Threats to Assault Federal Officials as Crimes of Violence:
McLean v. Bondi and the Divisibility of 18 U.S.C. § 115(a)(1)(B)

I. Introduction

The Fifth Circuit’s decision in McLean v. Bondi, No. 20‑61098 (5th Cir. Nov. 20, 2025), addresses a recurring and thorny question at the intersection of criminal law and immigration law: when does a federal “threat” offense qualify as a “crime of violence,” and therefore an “aggravated felony,” for immigration purposes?

The petitioner, Delroy Anthony McLean, is a Jamaican national and lawful permanent resident who was convicted under 18 U.S.C. § 115(a)(1)(B) for “influencing a federal official by threat,” specifically by threatening to assault an Immigration Judge. He received a 41‑month sentence. The Department of Homeland Security then charged him as removable under 8 U.S.C. § 1227(a)(2)(A)(iii) as an alien convicted of an aggravated felony, and the immigration courts additionally deemed him ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).

In the Fifth Circuit, McLean—proceeding pro se—argued that his § 115 conviction was not an aggravated felony, and therefore he was neither removable nor barred from cancellation of removal. The court rejected his arguments, denied his motion for appointment of counsel, and upheld both removability and the denial of relief.

The opinion, authored by Judge Priscilla Richman and accompanied by her own detailed concurrence, is important for several reasons:

It holds that 18 U.S.C. § 115 is a divisible statute and applies the modified categorical approach.
It concludes that a conviction for threatening to assault a federal official under § 115(a)(1)(B), punishable under § 115(b)(4), categorically constitutes a “crime of violence” under 18 U.S.C. § 16(a).
It confirms that such a conviction, with a sentence of at least one year, is an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), triggering removability and a bar to cancellation of removal.
It treats the Board of Immigration Appeals’ misapplication of the categorical approach as harmless error.
It elaborates, in the concurrence, a rich doctrinal and historical account of “assault” and “physical force” under federal law.

II. Summary of the Opinion

A. Factual and Procedural Background

McLean, a Jamaican national, was admitted to the United States as a lawful permanent resident. He was later prosecuted in federal court for threatening an Immigration Judge during a bond hearing. An indictment under 18 U.S.C. § 115(a)(1)(B) alleged that he threatened to “f**k up” the judge and to “bash in her f**king head.” A jury convicted him of “influencing a federal official by threat,” and he was sentenced to 41 months’ imprisonment.

Following the conviction, immigration authorities initiated removal proceedings under 8 U.S.C. § 1227(a)(2)(A)(iii) (removability for aggravated felony convictions). Before the Immigration Judge (IJ), McLean argued that his § 115 conviction did not qualify as an aggravated felony. Alternatively, he sought cancellation of removal under 8 U.S.C. § 1229b(a). The IJ rejected both arguments, finding:

the offense was an aggravated felony crime of violence, and
as a result, McLean was both removable and statutorily ineligible for cancellation of removal.

The Board of Immigration Appeals (BIA) affirmed, employing a categorical approach to § 115 without first determining divisibility. McLean petitioned the Fifth Circuit for review and also sought appointment of counsel.

B. Holdings

The Fifth Circuit reached three core holdings:

Divisibility and Crime of Violence
18 U.S.C. § 115 is a divisible statute. Applying the modified categorical approach, the court determined that McLean was convicted of “influencing a federal official by threatening assault” under § 115(a)(1)(B), with punishment under § 115(b)(4). That offense has as an element “the threatened use of physical force” within the meaning of 18 U.S.C. § 16(a), and therefore is a “crime of violence.”
Aggravated Felony and Immigration Consequences
Because McLean’s conviction is for a crime of violence and he received a sentence exceeding one year (41 months), it is an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F). He is thus removable under 8 U.S.C. § 1227(a)(2)(A)(iii) and ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3).
BIA Error and Harmless Error Doctrine
Although the BIA arguably erred by failing to recognize the divisibility of § 115 and by applying a pure categorical approach to the entire statute, that error was harmless because, even under the correct modified categorical analysis, the result is the same.

