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< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

Filed October 16, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-2375

ROBERT FRANCIS,

       Petitioner,

v.

JANET RENO, Attorney General;
and DORIS MEISSNER,
Commissioner of the Immigration
and Naturalization Service

Petition for Review of an Order of the
Board of Immigration Appeals
(INS No. A26-458-287)

Argued February 7, 2001

Before: SCIRICA, McKEE and STAPLETON, Circuit  Judges

(Opinion Filed: October 16, 2001)

       Stephan D. Converse, Esquire
        (Argued)
       Anderson, Converse & Finnick, P.C.
       1423 East Market Street
       York, Pennsylvania 17403
       Attorney for Petitioner.

       David W. Ogden
       Assistant Attorney General
       Civil Division
       Linda S. Wendtland
       Assistant Director
       Gretchen M. Wolfinger, Esquire
        (Argued)
       Terri J. Scadron, Esquire
       Matthew R. Hall, Esquire
       Office Of immigration Litigation
       Civil Division
       United States Department of Justice
       P.O. Box 878, Ben Franklin Station
       Washington, D.C. 20044
       Attorneys for Respondent

OPINION OF THE COURT

McKEE, Circuit Judge:

We are asked to decide if a state misdemeanor conviction
for vehicular homicide is a "crime of violence" within the
meaning of 18 U.S.C. S 16. Robert Francis was convicted of
two counts of homicide by vehicle in Pennsylvania.
Thereafter, the Immigration and Nationalization Service
charged Francis with removability based upon its assertion
that he had been convicted of an "aggravated felony"
pursuant to the Immigration and Nationality Act ("INA"). 8
U.S.C. S 1227(a)(2)(A)(iii).

The Immigration Judge ruled that homicide by vehicle as
defined in Pennsylvania is not an "aggravated felony" under
the INA, and the INS appealed to the Board of Immigration
Appeals ("BIA"). The BIA disagreed. The Board ruled that
homicide by vehicle is "a crime of violence" under S16, thus
it is an "aggravated felony" under the INA, and thus Francis
is removable. The Board therefore entered a final order of
removal against Francis. This petition for review followed.
For the reasons that follow, we will grant Francis' petition
and remand to the BIA with instructions to vacate its order
of removal.

                                2.

I. Background Facts and Procedure

Robert Francis is 67 years-old, has lived in the United
States for over 25 years, and is married to a United States
citizen. Administrative Record ("AR") at 102. However,
Francis is a citizen of Jamaica. He entered the United
States in 1975 as a "Nonimmigrant Visitor for Pleasure." In
1987, he adjusted his immigration status to "Conditional
Resident," a legal resident status.

In May of 1993, Francis caused a tragic traffic accident
wherein two people were killed on Interstate 95 in
Philadelphia. He was thereafter convicted in state court of
two counts of homicide by vehicle in violation of 18 Pa.
C.S.A. S 3732.1 That statute defines homicide by vehicle,
and categorizes it as a misdemeanor of the first degree.
Francis was sentenced to two consecutive sentences of
eighteen to sixty months in prison for the conviction. At the
conclusion of that sentence, he was held on an INS
detainer. The INS then initiated removal proceedings based
upon its assertion that his state court conviction made him
removable as an "aggravated felon" under the BIA. As noted
above, the Immigration Judge terminated the proceedings
in Francis' favor, but the INS reversed and ordered his
removal. That order of removal is now before us based upon
Francis' petition for review.

II. Jurisdiction

The Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (IIRIRA) divests this court of
jurisdiction over a final order of removal against an alien
convicted of certain delineated offenses. 8 U.S.C. 
_________________________________________________________________
1. Section 3732 provides:

       Any person who unintentionally causes the death of another person
       while engaged in the violation of any law of this Commonwealth or
       municipal ordinance applying to the operation or use of a vehicle or
       to the regulation of traffic except section 3731 (relating to driving
       under influence of alcohol or controlled substance) is guilty of
       homicide by vehicle, a misdemeanor of the first degree, when the
       violation is the cause of death.

18 Pa. C.S.A. 3732.

                                3.

S 1252(a)(2)(C);2 Liang v. INS, 206 F.3d 308 (3d Cir. 2000).
However, jurisdiction is only removed under the IIRIRA if
"(1) the petitioner is an alien (2) who is deportable by
reason of having been convicted of one of the enumerated
offenses." Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001).3
Therefore, we must initially determine whether these two
statutory prerequisites to the limitation of our jurisdiction
are satisfied. Id.

