Matter of Callos Mercader Explained: Moderate Injury Is Now a CIMT

The Board of Immigration Appeals has published a precedent decision that significantly expands the reach of the crime-involving-moral-turpitude (CIMT) analysis in state assault cases. In Matter of Callos Mercader, 30 I&N Dec. 185 (BIA 2026), Interim Decision #4264, decided October 27, 2026, the Board held that a South Carolina conviction for assault and battery in the second degree, which requires a reckless mental state and the actual or attempted infliction of “moderate bodily injury,” is categorically a CIMT. The decision reverses the Immigration Judge’s grant of termination and reinstates removal proceedings.

For noncitizens with assault-related convictions and their families, a direct note: this decision changes how state assault statutes will be analyzed under the categorical approach. If you have been convicted of assault, battery, or a similar offense in any state, the removability analysis of your case may be affected. Convictions you or a prior attorney understood to be “non-CIMT” because the injury was moderate (not serious) may now be treated as CIMTs. Speak with an experienced immigration attorney immediately if you are concerned about how a conviction may affect your immigration status.

This piece explains what the decision holds, how the categorical approach operates in CIMT determinations, how the Board expanded CIMT reach from “serious” to “moderate” bodily injury, how the recklessness-as-sufficient-mental-state line of cases now applies to a broader category of state statutes, how the decision affects state statutes beyond South Carolina, and what the pattern of Judge Hunsucker’s panel presence across Matter of Ozuna Mendoza and Matter of Callos Mercader may signal. Matter of Callos Mercader is the twenty-fifth precedential immigration decision in the ongoing series shifting law in the government’s direction.

What Happened in Matter of Callos Mercader

Christian Callos Mercader is a native and citizen of the Philippines. He was admitted to the United States as a child of a lawful permanent resident on March 1, 2020. On February 11, 2025, he was convicted of assault and battery in the second degree in violation of section 16-3-600(D)(1) of the Code of Laws of South Carolina.

Based on this conviction, DHS charged Callos Mercader as removable under INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude committed within five years after admission and for which a sentence of one year or longer may be imposed. The maximum sentence available under the South Carolina statute is three years. There was no dispute that the offense was committed within five years of admission and that a sentence of one year or longer may be imposed.

Callos Mercader filed a motion to terminate removal proceedings, arguing that his conviction was not for a CIMT. On June 6, 2025, the Immigration Judge granted the motion to terminate, finding that DHS failed to establish that the conviction was for a CIMT. The Immigration Judge reasoned that moderate bodily injury does not rise to the level of serious bodily injury typically required for an assault conviction to constitute a CIMT, and noted that the conviction record was marked “non-violent.”

DHS appealed. The respondent initially argued that DHS’s notice of appeal was untimely, but the Board rejected this argument in a footnote based on the sequence of the Immigration Judge’s oral hearing and the subsequent written order. On October 27, 2026, the Board sustained the appeal, vacated the Immigration Judge’s decision, and remanded for further proceedings.

What the BIA Decided

The Board held that section 16-3-600(D)(1) of the Code of Laws of South Carolina is categorically a CIMT because both subparagraphs of the statute independently qualify.

Subparagraph (a) covers unlawfully injuring another person, or offering or attempting to injure another person with the present ability to do so, where moderate bodily injury to another person results or could have resulted. Subparagraph (b) covers the same conduct where the act involves the nonconsensual touching of the private parts of a person, defined to include the genital area, buttocks, or female breasts.

The Board held that both prongs are CIMTs because each requires reprehensible conduct committed with a culpable mental state. The culpable mental state is at least recklessness under the South Carolina Supreme Court’s decision in United States v. Clemons, 901 S.E.2d 280, 283 (S.C. 2024). The reprehensible conduct is the actual or attempted infliction of moderate bodily injury (for subparagraph (a)) or the nonconsensual touching of private parts (for subparagraph (b)).

Because both subparagraphs independently qualify as CIMTs, the statute is categorically a CIMT without need to apply the modified categorical approach to determine which subparagraph the specific conviction fell under.

