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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - WAS


1901 S. Bell Street, Suite 900
Arlington, VA 22202

Name: KHATTAK, AZMAT ALI

A 044-904-454

Date of this notice: 1/11/2017

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

bonJtL C

lYv'1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Malphrus, Garry D.
Pauley 1 Roger

Userteam: Docket

For more unpublished BIA decisions, visit


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

U.S. Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - WAS


1901 S. Bell Street, Suite 900
Arlington, VA 22202

Name: KHATTAK, AZMAT ALI

A 044-904-454

Date of this notice: 1/11/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

bOWtL ct1/VL)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Malphrus, Garry D.
Pauley, Roger

Userteam:

Cite as: Azmat Ali Khattak, A044 904 454 (BIA Jan. 11, 2017)

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KHATTAK, AZMAT ALI


A044-904-454
c/o OHS/ICE/FARMVILLE
508 WATERWORKS ROAD
P.O BOX N
FARMVILLE, VA 23901

U..S. Department of Justice

E?{ecutive Office for Immigration Review

Decision of the Board of Immigration Appeals

Fal1s Church, Virginia 22041

File: A044 904 454 - Arlington, VA

Date:

In re: AZMAT ALI KHATTAK

JAN 1 1 2017

APPEAL
ON BEHALF OF RESPONDENT: Adina B. Appelbaum, Esquire
ON BEHALF OF DHS: Elizabeth M. Dewar
Assistant Chief Counsel
CHARGE:
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
August 3, 2016, decision terminating removal proceedings against the respondent. The
respondent opposes the appeal. The appeal will be sustained in part and the record will be
remanded for further proceedings consistent with this opinion and the entry of a new decision.
The respondent is a native and citizen of Pakistan and a lawful permanent resident of the
United States since his admission as an immigrant on February 18, 1996. In 2014, the
respondent was convicted of unlawful wounding in violation of section 18.2-51 of the Virginia
Code, 1 a felony for which he was sentenced to a 5-year term of imprisonment (all but 9 months
of which was suspended in favor of probation). The only issue on appeal is whether that
conviction renders the respondent removable as an alien convicted of an "aggravated felony"-to
wit, a "crime of violence" under 18 U.S.C. 16 for which the term of imprisonment is at least 1
year. See sections 10l(a)(43)(F) and 237(a)(2)(A)(iii) of the Immigration and Nationality Act,
8 U.S.C. 110l(a)(43)(F), 1227(a)(2)(A)(iii).
According to the Immigration Judge, the DHS failed to prove that unlawful wounding under
Va. Code 18.2-51 is a "crime of violence," which is defined by 18 U.S.C. 16, as follows:
1

Va. Code 18.2-51 provides:


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
shall, except where it is otherwise provided, be guilty of a Class 3 felony. If such
act be done unlawfully but not maliciously, with the intent aforesaid, the offender
shall be guilty of a Class 6 felony.
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IN REMOVAL PROCEEDINGS

A044 904 454


(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.

Upon de novo review, we conclude that unlawful wounding under Va. Code 18.2-51 is not
a crime of violence under 18 U.S.C. 16(a) because it does not have as an element the use,
attempted use, or threatened use of violent physical force against the person or property of
another. To be precise, 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). See Matter of Guzman-Polanco ("Guzman-Polanco I"),
26 I&N Dec. 713, 717-18 & n.7 (BIA 2016) (holding that oattery 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). Though the OHS 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. See United States v. Torres-Miguel,
701 F.3d 165, 168-69 (4th Cir. 2012) (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 element where the offense can be committed by means of a
threat to poison another).2 The court determined there is a difference between the causation of
an injury and an injury's causation by physical force.
See id. at 169 (citing
Chrzanoski v. Ashcroft, 327 F.3d 188, 194 (2d Cir. 2003)).
The DHS maintains in supplemental briefs that Guzman-Polanco I and Torres-Miguel have
been abrogated by United States v. Castleman, 134 S. Ct. 1405 (2014), where the Supreme Court
held in relevant part that poisoning entails a "use of physical force" within the meaning of
18 U.S.C. 92l(a)(33)(A)(ii), which defines the term "misdemeanor crime of domestic
violence" for sentencing purposes. In support of this argument, the DHS invokes recent
precedents of the Second, Seventh, Eighth, and Ninth Circuits, all of which interpret Castleman
as holding that poisoning necessarily involves the "use of physical force" under 18 U.S.C. 16
and other similar sentencing statutes. See United States v. Hill, 832 F.3d 135 (2d Cir. 2016);
Arellano-Hernandez v. Lynch, 831 F.3d 1127 (9th Cir. 2016); United States v. Rice, 813 F.3d
704, 706 (8th Cir. 2016); De Leon Castellanos v. Holder, 652 F.3d 762, 765-67 (7th Cir. 2011).
The DHS also points out that a number of United States district courts within the jurisdiction of
the Fourth Circuit have concluded that Castleman overrules Torres-Miguel.
2