Additionally, the court denied McLean’s motion for appointment of counsel, holding that he had not shown “exceptional circumstances” required under Fifth Circuit precedent to warrant appointed counsel in this context.

III. Detailed Analysis of the Opinion

A. Statutory Framework

1. Immigration Statutes

Removability for aggravated felonies: 8 U.S.C. § 1227(a)(2)(A)(iii) renders deportable “[a]ny alien who is convicted of an aggravated felony at any time after admission.”
Definition of “aggravated felony”: 8 U.S.C. § 1101(a)(43)(F) defines an aggravated felony to include “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year.”
Ineligibility for cancellation of removal: 8 U.S.C. § 1229b(a)(3) bars cancellation of removal for a lawful permanent resident who “has been convicted of any aggravated felony.”

2. The Crime-of-Violence Statute

18 U.S.C. § 16 defines “crime of violence” in two ways:

§ 16(a): “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” and
§ 16(b): a now-invalid “residual clause” covering certain felonies involving a substantial risk that force may be used.

The Supreme Court in Sessions v. Dimaya, 584 U.S. 148 (2018), held § 16(b) unconstitutionally vague. As a result, only § 16(a) remains available as a basis for finding a crime of violence in the immigration context. The Fifth Circuit expressly declines to use § 16(b) and confines its analysis to § 16(a).

3. The Threat-Against-Federal-Officials Statute: 18 U.S.C. § 115

Section 115(a)(1) defines several offenses involving threats or acts of violence against federal officials, judges, law enforcement officers, or their immediate family members, when motivated by interference with, intimidation of, or retaliation for official duties. Relevant here:

§ 115(a)(1)(A) – assaulting, kidnapping, murdering, attempting or conspiring to kidnap or murder, or threatening to assault, kidnap, or murder a covered official’s immediate family member.
§ 115(a)(1)(B) – threatening to assault, kidnap, or murder the official, judge, or officer themselves.

Section 115(b) then specifies distinct penalties for:

different forms of “assault” in § 115(b)(1), and
“a threat made in violation of this section,” including a special cap—6 years—for “imprisonment for a threatened assault” in § 115(b)(4).

The sentencing distinctions within § 115(b) become the linchpin for the court’s divisibility analysis.

B. Standard of Review

Whether a prior conviction qualifies as an “aggravated felony” is “a purely legal question” reviewed de novo. The court cites Rodriguez v. Holder, 705 F.3d 207 (5th Cir. 2013), and Patel v. Mukasey, 526 F.3d 800 (5th Cir. 2008), in support.

C. Divisibility of 18 U.S.C. § 115 and the Modified Categorical Approach

1. Categorical vs. Modified Categorical Approach

Under the Supreme Court’s jurisprudence—particularly Descamps v. United States, 570 U.S. 254 (2013), and Mathis v. United States, 579 U.S. 500 (2016)—courts generally employ:

a categorical approach when a statute defines a single offense; the court looks only to the statutory elements and asks whether the least culpable conduct criminalized necessarily involves “the use, attempted use, or threatened use of physical force” under § 16(a); and
a modified categorical approach when the statute is divisible, i.e., it lists alternative elements defining multiple distinct crimes. In that case, the court may look to a limited set of “Shepard documents” (indictment, plea agreement, jury instructions, judgment, etc.) to identify which specific statutory alternative formed the basis of conviction.

A key principle from Mathis is that when “statutory alternatives carry different punishments, then under Apprendi they must be elements,” and the statute is divisible.

2. Why § 115 Is Divisible

The panel notes that § 115(a)(1) lists several types of conduct—assault, kidnapping, murder, threats, and so on—but that alone does not render the statute divisible. The crucial factor is § 115(b), which:

assigns distinct penalties for different forms of conduct (simple assault vs. assault involving physical contact vs. assault causing bodily injury or serious bodily injury); and
provides a separate penalty framework for threats, specifically capping imprisonment for a “threatened assault” at 6 years.

Because these alternatives carry different maximum penalties, they are alternative elements, not mere alternative means. The statute thus defines multiple distinct crimes and is divisible. The modified categorical approach therefore applies.

