CHAIREZ

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 (BIA 2017)                                Interim Decision #3890




         Matter of Martin CHAIREZ-Castrejon, Respondent
                              Decided April 24, 2017

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


  In determining whether a statute is divisible under Mathis v. United States, 

 (2016), Immigration Judges may consider or “peek” at an alien’s conviction record
only to discern whether statutory alternatives define “elements” or “means,” provided
State law does not otherwise resolve the question.
FOR RESPONDENT: Skyler Anderson, Esquire, Taylorsville, Utah
FOR THE DEPARTMENT OF HOMELAND SECURITY: Matthew R. Hall, Senior
Attorney
BEFORE: Board Panel: PAULEY and GREER, Board Members. Concurring Opinion:
MALPHRUS, Board Member.
PAULEY, Board Member:


    When this case was last before us in Matter of Chairez, 

 (BIA 2016), we sustained the respondent’s appeal in part and remanded
the record to the Immigration Judge. The Department of Homeland
Security (“DHS”) has filed a motion asking us to reconsider that decision.
The motion will be denied.
    The respondent is a native and citizen of Mexico and lawful permanent
resident of the United States. He was convicted on December 3, 2012, of
unlawfully discharging a firearm in violation of section 76-10-508.1 of the
Utah Code, a felony for which he was sentenced to an indeterminate term
of imprisonment of up to 5 years. In Matter of Chairez, 

, we held that the DHS did not prove that the respondent was removable
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 crime of violence under 

 (2012) and section
101(a)(43)(F) of the Act, 

(a)(43)(F) (2012). 1

1
   The Immigration Judge also concluded that the respondent is removable under section
237(a)(2)(C) of the Act because he was convicted of a categorical firearms offense, and
we affirmed that determination. Matter of Chairez, 

 n.2. The issue of
the respondent’s removability under section 237(a)(2)(C) of the Act is not before us.


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    We concluded that section 76-10-508.1 does not categorically define a
crime of violence because it encompasses offenses committed with a mens
rea of recklessness. Matter of Chairez, 

 (citing United
States v. Zuniga-Soto, 

, 1122–24 (10th Cir. 2008) (holding
that reckless conduct does not involve the deliberate “use” of physical force
required by the crime of violence definition)). We determined that even
though section 76-10-508.1 encompasses offenses committed intentionally
and knowingly, it is not divisible into three separate offenses with distinct
mental states—that is, intentional, knowing, or reckless discharge of a
firearm. 

 at 824–25 (citing Mathis v. United States, 

 (2016)). Because this alternative language did not render section
76-10-508.1 divisible relative to the definition of a crime of violence, we
concluded that a modified categorical inquiry was not permitted. 

    The DHS argues that we should have extended the Supreme Court’s
holding in Voisine v. United States, 

 (2016), and found that
even “reckless” discharge of a firearm under section 76-10-508.1 is a crime
of violence notwithstanding Zuniga-Soto, a decision of the United States
Court of Appeals for the Tenth Circuit, in whose jurisdiction this case
arises. Alternatively, the DHS argues that even if section 76-10-508.1 does
not categorically define a crime of violence, we misapplied Mathis in two
respects: (1) we improperly inferred that section 76-10-508.1 is indivisible
from the fact that Utah law does not require a jury to be unanimous about
the mental state of a defendant who is guilty of second-degree murder; and
(2) we did not consider the respondent’s plea agreement as evidence of the
divisibility of section 76-10-508.1.
    A motion to reconsider is a “request [to] reexamine [a] 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-, 

 (BIA 2006) (citations omitted). The DHS’s motion will be denied
because it does not identify an adequate reason for reconsideration.
    First, while we have the authority to apply intervening Supreme Court
precedent that supersedes contrary circuit court authority, we may not
extend the rationale of a Supreme Court decision in the face of contrary
precedent from the controlling circuit. See Matter of Carachuri-Rosendo,

, 387–88 (BIA 2007) (holding that we must follow
circuit precedent regarding the meaning of criminal statutes and clarifying
that the circuits must decide whether their precedents have been implicitly
overruled by the Supreme Court), aff’d, Carachuri-Rosendo v. Holder, 

 (5th Cir. 2009), rev’d on other grounds, 

 (2010).
    As we noted in our prior decision, the Court in Voisine held only that
reckless assault involves the “use of physical force” within the meaning of
the “misdemeanor crime of domestic violence” definition in 18 U.S.C.

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§ 921(a)(33)(A) (2012). Matter of Chairez, 

 n.4. In so
holding, the Court stated that it did not intend to resolve whether reckless
conduct satisfies the “use of physical force” requirement under 

. Voisine, 136 S. Ct. at 2280 n.4. The Court explained that “[c]ourts
have sometimes given [

 and 921(a)(33)(A)] divergent
readings in light of differences in their contexts and purposes,” and it left
open the possibility that courts could interpret the two provisions
differently “with respect to their required mental states.” 

