GUZMAN-POLANCO

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Matter of Elvis GUZMAN-POLANCO, Respondent
Decided February 24, 2016
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) For a State offense to qualify as a crime of violence under 18 U.S.C. § 16(a) (2012),
the State statute must require as an element the use, attempted use, or threatened use
of violent physical force. Matter of Martin, 23 I&N Dec. 491 (BIA 2002), withdrawn.
(2) The crime of aggravated battery under the Puerto Rico Penal Code, which may be
committed by means that do not require the use of violent physical force, is not
categorically a crime of violence under 18 U.S.C. § 16(a).
FOR RESPONDENT: Maria del Rosario Garcia Miranda, Esquire, San Juan, Puerto Rico
FOR THE DEPARTMENT OF HOMELAND SECURITY: Magdalena Ramos, Assistant
Chief Counsel
BEFORE: Board Panel: PAULEY, MALPHRUS, and GREER, Board Members.
PAULEY, Board Member:
In a decision dated May 19, 2015, an Immigration Judge found the
respondent removable under section 237(a)(2)(A)(iii) of the Immigration
and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien
convicted 	of 	an 	aggravated 	felony 	crime 	of 	violence 	under 	section
101(a)(43)(F) of the Act, 8 U.S.C. § 1101(a)(43)(F) (2012), and ordered
him removed from the United States.1 The respondent has appealed from
that decision. The appeal will be sustained and the record will be remanded
to the Immigration Judge for further proceedings.
The respondent is a native and citizen of the Dominican Republic who
entered the United States on November 2, 1997, as a lawful permanent
resident. 	On November 15, 2012, he was convicted of aggravated battery
in the third degree in violation of Article 122 of the Puerto Rico Penal
Code, which is codified at title 33, section 4750 of the Laws of Puerto Rico
1 The Immigration Judge also noted that the question of the respondent’s removability
was previously determined in an order dated May 13, 2015, which was incorporated by
reference, and that the respondent had requested no relief from removal.

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Annotated.2 His sentence to 3 years and 1 day of imprisonment was
suspended. 	The Department of Homeland Security (“DHS”) initiated
removal proceedings against the respondent on March 3, 2015.
The Immigration Judge determined that the respondent is removable
because 	his 	aggravated 	battery 	offense 	is 	a 	crime 	of 	violence 	under
18 U.S.C. § 16(a) (2012).3 Specifically, she ruled that the Puerto Rico
statute is divisible because it criminalizes both conduct that qualifies as a
crime 	of 	violence 	and 	conduct 	that 	does 	not. 	In 	this 	regard, 	the
Immigration Judge focused on the elements of aggravated battery in section
4750, noting that the offense includes injuries that require emotional and
psychological treatment, as well as those that require physical treatment.
She determined that injuries requiring physical treatment involve the use of
physical force, which is necessary for an offense to be a crime of violence
under § 16(a), but that injuries involving emotional and psychological
treatment do not. 	Finding that the statute is divisible, the Immigration
Judge 	applied 	the 	modified 	categorical 	approach 	to 	hold 	that 	the
respondent’s conviction is for an aggravated felony crime of violence.
The respondent argues that the Immigration Judge should have applied
the categorical approach to find that he was not convicted of a crime of
2 Article 122 of the Puerto Rico Penal Code, states the following in regard to aggravated
battery:
If the battery described in § 4749 of this title causes an injury that does not leave
permanent harm, but requires medical attention, specialized professional outpatient
treatment, shall incur a fourth degree felony.
If the battery causes an injury that requires hospitalization or extended treatment, or
causes permanent harm, the perpetrator shall incur a third degree felony. This
modality also includes mayhem, those that transmit an illness, syndrome or
condition requiring prolonged physical treatment, or those that require prolonged
psycho-emotional treatment.
33 L.P.R.A. § 4750 (2011) (emphases added). The predicate offense of simple battery,
referenced in Article 122 as section 4749 of the Laws of Puerto Rico Annotated, is at
Article 121 of the Puerto Rico Penal Code, which provides:
Any person who illegally through any means or form inflicts injury to the bodily
integrity of another shall incur a misdemeanor.
(Emphasis added.) 	For ease of reference in this decision, we will refer to these
provisions as codified at sections 4749 and 4750.
3 A crime of violence is defined in 18 U.S.C. § 16(a) 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.” (Emphasis added.)

