Jose Yanel Sanchez-Perez v. MERRICK B. GARLAND, Attorney General

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0098p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOSE YANEL SANCHEZ-PEREZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney General,
Respondent.
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No. 23-3004
On Petition for Review from the Board of Immigration Appeals.
No. A 028 650 559.
Decided and Filed: April 30, 2024
Before: BOGGS, MOORE, and GIBBONS, Circuit Judges.
_________________
COUNSEL
ON BRIEF: William Patrick York, II, OZMENT LAW, PLC, Nashville, Tennessee, for
Petitioner. Dana M. Camilleri, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. One day after he pleaded guilty to violating
a Tennessee domestic-violence law, the federal government initiated removal proceedings
against Jose Yanel Sanchez-Perez. Ultimately, an immigration judge and the Board
of Immigration Appeals determined that Sanchez-Perez could not seek cancellation of
removal due to this conviction. The Board of Immigration Appeals improperly determined that
>

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Sanchez-Perez pleaded guilty to a crime of violence, however. Accordingly, we GRANT
Sanchez-Perez’s petition for review, VACATE the Board’s order of removal, and REMAND to
the Board for proceedings consistent with our opinion.
I. BACKGROUND
Sanchez-Perez is a native and citizen of El Salvador who first entered the United States in
1998. A.R. at 3 (December 5, 2022 BIA Dec. at 1); id. at 1155 (July 24, 2015 I.J. Dec. at 2). On
August 14, 2009, Sanchez-Perez pleaded guilty to committing misdemeanor domestic assault
under Tennessee Code Annotated § 39-13-111. Id. at 553 (Disposition). The Department of
Homeland Security initiated removal proceedings against Sanchez-Perez the next day. Id. at
1506–08 (Not. to Appear).
Sanchez-Perez’s removal proceedings have played out at multiple hearings over the
ensuing years. Many of these proceedings and the legal issues addressed therein are irrelevant to
the instant case. Relevant here, in July 2015, an immigration judge found that Sanchez-Perez
was ineligible for cancellation of removal because he failed to establish that he had been
continuously present in the United States for ten years prior to receiving the notice to appear. Id.
at 1164 (July 24, 2015 I.J. Dec. at 11). Notwithstanding this finding, the immigration judge
also found that Sanchez-Perez was not statutorily barred from seeking cancellation of removal
due to his 2009 domestic-violence conviction, id. at 1165 (July 24, 2015 I.J. Dec. at 12); that
Sanchez-Perez had exhibited good moral character despite the conviction, id. at 1165–66 (July
24, 2015 I.J. Dec. at 12–13); and that his removal would cause “exceptional and extremely
unusual hardship” for his family, id. at 1166–68 (July 24, 2015 I.J. Dec. at 13–15). The Board of
Immigration Appeals (“BIA”) dismissed Sanchez-Perez’s appeal and agreed with the
immigration judge’s findings that Sanchez-Perez lacked the requisite continuous physical
presence and thus was not eligible for cancellation of removal. Id. at 1112–13 (July 6, 2016 BIA
Dec. at 1–2).
Following the BIA’s decision, Sanchez-Perez filed a motion to reopen on September
2, 2016. Id. at 1062 (Mot. to Reopen at 1). Sanchez-Perez argued that new evidence in the form
of letters from employers established that he had been continuously in the United States since his