 Because there
is no necessary conflict between Voisine and Zuniga-Soto, we are obliged
to follow Zuniga-Soto unless and until it is overruled by a court of
competent jurisdiction. Matter of Carachuri-Rosendo, 24 I&N Dec. at 385,
387–88. This is not a proper case for us to express an opinion on the merits
of the DHS’s arguments as to how the law may or should evolve after
Voisine. Rather, since the Tenth Circuit has not overturned Zuniga-Soto in
the wake of Voisine, it remains authoritative precedent in this case.
    We also disagree with the DHS’s assertion that we misapplied Mathis
when we drew a “reasonable inference” that section 76-10-508.1 is
indivisible by looking to analogous Utah case law in the context of
second-degree murder. Matter of Chairez, 

 (citing State
v. Russell, 

, 164–68 (Utah 1987)). As the Court in Mathis
made clear, the divisibility of a State statute depends on whether State law
establishes that statutory alternatives are discrete “elements” or alternative
“means” of committing an offense. Mathis, 

. Where
State case law does not address the distinction between elements and means
in the context of a specific criminal statute, we see nothing unreasonable or
impermissible about seeking guidance in cases interpreting statutes with
similar language and structure. As we stated in our prior decision, we are
unaware of any “Utah cases directly addressing whether intent, knowledge,
and recklessness operate as alternative ‘elements’ or mere [means] in the
context of section [76-10-508.1].” Matter of Chairez, 

.
    Finally, we cannot adopt the DHS’s view that the respondent’s plea
agreement—which indicates that the respondent’s offense involved a
“knowing” discharge of a firearm—is probative evidence of the divisibility
of section 76-10-508.1 under Mathis. Pursuant to Mathis, we may “peek”
at the respondent’s conviction record for the “sole and limited purpose” of
deciding whether statutory alternatives define discrete “elements”—or facts
that must be proven to a jury beyond a reasonable doubt in order to convict.
Mathis, 136 S. Ct. at 2256–57 (citation omitted). Thus, at the “peeking”
stage of our inquiry, we are not concerned (as we would be under a
modified categorical inquiry) about which facts were proved or admitted.
Instead, we are concerned only with those facts that had to be proved or
admitted in order to convict. Id. at 2248.

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    Standing alone, the admission in the respondent’s plea agreement that
he knowingly discharged a firearm is not itself sufficient to reliably
establish that this admitted fact is an “element” in the narrow sense
contemplated in Mathis. The Court has instructed that we must view such
findings or admissions in conjunction with the charges to which they
correspond in order to ensure that a found or admitted fact is truly an
“element” of the State statute of conviction. See id. at 2257. Thus, while
the facts admitted in a plea agreement may shed light on the divisibility of a
State statute when those facts are tethered to what is alleged in a charging
document, that is not the case here.
    We need not decide what documents are appropriate for a “peek,” aside
from the documents referenced by the Court in Mathis—namely, the
relevant jury instructions and the charging document filed by the
prosecutor. See id. If, for example, a prosecutor charges a defendant in the
disjunctive with “intentionally, knowingly, or recklessly” discharging a
firearm, that would be “as clear an indication as any that each alternative is
only a possible means of commission, not an element that the prosecutor
must prove to a jury beyond a reasonable doubt.” Id. This is so even if the
defendant subsequently signs a plea agreement that specifies only one of
those three mental states to the exclusion of the others. On the other hand,
if a prosecutor charges a defendant only with one of the three enumerated
mental states—for instance, “knowingly” discharging a firearm—that
would tend to indicate that each mental state is a distinct element. 2
    As we noted in our prior decision, “[t]he amended information to which
the respondent entered his guilty plea contains no mens rea allegation at all
with respect to the respondent’s discharge of a firearm, much less an
allegation of one particular mental state to the exclusion of all others.”
Matter of Chairez, 

. Since the admission of a
“knowing” mental state contained in the respondent’s plea agreement is not
tethered to any fact charged in the amended information, that admission
does not establish the divisibility of section 76-10-508.1 under Mathis. We
therefore discern no legal or factual error in our prior decision in this case
and will deny the DHS’s motion to reconsider. See Matter of O-S-G-,
24 I&N Dec. at 57.
    ORDER: The motion to reconsider is denied.


2
    Notably, the information that may be gleaned by “peek[ing]” at the conviction record
does not stand on an equal footing with “authoritative sources of state law.” Mathis, 

. In fact, the Court made clear that such a “peek” may be resorted to only
“if state law fails to provide clear answers” with respect to divisibility. 

