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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Review Board of Immigration Appeals Office ofthe Clerk Appelbaum, Adina CAIR Coalition 1612 K Street NW,

Appelbaum, Adina CAIR Coalition 1612 K Street NW, Suite 204 Washington, DC 20006

Name: LAMBERT, JUAN PADILLA

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 220./J

DHS/ICE Office of Chief Counsel - WAS 1901 S. Bell Street, Suite 900 Arlington, VA 22202

A 055-860-485

Date of this notice: 8/23/2016

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

DonrtL C{1/\A)

Enclosure

Panel Members:

Pauley, Roger Cole, Patricia A. Wendtland, Linda S.

Donna Carr

Chief Clerk

Patricia A. Wendtland, Linda S. Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions,

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)

BIA decisions, visit www.irac.net/unpublished/index/ Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)
U.S t Department of Justice Executive Office for Immigration Review Decision of the Board of

U.S t Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Executive Office for Immigration Review Decision of the Board of Immigration Appeals Falls Church, Virginia 22041

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File:

A055 860 485 - Arlington, VA

In re: JUAN PADILLA LAMBERT

IN REMOVAL PROCEEDINGS

Date:

APPEAL

ON BEHALF OF RESPONDENT:

Adina B. Appelbaum, Esquire

ON BEHALF OF DHS:

Ian N. Gallagher Assistant Chief Counsel

AUG 2 3 2016

CHARGE:

g h e r Assistant Chief Counsel AUG 2 3 2016 CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N

Notice:

Sec.

237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony

APPLICATION:

Termination

The Department of Homeland Security ("DHS") appeals from an Immigration Judge's December 18, 2015, decision terminating removal proceedings against the respondent. The respondent opposes the appeal. The record will be remanded.

In 2014, the respondent-a native and citizen of Honduras and a lawful permanent resident of the United States-was convicted of attempted unlawful wounding in. violation of sections 18.2-26 and 18.2-51 of the Virginia Code, a felony for which he was sentenced to a 2-year term of imprisonment. The only issue on appeal is whether that conviction renders the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii), as an alien convicted of an "aggravated felony"-to wit, an "attempt" to commit a "crime of violence" under 18 U.S.C. § 16. See sections I01(a)(43)(F) and 101(a)(43)(U) of the Act, 8 U.S.C. §§ 110l(a)(43)(F), (U).

The Immigration Judge found that the aforementioned conviction does not support the aggravated felony charge because the DHS failed to prove that Va. Code § 18.2-51 defines a crime of violence under 18 U.S.C. § 16, which states:

The term 'crime of violence' means-

(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.

Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net A055 860 485 Specifically, the Immigration Judge

A055 860 485

Specifically,

the Immigration

Judge

found

that

Va. Code

§

18.2-51 does

not

satisfy the

requirements

of 18 U.S.C.

§§ 16(a)

and 16(b)

because it

is

possible for a defendant to be

convicted based on poisoning, neglect,

physical force as an element nor presents a substantial risk that such force will be used (I.J. at

3-5).

or other conduct which neither has the use of violent

The OHS appeals.

Upon de novo review, we conclude that unlawful wounding under Va Code§ 18.2-51 is not

a crime of violence under

attempted

another. As the Immigration Judge determined

appeal (R. Brief at 18-19), defendants have been convicted of unlawful wounding in Virginia based on acts of poisoning and child neglect, neither of which entails violent physical force as

contemplated by 18 U.S.C.§ 16(a).

& n.7 (BIA 2016) (holding that battery under Puerto Rico law-which requires proof that the

accused inflicted bodily injury on the victim-does not have the use of violent physical force as

an element where the requisite injury can be inflicted by means of poison).

maintains on appeal that poisoning and similar conduct entail the violent use of force by indirect

means, the United States Court of Appeals for the Fourth Circuit-in whose jurisdiction this case arises-has determined in analogous circumstances that poisoning does not involve the use of

violent physical force.

