On April 24, 2017, the Board of Immigration Appeals (BIA or Board) – in a case (Mathis v. United States) that has been before the BIA several times – denied a motion to reconsider filed by the government (“DHS”) in response to a prior opinion of the Board [Matter of Chairez , 26 I&N Dec. 819 (BIA 2016)] holding that DHS had failed to prove the respondent removable for conviction of an aggravated felony crime of violence (COV) per INA §237(a)(2)(A)(iii). (In a footnote the decision noted that the Immigration Judge (IJ) had, in fact, found respondent removable for conviction of a categorical firearms offense per INA §237(a)(2)(C), a finding the Board had previously affirmed.)
In its prior opinion in Chairez the BIA had, in a fairly technical holding, concluded that the section of the Utah Code respondent violated in being convicted of unlawfully discharging a firearm was not a categorical COV because it can include acts committed with a mens rea of recklessness; thus, even though the law included crimes committed intentionally and knowingly, it was not divisible into 3 separate offenses with “distinct mental states (intentional, knowing, and reckless) and therefore a modified categorical approach was not allowed.
The DHS motion had claimed the Board should extend the holding of the U.S. Supreme Court in Voisine v. United States, 136 S. Ct. 2272 (2016) and find that even a reckless firearms discharge is a COV under the Utah statute, despite the decision of the Tenth Circuit Court of Appeals, in whose jurisdiction this case arises, in United States v. Zuniga-Soto, 527 F.3d 1110 (10th Cir. 2008)(reckless conduct does not involve the deliberate “use” of physical force required by a COV). Alternatively, the government argued that, even if the Utah law is not a categorical COV, the BIA had misapplied Mathis v. United States, 136 S. Ct. 2243 (2016), cited as authority by Zuniga-Soto, by both improperly inferring the statute is indivisible and failing to consider respondent’s plea agreement as evidence of the law’s divisibility.
Holding that the DHS motion “does not identify an adequate reason for reconsideration”, the Board initially noted that it cannot extend the rationale of a Supreme Court case in the face of contrary controlling circuit precedent, stating that while Zuniga-Soto remained good law, this was not the proper case to express an opinion on “how the law may or should evolve after Voisine.” As to the contention that the BIA had misapplied Mathis, the opinion found that when state law does not address the distinction between “elements” and “means” as regards a specific criminal law, the Board may seek guidance in cases interpreting statutes with similar language and structure.
Lastly, as to divisibility under Mathis, the decision held that an IJ may consider the respondent’s conviction record for the “sole and limited purpose” of determining whether statutory alternatives define discrete “elements”, i.e., facts that must be proven to a jury beyond a reasonable doubt in order to obtain a conviction. However, as in the instant case, where the admission of a “knowing” mental state in a plea agreement is not “tethered” to any fact charged in an information, that admission cannot establish the divisibility of the particular statute under Mathis. No legal or factual error being found in its prior decision, the BIA denied DHS’ motion to reconsider.
In a concurring opinion, Board Member Garry Malphrus stated an opinion that the approach to divisibility dictated by Mathis “will result in immigration proceedings being terminated for many aliens who had committed serious crimes” in the U.S. Matter of Chairez-Castrejon, 27 N&N Dec. 21 (BIA 2017).
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