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arrival. Id. at 1063–67 (Mot. to Reopen at 2–6). The BIA granted Sanchez-Perez’s motion to
reopen on December 14, 2016. Id. at 1060 (December 14, 2016 BIA Dec. at 1).
On remand, at a February 8, 2018 hearing, Sanchez-Perez raised for the first time that he
intended to file an application for special-rule cancellation of removal as a battered spouse under
the Violence Against Women Act. Id. at 217–18 (February 8, 2018 Tr. at 77:10–78:5). The
government argued for the first time that Sanchez-Perez was statutorily barred from seeking
cancellation of removal or special-rule cancellation of removal due to his 2009 domestic-
violence conviction. Id. at 232–33 (February 8, 2018 Tr. at 92:22–93:21) (contending that
intervening judicial authority established that Sanchez-Perez’s conviction was for a crime of
violence).
On March 20, 2018, the immigration judge issued a written decision denying
Sanchez-Perez’s applications for cancellation of removal and special-rule cancellation of
removal. Id. at 114 (March 20, 2018 I.J. Dec.). Relevant here, the immigration judge found that
Sanchez-Perez’s 2009 conviction is categorically a crime of violence, and thus Sanchez-Perez
was statutorily barred from obtaining cancellation of removal. Id. at 119–22 (March 20, 2018
I.J. Dec. at 6–9). The immigration judge justified reconsidering her prior determination
regarding the statutory bar because intervening Sixth Circuit and Supreme Court law purportedly
established that “cases of domestic violence involving fear of bodily injury, due to the special
volatile and dangerous conditions in a domestic dispute do qualify as crimes of violence.” Id. at
122 (March 20, 2018 I.J. Dec. at 9) (citing, inter alia, United States v. Morris, 885 F.3d 405,
413 (6th Cir. 2018) (holding that a Michigan domestic-violence statute is categorically a crime of
violence under the residual clause of the guidelines because “[i]n the context of a face-to-face
incident of domestic violence, there is a risk of physical injury”)). The immigration judge did
not extensively consider the at-issue Tennessee statute’s language or the specific statutory
definitions applicable to certain of the elements of Sanchez-Perez’s crime.
The BIA dismissed Sanchez-Perez’s appeal from this decision. The BIA upheld the
immigration judge’s decision on one ground: that Sanchez-Perez’s 2009 conviction was
categorically a crime of violence, and thus Sanchez-Perez was statutorily barred from obtaining
cancellation of removal. Id. at 6 (December 5, 2022 BIA Dec. at 4). The BIA correctly laid out

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the governing legal standards, explaining that under the Immigration and Nationality Act
(“INA”), a noncitizen is barred from obtaining cancellation of removal if convicted of a
domestic-violence offense only if the offense categorically fits the federal definition of a crime
of violence. Id. at 4 (December 5, 2022 BIA Dec. at 2) (citing Matter of Velasquez, 25 I. & N.
Dec. 278, 283 (BIA 2010) (explaining that under the INA, “a crime of domestic violence means
any crime of violence” that categorically requires the use or threatened use of “violent force”)).
The BIA then discussed the Supreme Court’s decision in United States v. Castleman, in which
the Court held that “the common law definition of ‘force,’ which is ‘satisfied even by the
slightest offensive touching,’ applies to misdemeanor crimes of domestic violence” under
18 U.S.C. § 921(a)(33)(A). Id. at 5 (December 5, 2022 BIA Dec. at 3) (quoting 572 U.S. 157,
163 (2014) (internal quotation marks omitted)). The BIA then considered the Tennessee statute
at issue in this case, including its definitions section, and found that the crime for which
Sanchez-Perez was convicted is categorically a crime of violence “because all of [the types of
bodily injury under the statute] involve a use of force capable of causing physical pain or injury
to another person.” Id. Finally, the BIA rejected Sanchez-Perez’s contention that the
immigration judge erred by revisiting her prior decision regarding the statutory bar, holding the
law-of-the-case doctrine to be inapplicable. Id. at 6 (December 5, 2022 BIA Dec. at 4).
Sanchez-Perez timely filed this petition for review following the BIA’s decision. DE 1-2 (Pet.
for Review).
II. DISCUSSION
Sanchez-Perez argues that the BIA erred in three distinct ways by finding that he is
statutorily barred from obtaining cancellation of removal. First, Sanchez-Perez contends that the
BIA improperly applied the categorical approach in determining that his 2009 Tennessee
conviction is a crime of violence. Pet. Br. at 10–18. Second, he argues that the BIA should have
reversed the immigration judge for not adhering to the law of the case. Id. at 19–34. Third, he
contends that the BIA failed to consider differences between the statutory bar for cancellation of
removal and the bar applicable to special-rule cancellation of removal. Id. at 34–39. Because
Sanchez-Perez is correct that the crime for which he was convicted in 2009 is not categorically a
crime of violence, we grant his petition and vacate the BIA’s decision on that ground.

