26 I. & N. Dec. 478
BIA2015Background
- Respondent, a Mexican national and U.S. lawful permanent resident, pleaded no contest in Utah to felony discharge of a firearm (Utah Code § 76-10-508.1) and received up to 5 years’ imprisonment.
- DHS charged removability on two grounds: (1) aggravated felony as a "crime of violence" under INA § 101(a)(43)(F) and (2) a firearms offense under INA § 237(a)(2)(C).
- IJ applied Descamps/modified categorical approach, found the Utah statute divisible, and concluded the plea showed a "knowing" discharge (a crime of violence), making respondent removable as an aggravated felon and on the firearms charge.
- The Board initially held (Matter of Chairez) that Descamps required divisibility to mean alternative elements (not mere alternative means), concluded Utah’s mens rea alternatives were likely alternative means (not elements), and found DHS had not proven the aggravated-felony charge.
- DHS moved for reconsideration, citing intervening Tenth Circuit authority (United States v. Trent) adopting a broader divisibility test; the Board granted reconsideration in part, applied Tenth Circuit law, and concluded the Utah statute is divisible and the respondent’s signed plea showed a knowing discharge constituting a crime of violence and aggravated felony.
- The Board vacated part of its prior decision, dismissed the appeal in part (aggravated-felony ground), reaffirmed removability on the firearms ground, and remanded for consideration of relief eligibility.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Chairez/Respondent) | Held |
|---|---|---|---|
| Whether Descamps permits a modified categorical inquiry whenever statute lists alternative statutory phrases | Descamps allows modified categorical inquiry when statute lists alternative phrases some of which match the generic offense; Tenth Circuit’s Trent supports a broad divisibility inquiry | Matter of Chairez: divisibility is a threshold; only alternative elements (requiring jury unanimity) permit modified categorical approach; alternatives may be mere means | Applying Tenth Circuit precedent (Trent), the statute is divisible based on alternative statutory phrases; modified categorical approach applies in Tenth Circuit |
| Whether Utah § 76-10-508.1(1)(a) is divisible into intent, knowledge, recklessness for § 16 crime-of-violence analysis | Divisible into three mens rea-offenses; intentional/knowing versions match § 16 crime-of-violence | In Chairez, mens rea alternatives are means, not elements, so not divisible under Descamps | Under Tenth Circuit standard, statute divisible; intentional/knowing discharge qualify as crimes of violence, reckless does not |
| Whether the respondent’s conviction qualifies as a § 16 "crime of violence" aggravated felony | The plea agreement admits "knowingly discharged a firearm in the direction of any person," which under Tenth Circuit law matches § 16 and, with ≥1-year sentence, is an aggravated felony | Respondent relied on Chairez position that DHS failed to prove aggravated-felony because modified categorical approach was inapplicable | Held: the plea establishes knowing discharge; conviction is a crime of violence aggravated felony; removability on that ground affirmed |
| Whether Board’s prior Chairez interpretation of Descamps is binding in circuits with contrary precedent | DHS: Board should follow circuit authority; where circuit (Tenth) interprets Descamps differently, circuit law controls | Chairez previously instructed IJs to follow Chairez unless circuit authority dictates otherwise | Held: Board reaffirmed that circuit precedent governs; vacated part of Chairez to the extent inconsistent with Tenth Circuit law |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (announcing limits on the modified categorical approach and defining divisibility inquiry)
- United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) (reads Descamps to permit divisibility analysis based on alternative statutory phrases; Tenth Circuit’s broader divisibility test)
- United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008) (recklessness insufficient to satisfy § 16 “use” of force; distinguishes knowing/intentional conduct)
- Shepard v. United States, 544 U.S. 13 (2005) (limits documents admissible in modified categorical inquiry; plea agreements and stipulations may be considered)
- Castleman v. United States, 134 S. Ct. 1405 (2014) (observes that recklessness generally does not satisfy the “use” of physical force requirement)