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violence under § 16(a). 	The DHS does not dispute that the categorical
approach 	is 	applicable, 	but 	it 	contends 	that 	the 	respondent’s 	offense
categorically is a crime of violence. 	Neither party asserts that we should
apply the modified categorical approach.
In determining whether a State crime qualifies as a removable offense
under the Federal definition, we must compare the State offense to the
generic Federal offense and determine if it is a categorical match. 	See
United States v. Fish, 758 F.3d 1, 5 (1st Cir. 2014). 	In making this
comparison, we do not consider the respondent’s conduct in committing the
offense but look, instead, to whether “the state offense ‘“necessarily”
involved . . . facts equating to [the] generic [federal offense].’” Moncrieffe
v. Holder, 133 S. Ct. 1678, 1684 (2013) (quoting Shepard v. United States,
544 U.S. 13, 24 (2005)) (alterations in original). 	Because we do not
examine the facts underlying the respondent’s particular case, “we must
presume that the conviction ‘rested upon [nothing] more than th[e] least of
the acts’ criminalized, and then determine whether even those acts are
encompassed 	by 	the 	generic 	federal 	offense.” 	Id. 	(quoting 	Johnson
v. United States, 559 U.S. 133, 137 (2010)) (alterations in original).
According to the DHS, because the predicate offense for aggravated
battery in section 4750 is simple battery under section 4749, which requires
the intentional infliction of “injury to the bodily integrity” of the victim,
every battery offense necessarily involves the use of “physical force”
required for a crime of violence under § 16(a).4 See 33 L.P.R.A. § 4650
(2011) (providing that any act sanctioned by the Puerto Rico criminal code
requires intent, unless it expressly states that negligence is sufficient). 	In
this regard, the DHS relies on our decision in Matter of Martin, 23 I&N
Dec. 491, 494 (BIA 2002), where we stated that the “legislative history of
the 	‘crime 	of 	violence’ 	definition 	provides 	explicit 	support 	for 	the
conclusion that an assault involving the intentional infliction of physical
injury has as an element the use of physical force within the meaning of
18 U.S.C. § 16(a).” (Emphasis added.)
Subsequent to our decision in Martin, the Supreme Court held that “the
phrase ‘physical force’ means violent force—that is, force capable of
causing physical pain or injury to another person.” 	Johnson v. United
States, 559 U.S. at 140; see also Leocal v. United States, 543 U.S. 1, 11
4 Although the term “bodily integrity” in section 4749 does not appear to be a statutorily
defined term, the Supreme Court of Puerto Rico has described “the integrity of the
person” in a case regarding the offense of mayhem as the “natural sufficiency and good
appearance of the limbs and organs of the human body, and the preservation of its
functions.” 	People v. Castañón Pérez, 14 P.R. Offic. Trans. 688, 695 n.4, 1983
WL 204175 (P.R. 1983).

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(2004) (stating that the ordinary meaning of the term “crime of violence” in
§ 16(a), combined with its emphasis on the use of physical force against
another person, “suggests a category of violent, active crimes” (emphasis
added)). 	We have previously held that Johnson controls our interpretation
of a crime of violence under § 16(a). 	Matter of Velasquez, 25 I&N Dec.
278, 282 (BIA 2010).
Furthermore, during the pendency of this appeal the United States Court
of Appeals for the First Circuit, in whose jurisdiction this case arises,
rejected our decision in Martin, recognizing that for purposes of § 16(a),
“physical force” is understood to mean violent force. 	Whyte v. Lynch, 807
F.3d 463, 468 (1st Cir. 2015) (finding that the third degree assault offense
under the same Connecticut statute addressed in Matter of Martin is not a
crime of violence).5 Based on these decisions, we now withdraw from our
holding in Matter of Martin to the extent that it is inconsistent with the
Supreme Court’s decisions in Johnson and Leocal.
In Whyte, the First Circuit found that in order for a State offense to
qualify as a categorical crime of violence under § 16(a), the statute must
require, by its actual terms or by interpretive State case law, the “use,
attempted use, or threatened use of ‘violent force’ as a necessary element of
conviction.” Whyte v. Lynch, 807 F.3d at 468 (stating that the “elements of
a crime may be defined by statute or by case law” (citations omitted)). 	In
reaching its conclusion that the term “physical force” in § 16(a) means
violent force, the court addressed the Government’s contention, also raised
by the DHS in this case, that a statute that requires the element of physical
injury to the victim necessarily “implies an added element that physical
force be used to cause the injury.” 	Id. at 470. 	The Government based this
argument on the reasoning in United States v. Nason, 269 F.3d 10, 20 (1st
Cir. 2001), where the court stated that “to cause physical injury, force
necessarily must be physical in nature.”
The 	First 	Circuit 	pointed 	out 	that 	the 	flaw 	in 	the 	Government’s
argument was its assumption that the term “physical force” in § 16(a) has
the same meaning that it has in 18 U.S.C. § 921(a)(33)(A)(ii) (2012), where
it is used to define a misdemeanor crime of domestic violence for purposes
of the Domestic Violence Offender Gun Ban at 18 U.S.C. § 922(g)(9)
(2012), the offense at issue in Nason. Whyte v. Lynch, 807 F.3d at 470. In
that regard, the court emphasized that “physical force” can “mean different
things depending on the context in which it appears.” 	Id. (citing Johnson
5 Several other circuit courts have also rejected Matter of Martin. 	Singh v. Ashcroft,
386 F.3d 1228, 1233 (9th Cir. 2004); Flores v. Ashcroft, 350 F.3d 666, 671 (7th Cir.
2003); Chrzanoski v. Ashcroft, 327 F.3d 188, 196 (2d Cir. 2003).

