CHAIREZ

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Matter of Martin CHAIREZ-Castrejon, Respondent

Decided September 28, 2016

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

The respondent’s removability as an alien convicted of an aggravated felony was not

established where section 76-10-508.1 of the Utah Code was not shown to be divisible

with respect to the mens rea necessary for the offense to qualify as a crime of violence

under 18 U.S.C. § 16(a) (2012), based on the Supreme Court’s decisions in Mathis

v. United States, 136 S. Ct. 2243 (2016), and Descamps v. United States, 133 S. Ct. 2276

(2013). Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), and Matter of Chairez, 26 I&N

Dec. 478 (BIA 2015), clarified.

FOR RESPONDENT: Skyler Anderson, Esquire, Taylorsville, Utah

FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy,

Associate Legal Advisor

BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.

PAULEY, Board Member:

On October 30, 2015, the Attorney General ordered the Board to refer

this matter to her for review in Matter of Chairez and Sama, 26 I&N Dec.

686 (A.G. 2015). In that order, the Attorney General also stayed our

decisions in Matter of Chairez (“Chairez I”), 26 I&N Dec. 349 (BIA 2014),

and Matter of Chairez (“Chairez II”), 26 I&N Dec. 478 (BIA 2015),

declaring them to be nonprecedential and nonbinding during the pendency

of her review. The Attorney General’s review is now complete, and the

record has been returned to us so that we may take “any appropriate action”

in light of Mathis v. United States, 136 S. Ct. 2243 (2016). Matter of

Chairez and Sama, 26 I&N Dec. 796, 796 (A.G. 2016). 1

In Mathis, the Supreme Court clarified its earlier opinion in Descamps

v. United States, 133 S. Ct. 2276 (2013), and addressed the methodology

for determining whether a criminal statute is “divisible.” In accordance

with our previous holding in Matter of Chairez I, we now clarify that the

understanding of statutory “divisibility” embodied in Descamps and Mathis

1

The Attorney General’s order also returned to us the record of proceedings in Matter

of Sama, which we will address in a separate order.

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applies in immigration proceedings nationwide to the same extent that it

applies in criminal sentencing proceedings. See Mathis, 136 S. Ct. at 2253

n.3 (discussing aspects of the divisibility question as they arise in

immigration proceedings). Furthermore, we reiterate that Immigration

Judges and the Board must follow applicable circuit law to the fullest extent

possible when seeking to determine what Descamps and Mathis require.

See Matter of Chairez I, 26 I&N Dec. at 354; see also Matter of Chairez II,

26 I&N Dec. at 481−82. Finally, our decisions in Chairez I and Chairez II

are superseded to the extent that they are inconsistent with Descamps and

Mathis. Applying Descamps and Mathis to the facts of this case, we will

sustain the respondent’s appeal in part and remand the record for further

proceedings.

The background and procedural history of this case is set forth at length

in our prior decisions. The respondent is a native and citizen of Mexico

and a lawful permanent resident of the United States who was convicted in

2012 for discharge of a firearm in violation of section 76-10-508.1 of the

Utah Code, a felony under State law for which he was sentenced to an

indeterminate term of imprisonment not to exceed 5 years. At all relevant

times, section 76-10-508.1 has provided as follows, in pertinent part:

Felony discharge of a firearm—Penalties

(1) Except as [otherwise] provided . . . , a person who discharges a firearm is

guilty of a third degree felony punishable by imprisonment for a term of not less

than three years nor more than five years if:

(a) the actor discharges a firearm in the direction of any person or persons,

knowing or having reason to believe that any person may be endangered by the

discharge of the firearm;

(b) the actor, with intent to intimidate or harass another or with intent to

damage a habitable structure . . . , discharges a firearm in the direction of any

person or habitable structure; or

(c) the actor, with intent to intimidate or harass another, discharges a firearm

in the direction of any vehicle.

The respondent was convicted of this offense after pleading guilty to

an amended information that charged him broadly, by alleging the

full statutory text of section 76-10-508.1(1). The charging document did

not specifically allege that the respondent violated any one portion of the

statute to the exclusion of any other.

Based on the aforementioned conviction, the Immigration Judge found

the respondent removable from the United States—and ineligible for most

forms of relief from removal—as an alien convicted of an aggravated

felony under sections 101(a)(43)(F) and 237(a)(2)(A)(iii) of the

Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(F) and

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1227(a)(2)(A)(iii) (2012), namely, a “crime of violence” under 18 U.S.C.