3. Identifying McLean’s Specific Offense

Consulting the permissible record-of-conviction documents, the court finds:

The indictment charges McLean with “threaten[ing] to assault” a federal official.
The verdict and judgment describe the offense as “Influencing a Federal Official by Threat,” tracking § 115(a)(1)(B).
The sentence—41 months—is well above the one-year cap for “simple assault” (§ 115(b)(1)(B)(i)) and consistent with § 115(b)(4)’s six-year cap for “threatened assault.”

From this, the panel concludes that “McLean appears to have been convicted of, at the very least, the crime of influencing a federal official by threatening assault,” with punishment authorized by § 115(b)(4). Under the categorical framework, the court then examines the least culpable conduct covered by that specific offense—threatening an assault on a federal official with the requisite intent—to see whether it necessarily involves a threatened use of “physical force.”

D. Is Threatening to Assault under § 115(a)(1)(B) a “Crime of Violence”?

1. The Meaning of “Physical Force” – Johnson, Stokeling, Castleman

The core definitional precedent is Johnson v. United States, 559 U.S. 133 (2010), which construed “physical force” in the Armed Career Criminal Act (ACCA) and, by analogy, in § 16(a). Johnson held that “physical force” in this context means:

“violent force—that is, force capable of causing physical pain or injury to another person.”

The concurrence in McLean reviews subsequent Supreme Court refinements:

Leocal v. Ashcroft, 543 U.S. 1 (2004) – emphasized that “crime of violence” implies “violent, active crimes,” reinforcing that the focus is on serious force, not mere offensive touching.
Stokeling v. United States, 586 U.S. 73 (2019) – held that robbery requiring force sufficient to overcome a victim’s resistance involves “physical force” under ACCA. It clarified that:
- force can be “minimal” or cause only “minimal pain or injury” and still qualify;
- the key is that the force is “capable” of causing pain or injury—not that serious injury is probable;
- courts should not engage in probabilistic, fact-specific evaluations of how likely harm is in the “ordinary case.”
United States v. Castleman, 572 U.S. 157 (2014) – explained that “use of force” includes indirect applications (e.g., poisoning) and that applying a harmful or offensive substance to a person’s body can constitute “physical force” causing bodily injury.

The concurrence stresses that Stokeling resolves a key ambiguity: “capable” in the Johnson definition denotes potentiality, not a particular statistical likelihood of injury. Thus, courts need not and should not ask whether the typical case under the statute will produce significant injury; they need only ask whether the force is of a sort that can cause physical pain or injury.

2. The Meaning of “Assault” in § 115

The concurrence undertakes an extended historical and doctrinal analysis of “assault” as used in § 115, drawing on:

18th‑century and early common-law definitions (e.g., Blackstone, Jacob), which treated assault as:
- an attempt to inflict bodily harm, or
- an act placing another in reasonable apprehension of immediate bodily harm.
Black’s Law Dictionary (5th ed. 1979) – defining assault as a willful attempt or threat to inflict injury, coupled with present ability and creating a reasonable fear of immediate bodily harm.
Ladner v. United States, 358 U.S. 169 (1958) – construing the predecessor to § 111 and noting that assault is commonly committed “by putting another in apprehension of harm whether or not the actor actually intends to inflict or is capable of inflicting that harm.”
United States v. Ramirez, 233 F.3d 318 (5th Cir. 2000) – interpreting § 111 and holding that “simple assault” at common law involves no physical contact and consists of an attempted battery or placing another in reasonable apprehension of a battery. Critically, Ramirez distinguished it from assaults “involving physical contact,” which carry higher penalties.
The legislative history of § 115, including its 1984 enactment and 1994 and 2008 amendments, which progressively separated “simple assault” from aggravated forms of assault and then codified them directly in § 115(b).
Treatise analysis from LaFave & Scott’s Substantive Criminal Law, emphasizing that both attempted battery and intentional scaring (causing apprehension of immediate bodily harm) involve an intent to apply physical force capable of causing injury or an intent to cause fear of such force.

