26 I. & N. Dec. 713
BIA2016Background
- Respondent Guzman-Polanco, a lawful permanent resident, was convicted in Puerto Rico of third-degree aggravated battery (33 L.P.R.A. § 4750) and faced removal as an aggravated felony crime of violence under INA § 101(a)(43)(F).
- The Immigration Judge found the Puerto Rico aggravated-battery statute divisible and, applying the modified categorical approach, concluded the conviction was a crime of violence under 18 U.S.C. § 16(a).
- DHS argued that Puerto Rico simple battery (33 L.P.R.A. § 4749) requires intentional infliction of injury to bodily integrity, which necessarily involves physical force and therefore qualifies under § 16(a).
- The Board reviewed whether the Puerto Rico statute necessarily requires the use, attempted use, or threatened use of violent physical force as defined for § 16(a).
- The Board concluded that the Puerto Rico statutes permit means of causing injury that do not require violent force (e.g., poison), and no Puerto Rico case law construes the statute to require violent force; therefore the offense is not categorically a crime of violence under § 16(a).
- Because unresolved issues remain (including potential applicability of § 16(b)), the Board sustained the appeal and remanded to the Immigration Judge for further proceedings.
Issues
| Issue | Plaintiff's Argument (DHS) | Defendant's Argument (Guzman‑Polanco) | Held |
|---|---|---|---|
| Whether Puerto Rico aggravated battery is a categorical "crime of violence" under 18 U.S.C. § 16(a) | The statute requires intentional bodily injury, which necessarily involves physical force and thus meets § 16(a) | The statute can be violated by means that do not require violent physical force, so it does not categorically meet § 16(a) | Not a categorical crime of violence under § 16(a); DHS failed to meet its burden |
| Whether "physical force" in § 16(a) means "violent force" | Physical injury element implies physical force sufficient for § 16(a) | "Physical force" in § 16(a) should be read as requiring violent force (per controlling precedent) | Adopts Johnson/Leocal/Whyte reasoning: § 16(a) requires violent force (force capable of causing physical pain or injury) |
| Whether the Puerto Rico statute is divisible such that the modified categorical approach applies | IJ found the statute divisible because it covers both physical and psycho-emotional injuries | Respondent argued categorical approach controls; DHS did not press modified categorical on appeal | Board treats issue under categorical lens and finds statute not a categorical match; no Puerto Rico case law supplies a limiting construction |
| Disposition and next steps | Seek removal based on § 16(a) conviction | Challenge removability; request remand for further proceedings | Appeal sustained; record remanded to IJ for further proceedings (including § 16(b) issues) |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (violent force is required for "physical force" in certain statutes)
- Leocal v. United States, 543 U.S. 1 ("crime of violence" language implies active, violent crimes)
- United States v. Castleman, 134 S. Ct. 1405 (context can change the meaning of "physical force"; discussed distinctions)
- Whyte v. Lynch, 807 F.3d 463 (1st Cir.) ("physical force" in § 16(a) means violent force; Connecticut assault not a § 16(a) crime of violence)
- United States v. Fish, 758 F.3d 1 (1st Cir.) (comparative categorical analysis for state offenses)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (categorical approach presumes conviction rests on least conduct criminalized)
- United States v. Nason, 269 F.3d 10 (1st Cir.) (discussed by parties regarding physical injury and force in a different statutory context)