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A. Standard of Review
“Where the BIA reviews the immigration judge’s decision and issues a separate opinion,
rather than summarily affirming the immigration judge’s decision, we review the BIA’s decision
as the final agency determination.” Raja v. Sessions, 900 F.3d 823, 826–27 (6th Cir. 2018)
(quoting Shaya v. Holder, 586 F.3d 401, 405 (6th Cir. 2009)). We review de novo the BIA’s
decisions on questions of law. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009).
B. Crimes of Violence Under Section 16 of Title 18
Under the INA, noncitizens may not receive cancellation of removal if they have been
convicted of certain crimes. 8 U.S.C. § 1229b(b)(1)(C). One such crime is a “crime of domestic
violence,” which “means any crime of violence (as defined in section 16 of Title 18) against a
person committed by” someone with whom they are in certain types of domestic relationships.
8 U.S.C. § 1227(a)(2)(E)(i). Section 16 of Title 18, in turn, defines a “crime of violence” 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.” 18 U.S.C. § 16(a).1
To determine whether a prior conviction is a crime of violence, we “engag[e] in a
categorical-approach analysis.” Harris v. United States, 19 F.4th 863, 869 (6th Cir. 2021) (citing
Taylor v. United States, 495 U.S. 575, 602 (1990)). Under this approach, we are limited to
considering “the statutory definition of the offense, rather than the manner in which an offender
may have violated the statute in a particular circumstance.” United States v. Rafidi, 829 F.3d
437, 444 (6th Cir. 2016) (quoting United States v. Denson, 728 F.3d 603, 607 (6th Cir. 2013)).
Put differently, a prior conviction is a crime of violence only if the defendant “must have used,
attempted to use, or threatened to use physical force against the person of another in order to
have been convicted, not whether the particular defendant actually used, attempted to use, or
threatened to use physical force against the person of another in that particular case.” United
States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (lead opinion) (en banc). For these purposes,
1In Sessions v. Dimaya, the Supreme Court held that the residual clause of this section, section 16(b), is
unconstitutionally vague. 584 U.S. 148, 174–75 (2018); see also Johnson v. United States, 576 U.S. 591, 606
(2015) (holding that a similarly worded residual clause in the Armed Career Criminal Act is unconstitutionally
vague).

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“‘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. 133, 140 (2010); see also id. (explaining
that “crime of violence” as used in 18 U.S.C. § 16 “suggests a category of violent, active crimes”
(quoting Leocal v. Ashcroft, 543 U.S. 1, 11 (2004)); Banuelos-Jimenez v. Garland, 67 F.4th 806,
808 (6th Cir. 2023) ( “a crime of domestic violence” under the INA must involve “violent
force—that is, force capable of causing physical pain or injury to another person” (quoting
Johnson, 559 U.S. at 140)); Matter of Dang, 28 I. & N. Dec. 541, 547–48 (BIA 2022) (holding
that the meaning of “physical force” in 18 U.S.C. § 16(a) is controlled by Johnson).
If the elements of a criminal statute are narrower than or match the relevant federal
definition of a crime of violence—that is, if the statute criminalizes the same conduct or less
conduct than the federal definition—the crime is categorically a crime of violence. See, e.g.,
Cradler v. United States, 891 F.3d 659, 667 (6th Cir. 2018).2 But if the relevant criminal statute
sweeps more broadly and criminalizes conduct that does not necessarily involve the use,
attempted use, or threated use of physical force, any conviction under the statute does not qualify
as a crime of violence. Id. (“Statutes that criminalize more conduct than the [federal] definition
of [crimes of violence] are sometimes described as being ‘broader’ than the [federal definition],
resulting in the use of shorthand monikers for them, including ‘overbroad,’ ‘too-broad,’ or ‘non-
generic’ statutes.”). When assessing whether a state statute is overbroad vis-à-vis the federal
definition, “our focus on the minimum conduct criminalized by the state statute is not an
invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability,
not a theoretical possibility, that the State would apply its statute to conduct that falls outside the
[federal] definition of a crime.’” Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (quoting
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007)).
C. Sanchez-Perez’s Conviction is Not Categorically a Crime of Violence
Sanchez-Perez argues first and foremost that the BIA erred when it determined that his
2009 Tennessee conviction categorically fit the federal definition of a crime of violence,
2The government has not argued, and the BIA did not hold, that the relevant Tennessee statute is divisible
such that we would apply the modified categorical approach.

