Introduction: Matter of Kim, 26 I&N Dec. 912 (BIA 2017)

On January 31, 2017, the Board of Immigration Appeals (BIA) issued a precedent decision titled the Matter of Kim, 26 I&N Dec. 912 (BIA 2017) [PDF version]. In the Board was tasked with determining whether a conviction under section 203 of the California Penal Code for the crime of mayhem is a categorical crime of violence under 18 U.S.C. 16(a) (2012). The Board found that a conviction under section 203 of the California Penal Code is categorically a crime of violence under 18 U.S.C. 16(b) because section 203 “requires a malicious act that results in great bodily injury to another person,” therefore “necessarily involv[ing] the use of violent force.” The issue is significant because the Immigration and Nationality Act’s (INA’s) provision for aggravated felony crime of violence — found in section 101(a)(43)(F) of the INA — incorporates 18 U.S.C. 16(a).

In this article, we will examine the facts and procedural history of the Matter of Kim, the Board’s reasoning and decision, and what the precedent will mean going forward.

Factual and Procedural History: 26 I&N Dec. at 912-913

The respondent, a native and citizen of South Korea, was a lawful permanent resident (LPR) of the United States. In 2013, the respondent was convicted of mayhem in violation of section 203 of the California Penal Code, for which he was sentenced to 2 years of imprisonment. In 2015, the Department of Homeland Security (DHS) charged the respondent with removability under section 237(a)(2)(A)(iii) of the INA as an alien who had been convicted of an aggravated felony. The DHS relied upon the respondent’s 2013 conviction, taking the position that his conviction was for a crime of violence for which the term of imprisonment was at least 1 year, thus satisfying the definition of an aggravated felony crime of violence under section 101(a)(43)(F) of the INA. Section 101(a)(43)(F) incorporates the Federal criminal statute — 18 U.S.C. 16(a) — for its definition of “crime of violence.”

In proceedings, the Immigration Judge determined that the respondent’s conviction did not qualify as a crime of violence. The Immigration Judge reasoned that section 203 of the California Penal Code “lacked an explicit element regarding the use, attempted use, or threatened use of violent force against another person, as required by 18 U.S.C. 16(a)” (paraphrased by the Board). Accordingly, the Immigration Judge terminated removal proceedings. The DHS appealed the decision to the BIA.

Issue and Relevant Statutes: 26 I&N Dec. 912, 914

The Board reviewed the case to determine if section 203 of the California Penal Code is a categorical crime of violence as defined in 18 U.S.C. 16(a). More specifically, the question before the Board was whether any conviction in violation of section 203 of the California Penal Code is an aggravated felony crime of violence as described by 18 U.S.C. 16(a).

Analysis and Decision: 26 I&N Dec. at 913-921

The Board would ultimately find that a conviction under section 203 of the California Penal Code was categorically an aggravated felony under the immigration laws. In the subsequent sections, we will examine the Board’s reasoning and how it came to its conclusion.

Categorical Approach Applies: 26 I&N Dec. at 913

First, the Board explained that in order to determine whether the respondent’s California mayhem conviction was a crime of violence, it would apply the “categorical approach” outlined by the Supreme Court decision in Taylor v. United States, 495 U.S. 575 (1990) [PDF version] [see discussion]. This approach required the Board to determine whether the elements of section 203 of the California Penal Code were a categorical match with the Federal generic definition of a crime of violence in section 101(a)(43)(F) of the INA, which relies upon the definition in 18 U.S.C. 16(b). “Element” was defined by the Supreme Court in Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) [PDF version] as what the “prosecution must prove to sustain a conviction” [see article].

Under Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013) [PDF version], in order to determine whether section 203 of the California Penal Code was categorically a crime of violence, the Board would look at the “minimum conduct criminalized by the statute.” Furthermore, in determining what conduct may be covered by the statute, the Supreme Court, quoting from Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007) [PDF version], took the position that there must be a “realistic probability,” rather than a merely theoretical one, “that the State would apply its statute to conduct that falls outside the generic definition of a crime.”

Understanding Crime of Violence — Federal Law and Statute of Conviction: 26 I&N Dec. at 914-915

First, the following is the text of section 203 of the California Penal Code:

Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

Citing to Judicial Council of California Criminal Jury Instruction (CALCRIM) 801 (Oct. 2016), the Board explained that the following must be proven and found by a jury in order to convict an individual of violating section 203 of the California Penal Code:

That the violator of the statute “(1) committed an unlawful and malicious act (2) that resulted in another person’s body part being removed, disabled, or disfigured.

The Board cited to a California State decision in People v. Santana, 301 P.3d 1157, 1160 (Cal. 2013), which explained that “mayhem” in the California jury instructions is an “older form of the word ‘maim.’”

Second, the following is the text of 18 U.S.C. 16(a), the statute describing aggravated felony crime of violence through section 101(a)(43)(F) of the INA:

The term “crime of violence” means-an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.

