KIM

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                   Matter of Kwan Ho KIM, Respondent
                             Decided January 31, 2017

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The crime of mayhem in violation of section 203 of the California Penal Code, which
requires a malicious act that results in great bodily injury to another person, necessarily
involves the use of violent force and is therefore categorically a crime of violence under

(a) (2012).
FOR RESPONDENT: Claire H. Kim, Esquire, Los Angeles, California
FOR THE DEPARTMENT OF HOMELAND SECURITY: R.R. Stern, Assistant Chief
Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.
MALPHRUS, Board Member:


    In a decision dated November 16, 2015, an Immigration Judge
terminated the removal proceedings against the respondent.            The
Department of Homeland Security (“DHS”) has appealed from that
decision. The appeal will be sustained, the removal proceedings will be
reinstated, and the record will be remanded to the Immigration Judge.

             I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of South Korea and a lawful
permanent resident of the United States. In January 2015, the DHS charged
him with removability under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 

(a)(2)(A)(iii) (2012), as an alien
convicted of an aggravated felony under section 101(a)(43)(F) of the Act,

(a)(43)(F) (2012), namely, a crime of violence for
which the term of imprisonment was at least 1 year. In support of this
charge, the DHS presented evidence establishing that the respondent
was convicted on December 16, 2013, of mayhem in violation of section
203 of the California Penal Code, for which he was sentenced to 2 years of
imprisonment.
   It is undisputed that the respondent was convicted of mayhem and was
sentenced to a term of imprisonment of at least 1 year. The Immigration

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Judge nevertheless determined that the respondent’s offense did not qualify
as crime of violence because section 203 of the California Penal Code
lacked an explicit element regarding the use, attempted use, or threatened
use of violent force against another person, as required by 

(a) (2012). Whether mayhem under California law is a crime of
violence is a question of law that we review de novo. 

(d)(3)(ii) (2016).

                               II. ANALYSIS
                           A. Categorical Approach

    To determine whether the respondent’s conviction renders him
removable under section 237(a)(2)(A)(iii) of the Act, we employ the
categorical approach outlined by the Supreme Court in Taylor v. United
States, 

 (1990), by comparing the elements of section 203 of
the California Penal Code to those of the Federal generic definition of a
crime of violence in section 101(a)(43)(F) of the Act. An element of a
statute is what the “prosecution must prove to sustain a conviction” and the
jury must find beyond a reasonable doubt. Mathis v. United States, 

 (2016) (quoting Black’s Law Dictionary 634 (10th ed.
2014)). In other words, an element of section 203 is any fact “necessarily
involved” in a mayhem violation. Moncrieffe v. Holder, 

 (2013) (emphasis added); see also Descamps v. United States, 

 (2013) (discussing Taylor’s “demanding requirement that
. . . a prior conviction ‘necessarily’ involved . . . facts equating to [the]
generic” offense (Alito, J., dissenting) (quoting Shepard v. United States,

 (2005) (plurality opinion))).
    Where the text of a State statute does not explicitly set forth an element
of the generic crime, we may look to, among other things, State case law or
jury instructions to discern whether the pertinent element is present. See
Mathis, 

, 2256–57 (authorizing recourse to, inter alia,
“state court decision[s]” and “jury instructions” to discern whether an
aspect of a State statute is an element of the offense); see also Ramirez
v. Lynch, 

 (9th Cir. 2016) (“In identifying the elements
of the statute of conviction, we look not only to the text of the statute, but
also to how state courts have interpreted and applied the statute.”).
    Because our examination is limited to the elements of section 203 of the
California Penal Code, or what a violation of this provision “necessarily
involved, . . . we must presume that the conviction ‘rested upon [nothing]
more than th[e] least of the acts’ criminalized, and then determine whether
even those acts are encompassed by the generic federal offense.”