(holding that the California offense of willfully threatening to commit a crime that would result

in death or great bodily injury does not have the threatened use of violent physical force as an

18 U.S.C. §

use

16(a) because it does not have as an element the use,

force against the person

or property

of

at 4),

and as the respondent explains on

use, or threatened

of violent physical

(I.J.

See Matter ofGuzman-Polanco, 26 l&N Dec. 713, 717-18

1

Though the DHS

See United States v. Torres-Miguel, 701 F.3d 165, 168-69 (4th Cir. 2012)

element

poison another).

Accordingly, we will dismiss the DHS's appeal as it relates to the applicability of 18 U.S.C.

§ 16(a).

where

the offense

can

be committed

by means

of

a

threat to

Although we conclude that unlawful wounding under Va. Code§ 18.2-51

is not a crime of

violence under

18 U.S.C.

§ 16(a),

the record will be remanded because we conclude that the

decided, and

argues-by reference to the Supreme Court's decision in United States v. Castleman, 134 S. Ct.

use of violent

physical force as an element under 18 U.S.C.§ 16(a).

Castleman is distinguishable because it involved 18 U.S.C.§ 92l{a)(33)(A)(ii), which employs

the phrase "use of physical force" in a non-violent, common-law sense that is very different from

Indeed, the Castleman Court

the OHS-that the

See United States [bodily injury]

United States,

But whether or not that is so-a question we do not decide-these

(citation

559 U.S.

necessitate[s]

v. Castleman, supra,

infliction of physical injury necessarily contemplates the use of physical force.

expressly refrained from

that which governs

1

The OHS

maintains

all

on

appeal

that Matter of Guzman-Polanco

cause bodily

was wrongly

the

1405 (2014)-that

acts which

injury must perforce have

Yet as we explained in Guzman-Polanco,

18 U.S.C.

at

force,

§

16(a).

See 26 I&N Dec. at 717.

Scalia's view-now

adopting Justice

1414

("Justice

under

[the]

force

in

echoed by

SCALIA's concurrence suggests

the

definition

[adopted

common-law

in

that

v.

violent

Johnson

133, 137 (2010)].

do

forms

of injury

necessitate

sense." (emphasis

added)

omitted)).

2

Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net A055 860 485 Immigration Judge did not properly

A055 860 485

Immigration Judge did not properly examine whether the offense qualifies as a crime of violence under 18 U.S.C. § I6(b). Because 18 U.S.C. § I6(b) is phrased in "probabilistic" terms, we have

held that the proper inquiry for determining whether a conviction is for a crime of violence under that subsection is whether the offense's elements define conduct that, in an "ordinary case,"

would present a substantial risk of the use of violent physical force against

I&N Dec. 594, 597-600 (BIA 2015). The Immigration Judge did not apply

this "ordinary case" analysis on remand, however, because he found that it had been repudiated

S. Ct. 2551 (2015), in which the Supreme Court invalidated as

unconstitutionally vague the residual clause of the Armed Career Criminal Act's ("ACCA") "violent felony" definition, 18 U.S.C. § 924(e)(2)(B)(ii) (hereafter "the ACCA residual clause")

Instead, the Immigration Judge asked whether the "least culpable conduct"

18.2-51 presented the "substantial risk" of violent physical force

another. Matter of

Francisco-Alonzo, 26

by Johnson v.

United States, 135

(I.J. at 5 & n.l).

punishable under Va. Code §

contemplated by 18 U.S.C. § 16(b). Concluding that it did not, he terminated the proceedings.

We do

not

agree with

the Immigration

Judge's

broad reading of

Johnson as

having

invalidated application of the "ordinary case" test for cases arising under

18 U.S.C.

§

16(b).

The

United

States Court of Appeals

for the

Fourth Circuit-in

whose jurisdiction this case

arises-has held in a precedential decision that the proper inquiry under § 16(b) is whether the

conduct encompassed by the elements of the offense raises a substantial risk the defendant may

use physical force in the "ordinary case."

770 F.3d 1100, 1107 (4th Cir.

United States v. Avila,

2014).