From these sources, the concurrence concludes:

“Simple assault” in § 115(b)(1)(B)(i) is a non-contact offense, consistent with the common-law notion and Ramirez.
The more serious assaults in § 115(b)(1)(B)(ii)–(iv)—assault involving physical contact, bodily injury, or serious bodily injury—necessarily involve force capable of causing physical pain or injury.
Threatening to commit those forms of assault—especially those involving physical contact or injury—equally involves a threatened use of such force.

3. Application: Threatening to Assault a Federal Official

Both the majority opinion and the concurrence converge on the view that threatening to assault a federal official under § 115(a)(1)(B), with the specific intent “to impede, intimidate, or interfere with” or “retaliate against” that official:

is not mere “offensive touching” or de minimis force; and
necessarily entails a threat to use physical force of the kind Johnson and Stokeling describe (i.e., capable of causing pain or injury).

The concurrence bolsters this conclusion with examples drawn from prior case law:

United States v. Ramirez – the defendant hurled a mixture of feces and urine at a corrections officer, covering his body from the neck down. The Fifth Circuit held this was more than “simple assault” and constituted “physical but non-injurious assault” involving physical contact. The concurrence reasons that such conduct has an obvious potential to cause physical harm due to the risk of infection and disease.
United States v. Frizzi, 491 F.2d 1231 (1st Cir. 1974) – spitting in a mail carrier’s face was held to be an assault on a federal officer; again, this is contact with bodily fluids capable of causing illness or injury.
United States v. Masel, 563 F.2d 322 (7th Cir. 1977) – spitting on a Member of Congress; while apparently a misdemeanor, the conduct falls in the same conceptual category of applying potentially harmful bodily substances.

Relying on Castleman, the concurrence underscores that:

physical force can be exerted indirectly (e.g., via bodily fluids, poison, noxious substances), and
the fact that injury might not occur in every instance is irrelevant; the force is still “capable” of causing injury under Johnson/Stokeling.

Also persuasive are definitions used in other circuits interpreting § 115:

The First Circuit (in United States v. Fulmer) has approved instructions defining a “threat” as a statement indicating an “intent to inflict bodily harm on someone.”
The Seventh Circuit’s pattern jury instructions define threats under § 115(a)(1)(B) as a serious expression of intent to inflict bodily harm or take life and define “assault” as an intentional attempt or threat to inflict bodily injury.

Taken together, these authorities support the court’s central conclusion: threatening to assault a federal official in order to impede, intimidate, interfere with, or retaliate against that official is, by definition, a threat to use physical force capable of causing physical pain or injury.

4. Mens Rea: Response to the “Recklessness” Argument

McLean argued that § 115(a)(1) could be violated recklessly and thus would fail under the Supreme Court’s decision in Borden v. United States, 593 U.S. 420 (2021), which held that crimes that can be committed with a mental state less culpable than knowledge or purpose—such as recklessness—do not qualify as “violent felonies” under ACCA’s elements clause.

The concurrence rejects this argument:

Section 115(a)(1) expressly requires that the threat be made with the “intent to impede, intimidate, or interfere” with the official, or with the “intent to retaliate” for official actions.
Fifth Circuit precedent, United States v. Stevenson, 126 F.3d 662 (5th Cir. 1997), requires that the defendant “intentionally communicated the threat.”
The Ninth Circuit similarly recognizes a “specific intent” element under § 115(a)(1)(B) (United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005)).

Thus, § 115(a)(1)(B) cannot be committed merely recklessly; it requires purposeful or knowing conduct, and so it fits comfortably within the crime-of-violence elements clause as interpreted in Borden.

E. Harmless Error: The BIA’s Use of the Pure Categorical Approach

The Fifth Circuit notes that the BIA treated § 115 as if it were not divisible and applied the categorical approach to the entire statute rather than identifying the particular alternative of conviction and applying the modified categorical approach. Under Mathis, this is an analytical error.