§ 16 (2012) for which the term of imprisonment is at least 1 year. 2 In

reviewing that determination, we employ the “categorical approach,” which

requires us to focus on the “elements” of section 76-10-508.1 of the Utah

Code rather than the facts underlying the respondent’s particular violation

of that statute. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013).

An offense is a “crime of violence” under 18 U.S.C. § 16 if it is

(a) an offense that has as an element the use, attempted use, or threatened use of

physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of another may be

3

used in the course of committing the offense.

For purposes of this “crime of violence” definition, the word “use” denotes

volition, Leocal v. Ashcroft, 543 U.S. 1, 9 (2004), while “the phrase

‘physical force’ means violent force—that is, force capable of causing

physical pain or injury to another person,” Johnson v. United States, 559

U.S. 133, 140 (2010); see also Matter of Guzman-Polanco, 26 I&N Dec.

806 (BIA 2016).

Section 76-10-508.1 of the Utah Code is “categorically overbroad”

relative to the definition of a “crime of violence” under 18 U.S.C. § 16(a).

Specifically, sections 76-10-508.1(1)(b) and (c) define categorical “crimes

of violence” under 18 U.S.C. § 16(a) because they have as elements the

intentional use of violent physical force against the person or property of

another, namely, the discharge of a firearm. See Matter of Chairez I,

26 I&N Dec. at 351. However, section 76-10-508.1(1)(a) does not define a

categorical crime of violence because it permits conviction if the firearm

was discharged intentionally, knowingly, or recklessly. In this respect, we

note that section 76-10-508.1(1)(a) neither specifies a mental state with

which the firearm must be discharged nor clearly expresses a legislative

2

The Immigration Judge also found the respondent removable as an alien convicted of

a firearms offense under section 237(a)(2)(C) of the Act. In Matter of Chairez I, 26 I&N

Dec. at 355−58, we affirmed that determination, concluding that a violation of section

76-10-508.1 is a categorical firearms offense. Neither Mathis nor the Attorney General’s

decisions in this matter cast doubt on that determination, and—for the reasons previously

stated in Chairez I—we therefore reaffirm that the respondent’s conviction renders him

removable under section 237(a)(2)(C) of the Act.

3

The United States Court of Appeals for the Tenth Circuit, in whose jurisdiction this

case arises, has held that 18 U.S.C. § 16(b) is unconstitutionally vague. See Golicov

v. Lynch, No. 16-9530, 2016 WL 4988012, at *5–8 (10th Cir. Sept. 19, 2016). Therefore,

our analysis is limited to determining whether the respondent’s offense qualifies as a

crime of violence under 18 U.S.C. § 16(a).

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purpose to impose strict liability. Under these circumstances, section

76-2-102 of the Utah Code provides that “intent, knowledge, or

recklessness shall suffice to establish criminal responsibility.” Any one of

those three mental states is a logical possibility as applied to the first clause

of section 76-10-508.1(1)(a). Although the “intentional” or “knowing”

discharge of a firearm in the direction of another person would satisfy the

requirements of 18 U.S.C. § 16(a), the United States Court of Appeals for

the Tenth Circuit has held that reckless conduct does not involve the

deliberate “use” of physical force. See Matter of Chairez I, 26 I&N Dec. at

352 (citing United States v. Zuniga-Soto, 527 F.3d 1110, 1122–24 (10th

Cir. 2008)). 4

Because section 76-10-508.1 of the Utah Code does not define a

categorical crime of violence, the aggravated felony charge cannot be

sustained unless that statute is “divisible” relative to the definition of a

crime of violence, in which case a further “modified categorical” inquiry

would be appropriate. In Descamps, the Supreme Court explained that a

criminal statute is divisible only if it (1) lists multiple discrete offenses as

enumerated alternatives or defines a single offense by reference to

disjunctive sets of “elements,” more than one combination of which could

support a conviction, and (2) at least one (but not all) of those listed

offenses or combinations of disjunctive elements is a “categorical match” to

the relevant generic standard. See Descamps, 133 S. Ct. at 2281, 2283.

