CHAIREZ

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478
Matter of Martin CHAIREZ-Castrejon, Respondent
Decided February 11, 2015
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) With respect to aggravated felony convictions, Immigration Judges must follow the
law of the circuit court of appeals in whose jurisdiction they sit in evaluating issues of
divisibility, so the interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013),
reflected in Matter of Chairez, 26 I&N Dec. 349 (BIA 2014), applies only insofar as
there is no controlling authority to the contrary in the relevant circuit.
(2) Because the United States Court of Appeals for the Tenth Circuit has taken an
approach to divisibility different from that adopted in Matter of Chairez, the law of the
Tenth Circuit must be followed in that circuit.
FOR RESPONDENT: Skyler Anderson, Esquire, Taylorsville, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY: Donald W. Cassidy,
Associate Legal Advisor
BEFORE: Board Panel: PAULEY, GREER, and MALPHRUS, Board Members.
PAULEY, Board Member:
The Department of Homeland Security (“DHS”) moves for partial
reconsideration of Matter of Chairez, 26 I&N Dec. 349 (BIA 2014). The
respondent opposes the motion. The motion will be granted in part, Matter
of Chairez will be vacated in part, and the record will be remanded to the
Immigration Judge.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Mexico and a lawful permanent
resident of the United States, was convicted in 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 the
respondent removable from the United States 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

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under section 237(a)(2)(C) of the Act. The respondent appealed that
decision to the Board.
On July 24, 2014, after hearing oral argument and receiving
supplemental briefs from the parties, we sustained the respondent’s appeal
in part, dismissed it in part, and remanded the record to the Immigration
Judge for consideration of the respondent’s eligibility for relief from
removal. More precisely, we held that the DHS had not carried its burden
of proving the aggravated felony charge by clear and convincing evidence
but had met its burden of proof on the firearms offense charge.
On August 25, 2014, the DHS filed a motion requesting that we
reconsider the portion of Matter of Chairez in which we found that the
DHS had not carried its burden of proving the respondent’s removability on
the aggravated felony charge. In the wake of that initial filing, the DHS has
also submitted several supplemental pleadings in which it identifies
emergent legal authority bearing on the issues raised in the motion.
II. ANALYSIS
To qualify as an aggravated felony under section 101(a)(43)(F) of the
Act, an offense must be a “crime of violence” within the meaning of
18 U.S.C. § 16 (2012). That is, it must be an offense that either has the
“use” of violent “physical force” as an “element” or is a felony that, by its
nature, presents a substantial risk that violent physical force will be used
against another in the course of its commission.
Relying on his understanding of Descamps v. United States, 133 S. Ct.
2276 (2013), the Immigration Judge found that section 76-10-508.1(1)(a) of
the Utah Code is “divisible” vis-à-vis this “crime of violence” definition
because it encompasses not just the offenses of “intentional” and
“knowing” discharge of a firearm, which are categorical crimes of violence,
but also the “reckless” discharge of a firearm, which is not a crime of
violence under the reasoning embodied in United States v. Zuniga-Soto,
527 F.3d 1110, 1122−24 (10th Cir. 2008). 1 See also United States
v. Castleman, 134 S. Ct. 1405, 1414 n.8 (2014) (observing that “the Courts
of Appeals have almost uniformly held that recklessness is not sufficient”
to satisfy the “use” of physical force requirement of 18 U.S.C. § 16) (listing
cases). Accordingly, the Immigration Judge reviewed the respondent’s
1 A person violates section 76-10-508.1(1)(a) of the Utah Code when he “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.” According to
section 76-2-102 of the Utah Code, “intent, knowledge, or recklessness shall suffice to
establish criminal responsibility.”

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conviction record under the modified categorical approach and determined
that the elements of the respondent’s particular offense of conviction
involved the “knowing” discharge of a firearm. He therefore concluded
that the respondent was convicted of a crime of violence aggravated felony
and was removable on that ground.
A. Matter of Chairez
In Matter of Chairez, we held that the approach to divisibility employed
in Descamps is applicable in removal proceedings with regard to the
aggravated felony ground of removability charged in this case; we also
found that section 76-10-508.1 of the Utah Code is a divisible statute
relative to the crime of violence definition. Matter of Chairez, 26 I&N
Dec. at 352−54. Unlike the Immigration Judge, however, we concluded
that the disjunctive phrasing of the statute’s mental state component—
providing that the offense could be committed intentionally, knowingly, or
recklessly—was not sufficient to establish that the crime was divisible into
three separate offenses. Our conclusion was based on the following
interpretation of the approach to divisibility announced in Descamps:
[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.
Matter of Chairez, 26 I&N Dec. at 353 (citing Descamps v. United States,
133 S. Ct. at 2281, 2283). Moreover, by the term “element,” we
understood the Descamps Court to mean “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 v. United States, 133 S. Ct. at 2288 (citing Richardson v. United
States, 526 U.S. 813, 817 (1999))).2
Based on this reading of Descamps, we concluded that section
76-10-508.1(1)(a) of the Utah Code, which does not define a categorical
crime of violence because it encompasses some “reckless” conduct, “can be
‘divisible’ into three separate offenses with distinct mens rea only if Utah
2 As we noted in Chairez, Federal criminal defendants have a constitutional right to
unanimous jury verdicts. However, this requirement does not extend to the States unless
they choose to impose it, and not all States do. Matter of Chairez, 26 I&N Dec. at 353
n.2.