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rendering him statutorily ineligible for cancellation of removal. We agree. Because the
Tennessee statute at issue, Tenn. Code Ann. § 39-13-101(a)(2), criminalizes conduct beyond the
federal definition of a crime of violence, the BIA erred in finding that Sanchez-Perez is
statutorily barred from seeking cancellation of removal.
Sanchez-Perez pleaded guilty to a misdemeanor domestic assault under Tennessee Code
Annotated § 39-13-111. Under the statute, “[a] person commits domestic assault who commits
an assault as defined in § 39-13-101 against a domestic abuse victim.” Tenn. Code Ann.
§ 39-13-111(b). Accordingly, we must look to the cross-referenced general assault statute to
determine the elements of the relevant crime. Section 39-13-101(a)(2) states that “[a] person
commits assault who . . . [i]ntentionally or knowingly causes another to reasonably fear
imminent bodily injury.” (emphasis added).3 If the statute ended there, the result might be
different. “Bodily injury,” however, has a statutory definition in Tennessee. That is, we do not
simply apply the ordinary meaning of that phrase, but instead we look to the statute for its
meaning. See Burris, 912 F.3d at 397 (lead opinion) (looking to statutory definition, not
common meaning, to define term for categorical approach purposes).4 Under the Tennessee
statute, “‘[b]odily injury’ includes a cut, abrasion, bruise, burn or disfigurement, and physical
pain or temporary illness or impairment of the function of a bodily member, organ, or mental
faculty.” Tenn. Code Ann. § 39-11-106(a)(3) (emphasis added). Read together, the relevant
Tennessee law criminalizes “[i]ntentionally or knowingly caus[ing] another to reasonably fear
[an] imminent [cut, abrasion, bruise, burn or disfigurement, [] physical pain or temporary illness
or impairment of the function of a bodily member, organ, or mental faculty].” Tenn. Code Ann.
§§ 39-13-101(a)(2), 39-11-106(a)(3).
3The parties agree that Sanchez-Perez was convicted based on Tennessee Code Annotated
§ 39-13-101(a)(2). Resp. Br. at 22–23; Pet. Br. at 12.
4This discussion and the Burris lead opinion’s discussion of how the two at-issue Ohio statutes are not
categorically crimes of violence reflect the majority opinion of the court. See United States v. Burris, 912 F.3d 386,
395–400 (6th Cir. 2019) (lead opinion) (en banc) (explaining that United States v. Anderson, 695 F.3d 390 (6th Cir.
2012), was wrongly decided because Ohio’s felonious-assault and aggravated-assault statutes are not categorically
crimes of violence); id. at 411 (Cole, J., concurring in part and dissenting in part) (“While I concur in the lead
opinion's holding that Anderson was wrongly decided and should be overruled, my agreement ends there.”).

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On its face, this statute plainly criminalizes conduct that does not constitute a crime of
violence. Because the INA defines a crime of domestic violence to be a “crime of violence”
within the meaning of 18 U.S.C. § 16(a), see 8 U.S.C. § 1227(a)(2)(E)(i), we know that the crime
for which Sanchez-Perez was convicted must involve “violent force” to categorically meet the
federal definition. Banuelos-Jimenez, 67 F.4th at 808 (quoting Johnson, 559 U.S. at 140). But
the Tennessee definition of “bodily injury” more broadly includes mental harms, and a defendant
can commit assault by intentionally causing a victim to fear mental harm or impairment of
cognitive function. Tenn. Code Ann. §§ 39-13-101(a)(2), 39-11-106(a)(3). One could plausibly
cause such harm without using or threatening violent physical force—“that is, force capable of
causing physical pain or injury to another person.” Johnson, 559 U.S. at 140. And by pointing
out that possibility based on the text and application of the statutory definition, Sanchez-Perez
has shown that his crime is not categorically a crime of violence. Accordingly, the Tennessee
law sweeps too broadly to make a conviction thereof a crime of violence for immigration-law
purposes.
What is more, we have already addressed an Ohio statutory scheme nearly identical to the
Tennessee statute at issue here, and we have held that the crimes enumerated in that Ohio
scheme are not categorically crimes of violence. In United States v. Burris, our en banc court
considered whether Ohio felonious-assault and aggravated-assault statutes criminalizing, “among
other things, ‘knowingly . . . [c]aus[ing] serious physical harm to another’” were categorically
crimes of violence given that Ohio law defined “serious physical harm” to include “[a]ny mental
illness or condition of such gravity as would normally require hospitalization or prolonged
psychiatric treatment.” 912 F.3d at 397 (lead opinion) (quoting Ohio Rev. Code
§§ 2903.11(A)(1), 2903.12(A)(1), 2901.01(A)(5)(a)). Because “[o]n their faces . . . both statutes
appear to criminalize more conduct than” would require the use of violent physical force, the
state offenses are too broad to be categorically crimes of violence. Id. (lead opinion); see also id.
at 402 (lead opinion) (“[B]ecause that statutory definition includes certain serious mental harms,
and because state courts in fact do apply the statute to conduct that does not involve the use,
attempted use, or threatened use of physical force against the person of another,” the crimes are

