BIA Decision Changes Crime of Violence Landscape

The Board of Immigration Appeals issued a game-changing, precedential decision today with its holding in Matter of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016). The Board ruled that for a state offense to qualify as a crime of violence under 18 U.S.C. section 16(a), the state statute must require as an element the use, attempted use, or threatened use of violent physical force. With today’s decision, the BIA overturned a contrary holding from 2002. Matter of Martin, 23 I&N Dec. 491 (2002).

The respondent in Guzman-Polanco is a lawful permanent resident who was convicted of third degree aggravated battery in violation of Article 122 of the Puerto Rico Penal Code. He received a suspended sentence of three years and 1 day.

In proceedings before the Immigration Judge, the IJ held that the respondent was removable because his aggravated battery offense constituted a crime of violence under 18 U.S.C. section 16(a). The Judge analyzed the Puerto Rico statute in question and found the statute divisible because it criminalizes both conduct that qualifies as a crime of violence and conduct that does not. Specifically, the Puerto Rico Statute encompasses emotional and psychological injuries, as well as physical injuries. Based on this divisibility finding, the judge applied the modified categorical approach and ruled that the respondent’s conviction constituted a crime of violence.

On appeal, the respondent argued that the Immigration Judge should have applied the categorical approach to find that he was not convicted of a crime of violence under section 16(a). DHS relied on the BIA holding in Matter of Martin to argue that an assault involving the intentional infliction of physical injury has as an implicit element the use of physical force.

Ultimately, the Board relied on two Supreme Court cases – Johnson v. United States, 559 U.S. 133 (2010) and Leocal v. United States, 543 U.S. 1 (2004) – to reject its holding in Matter of Martin as well as DHS’s arguments. Here, the Board overturned the Immigration Judge’s ruling and held that physical injury to a victim is insufficient to establish the use of force required for section 16(a). The state offense must actually require as an element the use, attempted use, or threatened use of violent force to qualify as a crime of violence aggravated felony for immigration purposes. The Puerto Rico statue in question does not have physical force as an element and is therefore not a categorical crime of violence.

After the Supreme Court’s holding in Johnson v. United States, many wondered whether and when the circuit courts and that BIA would extend the Court’s ruling to the immigration context. That day has finally come with today’s decision overturning conflicting precedent and bringing the BIA in line with the Supreme Court and numerous circuits.