Although Torres-Miguel involved the federal sentencing guidelines, the court analyzed the
same language as that contained in 18 U.S.C. 16(a).
2
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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 or other conduct which neither has the use of violent physical
force as an element nor presents a substantial risk that such force will be used (I.J. at 2-5).

A044 904 454

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 nevertheless be remanded because we conclude
that the Immigration Judge did not properly examine whether the offense qualifies as a crime of
violence under 18 U.S.C. 16(b). Because 18 U.S.C. 16(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
another. Matter ofFrancisco-Alonzo, 26 I&N Dec. 594, 597-600 (BIA 2015). The Immigration
Judge did not apply this "ordinary case" analysis, however, because he found that the Supreme
Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), prohibits him from doing
so (I.J. at 4-5).4 Instead, the Immigration Judge asked whether the "least culpable conduct"
punishable under Va. Code 18.2-51 presented the "substantial risk" of violent physical force
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. Like the Board in Francisco-Alonzo, the
United States Court of Appeals for the Fourth Circuit-in whose jurisdiction this case arises
has held that the proper inquiry under 16(b) is whether the conduct encompassed by the
elements of an offense raises a substantial risk the defendant may use physical force in an
"ordinary case" arising under the statute. See United States v. Avila, 770 F.3d 1100, 1107
(4th Cir. 2014). Though Avila was decided before Johnson, it is not for the Immigration Judge
3

While we acknowledge that some United States District Courts within the Fourth Circuit have
interpreted Castleman as having abrogated Torres-Miguel, published district court opinions are
not precedential in removal proceedings. See Matter ofK-S-, 20 l&N Dec. 715 (BIA 1993).
The Immigration Judge expressly (and properly) declined to find that Johnson rendered
section 16(b) unconstitutionally vague (I.J. at 4). See Matter of Fitspatrick, 26 l&N Dec. 559,
562 (BIA 2015) (noting that neither the BIA nor the Immigration Judge has the authority to rule
on the constitutionality of the laws enacted by Congress).

3
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As we explained in Guzman-Polanco I, however, Castleman is distinguishable because the


Court there held that 18 U.S.C. 921(a)(33)(A)(ii) employs the phrase "use of physical force" in
a non-violent, common-law sense very different from that which governs 18 U.S.C. 16(a). See
Guzman-Polanco I, supra, at 717. Indeed, the Castleman Court expressly refrained from
adopting Justice Scalia's concurring view-now echoed by the OHS-that the infliction of
physical injury necessarily contemplates the use of physical force.
See
United States v. Castleman, supra, at 1414 ("Justice SCALIA's concurrence suggests that
[bodily injury] necessitate[s] violent force, under [the] ... definition [adopted in Curtis Johnson
v. United States, 559 U.S. 133, 137 (2010)]. But whether or not that is so-a question we do not
decide-these forms of injury do necessitate force in the common-law sense." (emphasis added)
(citation omitted)). Further, we have clarified in a precedential opinion that applicable circuit
law governs the issue of whether indirect applications of force-such as poisoning-satisfy the
requirements of 18 U.S.C. 16. See Matter of Guzman-Polanco ("Guzman-Polanco If'),
26 I&N Dec. 806, 808 (BIA 2016). The Fourth Circuit's panel decision in Torres-Miguel has
not been overruled by the Supreme Court or by the Fourth Circuit sitting en bane, and thus it
remains controlling here pursuant to Guzman-Polanco JL 3 Accordingly, we will dismiss the
DHS's appeal as it relates to the applicability of 18 U.S.C.. 16(a).