Although

Avila

was decided

before Johnson,

it is not for the Immigration Judge or this

Board

to

declare

that

Fourth

Circuit

precedent

has

been

implicitly overruled

by the

Supreme Court. If Avila needs to be revisited in light

Supreme

Court) would

be the

proper

authority

to

of Johnson,

do

so.

then the Fourth Circuit (or the

that happens, Avila and

Unless

Francisco-Alonzo will

remain controlling within the Fourth Circuit.

serious

reservations about the "ordinary case" methodology.

the Court also took pains to clarify that the invalidity of the ACCA residual clause resulted from the combined effect of numerous ambiguities and uncertainties, many of which are not present in

Id. at 2560. Under the

circumstances, we conclude that the best approach to interpreting and applying 18 U.S.C. § 16(b)

is to adhere to the "ordinary case" methodology endorsed in

absent controlling circuit or Supreme Court authority to the contrary.

Although

Avila

is

binding here, we

realize

that

the

Johnson

Court expressed

See

135 S. Ct. at 2557, 2561. However,

§ 16(b) cases and any one of which "may be tolerable in isolation."

Matter ofFrancisco-Alonzo, supra,

In conclusion,

Matter of Francisco-Alonzo

and

United States v. Avila

remain controlling in

this case as to the application of 18 U.S.C. § I6(b). Under those precedents, an alien's offense of

conviction is a crime of violence under 18 U.S.C. §

conduct encompassed by the elements of the offense presents a substantial risk that physical

force may be used in the course of committing the offense in the "ordinary case."

will be remanded

accordance with this standard.

I6(b) if the offense is a felony and if the

the respondent's

The record

removability

in

for the

Immigration

Judge

to reconsider

3

removability in for the Immigration Judge to reconsider 3 Cite as: Juan Padilla Lambert, A055 860

Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net A055 860 485 ORDER: The appeal is sustained,

A055 860 485

ORDER: The appeal is sustained, the Immigration Judge's decision is vacated, the removal proceedings are reinstated, and the record is remanded for further proceedings consistent with the foregoing opinion.

further proceedings consistent with the foregoing opinion. 4 Cite as: Juan Padilla Lambert, A055 860 485

4

Cite as: Juan Padilla Lambert, A055 860 485 (BIA Aug. 23, 2016)

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U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

22041 Decision of the Board of Immigration Appeals F i l e : A055 860 485

File:

A055 860 485 - Arlington, VA

Date:

In re: JUAN PADILLA LA1'IBERT

DISSENTING OPINION:

I respectfully dissent.

Patricia A. Cole, Board Member

AUG 2 3 2016

Like the Immigration Judge, I conclude that the Supreme Court's rejection of the "ordin ary case" test for determining whether an offense qualifies as a ''violent felony" under the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) (hereafter ''the ACCA residual clause")-see Johnson

v. United States, 135 S. Ct. 2551 (2015)-applies with equal force in the "crime of violence"

context under 18 U.S.C. § 16(b). Thus, I disa gr ee with the majority's conclusion that United States v. Avila, 770 F.3d 1100 (4th Cir. 2014), and Matter of Francisco-Alonzo, 26 I&N Dec. 594 (BIA 2015)-pre-Johnson decisions applying the "ordin ary case" test in the

§ 16(b) context-are controlling here.

In Avila and Francisco-Alonzo, the Fourth Circuit and the Board applied the "ordinary case" test in reliance on James v. United States, 550 U.S. 192 (2007). See United States v. Avila, supra, at 1107 (applying James); Matter ofFrancisco-Alonzo, supra, at 597-600 (same). The Johnson Court's overruling of James thus undercuts the holdings in Avila and Francisco-Alonzo.

