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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.