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law requires jury unanimity regarding the mental state with which the
accused discharged the firearm.” Matter of Chairez, 26 I&N Dec. at 354.
Upon examining Utah law, we further concluded that the DHS had not
demonstrated that intent, knowledge, and recklessness were alternative
“elements” of the offense defined by section 76-10-508.1(1)(a) within the
meaning of Descamps. Instead, we determined that it was at least as likely
that intent, knowledge, and recklessness were simply alternative “means”
by which the statute’s mens rea element could be satisfied. Id. at 354−55
(citing Richardson v. United States, 526 U.S. at 817 (discussing the
distinction between alternative “elements” and alternative “means”), and
Schad v. Arizona, 501 U.S. 624, 636 (1991) (plurality opinion) (same)).
Accordingly, we held that the modified categorical approach was
inapplicable and that the DHS had not established the aggravated felony
charge of removability.
B. Motion to Reconsider
In its motion to reconsider, the DHS maintains that we misinterpreted
Descamps by treating statutory divisibility as a “threshold” requirement,
which must be established prior to use of the modified categorical
approach. Relying on footnote 2 of the Descamps majority opinion and the
September 2014 decision of the United States Court of Appeals for the
Tenth Circuit in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014), the
DHS contends that Descamps permits a modified categorical inquiry
whenever the language of the statute of conviction lists alternative statutory
phrases, some of which define conduct that would trigger an immigration
consequence and some of which do not.
“A motion to reconsider is a ‘request that the Board reexamine
its decision in light of additional legal arguments, a change of law, or
perhaps an argument or aspect of the case which was overlooked.’” Matter
of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) (citations omitted). The
arguments submitted in support of the DHS’s motion constitute a proper
request for reconsideration under these standards. We will therefore
address the motion on the merits.
As we explained in our prior decision, the application of the categorical
and modified categorical approaches is not a matter upon which we receive
deference from the courts of appeals. Instead, we defer to circuit law and
“going forward we are . . . bound to apply divisibility consistently with the
individual circuits’ interpretation of divisibility under Descamps.” Matter
of Chairez, 26 I&N Dec. at 354. In other words, our interpretation of
Descamps is to be followed only by those Immigration Judges who sit
within the jurisdiction of a court of appeals that has not yet explained how

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it understands divisibility to operate after Descamps. When the court does
explain its interpretation in a precedent decision—in sentencing cases, if
not in immigration cases—then that circuit’s law should be followed.
In its motion to reconsider, the DHS argues that in cases arising in the
Tenth Circuit, the approach to divisibility we adopted in Chairez has been
superseded by the broader approach taken in United States v. Trent, 767
F.3d 1046. We agree and conclude that we must revisit the divisibility
question in this case.
In Trent, the Tenth Circuit acknowledged that a statute is divisible
under Descamps only if it is broken down into “alternative elements” or
“potential offense elements,” but it concluded that the Descamps Court did
not understand the term “element” to mean only those facts about a crime
that must be proved to a jury unanimously and beyond a reasonable doubt.
United States v. Trent, 767 F.3d at 1058−61. Instead, the Trent court
concluded that a statute is divisible within the meaning of Descamps
whenever it employs “alternative statutory phrases.” Id. at 1060−61 (citing
Descamps v. United States, 133 S. Ct. at 2285 n.2).
Applying Descamps consistently with Trent, we conclude that the
offense defined by section 76-10-508.1(1)(a) of the Utah Code is divisible
into three separate offenses with distinct mens rea, namely, intent,
knowledge, and recklessness. And while the reckless discharge of a firearm
is not a crime of violence under United States v. Zuniga-Soto, 527 F.3d at
1124, we conclude that the offense is a crime of violence under 18 U.S.C.
§ 16 when committed intentionally or knowingly.
To be precise, one who intentionally or knowingly 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,
has necessarily committed an offense that has the deliberate use or
threatened use of violent physical force against the person or property
of another as an element within the meaning of 18 U.S.C. § 16(a).
See United States v. Ramon Silva, 608 F.3d 663, 669−74 (10th Cir. 2010)
(holding that “apprehension causing” aggravated assault under New
Mexico law, “which requires proof that a defendant purposefully threatened
or engaged in menacing conduct toward a victim, with a weapon ‘capable
of producing death or great bodily harm,’” has the threatened use of violent
physical force against the person of another as an element within
the meaning of 18 U.S.C. § 924(e)(2)(B)(i) (2006)); United States
v. Hernandez, 568 F.3d 827, 830−31 (10th Cir. 2009) (holding that
knowingly discharging a firearm at or in the direction of one or more
individuals in violation of Texas law has the threatened use of violent
physical force against the person of another as an element within the
meaning of 18 U.S.C. § 924(e)(2)(B)(i)).

