Matter of Guzman-Polanco: BIA Holds that State Statute Requires "Violent" Physical Force to be a Crime of Violence

Introduction: the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016)

The Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [PDF version] on February 24, 2016. The Board held that in order for a state offense to qualify as a “crime of violence” under 18 U.S.C. 16(a), the state statute in question must require as an element “the use , attempted use, or threatened use of violent physical force.” In the decision, the Board also withdrew parts of its precedent decision in the Matter of Martin, 23 I&N Dec. 491 (BIA 2002) [PDF version] that were overruled by the First Circuit in Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) [PDF version] as being inconsistent with Supreme Court precedent in Leocal v. United States, 543 U.S. 1 (2004) [see article] and Johnson v. United Sates, 559 U.S. 133, 137 (2010) [discussed here].

In this article, we will review the facts of the Mattter of Guzman-Polanco, the Board's decision, and the effect of the decision going forward.

Facts of the Case and Procedural History

The respondent is a native and citizen of the Dominican Republican who entered the United States as a lawful permanent resident (LPR) in 1997.
On November 15, 2012, the respondent was convicted of aggravated battery in the third degree in violation of Article 122 of the Puerto Rican Penal Code (codified at title 33, section 4750 of the Laws of Puerto Rico Annotated).
The respondent was sentenced to 3 years and 1 day of imprisonment. The sentence was suspended.
The Department of Homeland Security (DHS) placed the respondent in removal proceedings under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act (INA) for having been convicted of an immigration aggravated felony [see article]. Specifically, the DHS argued that the respondent's conviction was for a “crime of violence” as defined as an aggravated felony in section 101(a)(43)(F) of the INA.
The Immigration Judge determined that the respondent was removable because his aggravated battery offense falls under the federal definition of “crime of violence” found in 18 U.S.C. 16 (relied upon in section 101(a)(43)(F) of the INA). In doing so, the Immigration Judge found that the Puerto Rican statute was divisible, in that it criminalizes conduct that qualifies as a crime of violence and conduct that does not. She applied the “modified categorical approach” in determining that the respondent was convicted under the part of the statute that was for a crime of violence. To see a detailed discussion of the categorical approach and the modified categorical approach, please see our full article [discussed here].

Relevant Statutes

Federal Statutes

Under section 237(a)(2)(A)(iii) of the INA, an alien who is convicted of an aggravated felony is deportable. An aggravated felony is defined in immigration law in section 101(a)(43). The Matter of Guzman-Polanco concerned the aggravated felony fond in section 101(a)(43)(F) for a “crime if violence.” Section 101(a)(43)(F) defines a “crime of violence” as an offense described in 18 U.S.C. 16 for which the term of imprisonment is at least one year (excluding “purely political crimes”).

18 U.S.C. 16 has two parts. First, 18 U.S.C. 16(a) defines a crime of violence as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another…” In the instant case, the respondent's conviction was found to have been a crime of violence under this provision. 18 U.S.C. 16(b) defines as a crime of violence “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 committing the offense.”

Puerto Rican Statute at Issue in the Matter of Guzman-Polanco

The respondent was convicted under Article 122 of the Puerto Rican Penal Code. Article 122 relies upon Article 121, which defines the predicate offense of simple battery (quoted from footnote 2 of the decision):

Any person who illegally through any means or form inflicts injury to the bodily integrity of another shall incur a misdemeanor.

Article 122 builds off Article 121 as follows (also quoted from footnote 2):

If the battery described in [section] 4749 of this title causes an injury that does not leave permanent harm, but requires medical attention, specialized professional outpatient treatment, shall incur a fourth degree felony. (Emphasis added in decision.)

If the battery causes an injury that requires hospitalization or extended treatment, or causes permanent harm, the perpetrator shall incur a third degree felony. This modality also includes mayhem, those that transmit an illness, syndrome or condition requiring prolonged physical treatment, or those that require prolonged psycho-emotional treatment. (Emphasis added in decision.)

On appeal, the Board's task was to determine whether the respondent's conviction under Article 122 qualifies as a “crime of violence” in 18 U.S.C. 16.

BIA Analysis and Decision

The Board ultimately found that the Puerto Rican statute was not categorically a crime of violence and sustained the respondent's appeal.

The respondent argued that the Immigration Judge's use of the modified categorical approach was inappropriate and that the Board should apply the categorical approach. The DHS did not dispute this point, and instead argued that the statute was categorically a crime of violence. The Board determined that the categorical approach was appropriate. Under the categorical approach, the state offense is compared to the generic Federal offenses to determine “if it is a categorical match.” In this case, the question was whether all conduct proscribed by the statute under which the respondent was convicted constituted a crime of violence as defined in 18 U.S.C. 16. Notably, this prevents the Board from considering the underlying facts of the respondent's conduct and restricts its inquiry solely to the language of the statute under which he was convicted.