The Johnson Court explained that when the "ordinary case" test is applied to the language of

a "probabilistic" or risk-focused statute such as § 16(b), the result is " gr ave uncertainty about

how to estimate the risk posed by a crime." See 135 S. Ct. at 2557 ("How does one go about deciding what kind of conduct the "ordin ary case" of a crime involves? "A statistical analysis of the state reporter? A survey? Expert evidence? Google? Gut instinct?"). This " gr ave uncertainty" is no less intolerable in the§ 16(b) context than it was in the context of the ACCA residual clause. See United States v. Vivas-Ceja, 808 F.3d 719, 722-23 (7th Cir. 2015); Dimaya

v. Lynch, 803 F.3d 1110, 1118-19 (9th Cir. 2015). Indeed, the vagaries of the "ordin ary case"

test may be particularly problematic in the § 16(b) context because in such cases those idiosyncrasies overlay what is already a highly speculative and subjective inquiry into the de gr ee

of risk the offense of conviction poses "by its nature."

I further agree with the Immi gr ation Judge that after Johnson the relevant test for determining whether an offense satisfies § 16(b)-i.e., whether the offense "involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense"-is whether the "least culpable conduct" consistent with the offense's elements would present such a risk. See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) ("Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction 'rested upon [nothing] more than the least of th[e] acts' criminalized, and then determine whether even those acts are encompassed by the generic federal offense."). Applying that test, I a gr ee with the Immigration Judge that the respondent's offense of conviction-unlawful wounding under VA. CODE§ 18.2-51---does not qualify as a crime of violence under § 16(b) because the offense, taken at its minimum,

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r

•

A055 860 485

Appellate Center, LLC | www.irac.net r • A055 860 485 encompasses a risk of unintentional harm

encompasses a risk of unintentional harm (e.g., extreme child neglect) as well as the application of non-violent force to victims (e.g., poisoning).

In light of the foregoing, I respectfully dissent from the majority's decision to remand the record for further proceedings. Instead, I would affirm the Immigration Judge's decision and dismiss the appeal.

Board Member
Board Member

2

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Immigrant & Refugee Appellate Center, LLC | www.irac.net I UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE
Immigrant & Refugee Appellate Center, LLC | www.irac.net I UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE

I

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 1901 S. ARLINGTON, BELL STREET, VA SUITE 200 22202

1901

S.

ARLINGTON,

BELL

STREET,

VA

SUITE 200

22202

Capital Area Immigrants' Rights (CAIR) Coalition Altman, Heidi 1612 K Street NW suite 204 Washington, DC 20006

IN THE MATTER OF

LAMBERT,

JUAN PADILLA

FILE A 055-860-485

DATE:

Dec

18,

2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

� TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

ATTACHED DOCUMENTS,

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.

YOUR NOTICE OF APPEAL, MUST BE MAILED TO:

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRArION APPEALS

OFFICE OF THE CLERK

5107

FALLS CHURCH,

Leesburg Pike,

VA

Suite 2000

22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

WITH SECTION 242B{c) (3) OF THE IMMIGRATION

AND NATIONALITY ACT,

8 U.S.C.

SECTION 1252B{c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6),

8 U.S.C.

TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

SECTION 1229a(c} (6}

IN REMOVAL PROCEEDINGS.

IF YOU FILE A MOTION

IMMIGRATION COURT 1901 S. BELL STREET, SUITE 200 ARLINGTON, VA 22202

OTHER:

CC:

IAN GALLAGHER 1901 S. BELL STREET, 9TH FL ARLINGTON, VA, 22202

�6i\ r-"\O

IMMIGRATION COURT

FF

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•

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW United States Immigration Court 1901 South Bell Street, Suite 200 Arlington, VA 22202

IN THE MATTER OF:

)

IN REMOVAL PROCEEDINGS

)

LAMBERT, Juan Padilla,

)

File No.: A 055 - 860 - 485

)

Respondent.

)

)

APPLICATION:

FOR THE RESPONDENT:

Heidi Altman, Esq. CAIR Coalition 1612 K Street NW, Suite 204 Washington, DC 20006

Motion to terminate.