Mathis reaffirms Descamps while clarifying an important point:

disjunctive statutory language does not render a criminal statute divisible

unless each statutory alternative defines an independent “element” of the

offense, as opposed to a mere “brute fact” describing various means or

methods by which the offense can be committed. Mathis, 136 S. Ct. at

2248. 5 The Mathis Court explained the distinction between “elements” and

“brute facts” or “means” as follows:

4

The Supreme Court recently held that reckless assault involves the “use of physical

force” within the meaning of the “misdemeanor crime of domestic violence” definition

set forth at 18 U.S.C. § 921(a)(33)(A) (2012). See Voisine v. United States, 136 S. Ct.

2272, 2280 (2016) (“A person who assaults another recklessly ‘use[s]’ force, no less than

one who carries out that same action knowingly or intentionally.”). In so holding, the

Court did not take a position on whether 18 U.S.C. § 16(a) includes reckless behavior.

See id. at 2280 n.4. Because the Tenth Circuit has held that reckless conduct is

insufficient to constitute a crime of violence under 18 U.S.C. § 16, we will follow that

authority in this case. See Zuniga-Soto, 527 F.3d at 1122–24.

5

Prior to Mathis, the Tenth Circuit held in United States v. Trent, 767 F.3d 1046 (10th

Cir. 2014), abrogated by Mathis, 136 S. Ct. at 2248, 2251 & n.1, that a criminal statute is

“divisible” whenever it employs alternative or disjunctive statutory phrases. See Matter

of Chairez II, 26 I&N Dec. at 481‒82. Although circuit law is generally controlling in

(continued . . .)

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“Elements” are the “constituent parts” of a crime’s legal definition—the things the

“prosecution must prove to sustain a conviction.” At a trial, they are what the jury

must find beyond a reasonable doubt to convict the defendant, and at a plea

hearing, they are what the defendant necessarily admits when he pleads guilty.

Facts, by contrast, are mere real-world things—extraneous to the crime’s legal

requirements. (We have sometimes called them “brute facts” when distinguishing

them from elements.) They are “circumstance[s]” or “event[s]” having no “legal

effect [or] consequence”: In particular, they need neither be found by a jury nor

admitted by a defendant.

Id. (citations omitted).

Further, while conceding that the difference between “elements” and

“brute facts” or “means” is not always easy to discern, the Court provided

some guidance to help steer adjudicators toward sources of information that

could help shed light on the distinction:

This threshold inquiry—elements or means?—is easy in this case, as it will be in

many others. Here, a state court decision definitively answers the question . . . .

When a ruling of that kind exists, a sentencing judge need only follow what it says.

Likewise, the statute on its face may resolve the issue. If statutory alternatives

carry different punishments, then under Apprendi [v. New Jersey, 530 U.S. 466

(2000),] they must be elements. Conversely, if a statutory list is drafted to offer

“illustrative examples,” then it includes only a crime’s means of commission. And

a statute may itself identify which things must be charged (and so are elements) and

which need not be (and so are means). Armed with such authoritative sources of

state law, federal sentencing courts can readily determine the nature of an

alternatively phrased list.

And if state law fails to provide clear answers, federal judges have another place

to look: the record of a prior conviction itself. As Judge Kozinski has explained,

such a “peek at the [record] documents” is for “the sole and limited purpose of

determining whether [the listed items are] element[s] of the offense.” Rendon

v. Holder, 782 F.3d 466, [473−74 (9th Cir. 2015)] (opinion dissenting from denial

of reh’g en banc). (Only if the answer is yes can the court make further use of the

materials, as previously described.) Suppose, for example, that one count of an

indictment and correlative jury instructions charge a defendant with burgling a

“building, structure, or vehicle”. . . . That is as clear an indication as any that each

alternative is only a possible means of commission, not an element that the

prosecutor must prove to a jury beyond a reasonable doubt. So too if those

documents use a single umbrella term like “premises”: Once again, the record

would then reveal what the prosecutor has to (and does not have to) demonstrate to

prevail. Conversely, an indictment and jury instructions could indicate, by

_______________________________

removal proceedings with respect to the contours of the categorical and modified

categorical approaches, we are unable to follow Trent here because it was abrogated by

Mathis.

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referencing one alternative term to the exclusion of all others, that the statute

contains a list of elements, each one of which goes toward a separate crime. Of

course, such record materials will not in every case speak plainly, and if they do

not, a sentencing judge will not be able to satisfy “Taylor’s demand for certainty”

when determining whether a defendant was convicted of a generic offense. But

between those documents and state law, that kind of indeterminacy should prove

more the exception than the rule.

Id. at 2256−57 (footnote and citations omitted).