Nonetheless, the court applies harmless-error review, citing Enriquez‑Gutierrez v. Holder, 612 F.3d 400, 407 (5th Cir. 2010), which allows affirmance if “there is no realistic possibility that, absent the error, the BIA would have reached a different conclusion.” Because:

the BIA effectively analyzed the portion of § 115 that matched McLean’s actual conviction, and
the correct modified categorical analysis leads to the same conclusion—namely, that the offense is a crime of violence,

the court holds that the BIA’s error was harmless and does not warrant remand.

F. Immigration Consequences: Removability and Cancellation Bar

Once the court determines that McLean’s offense is a crime of violence under § 16(a) and that he received a sentence of more than one year (41 months), it follows that:

the offense is an aggravated felony under 8 U.S.C. § 1101(a)(43)(F);
McLean is removable under 8 U.S.C. § 1227(a)(2)(A)(iii); and
he is ineligible for cancellation of removal under 8 U.S.C. § 1229b(a)(3), which categorically bars relief for LPRs with aggravated felony convictions.

This is a particularly severe outcome: aggravated-felony findings not only mandate removability but also strip away one of the principal forms of discretionary relief available to long-term permanent residents.

G. Appointment of Counsel

McLean also sought appointment of counsel in the Fifth Circuit. The panel denies this motion, relying on:

Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982) – which holds that appointment of counsel for indigent civil litigants (there, in a § 1983 case) is warranted only in “exceptional circumstances.”
Nogales v. Garland, 2022 WL 3334491 (5th Cir. Aug. 12, 2022) – applying Ulmer in the immigration context to petitions for review of BIA decisions.
Barksdale v. King, 699 F.2d 744 (5th Cir. 1983) – reaffirming that pro se pleadings are construed liberally, which mitigates (but does not eliminate) the need for appointed counsel.

Because McLean did not show exceptional circumstances—such as particularly complex issues, an inability to present facts, or a strong likelihood of success on the merits—the court declines to appoint counsel.

IV. Precedents Cited and Their Influence

A. Immigration and Categorical-Approach Precedents

Sessions v. Dimaya, 584 U.S. 148 (2018) – invalidated § 16(b)’s residual clause as unconstitutionally vague, forcing courts (including the Fifth Circuit here) to rely exclusively on § 16(a)’s “elements clause” for crime-of-violence determinations in immigration cases.
Descamps v. United States, 570 U.S. 254 (2013); Mathis v. United States, 579 U.S. 500 (2016) – clarify the categorical and modified categorical approaches and the divisibility analysis. McLean uses these to:
- identify § 115 as divisible via differing penalties;
- justify consulting the indictment, judgment, and sentence to identify McLean’s specific offense.
Pereida v. Wilkinson, 592 U.S. 224 (2021) – cited in the concurrence for the types of criminal records that may be used to prove conviction in immigration proceedings, reinforcing the appropriateness of consulting the indictment and judgment.

B. Crime-of-Violence and “Physical Force” Precedents

Leocal v. Ashcroft, 543 U.S. 1 (2004) – defines “crime of violence” as involving “violent, active crimes,” which circumscribes the meaning of “physical force” in § 16(a).
Johnson v. United States, 559 U.S. 133 (2010) – foundational definition of “physical force” as “force capable of causing physical pain or injury.”
United States v. Castleman, 572 U.S. 157 (2014) – clarifies that indirect applications of force (e.g., through poison) count as “use of force,” and highlights that physical injury invariably implies some application of physical force.
Stokeling v. United States, 586 U.S. 73 (2019) – holds that robbery requiring force sufficient to overcome a victim’s resistance qualifies as a violent felony, even if the force is “minimal,” underscoring that “capable of causing” denotes potentiality, not likelihood.
United States v. Taylor, 596 U.S. 845 (2022) – expounds the categorical approach for determining whether specific federal felonies (there, attempted Hobbs Act robbery) qualify as crimes of violence.
Delligatti v. United States, 603 U.S. 423 (2025) – a recent Supreme Court decision (as summarized in the concurrence) reinforcing the idea that “minimal force” or a “small degree of force” can still be “sufficiently violent” under ACCA if capable of causing minimal pain or injury.
Borden v. United States, 593 U.S. 420 (2021) – excludes offenses that can be committed with mere recklessness from the “violent felony” elements clause; McLean distinguishes § 115 based on its intent requirement.

