CHAIREZ

Cite as 26 I&N Dec. 349 (BIA 2014) Interim Decision #3807

Matter of Martin CHAIREZ-Castrejon, Respondent

Decided July 24, 2014

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) The categorical approach, which requires a focus on the minimum conduct that has a

realistic probability of being prosecuted under the statute of conviction, is employed to

determine whether the respondent’s conviction for felony discharge of a firearm under

section 76-10-508.1 of the Utah Code is for a crime of violence aggravated felony or a

firearms offense under the Immigration and Nationality Act. Moncrieffe v. Holder,

133 S. Ct. 1678 (2013), followed.

(2) The Department of Homeland Security did not meet its burden of establishing the

respondent’s removability as an alien convicted of an aggravated felony where it did

not show that section 76-10-508.1 of the Utah Code was divisible with respect to the

mens rea necessary to constitute a crime of violence. Descamps v. United States, 133

S. Ct. 2276 (2013), followed. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012),

withdrawn.

(3) Where the respondent did not demonstrate that he or anyone else was successfully

prosecuted for discharging an “antique firearm” under section 76-10-508.1 of the Utah

Code, which contains no exception for “antique firearms” as defined by 18 U.S.C.

§ 921(a)(16) (2012), the statute was not shown to be categorically overbroad

relative to section 237(a)(2)(C) of the Act, 8 U.S.C. § 1227(a)(2)(C) (2012). Matter

of Mendez-Orellana, 25 I&N Dec. 254 (BIA 2010), 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:

In a decision dated September 18, 2013, an Immigration Judge ordered

the respondent removed from the United States. The respondent has

appealed from that decision. The Department of Homeland Security

(“DHS”) opposes the appeal. The appeal will be dismissed in part and

sustained in part, and the record will be remanded to the Immigration Judge.

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I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of Mexico and a lawful

permanent resident of the United States. He was convicted on December 3,

2012, of felony discharge of a firearm in violation of section 76-10-508.1 of

the Utah Code, for which he was sentenced to an indeterminate term of

imprisonment not to exceed 5 years. Based on that conviction, the

Immigration Judge found him removable as an alien convicted of (1) a

“crime of violence” 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 1227(a)(2)(A)(iii) (2012); and (2) a firearms offense

under section 237(a)(2)(C) of the Act. The respondent argues that his

crime is neither an aggravated felony nor a firearms offense for purposes of

determining his removability. We review these legal issues de novo.

8 C.F.R. § 1003.1(d)(3)(ii) (2013).

After the parties completed their initial appellate briefing, we solicited

supplemental briefs from the parties and on May 14, 2014, we held oral

argument to address several specific issues, including whether, or to what

extent, the approach to statutory “divisibility” in Descamps v. United

States, 133 S. Ct. 2276 (2013), applies in these removal proceedings.1

II. ANALYSIS

A. Aggravated Felony

As used in section 237(a)(2)(A)(iii) of the Act, the term “aggravated

felony” is defined to include “a crime of violence (as defined in section 16

of title 18, United States Code, but not including a purely political offense)

for which the term of imprisonment [is] at least one year.” Section

101(a)(43)(F) of the Act. In turn, 18 U.S.C. § 16 (2012) defines a “crime of

violence” as

(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

used in the course of committing the offense.

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

denotes volition. See Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). The phrase

1

We wish to express our gratitude to the parties for their helpful supplemental briefs.

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“physical force” denotes violent, active force capable of causing pain

or injury to another person. See Matter of Velasquez, 25 I&N Dec. 278,

281–82 (BIA 2010) (relying on Johnson v. United States, 559 U.S. 133,

140 (2010)).

To determine whether the respondent’s offense qualifies as an

aggravated felony, we employ the “categorical approach,” which requires

us to focus on the minimum conduct that has a realistic probability of being

prosecuted under section 76-10-508.1 of the Utah Code, rather than on the

facts underlying the respondent’s particular violation of that statute. See

Moncrieffe v. Holder, 133 S. Ct. 1678, 1684–85 (2013). 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.

We conclude that sections 76-10-508.1(1)(b) and (c) of the Utah Code

have as an element the deliberate “use” of violent “physical force” against

the person or property of another, thereby qualifying them as categorical

crimes of violence under 18 U.S.C. § 16(a). See Leocal v. Ashcroft, 543

U.S. at 9; Matter of Velasquez, 25 I&N Dec. at 281–82. Specifically,

sections 76-10-508.1(1)(b) and (c) require the intentional discharge of a

firearm, since they both provide that the firearm must be discharged for a

particular purpose—that is, to intimidate another, to harass another, or to

damage a habitable structure. Cf. Dean v. United States, 556 U.S. 568,

572–73 (2009) (holding that the Federal offense of “brandishing” a firearm

under 18 U.S.C. § 924(c)(4) (2000) requires an intentional act because the

term “brandish” is defined to require that the firearm be displayed for a

specific purpose—“in order to intimidate that person”). Further, the

firearm must be discharged in the direction of a person or property, namely,

a habitable structure or vehicle.

