By Susan Schreiber
Last year, the Supreme Court decided two cases impacting significantly on the assessment of the immigration consequences of criminal offenses. First, in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013), the Court held that a Georgia marijuana possession with intent to distribute offense was not an aggravated felony when the statute of conviction covered some conduct (social sharing of marijuana) that fell outside the definition of a drug trafficking aggravated felony offense. In making this decision, the Court employed the traditional "categorical approach" to assess crime-based immigration consequences, which involves comparing the elements of the statute of conviction to the "generic" federal definition of the offense. Under this approach, the underlying facts of the offense are not relevant; the analysis focuses on whether the statute of conviction covers only conduct that falls within the corresponding federal definition.
A few months later, in Descamps v U.S., 133 S.Ct. 2276 (2013), the Supreme Court held that unless a statute is divisible, the adjudicator must use the categorical approach and may not go beyond the language of the statute of conviction to determine if it falls within the federal definition of the offense. Descamps also clarified that a statute is divisible only when the elements of the offense are set out in the alternative in the statutory text. As formulated in the Descamps decision, an element of a crime is a fact that must be proven by jury unanimity and beyond a reasonable doubt. Where jury unanimity is not required on which "alternative means" were used to commit an offense, the statute is not divisible and the adjudicator may not consult the record of conviction.
The Board of Immigration Appeals has finally issued a precedent decision applying the Moncrieffe and Descamps analyses to assess when a conviction falls within a crime-based removal ground. In Matter of Chairez-Castrejon, 26 I&N Dec. 349 (BIA 2014), decided on July 24, 2014, the Board relied on these two Supreme Court decisions to determine that a lawful permanent resident convicted of a Utah felony discharge of a firearm statute was not deportable for an aggravated felony crime of violence but was deportable for a firearms offense. In reaching this decision, the Board made the following conclusions.
First, under Moncrieffe, the categorical approach requires a focus on the minimum conduct that has a reasonable probability of being prosecuted under the statute of conviction to determine if it is a match with the federal definition of the ground of removal. Since the Utah statute in question can be violated by conduct that involves recklessness, it is not categorically a crime of violence under 18 USC § 16(a) or (b) because reckless conduct would not involve the deliberate use of violent force or the disregard of a substantial risk of the deliberate use of violent force.
Second, under Descamps, a statute is divisible only (a) if it lists multiple discrete offenses set out in the alternative, and (b) at least one, but not all, of the listed alternatives is a categorical match with the federal definition. Relying on Descamps, the Board found that the immigration judge could not look beyond the language of the statute to determine whether the offense was committed with intentional, knowing or reckless state of mind unless DHS, with the burden of proof, could show that Utah law requires jury unanimity regarding the required mens rea for conviction. As the Board noted, if Utah law does not require 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." Since DHS did not provide evidence of the statute's divisibility in this regard, the Board found that the immigration judge could not consult the respondent's conviction record to determine which mental state he possessed. The Board also withdrew from its broader divisibility analysis in Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012), under which a statute was considered divisible, regardless of its structure, whenever its elements could be satisfied either by removable or non-removable conduct.
Third, under Moncrieffe, a state firearms statute that contains no exception for "antique firearms" is categorically overbroad with respect to deportability under INA § 237(a)(2)(C) only if the respondent demonstrates that the state statute has, in fact, been successfully applied to prosecute antique firearms offenses. In the Board's view, the "reasonable probability" language of Moncrieffe required the respondent to establish that either he was prosecuted for discharging an antique firearm or that someone else was so prosecuted, and in the absence of such proof, the statute of conviction would not be found overbroad. The Board noted that it was clarifying its prior holding on this issue in Matter of Mendez-Orellana, 25 I&N 254 (BIA 2010), where the Board had only referenced defeating the firearms ground of deportability where the respondent shows that he personally was prosecuted for an antique firearms offense.