APPEARANCES

204 Washington, DC 20006 Motion to terminate. APPEARANCES FOR THE GOVERNMENT: Ian Gallagher, Esq. Assistant Chief

FOR THE GOVERNMENT:

Ian Gallagher, Esq. Assistant Chief Counsel U.S. Department of Homeland Security 1901 S. Bell Street, Suite 900 Arlington, VA 22202

DECISION AND ORDERS OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The respondent is a twenty-nine-year-old native and citizen of Honduras. He was admitted to the United States as a lawful permanent resident on November 25, 2006. See NTA. On January 31, 2014, he was convicted of attempted unlawful wounding in violation of Virginia Code §§ 18.2-26 and 18.2-51 and sentenced to two years' imprisonment. Id. On August 6, 2015, the Department of Homeland Security ("DHS") served the respondent with a Notice to Appear ("NTA"), charging him with removability under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act ("INA" or "Act"), as an alien who, at any time after admission, was convicted of an aggravated felony as defined in INA§§ I01(a){43)(F) and (U), an attempted aggravated felony crime of violence for which the term of imprisonment ordered is at least one year. See id. On October 28, 2015, the respondent orally moved to terminate removal proceedings, alleging his conviction was not for a crime of violence. For the reasons that follow, the Court grants the respondent's motion to terminate.

II. LAW, ANALYSIS, AND FINDINGS

The respondent was convicted of attempted unlawful wounding in violation of Virginia Code§§ 18.2-26 and 18.2-51. The unlawful wounding statute provides, in relevant part:

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Immigrant & Refugee Appellate Center, LLC | www.irac.net If any person maliciously shoot, stab, cut, or

If any person maliciously shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill, he

be guilty of a Class 3 felony. If such act be done unlawfully but not

shall

maliciously, with the intent aforesaid, the offender shall be guilty of a Class 6

felony.

DHS charged the respondent with removability under INA § 237(a)(2)(A)(iii) for having been convicted of an aggravated felony crime of violence under INA§§ 10 l (a)(43 )(F) and (U).

A crime of violence under the INA is any offense that meets the federal definition at 18 U.S.C.

§ 16, which defines a crime ofviolence 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.

To constitute a crime of violence under 18 U.S.C. § 16(a), a criminal conviction must involve the active employment of physical force with a higher degree of intent than mere negligence or accidental conduct. Leocal v. Ashcroft, 543 U.S. 1, 9 (2004). Section 16(b) looks

not at the elements of the offense, but at whether the offense, by its nature, involves a substantial

risk

that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense.'' Id. at 10. The level of force required under 18 U.S.C.§ 16 is substantial. The Supreme Court has previously held that "physical force" means "violent force . capable of causing physical pain or inj ury to another person." Jo hnson v. U.S.,

l 6(b) encompasses "offenses

of physical force.

The Supreme Court has noted that section

559 U.S. 13 3, 140 (2010); see Ma tter of Ve lasq uez, 25 I&N Dec. 278, 283 (BIA 20 10).

To determine whether the respondent's conviction under Virginia Code § 18.2-5 1 is a

crime of violence, the Court applies the categorical approach. The state crime of unlawful wounding will be a categorical match to the federal or generic crime of violence only if the "minimum conduct that has a realistic probability of being prosecuted" under the state statute is also addressed by the generic offen se. See Matter of Chairez-Castrejo n, 26 I&N Dec. 349, 351

(20 13) ). In determining

whether state and generic federal crimes match, the key is "elements , not facts." Descamps v. U.S., 133 S. Ct. 2276, 2283 (20 13). Where the state crime is not a categorical match to the generic crime, the Court must then determine whether the state statute of conviction is divisible. See id. at 2279. Where "the crime [for] which the [respondent] was convicted has a single, indivisible set of elements," courts may not apply the modified categorical approach. Id. at 228 2; see also Mo ncrieffe , 13 3 S. Ct. at 1684; Taylor v. U. S., 495 U. S. 575, 599 (19 90 ). However, if the state statute is divisible, the Court may apply the modified categorical approach and review a limited set of documents to determine whether the elements of the particular offense for which the respondent was convicted match the generic crime of violence. See Shepard v. U.S., 544 U.S. 13, 26 (2005).

