On February 24, 2016, the Board of Immigration Appeals (BIA or Board) considered the appeal of a respondent convicted of third degree aggravated battery under Article 122 of the Puerto Rico Penal Code and therefore found removable by the Immigration Judge (IJ) who considered his offense a crime of violence per 18 U.S.C. 16(a) and thus an aggravated felony crime of violence per INA § 101(a)(43)(F).
Initially, citing Moncrieffe v. Holder, 133 S. Ct. 1678 (2013), the BIA noted that the determination of whether a state crime qualifies as a removable offense under the federal definition requires that the state statute be compared to the generic federal offense to see if it is a categorical match; the Board does not consider the respondent’s conduct but instead looks at whether the state offense necessarily involved facts “equating to” the federal offense, a predicate holding of Johnson v. United States, 559 U.S. 133 (2010). The Board then stated that the Department of Homeland Security (DHS) Government position relied on Matter of Martin, 23 I&N Dec. 491 (BIA 2002), which found legislative support for the conclusion that “an assault involving the intentional infliction of physical injury has as an element the use of physical force within the meaning of 18 U.S.C. § 16(a).” Noting, however, that subsequent to Martin, the U.S. Supreme Court held in Johnson, supra, that the phrase “physical force” means violent force capable of causing physical pain or injury to another, the BIA held that Johnson controls its interpretation of a crime of violence under 16(a).
Additionally, during the pendency of this appeal, the First Circuit Court of Appeals – in whose jurisdiction this case arose – rejected Martin, finding that per 16(a), “physical force” requires violent force. Based on that decision. (Whyte v. Lynch, 807 F.3d 463 (1st Cir. 2005)), the Board withdrew from Matter of Martin to the extent it is inconsistent with the Supreme Court’s decisions in Johnson v. United States and Leocal v. United States, 543 U.S. 1 (2004).
Ultimately, as the First Circuit did in Whyte, the BIA rejected DHS’s argument that any physical injury is sufficient to establish the use of physical force under 16(a) and agreed that a state offense must “require as an element the use, attempted use, or threatened use of violent force” to qualify as a crime of violence aggravated felony. Consequently, the use of violent force was found not to be required for a battery conviction under the Puerto Rico law and the government could point to no state case that suggested otherwise. The Board thus concluded that the conduct criminalized by Article 122 is not categorically a crime of violence per § 16(a) and sustained the appeal, remanding the record to the IJ to resolve other removability issues, particularly whether respondent’s conviction is for a crime of violence under 18 U.S.C. § 16(b). Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016).
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