The Categorical Approach to CIMT Determinations

To determine whether a state criminal conviction is for a CIMT, the Board applies the categorical approach established in Matter of Silva-Trevino, 26 I&N Dec. 826, 831 (BIA 2016), which looks to “the minimum conduct that has a realistic probability of being prosecuted under the statute of conviction.” The focus is on the elements of the offense as defined in the statute; the specific facts underlying the respondent’s particular violation are set aside.

A statute is categorically a CIMT if the minimum conduct that could be prosecuted under the statute involves “reprehensible conduct committed with a culpable mental state.” Matter of Silva-Trevino, 26 I&N Dec. at 834. Conduct is “reprehensible” if it is “inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general.” A culpable mental state is one requiring deliberation or consciousness, including intent, knowledge, willfulness, or recklessness.

Where a statute is divisible, meaning it contains multiple alternative elements that describe separate offenses, the Board may apply the modified categorical approach under Mathis v. United States, 579 U.S. 500, 505 (2016), to determine which specific offense the respondent was convicted of. If the record of conviction does not specify which subparagraph of a divisible statute the respondent violated, the conviction is treated as a CIMT only if every subparagraph independently qualifies. Matter of Solon, 24 I&N Dec. 239, 241 (BIA 2007).

The parties agreed that section 16-3-600(D)(1) is divisible. The Immigration Judge had found that the record did not specify which subparagraph the respondent was convicted under. The Board resolved this by holding that both subparagraphs independently qualify as CIMTs, so the division of the statute does not affect the categorical analysis.

Expanding CIMT Reach from Serious to Moderate Bodily Injury

The most significant doctrinal move in Matter of Callos Mercader is the expansion of CIMT reach from assault statutes requiring “serious bodily injury” or “great bodily injury” to assault statutes requiring only “moderate bodily injury.”

Under prior Board precedent, simple assault and battery offenses committed with general intent were generally not considered CIMTs. Matter of Wu, 27 I&N Dec. 8, 10-11 (BIA 2017). The exception applied when the offense involved “some aggravating factor that indicates the perpetrator’s moral depravity.” Id. The aggravating factor could include a particularly culpable mental state (such as recklessness that endangers life) or a particularly severe harm (such as serious or great bodily injury).

The Board had previously held that assault causing “great bodily injury,” defined as “significant or substantial injury,” constitutes a CIMT. Matter of Wu, 27 I&N Dec. at 15. The Board had also held that recklessness is a sufficiently culpable mental state when coupled with sufficiently grave potential harm. Matter of O.A. Hernandez, 26 I&N Dec. 464, 467 (BIA 2015). The Eleventh Circuit had held in Keungne v. U.S. Attorney General, 561 F.3d 1281, 1286-87 (11th Cir. 2009), that recklessness that “endangers the bodily safety of another person” is a sufficiently culpable mental state and that the offense need not have resulted in actual injury.

The Board in Matter of Callos Mercader extends this framework to moderate bodily injury. South Carolina defines “moderate bodily injury” as physical injury that involves “prolonged loss of consciousness, or that causes temporary or moderate disfigurement or temporary loss of the function of a bodily organ, or injury that requires medical treatment when the treatment requires the use of regional or general anesthesia or injury that results in a fracture or dislocation.” S.C. Code Ann. § 16-3-600(A)(2). The statute specifies that moderate bodily injury does not include “one-time treatment and subsequent observation of scratches, cuts, abrasions, bruises, burns, splinters, or any other minor injuries that do not ordinarily require extensive medical care.”

The Board holds that moderate bodily injury so defined is “sufficiently grave to make it reprehensible” when coupled with a reckless mental state. The actual or attempted infliction of this level of injury “is a base act that transgresses the socially accepted rules of morality and breaches the individuals ethical duty to society.” The decision disagrees with the Immigration Judge’s determination that moderate bodily injury does not rise to the level of serious bodily injury typically found to constitute a CIMT.

For practitioners, this shifts the categorical analysis for a wide range of state assault statutes. Any state statute that criminalizes reckless infliction (or attempted infliction) of injury meeting the South Carolina moderate-bodily-injury definition is now presumptively within the CIMT category. The Board’s categorical analysis will likely be extended to similar state statutes in future decisions.