(BIA 20 14) (citing Mo ncrieffe v. Ho lder, 13 3 S. Ct. 1678, 16 84- 85

2

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Immigrant & Refugee Appellate Center, LLC | www.irac.net A. Divisibility The respondent argues Virginia Code §
Immigrant & Refugee Appellate Center, LLC | www.irac.net A. Divisibility The respondent argues Virginia Code §

A. Divisibility

The respondent argues Virginia Code § 18.2-51 is not divisible because it is only "generally divisible into different offenses," and the actus reus of the offense merely encompasses a single element with various means. See Respondent's Brief at 20 (Nov. 12, 2015). The Court disagrees. The statute sets forth four distinct offenses: I) malicious wounding; 2) maliciously causing bodily injury; 3) unlawful wounding; and 4) unlawfully causing bodily inj ury, with different penalti es. See Johnson v. Commonwealth, 35 S.E.2d 594, 596-97 (V a. 1945) (recognizing that broadening the statute to include uto cause bodily inj ury" introduced a new, distinct offense, comprised of new elements); see also Dawkins v. Commonwealth, 41 S.E.2d 500, 505 (Va. 1947) (noting that malicious stabbing and maliciously causing bodily inj ury by any means are distinct offenses). Virginia case law indicates it considers the statute to contain more than one offense, not merely different ways of committing an offense. Therefore, Virginia Code§ 18.2-51 is disjunctive and requires inquiry into the specifics of the respondent's conviction to determine the particular offense under which he was convicted. The respondent's conviction documents identify the offense to which he pleaded guilty as unlawful wounding, which requires proof that the actor did "shoot, stab, cut, or wound any person or by any means cause him bodily injury, with the intent to maim, disfigure, disable, or kill." See OHS Submission (Sept. 30, 2015); Va. Code Ann.§ 18 .2-5 1 (West 2015).

B. 18 U.S.C . § 16 (a)

The respondent argues that the government "impermissibly conflates the use of physical force with the occurrence of physical injury." Respondent's Brief at 6. The Court agrees. As

of causing physical pain or injury

stated above, "physical force" means "violent force

to another person." Johnson, 55 9 U.S. at 140. DHS states "[w]here there is bodily injury, there

is physical force." OHS Brief at 7 (Oct. 29, 2015). Merely because an act causes injury does not

capable

Merely because an act causes injury does not capable mean it requires force capable of causing

mean it requires force capable of causing injury. DHS conflates the test for

physical force and

physical

inj ury. The parties agree physical force is intentional, violent force,

capable of causing

physical

pain or inj ury . See Ve lasq uez, 25 I&N Dec. at 283. Under DHS' reading, any act that

causes physical pain or injury would involve physical force; this cannot be. Rather, under BIA and Supreme Court precedent, any force that causes physical pain or injury qualifies as physical force. There must be force involved that causes the injury. Existence of pain or injury will not suffice. In response to previous decisions from this Court, DHS states that the Supreme Court has "rejected this notion" by stating "it is impossible to cause bodily injury without applying force in the common-law sense." Id. at 6 (citing U.S. v. Castleman, 134 S. Ct. 1405 , 1415 (2014)). The respondent, however, correctly notes that Castleman was expressly limited to 18 U.S.C.§ 922(g)(9) and used the common-law definition of force (which can include the use of minimal physical force like offensive touching). See Respondent's Brief at 9. Indeed, Johnson rejected the idea that physical force has the same meaning as at common law. 559 U.S. at 139. In addition, other cases dealing with 18 U.S.C. § 16 "expressly refuse this common law definition of force due to its sweeping scope." Respondent's Brief at 10 (citing Leocal, 543 U.S. at 9; U.S. v. Royal, 731 F.3d 333 (4th Cir. 2013); U.S. v. Vinson, 805 F.3d 120 (4th Cir. 20 1 5)).

