BIA Holds That A Conviction Under California Penal Code §203 For The Crime Of Mayhem Requires A Malicious Act Resulting In Great Bodily Injury To Another, Therefore The Offense Involves The Use Of Violent Force And Is Thus A Categorical Crime Of Violence Per §18 USC 16(a).

On January 31, 2017, in a densely reasoned opinion, the Board of Immigration Appeals (BIA or Board) held that a conviction under California Penal Code §203 for mayhem qualifies as an aggravated felony crime of violence (COV) under INA §101(a)(43)(F) if the term of imprisonment imposed was at least one year. The appellant had been convicted of mayhem in 2013 and sentenced to 2 years in jail but in subsequent removal proceedings, the Immigration Judge (IJ) determined the offense was not a COV because §203 lacks an explicit element regarding the use, attempted use, or threatened use of violent force against another, as required by 18 USC §16(a), and terminated the proceedings. The government appealed.

Initially, the BIA noted that in determining whether respondent’s §203 conviction renders him removable it uses the categorical approach, comparing the elements of the criminal statute to those of the federal generic definition of a COV, assuming the conviction rested on nothing more than “the least of the acts criminalized”. The Board then noted that §16(a) defines a COV 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, explaining that the term “use” denotes volition while “physical force” means violent force capable of causing physical pain or injury. As his §203 conviction required a jury to find that respondent 1) committed an unlawful and malicious act 2) resulting in another’s body part being removed, disabled or disfigured, the opinion stated that the IJ’s analysis did not appear to recognize – even without those terms’ inclusion – that the requisite force may be “necessarily involved” in violations of the California statue.

In analyzing the “use” of force component, the BIA noted that §203 requires one to actively use force within the meaning of §16(a) such that mayhem must be committed “maliciously”, which intent may be inferred from actions which result in the listed injuries. As a result, the proscribed conduct must involve a volitional act capable of causing physical pain or injury although not necessarily a specific type of harm. Thus, held the Board, respondent’s offense must have necessarily involved the “use” of physical force suggesting a higher degree of intent than negligent or accidental conduct.

In parsing the “use” of violent physical force, the BIA found that §203 requires one’s malicious act to cause “great bodily injury”, holding that this necessarily involves force capable of causing the required physical pain or injury. The Board also found that there is no realistic probability that §203 would be used to prosecute a mayhem offense involving mere offensive touching and thus held that a violation of §203 is categorically a COV per §16(a), vacated the IJ’s decision, sustained the appeal, reinstated proceedings and remanded the record to the IJ. Matter of Kim, 26 I&N Dec. 912 (BIA 2017).