The Board notes that in Leocal v. Ashcroft, 543 U.S. 1, 9 (2004) [PDF version] [see article], the Supreme Court held that “use” in 18 U.S.C. 16(a) “requires active employment.” Furthermore, the Supreme Court held in Johnson v. United States, 559 U.S. 133, 140 (2010) [PDF version] that “the phrase ‘physical force’ means violent force-that is, force capable of causing physical pain or injury to another person.” In the Matter of Chairez, 26 I&N Dec. 819, 821 (BIA 2016) [PDF version], the Board held that Leocal and Johnson control its interpretation of 18 U.S.C. 16(a) [see article].

The Immigration Judge terminated removal proceedings for the respondent after concluding that section 203 of the California Penal Code lacked as an explicit element the use, attempted use, or threatened use of violent physical force against another person.

Considering the “Use” of Force: 26 I&N Dec. at 915-917

The Board noted that neither the respondent nor the DHS disputed that section 203 of the California Penal Code requires a defendant to “actively ‘use’ force within the meaning of [18 U.S.C.] 16(a).” The Board agreed that section 203 of the California Penal Code requires the “use” of force. Its reasoning may be instructive for cases involving similarly structured statutes.

The Board next focused on the requirement that mayhem must be committed “maliciously” under the California statute. Citing to People v. Rodarte, 168 Cal. Rptr. 3d 12, 21 (Cal. Ct. App. 2014) (quoting People v. McKelvy, 239 Cal. Rptr. 782, 785 (Cal. Ct. App. 1987)), the Board noted that California courts characterize mayhem as only involving general intent with regard to the injury caused. This means that it does require that the defendant have had “malicious intent,” but that it does not require that the defendant have intended to maim his or her victim in a specific way, only that such maiming have occurred as a result of the malicious intent. In United States v. Grajeda, 581 F.3d 1186, 1193-97 (9th Cir. 2009) [PDF version], the Ninth Circuit held that this general intent did not mean that the statute failed to reflect the required “use” of force element under Leocal. The Board explains this is because neither Leocal nor Johnson requires that an act be intended to cause a specific type of qualifying harm in order to be a crime of violence under 18 U.S.C. 16(a).

The Board further explained that the term “maliciously” in California’s mayhem statute “signifies something more than acting ‘recklessly.’” This point is significant because in Leocal, the Supreme Court held that the conduct must be more than “negligent or merely accidental” (however, note that Leocal did not resolve whether reckless conduct could fall under 18 U.S.C. 16(a), see our article for further discussion [see article]).

For the foregoing reasons, the Board concluded that because section 203 of the California Penal Code required that mayhem have been committed “’maliciously,’ that is, deliberately and intentionally,” a violation of the statute resulting in the requisite bodily harm must have necessarily involved the “use” or active employment of force against the victim that was required by the Supreme Court in Leocal.

Considering “Physical Force”: 26 I&N Dec. at 917-921

The Board found that a violation of section 203 of the California Penal Code “necessarily involved the use of ‘violent’ physical force discussed in Johnson.” In so doing, the Board overruled the Immigration Judge. The Board’s reasoning for its conclusion may have broader effects on how it approaches interpreting whether a given statute fits within 18 U.S.C. 16(a).

The Board explained that in order to convict a defendant under section 203 of the California Penal Code, the jury must find unanimously that a defendant’s malicious act resulted in “removal of a part of the victim’s body; disabling or making useless a part of the victim’s body; permanently disfiguring that person; cutting or disabling that person’s tongue; slitting that person’s nose, ear, or lip; or putting out or injuring that person’s eye.” The Board acknowledges that the instructions never explicitly state that the defendant must use “force” in committing mayhem. This of course was what the Immigration Judge noted in finding that section 203 is not a categorical crime of violence. However, the Board explained that the jury instructions make explicit that the jury must find that a defendant used “some degree of force” in committing mayhem. For example, the Board noted that “an eye cannot be put out or injured without force.” Having determined that some degree of force is required to accompany a malicious act in order for a defendant to be convicted in violation of section 203 of the California Penal Code, the Board moved to determine whether such force must necessarily be “violent,” as required by the Supreme Court in Johnson.

The Board explained that section 203 of the California Penal Code requires that a defendant’s malicious act have caused “great bodily injury” to another person. This component was noted in California courts in People v. Santana, 301 P.3d at 1163 (Cal. 2013). In People v. Escobar, 837 P.2d 1100, 1003 (Cal. 1992), “great bodily injury” was defined as a “significant or substantial injury.” The Board further noted in a footnote that in People v. Caudillo, 580 P.2d 274, 285-86 (Cal. 1978), overruled on other grounds by People v. Martinez, 973 P.2d 512 (Cal. 1999), that “great bodily injury” does not encompass “substantial psychological and emotional distress.”