A044 904 454


or this Board to declare that Fourth Circuit precedent has been implicitly overruled by the
Supreme Court. Accord Matter of Carachuri-Rosendo, 24 I&N Dec. 382, 387-88 (BIA 2007). If
Avila needs to be revisited in light of Johnson, the Fourth Circuit (or the Supreme Court) is the
proper authority to do so.5

ORDER: The appeal is sustained in part, 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.

THE BOARD

Board Member Garry D. Malphrus respectfully dissents without separate opinion.

Four circuits have applied the Johnson Court's reasoning to invalidate 18 U.S.C. 16(b). See
Shuti v. Lynch, 828 F.3d 440, 446-451 (6th Cir. 2016); United States v. Vivas-Ceja, 808 F.3d 719,
723 (7th Cir. 2015); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015), cert. granted sub
nom. Lynch v. Dimaya, No. 15-1498 (U.S. September 29, 2016) (Mem.); Golicov v. Lynch, 837
F.3d 1065 (10th Cir. 2016). The Fifth Circuit has disagreed, holding that 18 U.S.C. 16(b) is
valid despite Johnson. See United States v. Gonzalez-Longoria, 831 F.3d 670 (5th Cir. 2016)
(en bane); see also United States v. Prickett, 839 F.3d 697 (8th Cir. 2016), (holding that 18
U.S.C. 924(c)(3)(B), which employs the same language as 18 U.S.C. 16(b), remains valid
despite Johnson); United States v. Hill, 832 F.3d 135 (2d Cir. 2016) (same); United States v.
Taylor, 814 F.3d 340, 375-76 (6th Cir. 2016) (same).
6

In view of our disposition, we do not reach the Immigration Judge's analysis and conclusions
regarding the divisibility of the statute.
4
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In conclusion, in Fourth Circuit cases, Matter ofFrancisco-Alonzo and United States v. Avila
remain controlling as to the application of 18 U.S.C. 16(b) despite Johnson. Under those
precedents, an alien's offense of conviction is a crime of violence under 18 U.S.C. 16(b) if the
offense is a felony and if the 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." The record will be remanded for the Immigration Judge to reconsider the
respondent's removability in accordance with this standard.6

n.

'
'

UNITED STATES DEPARTMENT OF JUSTICE


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

FILE A 044-904-454

IN THE MATTER OF
KHATTAK, AZMAT ALI

DATE: Aug 3, 2016

_ U TO FORWARD - NO ADDRESS PROVIDED


TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. 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, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 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. SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1901 S. BELL STREET, SUITE 200
ARLINGTON, VA 22202
OTHER:

CC: ELIZABETH DEWAR, ESQ.


1901 S. BELL STREET
ARLINGTON, VA, 22202

IMMIGRATION COURT

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

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
United States Immigration Court
1901 South Bell Street, Suite 200
Arlington, VA 22202
IN REMOVAL PROCEEDINGS

Respondent.

)
)
)
)
)

APPLICATION:

Motion to terminate.

KHATTAK, Azmat Ali,

File No.: A 044- 904 -454

APPEARANCES
FOR THE GOVERNMENT:
Elizabeth Dewar, Esq.
Assistant Chief Counsel
U.S. Department of Homeland Security
1901 S. Bell Street, Suite 900
Arlington, VA 22202

FOR THE RESPONDENT:


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

DECISION OF THE IMMIGRATION JUDGE


I.

