Board Clarifies Matter of Guzman-Polanco: No Precedent on Use of Indirect Force and Crime of Violence

Introduction: BIA Clarifies Matter of Guzman-Polanco

On February 24, 2016, the Board of Immigration Appeals issued a precedent decision in the Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016) [PDF version] (“Guzman-Polanco I”). In Guzman-Polanco I, the Board held that a conviction under a Puerto Rico statute for “aggravated battery” was not categorically a “crime of violence” under 18 U.S.C. 16(a). However, in the Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016) [PDF version] (“Guzman-Polanco II”), the Board issued a second opinion clarifying its decision in Guzman-Polanco I. Although the Board did not alter its conclusion that the Puerto Rican statute was not categorically a crime of violence under 18 U.S.C. 16(a), it emphasized that Guzman-Polanco I did not establish nationwide Board precedent with regard to the question of whether a statute that criminalizes the use or threatened use of force by indirect means (i.e., poison) would fall under the scope of 18 U.S.C. 16(a).

In this article, we will address the key points of Guzman-Polanco I, explain the Board's clarification in Guzman-Polanco II, and discuss the importance of the two decisions going forward with regard to the immigration aggravated felony for a crime of violence. To learn about Guzman-Polanco I in detail, please see our full article [see article].

Key Points of Guzman-Polanco I

The question in Guzman-Polanco I was whether a conviction 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) was categorically an aggravated felony “crime of violence” under 18 U.S.C. 16(a). 18 U.S.C. 16(a) is not itself an immigration statute; however, the Immigration and Nationality Act (INA) relies upon it for the definition of an immigration aggravated felony crime of violence in section 101(a)(43). Therefore, the interpretation of 18 U.S.C. 16(a) is very important in the context of determining the removability of certain criminal aliens on the ground of their having been convicted of an aggravated felony crime of violence.

Before we can understand the original decision, we must look at the Puerto Rican statute in question. First, although the respondent in Guzman-Polanco I was convicted under Article 122 of the Puerto Rican Penal Code, Article 122 relies on Article 121's definition of the predicate offense of simple battery:

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

Building off Article 121, Article 122 states the following:

If the battery described in [section] 4749 of this title … causes an injury that requires hospitalization or extended treatment, or causes permanent harm, the perpetrator shall incur a third degree felony.

The question for the Board, in short, was whether the language of Article 121 was categorically overbroad with respect to the definition of “crime of violence” that is found in 18 U.S.C. 16(a). In short, this means the Board was required to determine whether the Puerto Rican statute criminalized conduct than is contemplated in the 18 U.S.C. 16(a) definition of a “crime of violence,” which is:

[A]n offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another…

The Department of Homeland Security (DHS) relied on the Board's precedent decision Matter of Martin, 26 I&N Dec. 491 (BIA 2002) [PDF version], which held that the use of “physical force” was sufficient for a statute to be covered by 18 U.S.C. 16(a). However, in Johnson v. United States, 559 U.S. 133 (2010) [PDF version], the Supreme Court held that “the phrase 'physical force,' means violent force-that is, force capable of causing physical injury to another person.” The Board had previously held that Johnson controlled its interpretation of 18 U.S.C. 16(a), but in Guzman-Polanco I, the Board took the additional step of withdrawing from those parts of its decision in Martin that that took a broader view of the scope of 18 U.S.C. 16(a) than, and were thus inconsistent with, the Supreme Court precedent in Johnson ). Also of note, the First Circuit, under the jurisdiction of which Guzman-Polanco I arose, also rejected Martin in its decision in Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2015) [PDF version].

Ultimately, the Board found that the Puerto Rico statute was not categorically a crime of violence as defined under 18 U.S.C. 16(a), and that the respondent had not been convicted of an immigration aggravated felony.

Guzman-Polanco II

After the Board issued its decision in Guzman-Polanco I, the DHS moved for reconsideration of the decision. The Board decided to grant the motion to address the DHS's arguments and to clarify the prior decision before remanding the record for further proceedings.

First, the Board declined to reconsider its decision to withdraw from parts of the Matter of Martin. This is because the Board “remained convinced” that Supreme Court's decision in Johnson was binding on its interpretation of the definition of “crime of violence.” Additionally, the Board held to its position that the Puerto Rico simple battery statute was categorically overbroad and therefore not sufficient for establishing that a conviction was for a crime of violence under 18 U.S.C. 16(a).

The final point of the DHS's argument prompted the Board's decision to issue a precedent decision in Guzman-Polanco II clarifying its previous precedent decision in Guzman-Polanco I.