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CONCURRING OPINION: Garry D. Malphrus, Board Member
    I concur in the reasoning and the result in this case. I write separately to
note that while the Department of Homeland Security (“DHS”) is incorrect
that the respondent’s plea agreement renders his statute of conviction
divisible relative to the generic definition of a crime of violence under

 (2012), it is correct that the respondent’s plea agreement
shows that he pled to knowingly—rather than recklessly—discharging a
firearm in the direction of a person. Under established law, this would
constitute a crime of violence under 

, and thus an aggravated
felony under section 101(a)(43)(F) of the Immigration and Nationality Act,

(a)(43)(F) (2012).
    However, we may not consider the respondent’s conviction records in
this or any other case, unless we first determine that the statute of
conviction is divisible under the narrow circumstances prescribed by the
Supreme Court in Mathis v. United States, 

 (2016), and
Descamps v. United States, 

 (2013), where the Court
interpreted and extended its approach to divisibility in Taylor v. United
States, 

 (1990), and Shepard v. United States, 

 (2005). This is so even when the relevant conviction documents are in
the record and it is undisputed that they establish the respondent’s actual
conduct. Mathis, 

 (noting that “how a defendant actually
committed [the] offense” is irrelevant to the divisibility analysis).
    Whether Congress would have intended this result is an entirely
different question. See 

 (Kennedy, J., concurring) (noting that
Congress did not intend this strict approach when the record makes it clear
that the defendant committed the generic crime); see also 

 (Alito,
J., dissenting) (same). This is especially true for immigration proceedings,
which are civil, rather than criminal, in nature. The Supreme Court’s
approach to divisibility in Taylor and Shepard was created to protect Sixth
Amendment rights in the context of Federal sentencing proceedings and to
prevent “the specter of mini-trials” on collateral issues during sentencing,
but those legal and policy concerns do not apply in the same manner in the
context of immigration proceedings. Prudencio v. Holder, 

 (4th Cir. 2012) (Shedd, J., dissenting) (citation omitted). It is not at all
clear that holding a mini-trial to determine what conduct—within the range
of conduct punished by a statute—an alien actually committed is any more
onerous than deciding whether a particular statute provides separate
elements of a crime or alternative means of committing the offense. See
Mathis, 

 (Breyer, J., dissenting). There are often no clear
answers to whether a fact is an element or a means, even after an exhaustive


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search, and “[w]hat was once a simple matter will produce a
time-consuming legal tangle.” 

    Immigration Judges frequently make findings on collateral issues such
as determining whether an offense is a “particularly serious crime” in the
course of adjudicating an asylum application. See section 208(b)(2)(A)(ii)
of the Act, 

(b)(2)(A)(ii) (2012). Also, Immigration Judges
routinely consider probative evidence of facts and circumstances outside
the conviction record when considering whether a respondent with a
criminal history warrants relief from removal in the exercise of discretion.
See, e.g., Matter of Silva-Trevino, 

, 837 (BIA 2016);
Matter of Mendez, 

, 303 n.1 (BIA 1996).
    Here, we must presume that the respondent committed the least of the
acts criminalized within the range of conduct punishable under his statute
of conviction. See Moncrieffe v. Holder, 

, 1684–85 (2013).
This is true even though the respondent’s plea agreement indicates that he
did more—specifically, that he knowingly discharged a firearm at another,
and thus he committed an aggravated felony crime of violence. See 

    The approach to divisibility required by Descamps and Mathis will
result in immigration proceedings being terminated for many aliens who
have committed serious crimes in the United States. See, e.g., Ramirez
v. Lynch, 

, 1134–38 (9th Cir. 2016) (reversing the order of
removal upon concluding that the California statute proscribing felony
child abuse was not divisible, and thus it was improper to consider the
conviction records in determining whether the alien’s conviction
constituted an aggravated felony crime of violence). 1 It is for Congress to
determine whether this approach is consistent with its intent regarding the
immigration consequences of such criminal conduct.




1
    While we are not terminating proceedings in this case because the respondent is
removable under section 237(a)(2)(C) of the Act, 

(a)(2)(C) (2012),
termination would be necessary if the respondent had been convicted under the California
firearms statute that corresponds to the Utah statute at issue here. See United States
v. Aguilera-Rios, 

, 635–37 (9th Cir. 2014). In fact, while section
237(a)(2)(C) of the Act provides that an alien is removable for a firearms offense, that
provision is inapplicable in any jurisdiction where there is a realistic probability of
successful prosecutions under the statute involving antique firearms. See 

. This
is true even if such prosecutions are exceedingly rare and it is undisputed that the alien’s
conviction did not involve an antique firearm. See Moncrieffe, 133 S. Ct. at 1684–85.


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