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not categorically crimes of violence.).5 As in Burris, Sanchez-Perez was convicted of an offense
for which mental harms can satisfy the statute’s definition of bodily injury, indicating that his
offense was not categorically a crime of violence.
Tennessee caselaw confirms that the relevant statute is not categorically a crime of
violence. As in Burris, several Tennessee cases addressing convictions based on sexual assaults
demonstrate that bodily injury under Tennessee law does not require the use or threatened use of
violent force. See Burris, 912 F.3d at 398–99 (lead opinion) (discussing series of cases
concerning sexual assaults and other traumas in which defendants did not utilize violent physical
force but nonetheless inflicted mental harms on victims, and explaining that all that is required
under the Ohio statute is that “defendants knowingly cause (by whatever means) the serious
mental harms included in Ohio’s statutory definition of ‘serious physical harm’”). For example,
in State v. McClellan, a defendant was convicted of sexually assaulting his daughter.
No. E2010-02338-CCA-R3-CD, 2012 WL 2356487, at *1 (Tenn. Crim. App. June 21, 2012). In
arguing against a sentencing enhancement, the defendant contended that the fact that the rape
“neither caused nor threatened serious bodily injury” was a mitigating factor. Id. at *6 (quoting
Tenn. Code Ann. § 40–35–113(1) (1994)). Relevant here, the Tennessee court found, applying a
long line of Tennessee caselaw, that because the rape caused mental harm, the defendant’s
conduct caused “serious bodily injury” under the statute. Id.6 McClellan is not alone in this
regard. See, e.g., State v. Thompson, No. M2003-00487-CCA-R3-CD, 2004 WL 2964704, at
*19 (Tenn. Crim. App. Dec. 20, 2004) (explaining that “serious bodily injury” under Tennessee
law “also includes a mental element” and that in part because rapes of young victims
“necessarily include[] mental anguish and suffering,” defendant imposed such injury on victims);
5Burris then went on to hold that the statutes are divisible under the modified categorical approach.
912 F.3d at 406 (lead opinion). As mentioned, the government has not argued that the Tennessee statute is divisible.
6Tennessee law defines “serious bodily injury” to include “[p]rotracted loss or substantial impairment of a
function of a bodily member, organ or mental faculty.” Tenn. Code Ann. § 39-11-106(37)(E) (emphases added).
The instant case requires examining Tennessee’s statutory definition of “bodily injury,” which includes “temporary
illness or impairment of the function of a bodily member, organ, or mental faculty.” Tenn. Code Ann.
§ 39-11-106(a)(3) (emphasis added). Given the similarity in these definitions, the former simply appearing more
severe than the latter, we see no reason not to look to cases analyzing Tenn. Code Ann. § 39-11-106(37)(E).
Further, if it is the case that Tennessee courts find that some mental harms can constitute serious bodily injuries,
surely the same would be true to satisfy the lower threshold of non-serious bodily injuries.