Under the approach to divisibility adopted in Descamps and Mathis,

section 76-10-508.1(1)(a) of the Utah Code can be regarded as “divisible”

into three separate offenses with distinct mental states—that is, intentional

discharge of a firearm, knowing discharge of a firearm, and reckless

discharge of a firearm—only if Utah law requires a unanimous jury verdict

as to the particular mental state with which the accused discharged the

firearm. It is evident that a Utah jury cannot lawfully convict a defendant

for violating section 76-10-508.1(1)(a) without finding that he discharged a

firearm with some culpable mental state. However, if a Utah jury can find a

defendant guilty of violating the statute without coming to an agreement

about the particular mental state with which he discharged the firearm, then

it follows that intent, knowledge, and recklessness are not alternative

“elements.” Pursuant to Mathis, they are instead mere “brute facts”—

alternative means by which the mens rea element can be proven. 6

There are no Utah cases directly addressing whether intent, knowledge,

and recklessness operate as alternative “elements” or mere “brute facts” in

the context of section 76-10-508.1(1)(a). However, in Chairez I we found

it suggestive that the Utah Supreme Court has not required jury unanimity

where the single crime of second-degree murder can be committed in any

of three separate manners, each with a different mens rea. See Matter

of Chairez I, 26 I&N Dec. at 355 (citing State v. Russell, 733 P.2d 162,

164–68 (Utah 1987)). While Utah’s second-degree murder jurisprudence is

not authoritative in this context, it does support a reasonable inference that

Utah courts would not require a unanimous jury verdict with respect to the

particular mental state with which a defendant discharged a firearm under

section 76-10-508.1(1)(a).

This reasonable inference is not refuted by any other source of

authoritative State law or by the respondent’s record of conviction, at which

we have “peek[ed] . . . for ‘the sole and limited purpose of determining

whether [intent, knowledge, and recklessness are] element[s] of the

6

In that case, a conviction under section 76-10-508.1(1)(a) of the Utah Code would

reflect that the accused necessarily discharged the firearm at least recklessly, but nothing

more.

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offense.” Mathis, 136 S. Ct. at 2256; see also 8 C.F.R. § 1003.1(d)(3)(iv)

(2016) (empowering the Board to take administrative notice of the contents

of official documents). The amended information to which the respondent

entered his guilty plea contains no mens rea allegation at all with respect to

the respondent’s discharge of a firearm, much less an allegation of one

particular mental state to the exclusion of all others. Rather, it merely

recapitulates the statutory language of section 76-10-508.1(1). Under the

circumstances, we conclude that the respondent’s removability under

section 237(a)(2)(A)(iii) of the Act has not been proven by clear and

convincing evidence.

In conclusion, although the respondent is removable by virtue of his

conviction for a firearms offense, the evidence does not establish his

removability as an alien convicted of an aggravated felony. For purposes

of cancellation of removal, the respondent has carried his burden of proving

the absence of any disqualifying aggravated felony conviction because

section 76-10-508.1(1) of the Utah Code is overbroad and indivisible

relative to the definition of an aggravated felony crime of violence

under section 101(a)(43)(F) of the Act. 7 We will therefore vacate the

Immigration Judge’s decision in part and remand the record for further

consideration of the respondent’s eligibility for cancellation of removal and

any other relief that may now be available to him. 8

ORDER: The appeal is sustained in part.

FURTHER ORDER: The record is remanded to the Immigration

Judge for further proceedings consistent with the foregoing opinion and for

the entry of a new decision.

7

Because section 76-10-508.1(1) of the Utah Code is overbroad and indivisible relative

to a crime of violence, we have no present occasion to decide whether an applicant for

cancellation of removal can carry his burden of proving the absence of a disqualifying

conviction when the statute of conviction is divisible but the record of conviction is

inconclusive.

8

In September 2015, the Immigration Judge issued a decision denying the respondent’s

application for adjustment of status in the exercise of discretion, and an appeal from that

decision was pending before the Board when the Attorney General ordered us to refer the

matter to her for review. The dismissal of the aggravated felony charge now renders the

respondent eligible to apply for relief that was previously unavailable to him. To avoid

piecemeal review and to ensure that the merits of the respondent’s applications for relief

are examined in light of the most up-to-date information available, we find it appropriate

to remand the record for further consideration of the respondent’s eligibility for relief

from removal. We express no opinion as to whether the respondent merits any such relief.

825