PROCEDURAL HISTORY

The Respondent is a thirty-eight-year-old native and citizen of Pakistan. He was


admitted to the U.S. as a lawful permanent resident ("LPR") on or about February 18, 1996. See
Ex. 1. On November 25, 2014, he was convicted of maiming in violation of Virginia Code
18.2-51 and sentenced to five years' imprisonment. Id. On May 16, 2016, 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 10I(a)(43)(F), a crime of violence for which the term of
imprisonment is at least one year. Id. DHS has the burden to prove removability by clear and
convincing evidence. INA 240(c)(3)(A); 8 C.F.R. 1240.8(a).
On July 5, 2016, the Respondent orally moved to terminate removal proceedings,
alleging his conviction was not for a crime of violence. The Immigration Court then set a
briefing schedule. On July 15, 2016, the Respondent filed his motion to terminate. On July 28,
2016, DHS filed a delayed brief in response. On August 1, 2016, the Respondent filed a brief in
reply. The Respondent argued the Immigration Court should find his motion to terminate be
deemed unopposed. Despite DHS's delayed filing, the Immigration Court will consider all

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IN THE MATTER OF:

In t4e Matter of AZTnat Ali KHA TTAK


A# 044 - 904 - 454

arguments in the interest of judicial efficiency. For the reasons that follow, the Immigration
Court grants the Respondent's motion to terminate.
II.

LAW & ANALYSIS

To determine whether the Respondent's conviction under Virginia Code 18.2-51 is a


crime of violence, the Immigration Court applies the categorical approach. The state crime 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 offense. See Matter of Chairez-Castrejon, 26 l&N Dec. 349, 351 (BIA 2014) (citing
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013)). In determining whether state and
generic federal crimes match, the key is "elements, not facts." Descamps v. U.S., 1 33 S. Ct.
2276, 2283 (20 1 3).
The Respondent was convicted of maiming in violation of Virginia Code 18.2-51 . The
statute provides, in relevant part: "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 shall . . . be guilty of a Class 3 felony." DHS alleges the Respondent's conviction is for a
crime of violence. 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 of violence 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 of physical force. The Supreme Court has noted that section 16(b) encompasses "offenses
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 1 8
U.S.C. 16 is substantial. The Supreme Court has previously held that "physical force" means
"violent force . . . capable of causing physical pain or injury to another person." Johnson v. U.S.,
559 U.S. 133, 140 (20 1 0); see Matter of Velasquez, 25 I&N Dec. 278, 283 (BIA 2010).
1. 18 U.S. C. 1 6(a)

OHS argues the Respondent's conviction is categorically an aggravated felony crime of


violence under subsection (a) because the use of physical force is an element of the crime. DHS
Br. at 1. The Respondent argues that physical force is not an element of the crime, and that his
2

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A. Categorical Approach

0
.

In the Matter of Azmat Ali KHATTAK


A# 044 - 904 - 454

'

conviction is therefore not categorically an aggravated felony crime of violence. Resp't Mot. at
8-9 (July 15, 2016).

DHS further argues it is impossible to intentionally cause injury without the presence of
violent force. OHS Br. at 7. In Matter of Guzman-Polanco, 26 I&N Dec. 713, 717-18 (BIA
2016), the Board determined that indirect force can involve acts that do not require violent force.
OHS asks the Immigration Court to ignore this binding precedent, as there is a pending motion to
reconsider. Ignoring this binding case would be improper; it remains good law. Moreover, the
Supreme Court explicitly stated in U.S. v. Castleman, 134 S. Ct. 1405, 1411-13 n.4 (2014) that it
would not extend its interpretation of "force" in 18 U.S.C. 922(g)(9) to statutes that do not use
the common law definition of force, including 18 U.S.C. 1 6 and the Armed Career Criminals
Act ("ACCA"). The common-law definition of force can include the use of minimal physical
force, such as offensive touching. Indeed, Johnson rejected the idea that physical force has the
same meaning as at common law. 559 U.S. at 139. The Fourth Circuit has recently reinforced
this finding. See U.S. v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (noting "physical force"
does not include the "slightest offensive touching").
Case law confirms physical force is not an element of section 18.2-51. See Dawkins v.
Commonwealth, 41 S.E.2d 500, 504 (Va. 1947) (noting the focus of the offense is the intent
1

Although Torres-Miguel involved sentencing guidelines, the court analyzed the same language as that contained in
I 8 U.S.C. 1 6(a).