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State v. Price, No. E2000-00441-CCA-R3-CD, 2001 WL 1464555, at *2 (Tenn. Crim. App.
Nov. 19, 2001) (defendant’s rape of young victim caused “mental impairment” and victim
“underwent extended counseling and has difficulty coping with normal activities,” meaning that
defendant caused mental harms within the meaning of “serious bodily injury”). Because
Tennessee law allows mental harms to satisfy the “bodily injury” language of the statute,
Sanchez-Perez’s conviction did not necessarily require the use of violent force, meaning it is not
a crime of violence. Tennessee caselaw makes clear that there is a realistic possibility that
Sanchez-Perez could have been convicted without using or threatening to use physical force.
The government makes two main arguments for why Sanchez-Perez was convicted of a
crime of violence as understood within 18 U.S.C. § 16. Neither has merit. First, the government
invokes Castleman to argue in favor of effectively lowering the threshold for what constitutes a
crime of violence under 18 U.S.C. § 16. But Castleman explicitly clarifies that its rule does not
apply to 18 U.S.C. § 16, the federal definition at issue here. 572 U.S. at 164 n.4 (explaining that
“domestic violence” has a particular meaning that “encompasses a range of force broader than
that which constitutes ‘violence’ simpliciter” and that 18 U.S.C. § 16 employs the ordinary
use of a “crime of violence,” meaning “a category of violent, active crimes” (quoting Johnson,
559 U.S. at 140)); see also, e.g., Dang, 28 I. & N. Dec. at 547–48. Presumably, the government
seizes on the fact that both the INA and the statute at issue in Castleman, 18 U.S.C.
§ 921(a)(33)(A), refer to “domestic violence.” Although the INA makes noncitizens ineligible
for cancellation of removal if they commit a crime of domestic violence, the INA makes the
definition of a crime of domestic violence within this section of the statute coterminous with the
meaning of crime of violence in 18 U.S.C. § 16. 8 U.S.C. § 1227(a)(2)(E)(i). As discussed
throughout this opinion, section 16’s “crime of violence” requires the use or threat of “violent
force,” Johnson, 559 U.S. at 140, not force that would meet the common-law definition capable
of satisfying the elements of a misdemeanor crime of domestic violence in 18 U.S.C.
§ 921(a)(33)(A), Castleman, 572 U.S. at 164 n.4. The relevant inquiry is not determining what

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“domestic violence” means as the government seems to suggest. The INA does that for us. It
tells us that the relevant crime must fit Johnson’s strictures, not Castleman’s.7
Because Castleman does not control, the fact that it discusses the same Tennessee statute
at issue here is largely irrelevant. Castleman itself explains that the Court was not deciding
whether the forms of bodily injury under the Tennessee statute would meet Johnson’s higher
threshold. Castleman, 572 U.S. at 170. That the forms of injury required by the Tennessee
statute “necessitate force in the common-law sense,” simply does not matter here, because we
know that section 16 requires violent force, not just, for instance, offensive touching. Id.
(emphasis added). Burris, not Castleman, thus controls this case and requires ruling in favor of
Sanchez-Perez.
Second, the government’s proffered cases are easily distinguishable because they address
markedly different statutory language. The government does not even cite, let alone discuss, our
en banc decision in Burris, despite Sanchez-Perez’s reliance on the decision and the similarity
between the Ohio statute at issue there and the Tennessee statute at issue here. More basically,
all of the government’s proffered cases involve statutes that do not include mental harms as
qualifying bodily injuries or physical harms. See, e.g., Banuelos-Jimenez, 67 F.4th at 809
(Arkansas statute prohibits “purposely creat[ing] apprehension of imminent physical injury to a
family or household member” but does not include mental harms as “imminent physical
injur[ies]”); United States v. Verwiebe, 874 F.3d 258, 261 (6th Cir. 2017) (committing “[a]ssault
with a dangerous weapon, with intent to do bodily harm” is a crime of violence because “it
proscribes common law assault with a dangerous weapon, not simple common law assault”),
abrogated on other grounds by Borden v. United States, 593 U.S. 420 (2021); United States
v. Gatson, 776 F.3d 405, 410–11 (6th Cir. 2015) (Ohio domestic-violence conviction is a crime
of violence because Ohio statute defines “physical harm” as “any injury, illness, or other
7This dichotomy also elucidates the basic errors in the immigration judge’s and BIA’s consideration of
whether the Tennessee statute is categorically a crime of violence. Although the BIA explicitly noted that a crime of
domestic violence under the INA must meet section 16(a)’s definition of a crime of violence, which requires the use
of violent physical force, it went on to suggest that Castleman lowered the bar when domestic violence is at issue.
A.R. at 4–5 (December 5, 2022 BIA Dec. at 2–3). As discussed, it simply does not matter that Sanchez-Perez’s
conviction pertained to domestic violence, because the INA makes a crime of domestic violence for purposes of the
statutory bar coterminous with Johnson’s definition of a crime of violence, which requires violent physical force.