The “Non-Violent” Designation Is Irrelevant

Many noncitizens and their attorneys rely on the specific designation of a conviction on the state criminal record to assess immigration consequences. A “non-violent” designation, a misdemeanor classification, or a reduced sentence are often read as signals that the conviction will not be treated as a CIMT or an aggravated felony. Matter of Callos Mercader directly rejects this reliance.

The Immigration Judge in Callos Mercader noted that the respondent’s conviction record was marked “non-violent.” The Board responds: “the seriousness of the conduct or the severity of the sentence imposed is not determinative of whether a statutory offense is a crime involving moral turpitude.” Matter of O.A. Hernandez, 26 I&N Dec. at 465.

The Board’s point is that the CIMT determination operates at the statutory level under the categorical approach. The specific disposition, record designation, or sentence imposed in an individual case does not change whether the statute itself categorically describes conduct that is morally turpitudinous.

For practitioners, this is a critical reminder. State criminal defense attorneys often negotiate dispositions that produce favorable designations on state records (reductions to misdemeanor, non-violent classifications, deferred adjudications) under the assumption that these dispositions will have mitigating immigration effect. In the CIMT context after Callos Mercader, those negotiated designations provide no CIMT protection where the statute of conviction itself describes CIMT-qualifying conduct.

Beyond South Carolina

The ripple effects of Matter of Callos Mercader extend well beyond South Carolina because many state statutes criminalize reckless infliction of similar levels of bodily injury under similar frameworks. The categorical analysis in Callos Mercader provides a template for how the Board will likely treat those statutes going forward.

The core framework from Callos Mercader is: (1) a reckless mental state is sufficient under Matter of Leal, Matter of O.A. Hernandez, and the Eleventh Circuit’s Keungne line of cases; (2) actual or attempted infliction of injury meeting the South Carolina moderate-bodily-injury definition is sufficiently reprehensible; (3) the conviction is categorically a CIMT if the minimum conduct prosecutable under the statute meets both prongs; and (4) record designations such as “non-violent” do not affect the categorical analysis.

For practitioners analyzing CIMT determinations in other states, the key questions are now: what is the minimum mental state required by the statute (does it reach at least recklessness), and what is the minimum level of injury required (does it reach the South Carolina moderate-bodily-injury threshold or something comparable). State statutes that reach reckless assault causing fracture, dislocation, temporary disfigurement, temporary loss of organ function, or prolonged loss of consciousness are now at substantial risk of being treated as CIMTs under the Callos Mercader framework.

Several state statutes have elements that align closely with the South Carolina provision. States with assault statutes that criminalize reckless infliction of “substantial” bodily injury, “moderate” bodily injury, or specified injuries such as fractures or temporary loss of function may face similar analysis. Attorneys handling CIMT determinations in those jurisdictions should assess whether the elements of the state statute track the Callos Mercader framework and should prepare accordingly.

Attorneys should also assess whether their state statutes are divisible under Mathis, and if so, whether the record of conviction specifies which subparagraph the respondent was convicted under. Where the record does not specify, every subparagraph must independently qualify as a CIMT for the statute to be treated categorically as a CIMT under Matter of Solon.

The Hunsucker Panel Presence

Appellate Immigration Judge Hunsucker is on the Matter of Callos Mercader panel and was also on the Matter of Ozuna Mendoza panel decided one day earlier. In two consecutive days, two consequential precedent decisions have issued from panels on which Judge Hunsucker sits.

This is observable fact. Two data points on consecutive days are limited data, and practitioners should not overinterpret the pattern. Judge Hunsucker has been on panels in other recent decisions in the series as well, including Matter of J-E-D-C- decided October 19, 2026. The Hunsucker pattern is now an observable feature of the series alongside the Chief AIJ Malphrus pattern, which includes Matter of Morales Cuxun, Matter of L. Ramirez, Matter of J-E-D-C-, and Matter of Chamorro Castillo.

For practitioners tracking the series, these panel patterns matter because they help anticipate the direction of further Board decisions. The composition of panels does not determine outcomes, but patterns in panel composition can inform strategy on preservation of arguments, federal court strategy, and client counseling.