There is no dispute that Francis is an alien. Thus, the
jurisdictional question that we must address is whether
Francis' offense -- homicide by vehicle in violation of 18 Pa.
C.S.A. S 3732 -- is "one of the enumerated offenses" under
the IIRIRA. We hold that it is not.
_________________________________________________________________
2. Section 1252(a)(2)(C) provides:

(C) Orders against criminal aliens

Notwithstanding any other provision of law, no court shall have
jurisdiction to review any final order of removal against an alien who is
removable by reason of having committed a criminal offense covered in
section 1182(a)(2) or 1227(a)(2)(A)(iii) [entitled "Aggravated felony"], (B),
(C), or (D) of this title, or any offense covered by section 1227(a)(2)(A)(ii)
of this title for which both predicate offenses are, without regard to their
date of commission, otherwise covered by section 1227(a)(2)(A)(i) of this
title.

3. We recognize that the Supreme Court has recently held that certain
provisions of the Illegal Immigration Reform and Immigrant
Responsibility Act, including 8 U.S.C.A. S 1252(a)(2)(C), do not deprive
district courts of jurisdiction to review a resident alien's habeas corpus
petition challenging a BIA decision. INS v. Cyr , ___ S.Ct. ___, 2001 WL
703922 *11 (U.S. June 25, 2001). That is in accord with our decision in
Liang v. INS, 206 F.3d 308 (3d Cir. 2000). We pause here merely to note
that the Supreme Court expressly decided not to address the
jurisdictional question of whether a court of appeals has jurisdiction to
determine whether the S 1252(a)(2)(C) jurisdictional bar applies to
petitions for review of BIA decisions, i.e. whether an alien has been
convicted of an aggravated felony. Calcano-Martinez v. INS, ___ U.S. ___,
2001 WL 703943 *1 n.2 (U.S. June 25, 2001) (explaining that the
government conceded that courts of appeals have jurisdiction to
determine the jurisdictional facts of "whether an individual is an alien
and whether he or she has been convicted of an `aggravated felony' " but
that the petitions there did not raise this issue).

                                4.

III. Discussion

8 U.S.C. S 1227(a)(2)(A)(iii) states that any alien convicted
of an "aggravated felony" is deportable. 8 U.S.C.
S 1101(a)(43)(F) defines "aggravated felony" under the INA to
include any "crime of violence." The INA does not directly
define "crime of violence." Instead, it incorporates the
definitions set forth in the Crimes Code at 18 U.S.C. S 16.
See 8 U.S.C. S 1101 (43)(F).4 "Crime of violence" is defined
therein as:

       (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, or

       (b) any other offense that is a felony and that, by its
       nature, involves a substantial risk that physical force
       against the person or property of another may be used
       in the course of committing the offense.

18 U.S.C. S 16. The BIA concluded that subsection (a) is not
applicable to Francis' state conviction, but held that his
offense fell within the confines of subsection (b). We agree
that Francis' state conviction does not fall underS 16(a).
However, we disagree with the BIA's conclusion that it is
included under S 16(b).

In order for a conviction to be a "crime of violence" under
subsection (b), the offense must first be a "felony;" and
second, it must be an offense that "by its nature, involves
a substantial risk that physical force against the person or
property of another may be used in the course of
committing the offense." 18 U.S.C. S 16(b).

Francis argues that vehicular homicide under
Pennsylvania law fails to meet either requirement. He
argues that the offense is a misdemeanor under
Pennsylvania law and therefore cannot qualify as a felony
for purposes of the INA. He also argues that it is not an
offense that "by its nature, involves a substantial risk that
physical force against the person or property of another
_________________________________________________________________
4. 8 U.S.C. S 1101(43) states that "aggravated felony" includes . . . (F) a
crime of violence (as defined in section 16 of Title 18, . . .) For which the
term of imprisonment [is] at least one year."

                                5.

may be used in the course of committing the offense." 18
U.S.C. S 16(b). Finally, Francis argues thatS 16(b) requires
specific intent and that homicide by vehicle involves a
much lower level of culpability under Pennsylvania law.

A. Whether A Misdemeanor Can Be A Felony
Under S 16(b)

Francis claims that inasmuch as he was convicted of a
misdemeanor under Pennsylvania law, he is not a felon;
"much less an `aggravated' one." Francis Br. at 6. In United
States v. Graham, 169 F.3d 787 (3d Cir. 1999), we held
that a crime can be regarded as an aggravated felony even
if it is categorized as a misdemeanor. There, Graham pled
guilty to illegally reentering this country following
deportation in violation of 8 U.S.C. S 1326. At sentencing,
an issue arose as to whether he should be classified as an
aggravated felon under U.S.S.G. S 2L1.2(b)(1)(B). A
defendant who is classified as an aggravated felon faces a
sixteen-level increase in his/her offense level under the
Sentencing Guidelines.5 The district court sentenced
Graham as an aggravated felon based upon the court's
conclusion that his prior state misdemeanor conviction for
petit larceny qualified as an aggravated felony even though
the state where he committed the offense defined it as a
misdemeanor. "The aggravated felony classification changed
Graham's guideline sentence range from 21-27 months to
70-87 months." 169 F.3d at 788.