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Likewise, a person who intentionally or knowingly discharges a firearm
in the direction of another human being necessarily disregards the
substantial risk that he will use violent physical force against the other
person within the meaning of 18 U.S.C. § 16(b). See Quezada-Luna
v. Gonzales, 439 F.3d 403, 406 (7th Cir. 2006) (holding that the Illinois
offense of aggravated discharge of a firearm, which is committed whenever
a person knowingly or intentionally “[d]ischarges a firearm at or into a
building he or she knows or reasonably should know to be occupied,” is a
crime of violence under both 18 U.S.C. § 16(a) and § 16(b)).
Since section 76-10-508.1(1)(a) of the Utah Code is a divisible statute
within the meaning of Tenth Circuit law, it was proper for the Immigration
Judge to employ the modified categorical approach in order to ascertain
which mental state the respondent was convicted of possessing. The
respondent’s signed plea agreement is admissible for purposes of the
modified categorical analysis, United States v. Zuniga-Soto, 527 F.3d at
1119−20 (citing Shepard v. United States, 544 U.S. 13, 26 (2005)), and it
contains a clear stipulation that he “knowingly discharged a firearm in the
direction of any person.” That stipulation formed the factual basis for the
respondent’s no contest plea and establishes that he was convicted of a
categorical crime of violence—that is, knowingly discharging 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.
Moreover, since the respondent was sentenced to a term of imprisonment of
at least 1 year as a result of that conviction, the offense qualifies as an
aggravated felony under section 101(a)(43)(F) of the Act. We therefore
agree with the Immigration Judge that the respondent is removable from the
United States under section 237(a)(2)(A)(iii), and we vacate the part of our
prior decision in Matter of Chairez that is to the contrary.3
3 The DHS encourages us to reconsider the interpretation of Descamps embodied in our
original decision in this case. As discussed in Matter of Chairez, we adopted a different
approach to divisibility for immigration purposes under our precedent decision in Matter
of Lanferman, 25 I&N Dec. 721 (BIA 2012). However, because we are not granted
deference on this issue, our reading of Descamps led to the analysis in Chairez that we
believe we are constrained to follow. Accordingly, Immigration Judges should continue
to follow the interpretation of divisibility under Chairez absent applicable circuit court
authority to the contrary. Since Descamps was issued, circuit courts have taken
essentially two approaches to divisibility. Compare Omargharib v. Holder, No.13-2229,
2014 WL 7272786, at *4 (4th Cir. Dec. 23, 2014), Rendon v. Holder, 764 F.3d 1077,
1084−88 (9th Cir. 2014), and United States v. Estrella, 758 F.3d 1239, 1245−48
(11th Cir. 2014), with United States v. Trent, 767 F.3d at 1058−61, United States
v. Carter, 752 F.3d 8, 17−18 (1st Cir. 2014), and United States v. Marrero, 743 F.3d 389,
395−97 (3d Cir. 2014). But see Coronado v. Holder, 759 F.3d 977 (9th Cir. 2014).

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In our previous decision, we remanded for the Immigration Judge to
further consider the respondent’s eligibility for relief from removal. We
will again remand the record for that purpose.
III. CONCLUSION
In conclusion, the DHS’s motion to reconsider is granted in part.
Applying Tenth Circuit standards, we concur with the Immigration Judge’s
determination that the respondent is removable as an alien convicted of an
aggravated felony and will vacate the part of our decision that is to the
contrary.4 Accordingly, the respondent’s appeal will be dismissed in part.
Furthermore, the record will be remanded for consideration of the
respondent’s eligibility for relief from removal.
ORDER: The Department of Homeland Security’s motion to
reconsider is granted in part, and Matter of Chairez, 26 I&N Dec. 349
(BIA 2014), is vacated in part.
FURTHER ORDER: The respondent’s appeal is 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.
4 Moreover, for the reasons stated in our prior decision, we reaffirm that the respondent
is also removable as an alien convicted of a firearms offense under section 237(a)(2)(C)
of the Act.