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Moncrieffe, 133 S. Ct. at 1684 (alterations in original) (quoting Johnson
v. United States, 

 (2010)). Nevertheless, “our focus on
the minimum conduct criminalized by the state statute is not an invitation to
apply ‘legal imagination’ to the state offense; there must be ‘a realistic
probability, not a theoretical possibility, that the State would apply its
statute to conduct that falls outside the generic definition of a crime.’” 

at 1684–85 (quoting Gonzales v. Duenas-Alvarez, 

(2007)); see also id. at 1693 (stating that “[t]o defeat the categorical
comparison in this manner, a noncitizen would have to demonstrate that the
State actually prosecutes the relevant offense in cases involving” conduct
outside the generic definition of the crime (emphasis added)).

                                B. Crime of Violence

    A crime of violence is defined in relevant part as “an offense that has as
an element the use, attempted use, or threatened use of physical force
against the person or property of another.” 

(a); see also
section 101(a)(43)(F) of the Act (incorporating the definition of a “crime of
violence” in § 16(a) into the Act). 1 The term “use” under § 16(a) “requires
active employment” and therefore denotes volition. Leocal v. Ashcroft, 

 (2004). And “the phrase ‘physical force’ means violent force—
that is, force capable of causing physical pain or injury to another person.”
Johnson, 

; see also Leocal, 

 (holding that
§ 16(a) “suggests a category of violent, active crimes”); Matter of Chairez,

 (BIA 2016) (stating that Johnson and Leocal control
our interpretation of § 16(a)).
    Section 203 of the California Penal Code provides as follows:

        Every person who unlawfully and maliciously deprives a human being of a
      member of his body, or disables, disfigures, or renders it useless, or cuts or disables
      the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.

Pursuant to the pertinent jury instructions, the State must prove—and a jury
must find—that a violator of this statute (1) committed an unlawful and
malicious act (2) that resulted in another person’s body part being removed,
disabled, or disfigured. See Judicial Council of California Criminal Jury
1
   A separate definition of the term “crime of violence” is set forth in 

(b).
However, we will only address whether the respondent’s offense is categorically a crime
of violence under § 16(a) because the United States Court of Appeals for the Ninth
Circuit, in whose jurisdiction this case arises, has deemed § 16(b) to be unconstitutionally
vague for purposes of section 101(a)(43)(F) of the Act. Dimaya v. Lynch, 

,
1120 & n.17 (9th Cir. 2015), cert. granted, 

 (2016).


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Instruction (“CALCRIM”) 801 (Oct. 2016); Cal. Jury Instr.—Crim.
(“CALJIC”) 9.30 (Sept. 2016); see also People v. Santana, 

 (Cal. 2013) (discussing the California jury instructions for “mayhem,”
which is an “older form of the word ‘maim’” (quoting People v. Keenan,

 (Cal. Ct. App. 1991))). 2
    After reviewing the statutory text and the above jury instructions, the
Immigration Judge terminated proceedings, concluding that section 203
lacked an explicit element regarding the use, attempted use, or threatened
use of violent force against another person under § 16(a). However, her
analysis does not recognize that, even where the terms “use” and “force”
are not explicitly included in a statute’s text or the related jury instructions,
the requisite use of violent force under Johnson and Leocal may be intrinsic
to—or “necessarily involved” in—all violations of the statute. Moncrieffe,

; see also Mathis, 

; Ramirez, 

.

                                 1. “Use” of Force

    The parties do not dispute that section 203 requires a defendant to
actively “use” force within the meaning of § 16(a), and based on the
elements of the offense, we conclude that it does. Mayhem under
California law must be committed “maliciously,” which means that it must
be done with an “intent to vex, annoy, or injure another person, or an intent
to do a wrongful act.” Santana, 

 (emphases added)
(quoting People v. Bryan, 

 (Cal. Ct. App. 1961))
(internal quotation mark omitted); see also 

(4) (2016)
(defining “malice”).
    “Malicious” intent may be inferred through a defendant’s actions, which
must necessarily result in “the types of injuries” listed in section 203.
People v. Rodarte, 