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DHS argues that the statute's elements of intent and bodily injury suffice to meet the
"physical force" requirement. DHS Br. at 4-7. DHS claims that all acts under the statute are
"capable of causing bodily injury because they, by their definition, result in and describe such
injury." Id. at 6. To convict an individual under section 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. Ex. 3, Tab G. Shooting, stabbing, cutting, or wounding would unquestionably
involve "violent force . . . 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 caused bodily
injury t'by any means." DHS thus argues that all acts that could fall under the statute, including
the "any means" prong, are required to have caused intentionally injury and therefore require
physical force, making the statute a crime of violence. This is incorrect; merely because the acts
may cause injury does not mean that they require force capable of causing injury. DHS conflates
the test for physical force and physical injury. Under DHS's reading, any intentional act that
causes physical pain or injury would involve physical force; this cannot be. Rather, under BIA
and Supreme Court precedent, any violent 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
is insufficient. See U.S. v. Torres-Miguel, 701 F.3d 165, 168-69 (4th Cir. 2012) (noting that an
offense resulting in physical injury without the use or threatened use of force does not meet the
definition of a crime of violence, and acknowledge a crime can result in serious injury without
the use of physical force). The Fourth Circuit has detennined 1 there is a difference between the
causation of an injury and an injury's causation "by the use of physical force." Id. at 169 (citing
Chrzanoski v. Ashcroft, 327 F.3d 188, 1 94 (2d Cir. 2003)).

0
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In tbe Matter of Azmat Ali KHATTAK


A# 044 - 904 - 454

2. 18

u.s. c. 16(b)

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 I&N Dec. 670, 677 (BIA 20 1 2). Recently, the
Board also found that the Supreme Court's decision in Moncrieffe has not affected the "ordinary
case" test set forth in prior Supreme Court decisions. Matter of Francisco-Alonzo, 26 I&N Dec.
594, 599 (201 5). The Supreme Court, however, more recently determined that the "ordinary
case" analysis is unworkable. See Johnson v. U.S., 135 S. Ct. 2551 (2015). The Johnson
decision rejected the dissent's suggestion of examining actual conduct, and instead confirmed
that the "'only plausible interpretation of the law . . . requires use of the categorical approach."
Id. at 2562 (citing Taylor, 495 U.S. at 602).
DHS and the Respondent disagree as to whether Johnson found 1 8 U.S.C. 1 6(b) void
for vagueness. Resp't Mot. at 15- 1 6; DHS Br. at 1 3-1 7. The Supreme Court found the residual
clause of the ACCA, which mirrors subsection (b), void for vagueness. Since that time, four
Circuit Courts and one District Court have found subsection (b) void for vagueness. Resp't Mot.
at 1 5. Johnson, however, did not explicitly deal with 18 U.S.C. 1 6; it dealt with a separate,
albeit similarly worded, federal statute. The Immigration Court declines to extend the Supreme
Court's holding to a different statute. Although the findings of other courts are persuasive, the
Immigration Court cannot unilaterally determine the statute is unconstitutionally vague. See
Matter of Fitzpatrick, 26 I&N Dec. 559, 562 (BIA 2015) (noting the BIA and Immigration
Judges do not have authority to rule on ''the constitutionality of the laws enacted by Congress").
Although it is possible the Supreme Court may find 18 U.S.C. 16(b) void for vagueness, it has
not yet done so. The Immigration Court declines to do so in its stead.
DHS argues that because each conviction under Virginia Code 1 8.2-51 involves
"physical injury caused by an intentional act," there will always be the risk that physical force
will be used. DHS Br. at 11- 1 2. Further, DHS claims that the intent element in the statute
"increases the risk of the use of physical force being used in the ordinary case." Id. at 12. OHS
concludes that an "unlawful intention act . . . always has a substantial risk of the use of force."
Id. at 1 3. As the Respondent notes, the Supreme Court expressly overruled the "ordinary case"
2

The Respondent provided several examples demonstrating physical force is not necessary for a conviction under
the statute, including "poisoning, child neglect, [and] facial disfigurement." Resp't Mot. at 9.