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physiological impairment, regardless of its gravity or duration” (quoting Ohio Rev. Code
§ 2901.01(A)(3)) (emphasis added))). Indeed, the government’s reliance on our cases, including
Gatson, that concern Ohio Revised Code § 2919.25 is misplaced. Ohio Revised Code § 2919.25
uses the phrase “physical harm,” which by its statutory definition “does not include any mental
harms.” Hernandez-Maldonado v. Barr, 773 F. App’x 280, 287 (6th Cir. 2019). By contrast,
Burris held that Ohio statutes utilizing the phrase “serious physical harm,” which has a statutory
definition that sweeps in “serious mental harms,” are overbroad as a categorical matter. Id. at
286–87 (quoting Burris, 912 F.3d at 402 (lead opinion)).8
The government’s and BIA’s errors in this case involve basic misreading of both our and
the Supreme Court’s precedents concerning the distinctions between different federal statutory
schemes and the meaningful differences among state criminal statutes. At bottom, because on its
face the Tennessee statute at issue here criminalizes conduct that does not require the use or
threatened use of violent physical force, the BIA erred when it determined that Sanchez-Perez
was statutorily barred from applying for cancellation of removal by virtue of his 2009 conviction
for misdemeanor domestic assault under Tennessee Code Annotated § 39-13-111.
8Neither party highlighted certain of our own cases that at least tangentially relate to this case.
Specifically, in Davis v. United States, we considered whether Tennessee Code Annotated § 39-13-102(a)(1)—part
of Tennessee’s aggravated-assault statute—is a crime of violence. 900 F.3d 733, 737–738 (6th Cir. 2018). Prior to
Davis, we held that Tennessee’s reckless aggravated-assault statute, Tenn. Code Ann. 39-13-102(a)(1)(B), is
likewise a crime of violence. United States v. Harper, 875 F.3d 329, 330 (6th Cir. 2017). Of course, this case deals
with Tennessee Code Annotated § 39-13-111, Tennessee’s domestic-assault statute, not Tennessee’s aggravated-
assault statute. In this way, Davis and Harper do not control, as their holdings appear limited to parts of the
aggravated-assault statute. See Carter v. United States, 820 F. App’x 392, 396–97 (6th Cir. 2020) (“Binding circuit
precedent holds that Tennessee reckless aggravated assault qualifies as a crime of violence under the ACCA’s
force clause.”). Still, Tennessee’s aggravated-assault statute does cross reference Tennessee Code Annotated
§ 39-13-101, Tennessee’s simple assault statute, which is discussed at length in this opinion. See Tenn. Code
Ann. § 39-13-102(a)(1). In this respect, Davis and Harper could be seen as addressing Tennessee Code Annotated
§ 39-13-101 in a manner that is inconsistent with this opinion. We do not believe this to be the case, because
Tennessee’s aggravated-assault statute still requires proof of certain aggravating conditions. In any event, as
discussed in this opinion, Burris requires that we look to statutory definitions to determine whether a crime is
categorically one of violence, and Tennessee’s statutory definition of “bodily injury” sweeps too broadly, just as did
the statute at issue in Burris. We need not opine in this case whether our caselaw analyzing Tennessee’s
aggravated-assault statute is consistent with our later binding en banc decision in Burris and its command that we
take into account statutory definitions.

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No. 23-3004 Sanchez-Perez v. Garland Page 13
III. CONCLUSION
For the foregoing reasons, we GRANT Sanchez-Perez’s petition for review, VACATE
the BIA’s order, and REMAND to the BIA for proceedings consistent with our opinion.

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