What This Means for Noncitizens with Assault Convictions

For noncitizens who have been convicted of assault, battery, or a similar state offense, and for their families, Matter of Callos Mercader may change the removability analysis of your case.

If you have an assault conviction and are concerned about your immigration status, consult with an experienced immigration attorney. The specific state statute of conviction and the specific record of conviction will determine whether your case is affected by this decision.

If you are considering a plea agreement in a pending state criminal case, understand that the designation of the offense on your record (misdemeanor, non-violent, reduced charge) does not necessarily determine whether it will be treated as a CIMT in immigration proceedings. The CIMT analysis operates at the statutory level under the categorical approach. Work with your criminal defense attorney and an immigration attorney together whenever possible to understand the immigration consequences of a specific plea.

If you have been admitted to the United States recently (within the last five years), be aware that a CIMT conviction committed within five years after admission for which a sentence of one year or longer may be imposed triggers removability under INA § 237(a)(2)(A)(i). The five-year window is calculated from the date of admission to the date of commission of the offense.

If you have an in-progress or anticipated application for lawful permanent residence, naturalization, or any other immigration benefit, and you have an assault conviction in your history, speak with an attorney before filing. The CIMT analysis may affect eligibility and the strategic approach to your filing.

What This Means for Attorneys Handling CIMT Analysis

For immigration attorneys handling CIMT determinations in state assault cases, Matter of Callos Mercader requires several adjustments to standard practice.

Analyzing state statutes at the element level has become more important, because record designations and sentence severity no longer provide reliable guidance. For every state assault statute likely to be charged, the categorical analysis should proceed through: (1) identifying the required mental state (does recklessness suffice to sustain a conviction); (2) identifying the required level of injury (does it reach the Board’s moderate-bodily-injury threshold); (3) determining divisibility under Mathis; and (4) analyzing each subparagraph independently if the statute is divisible.

Documenting the record of conviction with specificity is now essential where the statute is divisible. If the record does not specify which subparagraph of a divisible statute the respondent was convicted under, every subparagraph must independently qualify as a CIMT for the statute to be treated categorically as a CIMT. Preserving the specificity of the record is a defense opportunity under Matter of Solon.

Coordinating with state criminal defense counsel at the plea stage is now part of competent immigration practice. Negotiated dispositions that produce favorable state record designations (misdemeanor, non-violent, deferred adjudication) may provide no CIMT protection if the statute of conviction itself describes CIMT-qualifying conduct. The categorical approach looks past the specific disposition to the elements of the statute.

Preserving the record for federal court review is important because the Board’s expansion of CIMT reach from “serious” to “moderate” bodily injury may be challenged on petition for review. Every argument available at the agency level should be preserved for appellate review.

Monitoring further Board decisions on state assault statutes is now part of competent current practice. The Callos Mercader framework provides a template that the Board will likely apply to other state statutes with similar elements, and attorneys should anticipate further decisions in this area.

What Matter of Callos Mercader Does Not Change

The decision expands CIMT reach significantly, but its scope has limits worth stating clearly.

The decision does not change the basic framework of the categorical approach. Matter of Silva-Trevino, Mathis v. United States, and the broader doctrinal framework for categorical analysis remain operative. What has changed is how the Board will apply the framework to assault statutes with recklessness mental states and moderate-injury thresholds.

The decision does not change the definition of a CIMT. The definition continues to require reprehensible conduct committed with a culpable mental state. What has changed is the Board’s treatment of what constitutes sufficiently reprehensible conduct when coupled with a reckless mental state.

The decision does not foreclose relief from removal. On remand, Callos Mercader may pursue any application for relief for which he is eligible. The Board specifically notes this. Relief possibilities depend on the specific facts of the case and may include cancellation of removal, waivers, or other forms of relief depending on circumstances.

The decision does not foreclose federal court review. A petition for review before the appropriate federal court of appeals remains available after a final Board decision, subject to the usual jurisdictional limits and standards of review.