Considering both parties' arguments, the Court finds the respondent's conviction under Virginia Code§ 18.2-51 is not a crime of violence under 18 U.S.C.§ 16(a) because violent force

3

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Immigrant & Refugee Appellate Center, LLC | www.irac.net is not a necessary element of the offense.

is not a necessary element of the offense. To convict an individual under Virginia Code§ 18.2- 51, the Commonwealth must prove three elements: 1) the offender shot, stabbed, cut, or wounded any person, or caused bodily injury by any means; 2) the wounding or bodily injury was with the intent to maim, disfigure, disable, or kill that individual ; and 3) the act was done either maliciously or unlawfully but not maliciously. 2-37 Va. Model Jury Instructions - Criminal Instruction No. 037.100. Shooting, stabbing, cutting, or wounding would

capable of causing physical pain or injury. " Johnson,

559 U.S. at 140. This first element, however, can also be satisfied by showing that the offender

unquestionably involve "violent force

caused bodily inj ury "by any means." Thus, a conviction under section 1 8.2-5 1 can presumably encompass acts that do not involve violent force. Under BIA and Supreme Court precedent, any

force. There must be force

involved that causes the injury. Mere existence of pain or injury will not suffice.

force that causes physical pain or inj ury qualifies as physical

The respondent argues that by "broadly criminalizing conduct that causes injury 'by any means,"' the statute does not require force. Respondent's Brief at 11. He also argues that case law supports that force is not statutorily required. Id In 1 989, the Court of Appeals of Virginia determined that Virginia Code § 18.2-51 "by its explicit terms, does not contain a limitation upon the means employed." Long v. Commonwealth, 379 S.E.2d 473, 475 (Va. Ct. App. 1 989). In 201 3, the District Court for the Eastern District of Virginia found that the statute "is not limited to conduct that necessarily involves the use or threatened use of physical force" and does not categorically have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S. v. Lopez-Reyes, 945 F.Supp.2d 658, 661-62 (E.D. Va. 201 3).

In addition to this persuasive case law, the respondent provided the Court several examples of prosecutions establishing the statue "is actively applied to alleged crimes involving non-forceful conduct." Respondent's Brief at 11 -12 (referencing prosecutions for poisoning, neglect, verbally commanding a dog to attack, and disfigurement). Because a conviction under Virginia Code§ 1 8.2-51 does not require an element of physical force, it is not categorically a crime of violence under 18 U.S.C.§ 16(a). As the respondent's criminal conviction documents do not indicate which acts he committed, the Court cannot determine that his crime constitutes a crime of violence under the modified categorical approach.

C. 18 U.S. C. § J6(b)

Although unlawful wounding is not a crime of violence under subsection (a), it may be a crime of violence under subsection (b). The respondent claims that 18 U .S.C. § l 6(b) is unconstitutionally void for vagueness. Id. at 16. He argues the Supreme Court's holding in Jo hnson v. U.S. , 13 5 S. Ct. 2551 (2015), should be applied to 18 U. S.C . § 16(b). Id The respondent states that the statute here and the one in Jo hnson suffer from the same constitutional problems and that any differences between the two statutes are unimportant. Id. at 1 6-1 7. OHS correctly states that Johnson did not analyze 18 U.S.C. § 1 6(b). DHS Brief at 9- 11. The Jo hnson case dealt with a separate, albeit simi larly worded, federal statute. The Court decl ines to extend the Supreme Court's holding to a different statute. DHS notes that the Court does not have the authority "to rule on the constitutionality of the laws enacted by Congress," including challenges of vagueness. Id. at 11 ( citing Ma tter of Fitzpatrick, 26 I&N Dec. 559, 562 (BIA

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Immigrant & Refugee Appellate Center, LLC | www.irac.net 0 20 1 5); Matter of G-K-, 26

0

20 1 5); Matter of G-K-, 26 l&N Dec. 88, 96-97 (BIA 2013); Matter of Sanchez-Lopez, 26 I&N

Dec. 71, 74 n.3 (BIA 2012)). Although it is possible that the Supreme Court may find 18 U. S.C.

§ l 6(b) void for vagueness, it has not yet done so. The Court declines to do so in its stead.

To qualify as a crime of violence under 18 U.S.C. § 16(b), the conviction need only be for a felony that, by its nature, involves a substantial risk that physical (i.e. violent) force against the person or property of another may be used in the course of committing the offense. The Supreme Court in Leocal instructed that subsection (b) requires that there is a substantial risk of use of physical force against another "in the course of committing the offense." 543 U.S. at 11. The Board has decided that in determining the risk of the use of such force, the proper inquiry is whether the crime carries a substantial risk of the use of physical force in the ordinary case.