Section 76-10-508.1(1)(a) is substantially different, however. The

second clause of that section requires only that the accused “know[] or

hav[e] reason to believe” that discharge of the firearm may endanger a

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person; it does not require that the firearm be discharged for a particular

purpose. Moreover, the first clause neither specifies a mental state with

which the firearm must be discharged nor clearly expresses a legislative

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).

Because the offense defined by section 76-10-508.1(1)(a) can be proven

by reference to reckless conduct, it is not a crime of violence under

18 U.S.C. § 16(a) because it does not have as an element the deliberate

“use” of violent physical force against the person or property another. See

United States v. Zuniga-Soto, 527 F.3d 1110, 1122–24 (10th Cir. 2008).

The offense also does not define a crime of violence under 18 U.S.C.

§ 16(b). In an ordinary case, a person who “recklessly” discharges a

firearm in the direction of others (for instance, by ignoring a known risk

that the firearm is loaded) certainly disregards a substantial risk that

someone will be hurt, but he does not naturally disregard a substantial risk

that a victim will be hurt by means of the deliberate “use” of violent

physical force. Leocal v. Ashcroft, 543 U.S. at 10 & n.7 (holding that

§ 16(b) “covers offenses that naturally involve a person acting in disregard

of the risk that physical force might be used against another in committing

an offense,” but clarifying that “§ 16(b) plainly does not encompass all

offenses which create a ‘substantial risk’ that injury will result from a

person’s conduct”).

In light of the foregoing, we conclude that the Utah statute is “divisible”

vis-à-vis the aggravated felony definition of a crime of violence because the

offenses defined by sections 76-10-508.1(1)(b) and (c) are categorically

crimes of violence under 18 U.S.C. § 16, while the offense defined by

section 76-10-508.1(1)(a) is not. See Descamps v. United States, 133 S. Ct.

at 2281, 2283 (defining a divisible statute). Thus, the Immigration Judge

properly applied a “modified categorical” inquiry to identify the statutory

provision under which the respondent was convicted. See id. at 2281

(outlining the proper application of the modified categorical approach).

The Immigration Judge also determined that sections 76-10-508.1(1)(a)

and (b) were further divisible into several discrete offenses with distinct

elements because they disjunctively enumerated intent, knowledge, and

recklessness as alternative mental states. He then considered the record of

conviction to determine whether the respondent’s conduct was intentional

or knowing, rather than reckless. This analysis was consistent with our

decision in Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012). We held

there that a statute is divisible whenever its elements “could be satisfied

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either by removable or non-removable conduct,” regardless of whether

they were set forth disjunctively. Id. at 727 (quoting Lanferman v. Bd.

of Immigration Appeals, 576 F.3d 84, 90 (2d Cir. 2009)) (internal quotation

mark omitted). In this case, intentional or knowing conduct could

constitute a crime of violence, while reckless conduct could not.

As the respondent argues, however, this interpretation is not consistent

with the approach to statutory divisibility announced by the Supreme Court

in Descamps v. United States. The Supreme Court explained there that a

criminal statute is divisible, so as to warrant a modified categorical inquiry,

only if (1) it 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. 133 S. Ct.

at 2281, 2283. The Court further explained that for purposes of the

modified categorical approach, an offense’s “elements” are those facts

about the crime which “[t]he Sixth Amendment contemplates that a jury—

not a sentencing court—will find . . . unanimously and beyond a reasonable

doubt.” Id. at 2288 (citing Richardson v. United States, 526 U.S. 813, 817

(1999)).2

The DHS argues in its supplemental brief and at oral argument that the

Board is not bound to follow Descamps in removal proceedings because

that case arises in the criminal context. According to the DHS, we are free

to continue to follow Matter of Lanferman as a reasonable approach to

divisibility under the immigration laws, particularly in the application of

terms under the Act, such as a crime of violence aggravated felony. The

DHS discusses the differences between criminal and immigration

proceedings and argues that Matter of Lanferman is more consistent with

congressional intent as to the immigration consequences for criminal

conduct. While that argument has intuitive appeal, we cannot agree that we

have the flexibility to apply Matter of Lanferman in this case to the extent

that it is inconsistent with our understanding of the Supreme Court’s

approach to divisibility in Descamps.

