The Board of Immigration Appeals previously held that Chairez’s conviction for felony discharge of a firearm in violation of section 76-10-508.1 of the Utah Code is a removable firearms offense, but not an aggravated felony. Visit my previous post for that decision. DHS did not like that decision and filed a motion to reconsider, arguing it was not consistent with the emerging law of the Tenth Circuit (in which Chairez’s removal proceedings were held).
The Board’s previous decision in Chairez concluded that a conviction of section 76-10-508.1(1)(a) is not categorically a crime of violence aggravated felony because the conviction may rest on intentional, knowing, or reckless conduct and reckless conduct will not support a crime of violence conviction.
The Board’s previous decision further held that it could not look to the record of conviction to determine whether Chairez pleaded guilty to committing the offense with intent, knowledge, or recklessness. The Supreme Court in Descamps held that so-called modified categorical analysis was permitted only where the statutory definition of the offense was divisible into multiple alternative elements. And the Board understood elements to mean those facts about the crime that a jury would need to agree upon to convict (as opposed to means, such as baseball bat vs. pipe, on which a jury need not agree). The Board found that Utah law did not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness in discharging a firearm in violation of section 76-10-508.1(1)(a), so it held the offense was not divisible and thus the record of conviction could not narrow the conviction to match the aggravated felony definition.
DHS argued on a motion to reconsider, however, that a recent decision of the Tenth Circuit understood the “alternative elements” referred to in Descamps to mean any alternative phrases in a statutory definition of an offense, regardless of whether a jury must agree upon one of the alternatives to convict. The Board that agreed the Tenth Circuit understood the Supreme Court’s decision this way and found that it was compelled to apply that interpretation in the Tenth Circuit. Under that interpretation, it does not matter whether jury unanimity was necessary on whether a defendant discharged a firearm with intent, knowledge, or recklessness. The court may look to the record of conviction to determine which of those alternatives the defendant pleaded to in order to determine whether the conviction satisfies the aggravated felony definition. The plea agreement in Chairez’s case specified that he “knowingly discharged a firearm in the direction of any person,” so the record of conviction satisfied the crime of violence aggravated felony definition in the Tenth Circuit.
Notably, though, the Board declined to retreat from its previous decision in Chairez, except in those circuits like the Tenth that understood the “elements” in Descamps to include what would normally be considered “means” that need not be agreed upon by a jury. That emerging circuit split has the Tenth, First, and Third Circuits one side and the Fourth, Ninth, and Eleventh on the other (although the Ninth Circuit did not faithfully apply the jury unanimity understanding of elements in a case involving a controlled substance–see Coronado v. Holder). Chairez II held that the Board would apply the law of whatever circuit the removal proceedings occurred in or, if there is no controlling law, then the opinion in Chairez I.
Thus, in the First, Third, and Tenth Circuits defense counsel must be extremely careful about what ends up in the record of conviction. Indeed, defense counsel in every circuit should do that, at least until the Supreme Court resolves the circuit split. What does it mean to be careful about what ends up in the record of conviction? Take Chairez’s case for instance. Since Utah apparently does not require jury unanimity on whether a defendant acted with intent, knowledge, or recklessness, it would seem perfectly acceptable to list all three in the plea statement. Instead of “knowingly discharged a firearm in the direction of any person,” the plea could read “intentionally, knowingly, or recklessly discharged a firearm in the direction of any person.” With the reckless alternative included, DHS could not meet its burden of proving deportability. Even better if you can get the prosecutor to agree to a plea that specifies only reckless conduct.