they correspond” for the purpose of determining whether the admitted fact, is in fact, an “element” of the statute of conviction. The Board further explained that, while facts admitted in a plea agreement “may shed light” as to the divisibility of the statute of conviction, it may only do so “when those facts are tethered to what is alleged in a charging document.”

The Board did not find it necessary to determine which documents are appropriate for a “peek,” beyond the documents referenced by the Supreme Court in Mathis (relevant jury instructions and the charging document filed by the prosecutor). The Board explained that if the charging document charged a defendant in the disjunctive with “intentionally, knowingly, or recklessly” discharging a firearm, that would be a clear indication that the mental states were alternative means of violating the statute rather than distinct elements that would have to be proven to a jury. The Board made clear that this point holds even if the defendant signs a plea agreement that specifies a single mens rea among those isted in the charging document. If the prosecutor, however, charges the defendant with a single mens rea, that would point toward the mental state being a distinct element.

With regard to Mathis specifically, the DHS noted, as it did in Chairez III, that the amended information to which the respondent entered his plea contained no mens rea allegation at all with respect to his discharge of a firearm. Because the respondent's plea agreement was not “tethered to any fact charged in the amended information,” it was insufficient for establishing the divisibility of section 70-10-508.1 of the Utah Code under the strict rules set forth in Mathis.

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

Judge Garry D. Malphrus of the Board issued a concurring opinion in Chairez IV. While agreeing with the Board's decision, he elaborated on several points. A judge may see fit to write a concurring opinion to elaborate on a point that he or she hopes future adjudicators or courts will consider when presented with the correct case.

Judge Malphrus's concurring opinion addresses interesting issues regarding the application of the Supreme Court's decisions regarding divisibility in the civil immigration context. It is quite possible that the important questions he raises will eventually find their way to the Supreme Court. Please see our full article to learn about Judge Malphrus's concurrence and the interesting issues it raises [see article].


Chairez IV likely brings to an end the extensive litigation regarding this single case. Although the scope of Chairez IV is less than that of Chairez III, it nevertheless sets forth a couple of important points that bear watching going forward.

First, the Board addressed Voisine in more detail than it has in any previous cases. As we noted in our full article on Voisine, it is possible that its reasoning could be read in a future case to hold that a minimum mens rea of recklessness is sufficient to support a crime of violence conviction. In this case, the Board took no position on the issue due to explicitly contrary controlling precedent from the Tenth Circuit. However, the issue bears watching going forward both in the federal courts and if the right case arises before the Board in a circuit that has not clearly addressed the issue.

Second, the Board clarified the circumstances in which it may “peek” at material beyond the language of the statute to determine whether alternatives in a statute set forth alternative “means” or “elements.” The Board's decision here is generally favorable to aliens being charged in the immigration context based on criminal convictions in that it does not expand the circumstances in which the Board may look at the record of the case as opposed to the language of the statute of conviction and other relevant State laws.