2

Although Federal criminal defendants have a constitutional right to unanimous jury

verdicts, Andres v. United States, 333 U.S. 740, 748 (1948), no such jury unanimity

requirement applies to the States unless they impose it upon themselves. Johnson

v. Louisiana, 406 U.S. 356, 359–65 (1972). Thus, where a defendant was lawfully

convicted by a nonunanimous jury, we deem the “elements” of the offense to be those

facts about which the jury was required to agree by whatever vote was required to convict

in the pertinent jurisdiction.

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The Federal courts have not accorded deference to our application of

divisibility, particularly given that Descamps itself makes no distinction

between the criminal and immigration contexts and the circuit courts have

held that the approach to statutory divisibility announced there applies in

removal proceedings in the same manner as in criminal sentencing

proceedings. See Rojas v. Att’y Gen. of U.S., 728 F.3d 203, 216 n.12 (3d

Cir. 2013) (en banc); see also Aguilar-Turcios v. Holder, 740 F.3d 1294,

1301–02 (9th Cir. 2014); Donawa v. U.S. Att’y Gen., 735 F.3d 1275, 1280

n.3 (11th Cir. 2013). We therefore conclude that we do not have the

authority to continue to apply our divisibility analysis in Matter of

Lanferman, and we withdraw from that decision to the extent that it is

inconsistent with Descamps.

Since we are not given deference on this issue, going forward we are

also bound to apply divisibility consistently with the individual circuits’

interpretation of divisibility under Descamps. Cf. United States v. Carter,

752 F.3d 8, 17–18 (1st Cir. 2014) (finding that the Maine general purpose

assault statute, which references “intentionally, knowingly, or recklessly

caus[ing] bodily injury or offensive physical contact,” is a divisible statute

under Descamps, so resort to the modified categorical approach is

appropriate); United States v. Marrero, 743 F.3d 389, 395–96 (3d Cir.

2014) (finding that simple assault under Pennsylvania law is a crime of

violence under the U.S. Sentencing Guidelines because it is divisible under

Descamps between intentional or knowing conduct, rather than reckless

conduct). Given that the United States Court of Appeals for the Tenth

Circuit, in whose jurisdiction this case arises, has not applied divisibility

under Descamps in a precedential decision, particularly in the mens rea

context at issue in this case, we will follow our understanding of divisibility

as set forth in Descamps.

Under Descamps, section 76-10-508.1(1)(a) of the Utah Code can be

“divisible” into three separate offenses with distinct mens rea only if Utah

law requires jury unanimity regarding the mental state with which the

accused discharged the firearm. See Utah Const. art. I, § 10 (requiring a

unanimous jury verdict in criminal cases). See generally State v. Saunders,

992 P.2d 951, 966–68 (Utah 1999) (discussing the contours of Utah’s jury

unanimity requirement). If Utah does not require such jury unanimity, then

it follows that intent, knowledge, and recklessness are merely alternative

“means” by which a defendant can discharge a firearm, not alternative

“elements” of the discharge offense. See generally Schad v. Arizona, 501

U.S. 624, 636 (1991) (plurality opinion) (“[L]egislatures frequently

enumerate alternative means of committing a crime without intending to

define separate elements or separate crimes.”); Richardson v. United States,

526 U.S. at 817 (“[A] federal jury need not always decide unanimously

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which of several possible sets of underlying brute facts make up a particular

element, say, which of several possible means the defendant used to

commit an element of the crime.”).

We are not aware of any case directly addressing the issue of jury

unanimity in the context of a prosecution under section 76-10-508.1.

However, in the context of second-degree murder, the Utah Supreme Court

has not required jury unanimity where the single crime can be committed in

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

v. Russell, 733 P.2d 162, 164–68 (Utah 1987) (holding that a Utah jury

need not be unanimous in deciding under which of three statutory sections

the defendant was found guilty as long as the jurors were unanimous that

one or another form of second-degree murder was committed). The lack of

Utah authority expressly requiring jury unanimity with respect to the mens

rea underlying a violation of section 76-10-508.1, coupled with the Utah

Supreme Court’s suggestive determination that such unanimity is not

required in second-degree murder cases, indicates that section 76-10-508.1

may not be divisible into three offenses with distinct mens rea, or at least

that the law is unclear on this point. Because the issue before us involves

removability, an issue on which the DHS bears the burden of proof, and the

DHS has not come forward with any authority to establish the statute’s

divisibility, we conclude that the Immigration Judge was not authorized to

consult the respondent’s conviction record in order to determine which

mental state he possessed.3

In light of the foregoing, we find that the DHS has not established by

clear and convincing evidence that the respondent’s conviction under

section 76-10-508.1 of the Utah Code renders him removable as an alien

convicted of an aggravated felony. See section 240(c)(3)(A) of the Act,

8 U.S.C. § 1229a(c)(3)(A) (2012); 8 C.F.R. § 1240.8(a) (2013). We will

therefore vacate the Immigration Judge’s decision sustaining the aggravated

felony charge.

