26 I. & N. Dec. 912
BIA2017Background
- Respondent, a lawful permanent resident from South Korea, was convicted in California (Dec. 16, 2013) of mayhem (Cal. Penal Code §203) and sentenced to 2 years.
- DHS charged removability under INA §237(a)(2)(A)(iii) as an aggravated felony crime of violence (INA §101(a)(43)(F)) because the sentence was ≥1 year.
- The Immigration Judge terminated proceedings, finding §203 did not explicitly require use, attempted use, or threatened use of violent force under 18 U.S.C. §16(a).
- The BIA reviewed de novo whether California mayhem categorically qualifies as a §16(a) crime of violence under the categorical approach (Taylor/Mathis framework).
- The BIA concluded §203 requires malicious (deliberate) conduct causing great bodily injury, which necessarily involves the active use of violent physical force, so mayhem is categorically a crime of violence.
- The BIA sustained DHS’s appeal, vacated the IJ’s termination, reinstated removal proceedings, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether California mayhem (§203) is categorically a "crime of violence" under 18 U.S.C. §16(a) | DHS: §203 requires malicious conduct causing great bodily injury and thus necessarily involves the use of violent physical force | Respondent: §203 and jury instructions lack an explicit element referencing use/attempted use/threatened use of violent force required by §16(a) | Held: §203 is categorically a §16(a) crime of violence because the malicious intent plus requirement of great bodily injury necessarily entails active, violent force |
| Whether malice element satisfies the "use"/volition requirement of §16(a) | DHS: Malicious (deliberate/intentional) conduct shows active employment of force | Respondent: General-intent labeling may not equate to the volitional "use" of force required by §16(a) | Held: Malice (general intent) ensures deliberate, volitional conduct sufficient to satisfy "use" under Leocal |
| Whether the statute necessarily involves "physical force" that is "violent" per Johnson | DHS: Causing removal/disfigurement or great bodily injury necessarily requires force capable of causing pain/injury — i.e., violent force | Respondent: Text/instructions do not expressly reference "force," so non-violent or minimal touching could conceivably fall within the statute | Held: A realistic probability of prosecution for mere offensive touching does not exist; mayhem requires force likely to produce great bodily injury and thus satisfies Johnson's violent-force requirement |
| Whether indirect means (e.g., poisoning) can qualify as "use" of violent force | DHS: Indirect means can be "use" of force (Castleman); precedents uphold poisoning as violent force | Respondent: Indirect means may fall outside physical "force" concept | Held: Indirect employment of a device (poison) to cause physical harm still constitutes "use of force" under Castleman and Ninth Circuit authority |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (categorical approach for prior convictions)
- Mathis v. United States, 136 S. Ct. 2243 (elements inquiry and permissible reliance on state decisions/instructions)
- Moncrieffe v. Holder, 133 S. Ct. 1678 (focus on minimum conduct necessarily criminalized)
- Descamps v. United States, 133 S. Ct. 2276 (limitations on using means-of-commission evidence)
- Leocal v. Ashcroft, 543 U.S. 1 ("use" requires volitional employment; §16(a) covers violent, active crimes)
- Johnson v. United States, 559 U.S. 133 ("physical force" means violent force capable of causing pain/injury)
- United States v. Castleman, 134 S. Ct. 1405 (indirect use of poison can be a "use of force")
- Arellano Hernandez v. Lynch, 831 F.3d 1127 (Ninth Circuit: §422 threats requiring great bodily injury categorically violent; supports indirect-force holding)
- United States v. Grajeda, 581 F.3d 1186 (Ninth Circuit: general intent crimes can satisfy §16(a); force likely to produce great bodily injury is violent)
- Ruiz-Morales v. Ashcroft, 361 F.3d 1219 (rejecting hypothetical no-force mayhem examples; practical impossibility of conviction without force)