FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS
Pomerleau, with whom Jeffrey B. Rubin and Rubin Pomerleau
P.C. were on brief, for petitioner.
N. O'Malley, with whom Lindsay M. Murphy, Trial Attorney,
Office of Immigration Litigation, Civil Division, U.S.
Department of Justice, Chad A. Readler, Acting Assistant
Attorney General, Civil Division, and Cindy S. Ferrier,
Assistant Director, were on brief, for respondent.
Winger, Immigration Impact Unit, Committee for Public Counsel
Services, on brief for the Massachusetts Committee for Public
Counsel Services Immigration Impact Unit, the National
Immigration Project of the National Lawyers Guild, and the
Immigrant Defense Project, amici curiae.
Torruella, Lynch, and Kayatta, Circuit Judges.
appeal presents the question of whether the Board of
Immigration Appeals ("BIA") committed reversible
error when it held that the Massachusetts crime of assault
and battery with a dangerous weapon ("ABDW"), in
violation of Mass. Gen. Laws ch. 265, § 15A(b), is
categorically a crime involving moral turpitude
("CIMT") under the Immigration and Nationality Act
("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952)
(codified as amended in scattered sections of 8 U.S.C.). The
consequence of this BIA ruling is that petitioner Joao Lopes
Coelho is not eligible for cancellation of removal. Because
we remain uncertain about the BIA's views on the relevant
Massachusetts law governing its CIMT determination, we remand
for further consideration consistent with this opinion.
entered the United States without inspection in 1986. He has
continued to reside here since that date and now has a U.S.
citizen son. In September 1996, Coelho pled guilty to one
count of Massachusetts ABDW against his wife. After the
Department of Homeland Security ("DHS") initiated
removal proceedings against Coelho in June 2010, he conceded
his removability under 8 U.S.C. § 1182(a)(6)(A)(i) but
submitted an application for cancellation of removal pursuant
to 8 U.S.C. § 1229b(b)(1). "Cancellation of removal
is a form of discretionary relief, the granting of which
allows a non-resident alien, otherwise removable, to remain
in the United States." Ayeni v. Holder, 617
F.3d 67, 70 (1st Cir. 2010). In his application, Coelho noted
in particular that his removal "would result in
exceptional and extremely unusual hardship" to his son.
8 U.S.C. § 1229b(b)(1)(D). DHS moved to pretermit
Coelho's application on the ground that his Massachusetts
ABDW conviction constituted a conviction for a CIMT and thus
rendered him ineligible for cancellation of removal. See
id. § 1229b(b)(1)(C) (providing that an alien, to
be eligible for cancellation of removal, must not have been
"convicted of an offense under section 1182(a)(2),
1227(a)(2), or 1227(a)(3), " the first two of which
refer to crimes involving moral turpitude). After Coelho
failed to timely respond to the motion to pretermit, the
immigration judge ("IJ") granted the
filed a motion to reconsider, which the IJ denied. Explaining
the denial, the IJ concluded that Massachusetts ABDW is
categorically a CIMT because of the presence of an
aggravating element, namely the use of a dangerous weapon.
The IJ further acknowledged that Massachusetts case law
defines "dangerous weapon" to include "common
objects, " but noted that this definition "should
not be a determinative factor because it is the
defendant's use of the object in a dangerous manner which
is the vile act." Finally, the IJ found that "based
on the statute's requirement that a dangerous weapon be
used, [she could reasonably] conclude that there is no
realistic probability that [the Massachusetts ABDW statute]
would be applied to reach conduct that does not involve moral
dismissed Coelho's appeal in an opinion dated October 31,
2013. Applying de novo review, the BIA agreed with the
IJ's conclusion that Massachusetts ABDW is categorically
a CIMT because "assault or battery which necessarily
involves an aggravating factor indicative of the
perpetrator's moral depravity is a crime involving moral
turpitude" and "the knowing or attempted use of
deadly force is deemed to be an act of moral depravity."
petitioned for review of the October 31, 2013 decision.
Shortly thereafter, the government -- with Coelho's
assent -- moved this court to remand the case to the BIA for
reconsideration of whether Coelho's Massachusetts ABDW
conviction is categorically a CIMT that renders him
ineligible for cancellation of removal. We granted the
government's unopposed motion and vacated the BIA's
April 10, 2015, the BIA issued a second opinion, once again
holding that Massachusetts ABDW is categorically a CIMT. The
BIA applied its then-existing framework, as laid out in
Matter of Silva-Trevino, for determining whether an
offense involves moral turpitude. See 24 I. & N.
Dec. 687, 704 (A.G. 2008), vacated by 26 I. & N.
Dec. 550 (A.G. 2015), and overruled by 26 I. &
N. Dec. 826 (B.I.A. 2016). Under this approach, the first
step was "to examine the statute of conviction under the
categorical approach and determine whether there was a
'realistic probability' that the statute would be
applied to conduct not involving moral turpitude."
Id. If the categorical approach proved inconclusive,
the adjudicator proceeded "to look to the record of
conviction under the modified categorical approach, "
and, if the modified categorical approach also proved
inconclusive, "to consider any relevant evidence outside
the record of conviction to resolve the moral turpitude
that framework, the BIA found under the first step that
Massachusetts ABDW is categorically a CIMT. The BIA
acknowledged that the "presence of an 'aggravating
factor'" --here, the use of a dangerous weapon --
"is not always dispositive as to whether an offense
involves moral turpitude, " but it noted that
Massachusetts ABDW involves not only an aggravating factor
but also the requisite mental state for an offense to be
deemed morally turpitudinous. Specifically, when ABDW is
intentionally committed, "the statute requires . . . the
intentional application of force by use of a dangerous
weapon." Alternatively, when ABDW is recklessly
committed, the statute requires "the intentional
commission of a reckless or wanton act with a dangerous
weapon, defined as more than gross negligence, resulting in
physical or bodily injury that interferes with the