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rather than the means); Long v. Commonwealth, 379 S.E.2d 473, 475 (Va. Ct. App. 1 989)
(noting the focus is on the intent of the act and that the statute "does not contain a limitation
upon the means employed); see also U.S. v. Lopez-Reyes, 945 F. Supp. 2d 658, 661 (E.D. Va.
2013) (noting that "by any means" signifies the statute does not categorically have as an element
the "use, attempted use, or threatened use of physical force against the person of another").
Intentional causation of injury does not satisfy the "physical force" element of 18 U.S.C. 16(a).
Guzman-Polanco, 26 I&N Dec. 7 1 6-18. A conviction under section 1 8.2-51 can encompass acts
that do not involve violent force. 2 Because Virginia Code 18.2-51 does not contain an element
of physical force, it is not categorically a crime of violence under 1 8 U.S.C. 1 6(a).

0
..

In the Matter of Azmat Ali KHA TTAK


A#.044 - 904 - 454

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 dos not involve physical
force. For example, an individual could intend to disable someone by cutting the brake lines in
her car. Such an action would not constitute 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. 1 8 U.S.C. 16(b). The Fourth Circuit has determined that even a substantial
risk that actions will cause physical injury "does not intrinsically involve a substantial risk that
force will be applied." Garcia v. Gonzales, 455 FJd 465 , 468-69 (4th Cir. 2006). Therefore
Virginia Code 18.2-5 1 is not a crime of violence under 18 U.S.C. 16(b).
B. Divisibility

Where the state crime is not a categorical match to the generic crime, DHS must establish
the state statute of conviction is divisible. See Descamps, 133 S. Ct. at 2279; see also
Omargharib v. Holder, 775 F.3d 1 92, 1 99-200 (4th Cir. 20 14) . Where "the crime [for] which the
[Respondent] was convicted has a single, indivisible set of elements," courts may not apply the
modified categorical approach. Descamps, 133 S. Ct. at 2282; see also Moncrieffe, 133 S. Ct. at
1684; Taylor v. U.S., 495 U.S. 575, 599 (1 990). If the state statute is divisible, the Immigration
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).
Because DHS did not address divisibility and the Immigration Court has determined the
Respondent's conviction is categorically overbroad, DHS has failed to meet its burden to
establish by clear and convincing evidence that the Respondent is removable. DHS's burden
extends to establishing the divisibility of a statute. See Omargharib, 775 FJd at 200
(determining the government made "no meaningful argument" on divisibility and therefore failed
to satisfy its burden to establish removability by clear and convincing evidence); see also Karimi
v. Holder, 715 F.3d 561 , 566 (4th Cir. 20 1 3) (citing Salem v. Holder, 647 F.3d 111, 116 (4th Cir.
201 1), and emphasizing that the government bears the burden of proving removability, which
includes proving whether a respondent committed an aggravated felony, by clear and convincing
evidence). Accordingly, the charge should be dismissed. The Immigration Court nevertheless
analyzes divisibility, as the Respondent put forth significant argumentation on the issue.
The Respondent argues that the recent Supreme Court decision in Mathis v. U.S., 136 S.
Ct. 2243 (2016), is instructive. Mathis reinforced that the categorical approach is an elements
based inquiry. Id. at 225 2. The Court confirmed that the modified categorical approach may be
used, and thus a statute is divisible, when the statute lists alternative elements, not means. Id. at
2250. The Immigration Court must determine whether the statute includes alternative elements
5

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analysis, which the BIA has adopted in analyzing subsection (b). See Johnson, 1 35 S. Ct. at
2563. The Immigration Court will not apply the "ordinary case" analysis, because it has found,
as discussed above, that the appropriate analysis under the categorical approach is dictated by
Moncrieffe. Under this approach, the factfinder must "presume that the conviction rested on
nothing more than the least of the acts criminalized and then determine whether those acts" pose
a substantial risk that physical force will be used. Moncrieffe, 133 S. Ct. at 1684.