B. Firearms Offense

Having determined that the respondent is not removable for having been

convicted of an aggravated felony, we must now decide whether his Utah

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

We conclude that it does.

A removal charge under section 237(a)(2)(C) of the Act depends in part

on proof that the respondent was convicted of an offense that involved a

3

Nothing in this order precludes the parties from seeking to introduce supplementary

evidence bearing on the divisibility question on remand.

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“weapon, part, or accessory which is a firearm or destructive device (as

defined in section 921(a) of title 18, United States Code).” According to

the respondent, the definition of a “firearm” in section 76-10-501(10) of

the Utah Code is categorically overbroad because it encompasses some

weapons that are not “firearms” under 18 U.S.C. § 921(a) (2012).

Specifically, the respondent observes that the Federal definition of a

“firearm” excludes “antique firearms,” as defined by 18 U.S.C.

§ 921(a)(16), while section 76-10-508.1 contains no such exclusion. Thus,

the respondent argues that the section 237(a)(2)(C) charge fails because the

DHS has not negated the possibility that his conviction involved the

discharge of an “antique firearm.”

The respondent’s argument is unavailing because he has offered no

support for his contention that section 76-10-508.1 of the Utah Code is

actually used to successfully prosecute individuals who unlawfully

discharge “antique firearms.” See Moncrieffe v. Holder, 133 S. Ct. at 1693

(explaining that an alien who invokes this “antique firearm” argument in

order to defeat an aggravated felony charge “would have to demonstrate

that the State actually prosecutes the relevant offense in cases involving

antique firearms”). As the Supreme Court has stated,

[T]o find that a state statute creates a crime outside the generic definition of a listed

crime in a federal statute requires more than the application of legal imagination to a

state statute’s language. It requires a realistic probability, not a theoretical possibility,

that the State would apply its statute to conduct that falls outside the generic

definition of a crime. To show that realistic probability, an offender, of course, may

show that the statute was so applied in his own case. But he must at least point to his

own case or other cases in which the state courts in fact did apply the statute in the

special (nongeneric) manner for which he argues.

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Moncrieffe

v. Holder, 133 S. Ct. at 1684–85, 1693.

In Matter of Mendez-Orellana, 25 I&N Dec. 254, 255–56 (BIA 2010),

we held that the status of a firearm as an “antique” is an affirmative defense

to a removal charge under section 237(a)(2)(C) of the Act with respect to

which the respondent bears the burden of proof, rather than a fact that the

DHS must disprove under the categorical approach. In light of Moncrieffe,

we clarify that a State firearms statute that contains no exception

for “antique firearms” is categorically overbroad relative to section

237(a)(2)(C) of the Act only if the alien demonstrates that the State statute

has, in fact, been successfully applied to prosecute offenses involving

antique firearms. The alien may carry that burden by proving that the

statute was so applied in his own case, but Moncrieffe makes clear that the

burden may also be satisfied by a showing that the statute has been so

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applied to others. Our holding in Matter of Mendez-Orellana is clarified

accordingly.

The respondent has not demonstrated that he was prosecuted for

discharging an “antique firearm,” nor has he identified any Utah decision

reflecting that anyone else has ever been so prosecuted. Thus, we discern

no “realistic probability” that section 76-10-508.1 would be applied in that

manner.

The respondent argues that the Moncrieffe Court’s discussion of

“antique firearms” in reference to the “realistic probability” test was dicta

and that it has been superseded by Descamps in any case. We find those

arguments unpersuasive. Although Moncrieffe was not a firearms case,

application of the “realistic probability” test was central to the Court’s

holding, and its discussion of the “antique firearm” issue—which was

offered in response to a specific governmental objection—was meant to

illustrate how the Court understood that test to apply in actual practice.

Accordingly, that discussion is entitled to great weight.

