BIA Clarifies Recent Precedent Decision That Crime Of Aggravated Battery Under The Puerto Rico Penal Code Is Not Categorically A Crime Of Violence Per 18 U.S.C § 16(a), Holding that Controlling Circuit Court Law Must Be Followed On The Question Of Whether The Use or Threatened Use Of Poison To Injure Another Involves Sufficient `Force` To Constitute A Crime Of Violence.

On September 9, 2016, The Board of Immigration Appeals (BIA or Board), readdressing a question that it had confronted earlier this year, issued an opinion clarifying Matter Of Guzman-Polanco, 26 I&N Dec. 713 (BIA 2016), which held that a conviction for aggravated battery in violation of the Puerto Rico Penal Code is not categorically for a crime of violence under 18 U.S.C. §16(a).

Following that decision, the Department of Homeland Security (DHS) had filed a motion for reconsideration arguing initially against the Board’s withdrawal from Matter of Martin, 23 I&N Dec. 491 (BIA 2002) in Guzman-Polanco. Granting the motion so as to address DHS’ concerns and explain its prior decision, the BIA upheld its previous holding that the Puerto Rican simple battery statute is too vague to categorically establish a crime of violence under §16(a) because it only requires that the infliction of “injury to the bodily integrity of another” be “through any means or form”. Again finding that the U.S. Supreme Court’s decision in Johnson V. United States, 559 U.S 133 (2010) (the phrase “physical force” means violent force – force “capable of causing physical pain or injury to another person”) controls its interpretation of §16 (a), the Board stated it was “appropriate” to withdraw from Matter of Martin to the extent that decision is inconsistent with Johnson because it includes within the definition of “crime of violence” offenses that do not require violent force.

As to DHS’ argument that the use of “indirect means” such as poison qualifies as a sufficient “use of force” to qualify under §16(a), the Board recognized that there is currently a circuit split on the issue and ruled that individual circuit law governs unless the Supreme Court  resolves this question. The record was thus remandad to the Immigration Judge for further proceedings and entry of a new decision. Matter of Guzman-Polanco, 26 I&N Dec. 806 (BIA 2016)   

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