On September 28, 2016, The Board of Immigration Appeals (BIA or Board), on remand from the Attorney General, clarified that the understanding of statutory divisibility “embodied” in Mathis v. U.S. 136 S.Ct. 2243(2016) and Descamps v. U.S. 133 S.Ct. 2276 (2013) applies to immigration proceedings nationwide to the same extent that it applies in criminal sentencing cases. The BIA further stated that Immigration Judges (IJs) and the Board “must follow applicable circuit law to the fullest extent possible when seeking to determine what Descamps and Mathis require”. As a result, the BIA’s prior precedent decisions in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) and Matter of Chairez, 26 I&N Dec. 478 (BIA 2015) were superceded to the extent they are inconsistent with Mathis and Descamps.
Respondent had been convicted of discharge of a firearm under Utah Code §76-10-508.1, pleading guilty to an amended information that charged him by quoting the section’s full statutory text. His term of imprisonment was not to exceed 5 years. The IJ found him removable and ineligible for most relief as a crime of violence aggravated felon and as one convicted of a firearms offense. In reviewing the IJ’s ruling, the BIA employed the “categorical approach”, focusing on the “elements” of the Utah law as opposed to the facts underlying the conviction.
Initially, The Board found the Utah code section categorically overbroad in terms of the “crime of violence” (COV) definition found at U.S.C. §16(a) because the state law has as elements the intentional use of violent physical force against the person or property of another i.e., the discharge of a firearm. However, the BIA held that 26-10-508.1 is not a categorical COV because it allows for a conviction whether the firearm is discharged intentionally, knowingly or recklessly. As a result, the aggravated felony charge could not be sustained unless the statute is “divisible”, in which case the “modified categorical approach” is used. Citing to Descamps, the Board explained that a criminal law is only divisible if it I) lists multiple discrete offenses as enumerated alternatives or defines a single offense by reference to disjunctive sets of elements, more than 1 combination of which could support a conviction and 2) at cast one (but not all) of the listed offenses or combinations of elements is a categorical match to the “relevant generic standard”.
Noting that Mathis reaffirmed Descamps while clarifying that disjunctive statutory language does not render a criminal statue divisible under each statutory alternative defines an independent “element” of the offense (not a mere “brute fact” describing various means of commission), the BIA held that respondent’s removability as a COV aggravated felon had not be sufficiently proved. The decision concludes by reiterating respondent’s removability for the firearms offense per INA§237(a)(2)(c), but also finding him eligible to apply for cancellation of removal (or any other relief now available) for having “carried his burden of proving the absence of any disqualifying aggravated felony conviction”. The Board therefore sustained the appeal in part and reminded the record to the IJ for further proceedings. Matter of Chairez, 26 I&N Dec. 819 (BIA 2016).
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