In Guzman-Polanco I, the Board explained that an important reason why the Puerto Rico simple battery statute was not categorically a crime of violence was because aggravated battery under the statute “could be committed by means that do not require the use of violent physical force.” As an example, the Board wrote the following:

For example, an offender could commit aggravated battery by injuring another person through the use of poison.

The Board developed its point about poison further in footnote 7 of Guzman-Polanco I. The Board noted that in the First Circuit decision in Whyte v. Lynch (recall that this is controlling precedent in Guzman-Polanco I and II), the First Circuit explained that a person could intentionally cause physical injury without making use of “violent force.” As an example, the First Circuit cited to a Fifth Circuit decision in United States v. Villegas-Hernandez, 468 F.3d 874, 879 (5th Cir. 2006) [PDF version], which addressed a situation where a person could tell a victim that he can “safely back his car out” while knowing that an approaching car being driven by an independently acting third party would hit the victim (as an example of an offense that would not, in the opinion of the First Circuit, fall under 18 U.S.C. 16(a)). The Board explained that both that example as well as the example of causing injury through a person's use of poison describe actions that do not require “violent force” by the person against the victim but which would nevertheless result in bodily injury to the victim. To this effect, the Board cited to the Supreme Court decision in Rummel v. Estelle, 445 U.S. 263, 282 n.27 (1980) [PDF version], where the Supreme Court relied on plays from Shakespeare to explain that Caesar's death by stabbing was “undoubtedly violent,” but the death of Hamlet's father by poisoning “was not.”

The DHS disagreed broadly with the Board's seeming to take the position that the use of “indirect means” of force does not fall under the definition of a “crime of violence” under 18 U.S.C. 16(a). The question is especially significant because Guzman-Polanco I was designated as a precedent decision, meaning that it sets rules that are binding on all immigration adjudicators.

The Board sought to clarify its decision in Guzman-Polanco I by explaining that it relied upon Whyte v. Lynch in its discussion of the use of 'indirect means” of force. Because Guzman-Polanco arose in the First Circuit, the Board was required to decide the case in a manner that was consistent with First Circuit precedent.

On the broader issue, the Board noted that there “appears to be a split among the circuits” on whether conduct such as the threatened use of poison is a sufficient amount of force to constitute “violent force” (the Board cited to various Circuit decisions that appear to take different positions on the issue). The Board declined the DHS's suggestion that it consider the Supreme Court decision in United States v. Castleman, 134 S.Ct 1405 (2014) [PDF version] in making a decision on the issue. In short, in Castleman, the Supreme Court held that a broader range of conduct that may qualify as “domestic violence” would also qualify as “violence” under Johnson (i.e., “mere offensive touching). However, the Board noted that the First Circuit had declined to address Castleman in this context in Whyte v. Lynch. Furthermore, the Board found it unnecessary to take a position on Castleman's possible broader applicability in Guzman-Polanco II.

The Board concluded by explaining that Guzman-Polanco “should not be read as attempting to establish a nationwide rule addressing the scope of the use of force through indirect means, including poisoning.” The Board stated that the use of the poisoning example was for the purpose of explaining governing precedent in the First Circuit that was established in Whyte v. Lynch. Going forward, the Board explained that “circuit law governs this issue unless the Supreme Court resolves the question.

Additional Reading

In Whyte v. Lynch, the First Circuit referenced its decision in United States v. Voisine, 778 F.3d 176 (1st Cir. 2015) [PDF version], in distinguishing the Supreme Court's broader take on the definition of domestic violence in Castleman from its decision in Johnson. Voisine would eventually make it to the Supreme Court in Voisine v. United States, 579 U.S. __ (2016) [PDF version]. To learn more, please see our full article discussing the potential applicability of Voisine, and to a lesser extent Castleman, to immigration law [see article].

Conclusion

In Guzman-Polanco II, the Board emphasized that it is not creating a new rule regarding whether the use of “indirect means” of force can amount to “violent force” under 18 U.S.C. 16(a). Rather, the Board will follow Circuit precedent when such an issue comes before it. In the case of Guzman-Polanco, the Board is bound by the precedent of the First Circuit, which appears to take the position that indirect means of force do not constitute “violent force” as required by Johnson. Accordingly, there is no uniform rule regarding this question at the present.

It is important for an alien facing criminal charges to consult with an experienced immigration attorney who can explain the potential consequences of a criminal conviction. If an alien is charged with inadmissibility or removability for a “crime of violence,” he or she should consult with an experienced immigration attorney immediately for an assessment of the situation and guidance in mounting a defense. As Guzman-Polanco shows, it is important to understand not only the administrative precedent, but also the specific judicial precedent of the circuit from which a case arises.