Matter of Singh, 25 l&N Dec. 670, 677 (BIA 20 12). Recently, the Board also

Supreme Court' s decision in Moncrieffe has not affected the "ordinary case" test set forth in prior Supreme Court decisions. Matter ofFrancisco-Alonzo, 26 l&N Dec. 594, 599 (2015). The

Supreme Court, however, more recently determined that the "ordinary case" analysis is

25 51. 1 The Jo hnson decision rejected the dissent' s

suggestion of examining actual conduct, and instead confirmed that the "only plausible

interpretation of the law

found that the

unworkable. See Johnson, 1 35 S. Ct.

requires use of the categorical approach."

Id. at 25 62.

The least culpable conduct punishable by the Virginia statute is causing another bodily injury, with the intent to maim, disfigure, disable, or kill. This conduct does not involve physical force. For example, an individual could intend to disable someone by cutting the brake lines in her car; neglecting a child; or putting itching powder in someone's food. Such actions would not include physical force. Causing injury by any means (with intent to harm) does not "by its nature'., involve a substantial risk that physical force will be intentionally used. 18 U.S.C. §

18.2-5 1 is not categorically a crime of violence under 18

U.S.C.§ 16(b).

16(b).

Therefore Virginia Code §

DHS also argues that the acts contained in the statute include "an inherent risk that the .,'

. established above, that there is any risk that physical force will be intentionally used. As the respondent notes, DHS' reasoning has been rejected by this Court and the Supreme Court. See Respondent' s Brief at 19-20. Finally, DHS submitted additional information arguing the analysis is affected by Matter ofMartin, 23 I&N Dec. 49 1 (BIA 2002). DHS Submission (Nov. 1 3 , 201 5). As the respondent correctly notes, however, Martin has been overruled by the Second Circuit, and its reasoning has been rejected by both the Fourth Circuit and the Supreme Court. Respondent's Submission at 1-2 (Nov. 16, 2015). Thus, the Court will not accord this additional

perpetrator will resort to actual direct force

There is no indication, as

DHS Brief at 1 2.

case law any weight.

Accordingly, the Court finds the respondent's conviction is not a crime of violence under 18 U.S.C.§ l 6(a) or (b). The Court emphasizes, however, that it only finds that his crime is not categorically a crime of violence under either subsection. Where the facts in the record clearly identify which statutory elements an individual was convicted of, a violation of Virginia Code § 18.2-5 1 could constitute a crime of violence. Such facts are absent here. The respondent' s

1 OHS argues Francisco-Alonzo is st ill val id, but the Court finds that Johnson was cl ear on the applicability of the categorical approach.

5

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.
.

.

& Refugee Appellate Center, LLC | www.irac.net . . conviction documents do not indicate anything other

conviction documents do not indicate anything other than his statute of conviction. Submission (Sept . 30, 20 15).

III.

CONCLUSION

See DHS

OHS failed to establish the respondent has been convicted of a crime of violence as defined in 18 U.S.C. § 16. Therefore, DHS has also failed to prove he has been convicted of an aggravated felony as defined in INA §§ 10 1(a)(43)(F) and (U). Because DHS did not charge him with any other ground of removability, the Court grants his motion to terminate.

Accordingly, the Court enters the following orders:

ORDERS

It is Ordered that:

It is Further Ordered that:

Date

� l� I d--t2 lr-

The

respondent's

motion

to

terminate

be

GRANTED.

 

The

charge

under

INA

§ 237{a)(2)(A)(iii)

be

DISMISSED.

under INA § 237{a)(2)(A)(iii) be DISMISSED. U.S. Immigration Judge APPEAL RIGHTS: Both parties have the

U.S. Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is due at the Board of Immigration Appeals within thirty (30) calendar days after the date of service of this decision.

6

is due at the Board of Immigration Appeals within thirty (30) calendar days after the date