The decision does not reach every state assault statute. Each state statute must be analyzed under the categorical approach based on its specific elements. Statutes with mental states below recklessness, statutes requiring only minor injuries, and statutes that function as general-intent simple-assault provisions without aggravating factors may still fall outside the CIMT category depending on their specific terms.

Frequently Asked Questions

What is a CIMT?

A crime involving moral turpitude (CIMT) is a conviction for an offense whose elements require “reprehensible conduct committed with a culpable mental state.” Matter of Silva-Trevino, 26 I&N Dec. 826, 834 (BIA 2016). Conduct is reprehensible if it is inherently base, vile, or depraved, contrary to accepted rules of morality. A culpable mental state is one requiring deliberation or consciousness, including intent, knowledge, willfulness, or recklessness. CIMT findings can trigger removability, inadmissibility, and other immigration consequences depending on the context.

What is the categorical approach?

The categorical approach is the framework for determining whether a state criminal conviction qualifies as a particular category of offense under federal immigration law. It focuses on the elements of the statute of conviction; the specific facts underlying the respondent’s particular violation are set aside. The approach examines the minimum conduct that has a realistic probability of being prosecuted under the statute. Where a statute is divisible under Mathis v. United States, 579 U.S. 500 (2016), the modified categorical approach allows reference to a limited set of record documents to determine which subparagraph the respondent was convicted under.

What is INA § 237(a)(2)(A)(i)?

INA § 237(a)(2)(A)(i), 8 U.S.C. § 1227(a)(2)(A)(i), is the removability ground that applies to any noncitizen who is convicted of a CIMT committed within five years after the date of admission and for which a sentence of one year or longer may be imposed. The five-year window is calculated from the date of admission to the date of commission of the offense; the date of conviction is not the operative date.

What is “moderate bodily injury” under South Carolina law?

South Carolina defines “moderate bodily injury” at S.C. Code Ann. § 16-3-600(A)(2) as physical injury that involves prolonged loss of consciousness, temporary or moderate disfigurement, temporary loss of function of a bodily organ, injury requiring medical treatment with regional or general anesthesia, or injury resulting in a fracture or dislocation. It does not include minor injuries such as scratches, cuts, abrasions, bruises, burns, or splinters that do not require extensive medical care.

Does the decision apply to state statutes beyond South Carolina?

The holding of the decision applies directly to section 16-3-600(D)(1) of the Code of Laws of South Carolina. The categorical analysis framework will likely be applied by the Board to other state statutes with similar elements (reckless mental state coupled with moderate-level injury) in future decisions. Practitioners handling CIMT analysis in other states should assess whether their state statutes track the Callos Mercader framework.

Does the “non-violent” designation on my conviction record matter?

No. The Board in Matter of Callos Mercader holds that “the seriousness of the conduct or the severity of the sentence imposed is not determinative of whether a statutory offense is a crime involving moral turpitude.” The CIMT analysis operates at the statutory level under the categorical approach. The specific disposition or record designation does not change the categorical analysis.

Does Matter of Callos Mercader apply retroactively?

Precedent decisions of the Board generally apply to all cases pending at the agency level that have not yet reached a final decision. Attorneys with cases pending before Immigration Judges or on appeal before the Board should assume the new framework applies.

Where can I find Matter of Callos Mercader?

Matter of Callos Mercader, 30 I&N Dec. 185 (BIA 2026), Interim Decision #4264, is a precedent decision of the Board of Immigration Appeals decided October 27, 2026. It is available through the Department of Justice Executive Office for Immigration Review website.

Why Novo Legal

Novo Legal Group is a bilingual, community-rooted human rights firm. Every attorney on our team is fluent in English and Spanish. Our litigation team handles CIMT analysis, removability defense in state criminal cases, coordinated criminal-immigration representation, appeals to the Board of Immigration Appeals, and petitions for review before federal courts of appeals including the Ninth and Tenth Circuits. We approach CIMT cases with a careful categorical analysis grounded in the specific elements of the state statute of conviction, coordinate with state criminal defense counsel at the plea stage where possible, and preserve every available argument for federal court review when the agency sustains removability. If you or a family member has been convicted of assault, battery, or a similar offense and is concerned about immigration consequences, contact us. We will tell you what we would do given your specific facts.

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