C. Federal Assault and Threat Cases

United States v. Ramirez, 233 F.3d 318 (5th Cir. 2000) – clarifies the distinction between “simple assault” and assault involving physical contact under § 111; the concurrence in McLean uses this to interpret “assault” and “simple assault” in § 115 by analogy.
Ladner v. United States, 358 U.S. 169 (1958) – provides a common-law-rooted definition of assault as causing apprehension of harm, influencing the understanding of the “assault” concept in federal statutes.
United States v. Frizzi, 491 F.2d 1231 (1st Cir. 1974) – holds spitting in a mail carrier’s face is a forcible assault; used in the concurrence to illustrate how non-traditional physical contacts (bodily fluids) can amount to assault.
United States v. Masel, 563 F.2d 322 (7th Cir. 1977) – spitting on a Member of Congress as assault; similarly illustrates the potential for bodily fluids to cause injury.
United States v. Stevenson, 126 F.3d 662 (5th Cir. 1997) – requires intentional communication of the threat under § 115.
United States v. Stewart, 420 F.3d 1007 (9th Cir. 2005) – recognizes the specific intent requirement in § 115(a)(1)(B), supporting the conclusion that the statute is not satisfied by reckless conduct.

D. Procedural and Counsel-Appointment Precedents

Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982) – “exceptional circumstances” standard for appointment of counsel in civil cases.
Nogales v. Garland, 2022 WL 3334491 (5th Cir. Aug. 12, 2022) – applying Ulmer in the immigration petition-for-review context.
Barksdale v. King, 699 F.2d 744 (5th Cir. 1983) – liberal construction of pro se pleadings.

V. Complex Concepts Simplified

A. “Crime of Violence” under 18 U.S.C. § 16(a)

A crime of violence under § 16(a) is:

An offense that has, as a necessary element, the use, attempted use, or threatened use of physical force against another person or their property.

Key points:

The question is about the legal elements, not what happened in a particular case.
“Physical force” means force capable of causing pain or injury.
Threats count if what is threatened is such force.

B. “Aggravated Felony” in Immigration Law

An “aggravated felony” is a federal immigration label, not necessarily tied to the classification of the crime in criminal law. Here, the relevant category is:

A crime of violence (as defined in § 16(a)) for which the term of imprisonment is at least one year.

Consequences:

Mandatory removability for noncitizens convicted after admission.
Bar to various forms of relief, including cancellation of removal for lawful permanent residents.

C. Categorical vs. Modified Categorical Approach

Categorical approach – ignore what actually happened; look only at the statutory elements. Assume the defendant committed the least serious conduct criminalized by the statute and ask if that conduct still qualifies as, for example, a crime of violence.
Modified categorical approach – used when a statute is divisible into multiple distinct crimes. The court may examine specific conviction documents to determine which statutory alternative formed the basis of the conviction, then apply the categorical analysis to that alternative.
Divisible statute – a statute that lists alternative elements (often reflected in different penalty provisions), each defining a separate crime.

D. Harmless Error in Immigration Petitions

Even if the BIA misapplies the categorical or modified categorical approach, a court of appeals may still deny a petition for review if:

there is no realistic possibility that the BIA would have reached a different conclusion under the correct legal framework.

This is the harmless-error standard applied in McLean.

E. Appointment of Counsel in Civil/Immigration Cases

There is no general right to government-appointed counsel in civil or immigration proceedings.
The Fifth Circuit may appoint counsel in “exceptional circumstances,” considering factors like complexity, the litigant’s ability to present the case, and likely merit.
McLean finds no such exceptional circumstances.