 (Cal. Ct. App. 2014) (quoting
People v. McKelvy, 

 (Cal. Ct. App. 1987)). For this
reason, California courts characterize mayhem as a crime that only requires
a general intent, rather than a specific intent to maim, disable, or disfigure.
See, e.g., 

 However, a “‘general intent’ designation” under California
law does not reflect that the requisite “use” of force under Leocal is

2
   The California Judicial Council “withdrew its endorsement of the long-used CALJIC
instructions and adopted the new CALCRIM instructions, effective January 1, 2006.”
People v. Thomas, 

 (Cal. Ct. App. 2007). The use of the newer
instructions is not mandatory, but merely “strongly encouraged” and “recommended,” so
the continued use of the CALJIC instructions is not legal error. 

 at 582–83 (quoting
California Rules of Court, Rule 2.1050(e)).


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necessarily absent; “it merely clarifies that the crime does not require” an
intent to inflict a specific injury. United States v. Grajeda, 

,
1193–97 (9th Cir. 2009) (analyzing whether an offense is a crime of
violence under section 2L1.2 of the United States Sentencing Guidelines,
which is identical to 

(a) in all relevant respects); see also
United States v. Laurico-Yeno, 

, 822 n.4 (9th Cir. 2010)
(“A general intent crime can satisfy the generic definition of a ‘crime of
violence.’”). This is so because, while Johnson and Leocal dictate that a
crime of violence must involve a volitional act capable of causing physical
pain or injury, they do not require that the act be intended to cause a
specific type of qualifying harm. See Grajeda, 581 F.3d at 1193–96.
      The malice requirement under section 203 ensures “that the proscribed
conduct was ‘a deliberate and intentional act, as distinguished from an
accidental or unintentional’ one,” even if there was no specific intent to
bring about the requisite type of injury. Rodarte, 

(emphasis added) (quoting People v. Atkins, 

 (Cal. 2001));
see also id. at 22 (observing that even the intent to “‘vex, injure, or annoy’
connotes a knowing violation of social norms” (emphasis added)).
      Accordingly, the term “maliciously” in section 203 signifies something
more than acting “recklessly,” which is separately defined under California
law as meaning that “a person is aware of and consciously disregards a
substantial and unjustifiable risk.” 

(f) (2016); see
also People v. Watie, 

, 267–68 (Cal. Ct. App. 2002)
(noting the distinction between “malice” and “recklessness”); cf. People
v. Hayes, 

 (Cal. Ct. App. 2003) (holding that a
California sentencing law that only encompasses crimes “requir[ing] a
showing of willfulness and malice” excludes the crime of “recklessly
causing a fire”). Compare 1 Bernard E. Witkin, Cal. Crim. Law Elements
§ 12, Westlaw (4th ed. updated June 2016) (quoting the definition of
“recklessness” in section 450(f) of the California Penal Code), with id.
§ 11 (providing that “the element of malice in most [California] criminal
statutes is satisfied by the intentional doing of the act without justification
. . . (‘an intent to do a wrongful act’)” (emphases added)). 3
3
   The mens rea of recklessness will only be relevant to a violation of section 203 of the
California Penal Code, if at all, where a defendant, in the course of intending “to vex or
annoy” the victim, recklessly deploys force that maims or disfigures that person.
However, to our knowledge no defendant has actually been prosecuted under section 203
for such conduct. See, e.g., Witkin, supra, Crimes Against the Person § 87 (discussing
the intent required to commit mayhem under section 203 and collecting cases). We
therefore conclude that there is no realistic probability that section 203 will be used to
actually prosecute a mayhem offense in which the use of physical force was reckless,
negligent, or accidental. See Moncrieffe, 133 S. Ct. at 1684–85.


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   This is important because the Supreme Court has held that the phrase
“the use . . . of physical force against the person or property of another” in
§ 16(a) “most naturally suggests a higher degree of intent than negligent or
merely accidental conduct.” Leocal, 

. 4 Because section 203
of the California Penal Code requires that mayhem be committed
“maliciously,” that is, deliberately and intentionally, we conclude that the
respondent’s violation of the statute must have necessarily involved the
“use,” or active employment, of force contemplated by Leocal.

