26 I. & N. Dec. 349
BIA2014Background
- Respondent (lawful permanent resident from Mexico) was convicted in Utah of felony discharge of a firearm (Utah Code § 76-10-508.1) and sentenced up to 5 years.
- IJ found respondent removable as (1) an aggravated felony (crime of violence) under 8 U.S.C. § 1101(a)(43)(F) and (2) a firearms offense under 8 U.S.C. § 1227(a)(2)(C).
- Utah statute contains three subsections: (a) discharge knowing or having reason to believe someone may be endangered (no explicit mens rea specified), (b) discharge with intent to intimidate/harass or to damage a habitable structure, and (c) discharge with intent to intimidate/harass toward a vehicle.
- Board applied the categorical approach and analyzed whether Utah subsections are divisible for purposes of the aggravated-felony (crime-of-violence) definition and whether the Utah firearm definition is overbroad relative to 18 U.S.C. § 921(a) (antique firearms exclusion).
- Board held subsections (b) and (c) are categorical crimes of violence under § 16(a); subsection (a) can be satisfied by recklessness and is not a categorical § 16(a) crime, so the statute is divisible as to whether it defines a crime of violence — but under Descamps the DHS failed to prove divisibility as to mens rea by precedent, so aggravated-felony removability was not established.
- Board concluded respondent is removable under § 1227(a)(2)(C) (firearms offense) because respondent did not show a “realistic probability” that Utah prosecutes discharge-of-firearm cases involving federal “antique firearms.” Case remanded for consideration of cancellation of removal and continuance requests.
Issues
| Issue | Respondent's Argument | DHS's Argument | Held |
|---|---|---|---|
| Whether respondent’s Utah felony discharge conviction is an aggravated felony as a "crime of violence" under 18 U.S.C. § 16 | The statute can be divisible by mens rea so record can show respondent acted intentionally/knowingly (crime of violence) | Utah subsections are divisible and IJ properly used the modified categorical approach to identify mens rea | DHS failed to prove divisibility as to mens rea under Descamps; aggravated-felony removability not established |
| Proper divisibility standard to apply (Descamps v. Lanferman) | Follow Board’s prior Lanferman approach allowing divisibility when statute covers removable and non-removable conduct | Descamps governs and applies in removal proceedings; Lanferman is inconsistent with Supreme Court and circuit authority | Descamps controls; Board withdraws Lanferman to the extent inconsistent and applies Descamps here |
| Whether Utah conviction is a removable firearms offense under § 1227(a)(2)(C) given Utah’s broader firearm definition (no antique exception) | Utah statute may cover "antique firearms," so DHS must disprove that possibility or respondent may prove he was prosecuted for an antique firearm | DHS need not disprove antique-firearm possibility absent a realistic probability that Utah actually prosecutes antique-firearm discharges under this statute | Held removable under § 1227(a)(2)(C); respondent failed to show realistic probability Utah prosecutes antique-firearm discharges; burden remains on respondent to show such prosecutions |
| Need for remand on relief and continuance requests | Respondent sought cancellation of removal and continuance to await a visa petition decision | DHS opposed vacatur of aggravated-felony finding so IJ didn’t consider relief | Case remanded to IJ to reassess eligibility for cancellation of removal and any continuance requests consistent with Hashmi factors |
Key Cases Cited
- Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) (categorical approach; realistic-probability test)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limiting use of modified categorical approach to divisible statutes defined by alternative elements)
- Leocal v. Ashcroft, 543 U.S. 1 (2004) (volitional "use" of force requirement for § 16(a))
- Johnson v. United States, 559 U.S. 133 (2010) (definition of "physical force" for violent felony analysis)
- Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) (realistic-probability requirement for state statute covering nongeneric conduct)