26 I. & N. Dec. 819
BIA2016Background
- Respondent (Mexican national, LPR) pleaded guilty in Utah to felony discharge of a firearm under Utah Code § 76-10-508.1(1) after an amended information that recited the statute’s full text without specifying which statutory clause or mens rea applied.
- He was sentenced to an indeterminate term up to 5 years; the Immigration Judge found him removable as an aggravated felon (a "crime of violence" under INA § 101(a)(43)(F) and 18 U.S.C. § 16) and as removable for a firearms offense.
- The Board previously issued two Chairez decisions; the Attorney General referred the matter for review and stayed those decisions pending her review. The Board received the record back to apply Mathis v. United States.
- The key statutory text at issue—Utah § 76-10-508.1(1)—contains three alternate clauses: (a) discharging toward any person when the actor is "knowing or having reason to believe" endangerment; (b) discharging with intent to intimidate or damage a habitable structure; and (c) discharging with intent to intimidate toward a vehicle.
- The Board applied the categorical approach: clauses (b) and (c) are categorical crimes of violence, but clause (a) permits conviction based on intent, knowledge, or recklessness; the Tenth Circuit treats reckless conduct as not qualifying under § 16(a).
- The Board remanded: because Utah law and the conviction record do not show that the statute is divisible as to mens rea (i.e., a jury unanimous finding of which mens rea), the conviction is overbroad and indivisible relative to § 16(a), so removability as an aggravated felon was not established; however, removability for a firearms offense was affirmed.
Issues
| Issue | Chairez's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether Utah § 76-10-508.1(1) categorically qualifies as a § 16(a) crime of violence | Section is divisible or construed to require mens rea that matches § 16(a); conviction therefore an aggravated felony | Statute’s clauses include intentional/knowing discharges that match § 16(a); conviction therefore an aggravated felony | Clause (b)/(c) qualify, but clause (a) allows recklessness; overall statute is overbroad for § 16(a) and not shown divisible by mens rea, so aggravated-felony removability not proven |
| Whether § 76-10-508.1(1) is "divisible" as to mens rea under Descamps/Mathis | The statute lists alternative elements (mens rea alternatives) making it divisible | The statute’s disjunctive mens rea should be treated as alternative elements supporting modified categorical inquiry | Not shown divisible: absent state law or record proof of unanimous juror finding about which mens rea, the alternatives are "means" not separate elements under Mathis |
| Whether the Board must follow Mathis/Descamps methodology in immigration proceedings | Apply Descamps/Mathis to determine divisibility in immigration context | Same (Mathis/Descamps govern) | Board applies Descamps/Mathis in immigration cases and supersedes prior inconsistent Chairez rulings |
| Whether the conviction record permits a "modified categorical" inquiry | The plea/charging documents indicate a specific alternative was charged/admitted | Charging instrument merely recited statute text; no specific mens rea alleged | Record does not identify a particular mens rea; modified categorical inquiry cannot rescue the conviction as a § 16(a) crime |
Key Cases Cited
- Mathis v. United States, 136 S. Ct. 2243 (2016) (distinguishes elements from means and limits when a statute is "divisible" for the modified categorical approach)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (sets divisibility test for applying the modified categorical approach)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (explains the categorical approach in immigration removability analysis)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (interprets "use" of force as volitional conduct for categorical analyses)
- Johnson v. United States, 559 U.S. 133 (2010) (defines "physical force" as violent force in categorical contexts)
- Voisine v. United States, 136 S. Ct. 2272 (2016) (held reckless assault qualifies as "use" of force under a different federal definition; discussed but not dispositive for § 16(a))
- United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) (Tenth Circuit holds reckless conduct does not satisfy § 16(a) crime-of-violence requirement)