                                 2. “Physical Force”

    The respondent’s violation of section 203 of the California Penal Code
must also have necessarily involved the use of “violent” physical force
discussed in Johnson. The relevant jury instructions make clear that a jury
must find that a defendant’s malicious act resulted in removal of a part of
the victim’s body; disabling or making useless a part of the victim’s body;
permanently disfiguring that person; cutting or disabling that person’s
tongue; slitting that person’s nose, ear, or lip; or putting out or injuring that
person’s eye. 5 See CALCRIM No. 801; CALJIC No. 9.30.
    While these instructions do not explicitly state that a defendant must use
“force” when, for example, putting out or injuring a victim’s eye, it is clear
that a jury must necessarily find that the defendant used some degree
of force in doing so, because an eye cannot be put out or injured without
force. See United States v. Nason, 

 (1st Cir. 2001) (holding
that Maine’s assault statute, which requires proof that an assault “cause
physical injury,” contains an implied element requiring the use of some
degree of physical force, because “to cause physical injury, force
necessarily must be physical in nature”); see also United States v. Waters,

 (7th Cir. 2016) (noting that “proving intentional
causation of bodily harm ‘unambiguously requires proving physical force’”


4
   The Ninth Circuit has held that recklessness is not “a sufficient mens rea to establish
that a conviction is for a crime of violence under § 16.” Fernandez-Ruiz v. Gonzales, 

 (9th Cir. 2006) (en banc). However, the Supreme Court has declined to
“resolve whether § 16 includes reckless behavior.” Voisine v. United States, 

, 2280 n.4 (2016). The Ninth Circuit has since recognized that Voisine may
undermine the circuit’s prior holdings because the Supreme Court’s interpretation of a
similarly worded statute suggests that “reckless conduct indeed can constitute a crime of
violence.” United States v. Benally, 

 (9th Cir. 2016).
5
   In California, the jury verdict in a criminal case must be unanimous. See People
v. Russo, 

 (Cal. 2001) (citing Cal. Const. art. I, § 16).


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(quoting United States v. Upton, 

 (7th Cir. 2008)). 6
Because the jury instructions make clear that a malicious act under section
203 must necessarily be attended by some degree of force, the critical
inquiry then becomes whether the force involved in all violations of section
203 must necessarily be “violent” in nature, as contemplated by Johnson.
For the following reasons, we hold that it does.
    As noted, section 203 requires a jury to find that a defendant committed
a malicious act that resulted in another person’s body part being removed,
disabled, or disfigured. Put another way, a jury must find that a
defendant’s malicious act under section 203 caused “great bodily injury” to
that person. Santana, 

 (recognizing that mayhem includes
a “great bodily injury” component). California law defines “great bodily
injury” as a “significant or substantial injury.” People v. Escobar, 

 (Cal. 1992). 7
    We conclude that a “malicious”—or deliberate and intentional—act that
causes “great bodily injury” under California law must necessarily involve
force capable of causing physical pain or injury to another person
pursuant to Johnson. First, as a matter of logic “it is impossible to cause”
the great bodily injury contemplated by section 203 “without using force
‘capable of’ producing that result.” United States v. Castleman, 

, 1416–17 (2014) (Scalia, J., concurring in part and concurring in
judgment). Moreover, the United States Court of Appeals for the Ninth
Circuit has explained that the degree of force necessarily involved in a
conviction “based on ‘force likely to produce great bodily injury[]’ . . .
must necessarily go beyond the ‘least touching,’ and represents ‘actual
force’ that is violent in nature.” Grajeda, 