-}'

In the Matter of Azmat Ali KHATTAK


A# 044 - 904 - 454

Virginia case law indicates Virginia Code 1 8.2-5 1 is not divisible into alternate
elements. In Long, the Court of Appeals of Virginia determined the focus is on the intent behind
the act, not the means with which it was effectuated. 379 S.E.2d at 475. Several years later, the
same Court analyzed the statute and determined that the five acts within the statute are
alternative means that comprise a single element. See Crawley v. Commonwealth, 492 S.E.2d
503, 505 (Va. Ct. App. 1 997) (noting the Commonwealth must prove the accused (1) intended to
"maliciously shoot, stab, cut, or wound any person or by any means cause bodily injury with the
intent to maim, disfigure, disable, or kill"; and (2) "committed a direct but ineffectual act toward
this purpose"). Several courts have since come to the same conclusion-that a conviction under
Virginia Code 18.2-51 is comprised of two elements: an overt act and an intent. See Cuffee v.
Commonwealth 735 S.E.2d 693, 701 (Va. Ct. App. 2013); Robertson v. Commonwealth, 525
S.E.2d 640, 645 (Va. Ct. App. 2000); Campbell v. Commonwealth, 405 S.E.2d 1 , 4 (Va. Ct.
App. 1 991 ) (stating that to support a conviction under Virginia Code 1 8.2-61, the evidence
must establish the defendant "( 1 ) maliciously shot, stabbed, cut or wounded" an individual or
"'by any means' caused him bodily injury and (2) did so with the 'intent to maim, disfigure,
disable, or kill "').
Virginia jury instructions compel the same result. The Model Jury instructions state that
a conviction for malicious wounding under Virginia Code 18.2-51 is comprised of three
elements: 1) causing bodily injury by an means to an individual; 2) causing such injury with
requisite intent; and 3) malice. Resp't Mot., Tab G. The Virginia Practice Jury Instructions
indicate there are only two elements in the offense of malicious wounding: 1 ) an overt act and 2)
intent. Id., Tab H. Finally, the Office of the Commonwealth's Attorney instructions include the
same three elements as the Model Jury instructions. Id., Tab I. None of the instructions
indicates that the various acts are separate elements. The acts in the statute are thus clearly
alternate means of satisfying the overt act element. Accordingly, Virginia Code 1 8.2-51 is
indivisible.3 Because the Respondent's statute of conviction is overbroad and indivisible, the
Immigration Court finds his conviction is not for an aggravated felony crime of violence.
III.

CONCLUSION

DHS has failed to establish the Respondent has been convicted of a crime of violence as
defined in 1 8 U.S.C. 1 6. Therefore, DHS has also failed to prove he has been convicted of an
3

Even if the statute were divisible, the relevant documents in the Respondent' s record of conviction do not establ ish
he was convicted of a crime o f violence. His indictment charged him with causing bodily injury, without specifying
any means of commission. Resp't Mot., Tab D at 4; see also Resp't Mot. at 27-30.

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or simply includes alternative means of satisfying the same elements. Id. at 224; U.S. v. Royal,
731 F.3d 333, 341 (4th Cir. 2013). Elements are the "constituent parts" of a crime's definition
"the things the 'prosecution must prove to sustain a conviction."' 136 S. Ct. at 2248 (citing
Black's Law Dictionary 634 (10th ed. 201 4)). At trial, elements are what "the jury must find
beyond a reasonable doubt to convict the defendant," and at a plea hearing, elements "are what
the defendant necessarily admits when he pleads guilty." Id.; see also Omargharib, 775 F .3d at
1 98. The Supreme Court instructed that in analyzing whether items in a statute constitute means
or elements, courts must look at three sources-first, state case law; second, the text of the
statute itself; and third, the record of conviction. Mathis, 136 S. Ct. at 2256.

In e Matter of Azmat Ali KHA TTAK


A# 044 - 904 - 454

aggravated felony as defined in INA I 0 l (a)(43)(F). Accordingly, the Immigration Court


dismisses the charge. There being no additional charges of removability, the Immigration Court
must terminate proceedings.
Accordingly, the Immigration Court enters the following orders.

It is Ordered that

the charge under INA 237(a)(2)(A)(iii) be


DISMISSED.

It is Further Ordered that

the Respondent's motion to terminate proceedings


be GRANTED.

Rodge . Harris
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 calendar days after the date of service
of this decision.

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ORDER