The Board concluded that a “malicious” (deliberate and intentional) act that causes “great bodily injury” as defined in California law must necessarily involve force capable of causing physical pain or injury to another person. For this proposition, it cited to Justice Antonin Scalia’s concurring opinion in United States v. Castleman, 134 S.Ct. 1405, 1416-17 (2014) [PDF version], wherein Justice Scalia noted that one cannot cause injury “without using force ‘capable of’ producing that result.” Furthermore, in United States v. Grajeda, 581 F.3d at 1192, the Ninth Circuit held that the degree of force required by section 203 of the California Penal Code “must necessarily go beyond the ‘least touching,’ and represents ‘actual force’ that is violent in nature.”

More generally, the Board found that it was not problematic that section 203 of the California Penal Code did not specify the requisite amount of force required in order for a conviction to occur. It cited to controlling precedent in Arellano Hernandez v. Lynch, 831 F.3d 1127, 1130-32 (9th Cir. 2016) [PDF version], wherein the Ninth Circuit held that a conviction for criminal threats under section 422 of the California Penal Code is categorically a crime of violence under 18 U.S.C. 16(a), “despite the fact that the state statute and relevant case law failed to specify the degree of force that must attend a proscribed threat.” That statute required that an individual “willfully threaten[] to commit a crime which will result in … great bodily injury to another person.” The Ninth Circuit found that all violations of this provision necessarily involve “violent force” as envisioned by Johnson.

Interestingly, the Board then held that a conviction under section 203 of the California Penal Code necessarily involves violent force even if the malicious act was committed through indirect force, such as through the use of poison. For this, the Board relied on Arellano Hernandez, which is controlling in the instant case because the Matter of Kim arises from within the jurisdiction of the Ninth Circuit. In 2016, the Board recognized in the Matter of Guzman-Polanco, 26 I&N Dec. 806, 807 (BIA 2016) [PDF version] [see article], that there exists a circuit split regarding whether the use of indirect force satisfies the violent force requirement in Johnson. The Board noted that in Castleman, 134 S.Ct. at 1415, the Supreme Court made clear that “[t]he ‘use of force’ … is not the act of sprinkl[ing] the poison; it is the act of employing poison knowingly as a device to cause physical harm.” To be clear, however, the Board did not necessarily fully resolve the questions it recognized in Guzman-Polanco.

Finally, the Board noted that to conclude that section 203 of the California Penal Code “entails anything less than the use of violent force (such as offensive touching) would require an impermissible application of legal imagination.” The Board held that it could not imagine a scenario where offensive touching alone could result in any of the harms listed by section 203. To this effect, it cited to the Ninth Circuit decision in Ruiz-Morales v. Ashcroft, 361 F.3d 1219, 1222 (9th Cir. 2004) [PDF version], wherein the Ninth Circuit rejected the efforts of an alien “to concoct an example of mayhem involving no physical force.” Additionally, the Board noted that it was not aware of any California case where an individual was convicted in violation of section 203 for “mere offensive touching.”

Decision: 26 I&N at. 921

For the foregoing reasons, the Board held that “the requisite use of violent force under Johnson and Leocal is necessarily involved in all violations of [section 203 of the California Penal Code].” The Board made this finding although neither the text of the statute nor the relevant jury instructions “explicitly set forth an element regarding ‘the use, attempted use, or threatened use of physical force…’” Key to its analysis was that the statute requires that a defendant act “maliciously” (deliberately and intentionally) and that he or she must cause “great bodily injury” to another person. Based on this line of reasoning, the Board held that a violation of section 203 is categorically a crime of violence under 18 U.S.C. 16(b).

For those reasons, the Board held that the respondent’s mayhem conviction rendered him removable under section 237(a)(2)(A)(iii) of the INA for having been convicted of an aggravated felony crime of violence under section 101(a)(43)(F). The Board sustained the DHS’s appeal, reinstated removal proceedings, and remanded the record to the Immigration Judge to give the respondent the opportunity to pursue relief from removal.

Conclusion

Broadly, the decision shows that the Board may find that a statute is categorically a crime of violence as defined in 18 U.S.C. 16(a) even where the statute does not explicitly involve an element regarding the use, attempted use, or threatened use of physical force. In this case, the Board relied upon what was realistically necessary in order for a conviction under section 203 of the California Penal Code to occur in reaching the conclusion that there was no plausible way to read the statute that involved an individual being convicted without proof that he had used violent physical force.

One interesting point of this decision is the Board’s brief discussion of “indirect force” in the context of 18 U.S.C. 16(a). In Guzman-Polanco II, the Board declined to apply Castleman to the question. However, in that case, the Board was bound by First Circuit precedent, which did not address Castleman and looked less favorably upon indirect force in the 18 U.S.C. 16(a) context than did the Ninth Circuit. Although the Board did not definitively resolve the question, its discussion of Castleman was interesting, and this remains an issue to monitor going forward.

An alien facing criminal proceedings or who is charged as removable for a criminal conviction should consult with an experienced immigration attorney immediately for guidance.