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v. 	United 	States, 	559 	U.S. 	at 	139 	(“Ultimately, 	context 	determines
meaning.”)).
Explaining how the statutory context matters, the First Circuit discussed
the Supreme Court’s decisions in Johnson and United States v. Castleman,
134 S. Ct. 1405 (2014). Id. at 471. In Johnson, the Court held that that the
phrase “physical force” in 18 U.S.C. § 924(e)(2)(B)(i) (2006), which
defines 	the 	term 	“violent 	felony” 	for 	purposes 	of 	the 	Armed 	Career
Criminal Act at § 924(e)(1), means “violent force.” 	Johnson v. United
States, 559 U.S. at 140. 	By contrast, the Court in Castleman distinguished
its holding in Johnson, determining that when “physical force” is used in
the context of the domestic violence offense in § 922(g)(9), it should be
defined differently to incorporate the common-law meaning, which is
satisfied by a “mere offensive touching.” 	United States v. Castleman, 134
S. Ct. at 1411−13.6
As the First Circuit noted, it has extended the reasoning in Johnson
regarding the phrase “physical force” in § 924(e)(2)(B)(i) to the definition
of “physical force” in the context of determining whether a State statute
defines a crime of violence under § 16(a). Whyte v. Lynch, 807 F.3d at 468
(citing United States v. Fish, 758 F.3d at 9); accord Johnson v. United
States, 559 U.S. at 140 (relying on the interpretation of “physical force” in
Leocal because the statutory definition of a crime of violence in § 16 is
“very similar” to the language of § 924(e)(2)(B)(i)). 	Consequently, the
court rejected the Government’s argument that physical injury to the victim
is sufficient to establish the use of physical force for § 16(a) and held that a
State offense must “require as an element the use, attempted use, or
threatened use of violent force” to qualify as a crime of violence aggravated
felony for immigration purposes. 	Whyte v. Lynch, 807 F.3d at 471−72
(contrasting the approach in Nason, which, like Castleman, was in the
context of the domestic violence offense in § 922(g)(9)). 	We agree. 	See
Matter of Velasquez, 25 I&N Dec. at 282.
The simple battery statute at section 4749 of the laws of Puerto Rico, by
its terms, provides that every battery requires the infliction of bodily injury
“through any means or form.” 	Therefore, the offense of third degree
aggravated battery under section 4750 could be committed by means that
do not require the use of violent physical force. 	For example, an offender
could commit aggravated battery by injuring another person through the use
6 The Supreme Court did not reach the question whether the forms of injury involved in
the statute at issue in Castleman “necessitate violent force, under Johnson’s definition of
that phrase.” United States v. Castleman, 134 S. Ct. at 1414.

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of poison.7 Consequently, the use of violent force is not a required element
of the crime of battery under the Puerto Rico statutes. 	Moreover, the DHS
has not pointed to any case law of Puerto Rico that suggests that the battery
statutes have been interpreted to require the use of violent force as an
element. 	We therefore conclude that the conduct criminalized under the
Puerto Rico aggravated battery statute is not categorically a crime of
violence under § 16(a). See Whyte v. Lynch, 807 F.3d at 471−72.
The DHS has not established that the respondent is removable as an
alien convicted of a crime of violence under § 16(a). 	However, given that
there 	appear 	to 	be 	unresolved 	issues 	regarding 	the 	respondent’s
removability, in particular whether his conviction is for a crime of violence
under § 16(b), we will remand the record to the Immigration Judge for
further proceedings, as warranted. 	Accordingly, the respondent’s appeal
will be sustained, and the record will be remanded.
ORDER: The appeal is sustained
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.
7 The First Circuit noted that a person could also intentionally cause physical injury
without “violent force” by “telling the victim he can safely back his car out while
knowing an approaching car driven by an independently acting third party will hit the
victim.” Whyte v. Lynch, 807 F.3d at 469 (quoting United States v. Villegas-Hernandez,
468 F.3d 874, 879 (5th Cir. 2006)). Both that scenario and the use of poison illustrate
actions that do not require the use of “violent force” but that could nonetheless result in
bodily injury to the victim. See also Rummel v. Estelle, 445 U.S. 263, 282 n.27 (1980)
(“Caesar’s death at the hands of Brutus and his fellow conspirators was undoubtedly
violent; the death of Hamlet’s father at the hands of his brother, Claudius, by poison, was
not.”).