 (emphases
added); see also People v. Reed, 

 (Cal. Ct. App.
6
   We emphasize that we are not citing Waters and Nason for the proposition that
“violent” physical force within the meaning of Johnson was necessarily used by the
respondent in violating section 203. We merely cite these cases to support our
conclusion that some degree of force was necessarily involved in his offense, even
though neither the text of section 203 nor the relevant jury instructions explicitly require
that “force” be used to commit mayhem. Waters and Nason were interpreting the term
“physical force” in the context of deciding whether an offense was a misdemeanor crime
of domestic violence under 

(g)(9) (2012). Although the term “physical
force” under that provision incorporates a lesser degree of force than the “violent force”
described in Johnson, it nevertheless indicates that some degree of physical force was
necessarily involved in the offense at issue. See United States v. Castleman, 

, 1411−13 (2014).
7
   Construing California’s rape statute, the California Supreme Court has additionally
held that the concept of “great bodily injury” excludes “substantial psychological and
emotional distress.” People v. Caudillo, 

, 285−86 (Cal. 1978), overruled on
other grounds by People v. Martinez, 

 (Cal. 1999).


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1984) (describing mayhem as “a crime involving destructive violence
toward another”). 8
    Arellano Hernandez v. Lynch, 

 (9th Cir. 2016), supports
our conclusion in this regard. In that case, the court reiterated that a
conviction for criminal threats under section 422 of the California Penal
Code is categorically for a crime of violence under § 16(a), despite the fact
that the State statute and relevant case law failed to specify the degree of
force that must attend a proscribed threat. Id. at 1130–32. The court
reasoned that since the statute requires a violator of section 422 to
“willfully threaten[] to commit a crime which will result in . . . great bodily
injury to another person,” all violations of this provision must necessarily
involve “violent force” pursuant to Johnson. Id. (emphasis added).
Likewise, because a jury must find that a mayhem offense in violation of
section 203 of the California Penal Code involved a deliberate and
intentional act that will result in great bodily injury to another person, all
violations of this provision must also involve a degree of force that is
“violent” in nature within the meaning of § 16(a). See id.; Santana, 

.
    This remains the case even if mayhem under section 203 is committed
through the use of indirect force—for instance, where a victim is disabled
through the use of poison. See Arellano Hernandez, 831 F.3d at 1130–31;
see also Matter of Guzman-Polanco, 

 (BIA 2016)
(recognizing the circuit split regarding whether the indirect use of force
satisfies the violent force requirement in Johnson and listing cases). The
Ninth Circuit has determined that a violation of section 422 of the
California Penal Code categorically falls within the generic definition of
§ 16(a), even if the threat was to poison another person. Arellano
Hernandez, 

. While the court acknowledged cases in the

8
   We recognize that the Second Circuit recently construed the violent force requirement
under Johnson as necessitating “no more nor less than force capable of causing [any]
physical pain or injury to a person.” United States v. Hill, 

 (2d Cir.
2016) (citing Castleman, 

 (Scalia, J., concurring in part and concurring
in judgment) (rejecting the argument that Johnson “requires force capable of inflicting
‘serious’ bodily injury,” as opposed to merely “force capable of causing physical pain or
injury, serious or otherwise”)); see also De Leon Castellanos v. Holder, 

 (7th Cir. 2011) (holding “that so long as the force involved is ‘capable of causing
physical pain or injury to another person’ . . . the ‘physical force’ requirement of the
crime-of-violence definition is satisfied” (quoting Johnson, 

)). In this
case, we do not attempt to demarcate the precise point at which force becomes “violent”
under Johnson. We merely conclude that the force attendant to a “malicious” act that
causes “great bodily injury” to another person under California law necessarily satisfies
this threshold.


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Fourth and Fifth Circuits holding that poisoning cannot qualify as “physical
force” under § 16(a), it concluded that the Supreme Court’s more recent
decision in Castleman had rejected such reasoning. Id.
    In Castleman, the Supreme Court made clear that “[t]he ‘use of
force’ . . . is not the act of ‘sprinkl[ing]’ the poison; it is the act of
employing poison knowingly as a device to cause physical harm. That the
harm occurs indirectly, rather than directly (as with a kick or punch), does
not matter.” Castleman, 

. To hold otherwise, the Court
opined, would be equivalent to “say[ing] that pulling the trigger on a gun is
not a ‘use of force’ because it is the bullet, not the trigger, that actually
strikes the victim.” 