In arguing that the respondent's conviction under Article 122 of the Puerto Rican Penal Code was a categorical crime of violence, the DHS relied on the language of Article 121 which defined the predicate offense for simple battery. Article 121 defines simple battery as requiring the intentional infliction of “injury to the bodily integrity” of the victim. Accordingly, the DHS argued that every battery that relies on Article 121 necessarily involves the use of “physical force” in order to qualify as a crime of violence under 18 U.S.C. 16(a). In so doing, the DHS cited the Board's precedent decision in the Matter of Martin. The Board noted the following passage from the Matter of Martin:

[A]n assault involving the intentional infliction of physical injury has as an element the use of physical force within the meaning of 18 U.S.C. [] 16(a). (Emphasis added in decision.)

However, the Board's decision in the Matter of Martin has been rejected by the Second, Seventh, and Ninth Circuits since its issuance.

The Board noted that subsequent to the Matter of Martin, the Supreme Court held in Johnson v. United States that “the phrase 'physical force means violent force-that is, force capable of causing physical pain or injury to another person.” In 2010, the Board held in the Matter of Velasquez, 25 I&N Dec. 278, 282 (BIA 2010) [PDF version] that Johnson controls its interpretation of 18 U.S.C. 16(a).

Puerto Rico lies in the jurisdiction of the First Circuit. During the pendency of the Matter of Guzman-Polanco, the First Circuit joined the Second, Seventh, and Ninth Circuits in rejecting the Board's precedent from the Matter of Martin in Whyte v. Lynch. Because this case arose in the First Circuit's jurisdiction, the Board was bound by its precedent. However, the Board took the additional step withdrawing from its holding in the Matter of Martin “to the extent that it is inconsistent with the Supreme Court's decisions in Johnson and Leocal.”

In Whyte v. Lynch, the First Circuit held that in order for a State offense to qualify as a categorical crime of violence under 18 U.S.C. 16(a), the statute must require the “use, attempted use, or threatened use of 'violent force' as a necessary element of conviction.” Please note the emphasis on violent force that we also find in Johnson. In Whyte v. Lynch, the Government argued based on First Circuit precedent in United States v. Nason, 269 F.3d 10, 20 (1st Cir. 2001) that if the statute requires the element of physical injury, it necessarily involves the use of physical force required under 18 U.S.C. 16(a). However, the First Circuit faulted the Government's reasoning for arguing that the term “physical force” in 18 U.S.C. 16(a) had the same meaning as it did in a different provision in the U.S.C. relating to domestic violence (18 U.S.C. 921(a)(33)(A)(ii) (2012)). Following Johnson and United States v. Castleman, 134 S.Ct 1405 (2014), the First Circuit explained that “physical force” in the context of 18 U.S.C. 16(a) requires “violent” force, and therefore is narrower in scope than in the domestic violence statute relied upon by the Government in Whyte v. Lynch.

Of particular significance to the Matter of Guzman-Polanco, that the statute requires “physical injury” is not enough to establish it as a crime of violence under 18 U.S.C. 16(a). Rather, the statute must require the use of violent physical force. Returning to the statute in question, the predicate offense of simple battery under the Puerto Rican Penal Code requires the affliction of bodily injury “through any means or form.” Accordingly, the Board reasoned that the respondent's conviction under Article 122 did not require the use of violent physical force. The Board noted that, for example, a conviction under Article 122 could derive if a person injured another by use of poison. While that would be a convictable offense under the statute in question, injuring another through the use of poison would not be a crime of violence as defined in 18 U.S.C. 16(a). Therefore, the Board sustained the respondent's appeal with respect to his argument that his conviction was not for an aggravated felony under 18 U.S.C. 16(a).

However, the Board noted that there were outstanding questions with regard to whether the respondent may be removable under 18 U.S.C. 16(b). Accordingly, it sustained the respondent's appeal and remanded the record for further proceedings with the Immigration Judge.

Conclusion: the Matter of Guzman-Polanco

In the Matter of Guzman-Polanco, the Board held that in order for a state statute to be a categorical crime of violence under 18 U.S.C. 16(a), all of the conduct it criminalizes must require as an element the use, attempted use, or threatened use of violent physical force. Notably, this means that the requirement of injury to the victim is not sufficient. This opinion is consistent with multiple Supreme Court decisions issued since the Board rendered its decision in the Matter of Martin. In the instant case, the Board notably withdrew from the portions of the Matter of Martin that four circuits have found to be inconsistent with Supreme Court precedent in Leocal and Johnson. Accordingly, the Board will no longer apply portions of its broader definition of “crime of violence” from the Matter of Martin.

If an immigrant or nonimmigrant finds him or herself in removal proceedings due to a criminal conviction, he or she should consult with an experienced immigration attorney immediately. While each case is fact-specific, the Matter of Guzman-Polanco is one of many examples that show that whether a conviction is for an aggravated felony will often depend on the specific language found in the state statute in question.