VI. Impact and Significance

A. Immediate Impact on Noncitizens with § 115 Convictions

The most direct consequence of McLean is for noncitizens—especially lawful permanent residents—convicted under 18 U.S.C. § 115(a)(1)(B) for threats to assault federal officials or judges:

In the Fifth Circuit, such convictions will generally be treated as crimes of violence under § 16(a) if the threat is to “assault” (as opposed to some hypothetically non-violent conduct not present here).
If the sentence imposed is at least one year, those convictions will be deemed aggravated felonies under § 1101(a)(43)(F).
The result is mandatory removability and categorical ineligibility for LPR cancellation of removal under § 1229b(a).

Defense counsel and immigration practitioners must now treat § 115(a)(1)(B) threats to assault as highly immigration-toxic in the Fifth Circuit.

B. Clarification of Divisibility for § 115

McLean is a leading Fifth Circuit case on the divisibility of § 115. It:

explicitly holds that § 115 is divisible because § 115(b) prescribes different penalties for alternative forms of conduct and injury; and
endorses using the modified categorical approach for § 115 convictions in immigration cases.

This guides future litigation involving other subsections of § 115 (e.g., threats to kidnap or murder) and may influence how other circuits see the statute’s structure.

C. Alignment with, and Extension of, Supreme Court “Physical Force” Jurisprudence

The decision, particularly the concurrence, knits together several Supreme Court decisions—Leocal, Johnson, Castleman, Stokeling, Borden, and Delligatti—to show that:

“Physical force” includes indirect means of harm (bodily fluids, poison, etc.).
The required threshold of force is not limited to serious or likely injury; minimal force that is capable of causing even minor injury will suffice.
Specific intent (as in § 115’s requirement to impede, intimidate, interfere, or retaliate) places such offenses squarely within the crime-of-violence framework and outside Borden’s recklessness exclusion.

This doctrinal synthesis will be cited in future “crime of violence” litigation, particularly in immigration and sentencing contexts involving threat offenses and “non-traditional” forms of force.

D. Guidance to the BIA and Lower Courts

By labeling the BIA’s failure to recognize the divisibility of § 115 as harmless, but still calling it error, the Fifth Circuit:

signals to the BIA and immigration judges that they must properly apply Mathis and Descamps when dealing with multi-part federal statutes; and
shows that courts of appeals will not necessarily remand for every misstep if the ultimate result is inevitable under the correct standard.

E. Appointment of Counsel Doctrine in Immigration Petitions

McLean also reinforces the Fifth Circuit’s restrictive approach to appointed counsel in petitions for review:

It confirms that the “exceptional circumstances” test from civil § 1983 litigation (Ulmer) applies equally in immigration petitions.
It implicitly suggests that even complex legal questions—such as those involving the categorical approach and Supreme Court crime-of-violence jurisprudence—do not automatically justify appointed counsel.

This aspect has potential implications for access to justice, especially for noncitizens navigating complicated statutory frameworks without legal representation.

VII. Conclusion

McLean v. Bondi is a significant Fifth Circuit decision at the intersection of criminal and immigration law. It establishes that:

18 U.S.C. § 115 is a divisible statute, requiring the use of the modified categorical approach.
A conviction for threatening to assault a federal official under § 115(a)(1)(B), punishable under § 115(b)(4), is categorically a “crime of violence” under 18 U.S.C. § 16(a).
When the defendant receives a term of imprisonment of at least one year, that conviction is an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(F), making the noncitizen both removable under § 1227(a)(2)(A)(iii) and ineligible for LPR cancellation of removal under § 1229b(a)(3).
Even when the BIA misapplies the categorical approach, appellate courts may affirm if the error is harmless.
Appointment of counsel in immigration petitions remains reserved for rare, “exceptional” cases in the Fifth Circuit.

Beyond its immediate outcome for Mr. McLean, the decision provides a detailed, doctrinally rich roadmap for future cases involving threat offenses, the meaning of “assault,” and the threshold of “physical force” required for crime-of-violence determinations. It consolidates and applies post‑Dimaya Supreme Court precedent in a way that will shape both immigration enforcement and criminal-defense counseling for noncitizens in the Fifth Circuit and likely beyond.

Threats to Assault Federal Officials as Crimes of Violence: McLean v. Bondi and the Divisibility of 18 U.S.C. § 115(a)(1)(B)