 Thus, even if a violation of section 203 involves the
indirect use of force, such as the use of poison, it still necessarily involves
the requisite use of violent force contemplated by Johnson. See Arellano
Hernandez, 

 (citing United States v. De La Fuente, 

, 770–71 (9th Cir. 2003) (concluding that a threat of anthrax
poisoning constitutes a “threatened use of physical force” because the
defendant’s “letters clearly threatened death by way of physical contact
with anthrax spores”)).
    Concluding that a violation of section 203 entails anything less than the
use of violent force (such as an offensive touching) would require an
impermissible application of legal imagination. 9 See Moncrieffe, 133 S. Ct.
at 1684–85. We are unable to envision how a mere offensive touching, in
any practical sense, could be said to cause the removal of a limb, for
example. See Ruiz-Morales v. Ashcroft, 

 (9th Cir.
2004) (analyzing whether a violation of section 203 qualified as a crime of
violence under § 16(b) and rejecting the alien’s “efforts to concoct an
example of mayhem involving no physical force”). And we are unaware of
any California case relating to the prosecution of an individual for the crime

9
    Generally, crimes like simple battery are not regarded as necessarily involving violent
force under § 16(a) because they only require proof of an offensive touching. See
Ortega-Mendez v. Gonzales, 

, 1016–17 (9th Cir. 2006) (holding that
simple battery under California law is not a crime of violence under § 16(a) because it
can be based on the “least touching”). By contrast, aggravated battery offenses—
particularly crimes like mayhem under section 203 that necessarily involve force that is
likely to or does result in “great bodily injury”—satisfy the violent force requirement.
See Grajeda, 581 F.3d at 1191–92. In this respect, California mayhem is more akin to an
aggravated battery offense because both entail more than mere offensive touching. See
id.; see also Witkin, supra, Crimes Against the Person § 85 (“Mayhem is a kind of
aggravated battery . . . .”); 2 Wayne R. LaFave, Substantive Criminal Law § 16.1(b)
(2d ed. Oct. 2016) (noting that “the common law did recognize the existence of a few
aggravated batteries, such as mayhem (which required not merely a bodily injury but in
addition a dismemberment type of injury)”).


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of mayhem in which the only force used was offensive touching. See, e.g.,
Witkin, supra, Crimes Against the Person § 85 (listing acts that California
courts have determined constitute mayhem). Thus, there is no realistic
probability that section 203 will be used to actually prosecute a mayhem
offense involving such conduct. See Moncrieffe, 133 S. Ct. at 1684–85.

                             III. CONCLUSION
    Although the text of section 203 of the California Penal Code and the
relevant jury instructions do not explicitly set forth an element regarding
“the use, attempted use, or threatened use of physical force,” the requisite
use of violent force under Johnson and Leocal is necessarily involved in all
violations of the statute. A defendant convicted under section 203 must
necessarily act “maliciously”—that is, deliberately and intentionally. Such
a deliberate and intentional act must necessarily involve the use of force,
and, because that force must result in great bodily injury under California
law, the force used must necessarily be violent in nature. For these reasons,
we conclude that a violation of section 203 is categorically a crime of
violence under § 16(a).
    The respondent’s mayhem conviction under section 203 renders him
removable under section 237(a)(2)(A)(iii) of the Act as an alien convicted
of an aggravated felony crime of violence under section 101(a)(43)(F). The
Immigration Judge therefore erred when she terminated his removal
proceedings. Accordingly, the DHS’s appeal will be sustained, the removal
proceedings will be reinstated, and the record will be remanded to give the
respondent an opportunity to pursue the relief he sought before the
proceedings were terminated.
    ORDER: The appeal of the Department of Homeland Security is
sustained, the decision of the Immigration Judge is vacated, and the
removal proceedings are reinstated.
    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.




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