Further, under Moncrieffe and Duenas-Alvarez, the “realistic

probability” requirement is not a component of, or adjunct to, the modified

categorical approach discussed in Descamps. Rather, it is a distinct

threshold inquiry that the Court employs to identify the actual “minimum

conduct” criminalized by a statute. Moncrieffe v. Holder, 133 S. Ct. at

1684–85 (clarifying that the focus of the categorical approach “on the

minimum conduct criminalized by the state statute is not an invitation to

apply ‘legal imagination’ to the state offense; there must be ‘a realistic

probability, not a theoretical possibility, that the State would apply its

statute to conduct that falls outside the generic definition of a crime.’”

(quoting Gonzales v. Duenas-Alvarez, 549 U.S. at 193)). Thus, the

discussion of divisibility in Descamps leaves the Moncrieffe Court’s

discussion of the “realistic probability” test undisturbed.

But even if the “realistic probability” test described in Moncrieffe could

be viewed as a component of the modified categorical approach, we would

not interpret Descamps as having overruled or superseded it sub silentio.

See Agostini v. Felton, 521 U.S. 203, 237 (1997) (holding that “[i]f a

precedent of this Court has direct application in a case, yet appears to rest

on reasons rejected in some other line of decisions, the [lower court] should

follow the case which directly controls, leaving to this Court the

prerogative of overruling its own decisions” (quoting Rodriguez de Quijas

v. Shearson/American Exp., Inc., 490 U.S. 477, 484 (1989) (internal

quotation marks omitted)).

The respondent also contends that no “legal imagination” is required to

conclude that section 76-10-508.1 of the Utah Code reaches the discharge

of “antique firearms” because Utah law defines the term “firearm” to

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include some Federal “antiques” and has not specifically excluded such

weapons from the scope of that statute, even though such specific “antique

firearm” exclusions do appear in other Utah statutes. We disagree.

Under Supreme Court law, the relevant question is how the prosecuting

authority “would apply its statute” in actual practice. Moncrieffe v. Holder,

133 S. Ct. at 1685; Gonzales v. Duenas-Alvarez, 549 U.S. at 193. The fact

that the statute’s language does not forbid a broader construction is not

determinative. The respondent has identified no Utah case in which a

defendant was successfully prosecuted under section 76-10-508.1 for

discharging an antique firearm, so the prospect of section 76-10-508.1

being applied to such offenses is nothing more than a “theoretical

possibility.” Such a theoretical possibility does not prevent the crime from

qualifying as a categorical firearms offense under section 237(a)(2)(C) of

the Act.4 Consequently, we conclude that the Immigration Judge properly

sustained the firearms offense charge against the respondent.

C. Relief From Removal

During the proceedings below, the respondent applied for cancellation

of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a) (2012).

The Immigration Judge pretermitted that application, presumably because

he believed the respondent’s conviction was for a disqualifying aggravated

felony. However, the record does not establish that the respondent was

convicted of an aggravated felony. We will therefore remand for the

Immigration Judge to consider whether the respondent is statutorily eligible

for cancellation of removal, and if so, whether he merits a grant of relief in

the exercise of discretion. See 8 C.F.R. § 1240.8(d).

The respondent also requested that the Immigration Judge continue the

proceedings to await adjudication of a pending visa petition, which, if

approved, may make him eligible to apply for adjustment of status under

section 245 of the Act, 8 U.S.C. § 1255 (2012). The respondent maintains

that the denial of that continuance request was erroneous in light of Matter

of Hashmi, 24 I&N Dec. 785 (BIA 2009). Because we are remanding this

case for the Immigration Judge to consider the respondent’s application for

4

Compare United States v. Aguilera-Rios, No. 12-50597, 2014 WL 2723766, at *9 (9th

Cir. June 17, 2014), where the court found that the realistic probability test was met

because California prosecuted conduct involving antique firearms under its firearms

statute. Aguilera-Rios supports our conclusion that Moncrieffe was not implicitly

overruled or undermined by Descamps and that the realistic probability test applies

notwithstanding that a State statute like section 76-10-508.1 of the Utah Code does not,

on its face, exclude coverage of antique firearms.

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cancellation of removal under section 240A(a) of the Act, we need not

address the continuance argument at any length. If the respondent requests

a further continuance on remand, however, the Immigration Judge should

adjudicate that request in accordance with the factors outlined in Matter

of Hashmi.

III. CONCLUSION

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

for a firearms offense under section 237(a)(2)(C) of the Act, but he is not

removable as an alien convicted of an aggravated felony pursuant to section

237(a)(2)(A)(iii). Accordingly, the record will be remanded to permit the

respondent to apply for any form of relief for which he is eligible. 8 C.F.R.

§ 1240.11(a)(2) (2013).

ORDER: The respondent’s appeal is sustained in part and dismissed

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.

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