BIA: Important development in categorical approach analysis & firearms offense

The BIA issued an important opinion detailing the latest turn in the categorical approach analysis. Specifically addressing the crime of violence type of aggravated felony and the firearms offense basis of removal, Matter of Chairez, 26 I&N Dec. 349 (BIA 2014) (Pauley, Malphrus, and Greer, Board Members), promises to affect crimmigration law analyses across the board. Board member Pauley wrote the panel’s opinion.

This case involved an LPR convicted of violating Utah’s felony discharge of a firearm offense, Utah Code § 76-10-508.1. DHS successfully argued before an immigration judge that Chairez’s conviction constitutes a crime of violence, INA § 101(a)(43)(F), and firearms offense, INA § 237(a)(2)(C). Chairez disputed those conclusions. With regard to the crime of violence finding he argued that the IJ incorrectly applied the categorical approach and should not have concluded that this was a divisible statute allowing consideration of the record of conviction. The BIA agreed with much of Chairez’s argument on this point. He also claimed that the Utah offense is broader than the federal definition of a firearms offense, but the BIA disagreed with him.

The categorical approach guides determinations of whether a particular conviction constitutes a removable offense. In a long series of cases, the Supreme Court has repeatedly emphasized that courts are to use the categorical approach to determine whether an offense which a migrant was convicted of violating is equivalent to the crime that Congress had in mind when it added a particular provision to the INA. In a major recent case concerning the categorical approach’s role in sentencing enhancements under the Armed Career Criminal Act, the Supreme Court explained that the categorical approach requires courts to “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, 133 S. Ct. 2276, 2281 (2013). This analysis is necessary because the vast majority of people convicted of a crime in the United States are convicted of a state offense and every state defines crimes differently, even when they have the same or similar name. In other words, all assaults aren’t created the same.

This is complicated enough when it’s clear what a migrant was convicted of. Often, however, a single criminal offense can be violated through multiple routes making this what is called a “divisible” statute. “That kind of statute,” the Court explained in Descamps, “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.” Id.

The key question in Chairez’s case is whether the IJ was correct to use the modified categorical approach. If DHS, which bears the burden of proving removability when a migrant has already been admitted into the United States, can show that the offense is divisible, then the modified categorical approach is appropriate. If DHS doesn’t carry this burden, the modified categorical approach can’t be used.

Analyzing the statutory text of Utah’s felony discharge of a firearm crime, the Board first noted that it has three subsections. Subsections (b) and (c), it had no difficulty concluding, are categorically crimes of violence because they “have as an element the deliberate ‘use’ of violent ‘physical force’ against the person or property of another,” specifically “the intentional discharge of a firearm.” Matter of Chairez, 26 I&N Dec. at 351.

Subsection (a), however, is “substantially different.” Id. It does not specify a particular mental state required for conviction, thus, under Utah’s general criminal law, a defendant can be convicted if she engaged in the requisite firearms discharge with “intent, knowledge, or recklessness.” Id. at 352 (quoting Utah Code § 76-2-102). Like many other circuits, the Tenth Circuit, in which this case arose, has previously held that reckless conduct can not rise to the level of deliberate use of violent physical force required to be a crime of violence. Id. (citing United States v. Zuniga-Soto, 527 F.3d 1110, 1122-24 (10th Cir. 2008)). Subsection (a), as such, is not categorically a crime of violence.

Because (a) is not categorically a crime of violence, but subsections (b) and (c) are categorically crimes of violence, the Board concluded that the Utah offense is divisible. As such, it was appropriate for the IJ to have turned to the modified categorical approach.

Where the IJ went wrong, though, was in further parsing (a). Because a conviction under (a) can result from conduct that is not a crime of violence (recklessness) or conduct that is a crime of violence (intentional or knowing conduct), the IJ concluded that (a) was itself divisible thus he “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).” The IJ may have been correct to follow the BIA, but the BIA, it was now forced to acknowledge as it overturned Lanferman, was trumped by the Supreme Court’s decision in Descamps.

The Board then launched into a remarkably clear multiple step explanation of when the modified categorical approach is called for. According to the Board’s reading of Descamps, the modified categorical approach is appropriate “only if (1) it [the criminal statute] 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.” Matter of Chairez, 26 I&N Dec. at 353.

Good enough, but how do know what is an element? For example, is the specific mental state required for a conviction under Utah’s felony discharge of a firearm crime an element? To answer this question, the Board explained that “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. (quoting Descamps, 133 S. Ct. at 2288). If jury unanimity isn’t required, “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.” Matter of Chairez, 26 I&N Dec. at 354

This isn’t merely a fanciful intellectual exercise. It has concrete consequences, as it did in Chairez’s case. A statute with alternative elements can essentially be thought of as different crimes (intentionally firing a firearm while committing a felony, knowingly firing a firearm while committing a felony, and recklessly firing a firearm while committing a felony). A statute with alternative means of commission is a single, indivisible offense that can be committed in three different ways (by firing a firearm while committing a felony with any one of three mental states). The modified categorical approach, therefore, is appropriate for crimes that have alternative elements but not alternative means. And if one of the alternative means of committing a crime is clearly not going to lead to removal, then the statute can’t be said to be a removal statute.

That’s exactly what happened here. The Board concluded that Utah law, though unclear, suggests that the mental state requirement is not subject to jury unanimity, thus it is an alternative means rather than an alternative element. Since that’s the case, it was incorrect for the IJ to use the modified categorical approach to determine how Chairez committed the crime. Instead, the IJ should have concluded that DHS failed to meet its burden of showing that the Utah offense was divisible.

The Board then turned to Chairez’s claim that the Utah offense does not fall within the firearms offense basis of removal. Basically, he argued that the Utah statute is broader than the federal definition of a firearms offense as used for immigration law purposes because the Utah statute does not include an exception for antique firearms like the federal definition does. The Board rejected this argument because, it concluded, Chairez did not show that there is a realistic probability that Utah would actually prosecute cases under its statute that fall within the INA’s antique firearms exception. Id. at 356.

In an important clarification of the firearms basis of removal, the Board explained that it is the migrant’s burden to show that a state statute, like Utah’s, that lacks an antique firearms exception is broad enough to capture offenses that would fall into the INA’s antique firearms exception. Id. This strikes me as an odd and problematic conclusion because the INA clearly places the burden on DHS to show that an admitted migrant is removable, but the BIA didn’t have to address this since it had previously held that the antique firearms exception is an affirmative defense. Id. (discussing Matter of Mendez-Orellana, 25 I&N Dec. 254, 255-56 (BIA 2010)). Chairez failed to do so, thus the Board concluded that the IJ correctly determined that this was a firearms offense for immigration law purposes.