In re Chairez-Castrejon

• Decision Date: 24 July 2014
• Docket Number: Interim Decision #3807
• Citation: 26 I&N Dec. 349
• Parties: Matter of Martin CHAIREZ-Castrejon, Respondent
• Court: U.S. DOJ Board of Immigration Appeals

26 I&N Dec. 349

Matter of Martin CHAIREZ-Castrejon, Respondent

Interim Decision #3807

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

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of violence.Descamps v. United States, 133 S. Ct. 2276(2013), followed.Matter of Lanferman, 25 I&N Dec. 721(BIA2012), withdrawn.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(BIA2010), 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.

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)and237(a)(2)(A)(iii) of the Immigration and Nationality Act,8 U.S.C. §§ 1101(a)(43)(F)and1227(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.SeeLeocal v. Ashcroft, 543 U.S. 1, 9(2004).The phrase"physical force" denotes violent, active force capable of causing pain or injury to another person.SeeMatter of Velasquez, 25 I&N Dec. 278, 281-82(BIA2010)(relying onJohnson 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.SeeMoncrieffe 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).SeeLeocal 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 aperson; 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.SeeUnited 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.SeeDescamps 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.Seeid. 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 ...