On appeal, we framed the issue as follows:

       whether a misdemeanor can be an "aggravated felony"
       under a provision of federal law even if it is not,
       technically speaking a felony at all. The particular
       question is whether petit larceny, a class A
       misdemeanor under New York law that carries a
       maximum sentence of one year, can subject a federal
       defendant to the extreme sanctions imposed by the
       "aggravated felon" classification [contained in 8 U.S.C.
       S 1101(a)(43)].
_________________________________________________________________
5. U.S.S.G. S 2L1.2(b)(1)(B) incorporates the aggravated felony definitions
used in 8 U.S.C. S 1101(a)(43).

                                6.

Id., at 788. We answered in the affirmative. In resolving the
issue, we focused on an amendment to S 1101(a)(43)(G),
which lowered the imprisonment threshold from five years
to one year. We explained that felonies had historically
been defined as those crimes that are punishable by at
least a year in prison. Those offenses punishable by less
time in prison had historically been defined as
misdemeanors. However, we concluded that the term
"aggravated felony" is a term of art which can include
"certain misdemeanants who receive a sentence of one
year," id. at 792, even though the underlying crime has
been labeled a "misdemeanor" under state law.

Our analysis in Graham does not, however, answer the
question presented here. Graham was an aggravated felon
pursuant to 8 U.S.C. S 1101(a)(43)(G). That subsection
specifically defined theft crimes as aggravated"felonies" so
long as "the term of imprisonment [is] at least one year." Id.
at 789.6 Graham had clearly been convicted of a state theft
offense, and that offense, though categorized by New York
as a Class A misdemeanor, had "a maximum of a year's
imprisonment under New York law." Id. at 789. That is all
subsection (43)(G) required. Francis is charged with an
aggravated felony under subsection (43)(F). As stated above,
that provision of the INA requires a "crime of violence"
under 18 U.S.C. S 16. We must therefore determine if
S 16(b), which specifically refers only to"felonies," includes
offenses that have been categorized as "misdemeanors" by
the state that has defined the underlying conduct as
criminal. Thus, although Graham may be instructive, it
does not control our determination of Congress' intent in
adopting 18 U.S.C. S 16.

The BIA concluded that it is irrelevant that Pennsylvania
labels the offense as a misdemeanor. The BIA used the
federal default definition of felony found in 18 U.S.C.
S 3559 to conclude that, irrespective of the state
classification, Francis' conviction was a felony under federal
law. 18 U.S.C. S 3559 defines "felony" as an offense that is
not otherwise classified where "the maximum term of
_________________________________________________________________
6. We concluded that the verb "is" was inadvertently omitted from the
text of the statute.

                                7.

imprisonment authorized is . . . less than five years but
more than one year."7 The BIA reasoned "it is both fair and
logical to rely on the federal statutory definition of `felony'
when that term appears in a federal statute that is
applicable in the respondent's case." AR at 4.

The government argues that the BIA's analysis is entitled
to deference under Chevron v. Natural Resources Defense
Council, 467 U.S. 837 (1984). Under Chevron :

       [w]hen a court reviews an agency's construction of the
       statute which it administers, it is confronted with two
       questions. [1] First, always, is the question whether
       Congress has directly spoken to the precise question at
       issue. If the intent of Congress is clear, that is the end
       of the matter; for the court, as well as the agency,
       must give effect to the unambiguously expressed intent
       of Congress. [2] If, however, the court determines
       Congress has not directly addressed the precise
       question at issue, the court does not simply impose its
       own construction on the statute, as would be
       necessary in the absence of an administrative
       interpretation. Rather, if the statute is silent or
       ambiguous with respect to the specific issue, the
       question for the court is whether the agency's answer
       is based on a permissible construction of the statute.

Chevron, 467 U.S. 837, 842-43 (1984) (emphasis added).
However, in Sandoval v. Reno, 166 F.3d 225,239 (3d Cir.
1999) (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 446
_________________________________________________________________
7. S 3559 provides:

       (a) Classification.--An offense that is not specifically classified by a
       letter grade in the section defining it, is classified if the maximum
       term of imprisonment authorized is--

       ***
       ***
       ***
       ***

        (5) less than five years but more than one year, as a Class E
       felony. . .

18 U.S.C. S 3559(a)(5) (emphasis added).

                                8.

(1987)), we noted that pure questions of statutory
construction must be resolved by courts. There, we
explained that Chevron deference will only apply to an
inquiry "that implicates agency expertise in a meaningful
way." Id. More recently, in Drakes v. Zimski, 240 F.3d at
247, we intimated that Chevron deference might not apply
in the context of defining "forgery" within the meaning of 8
U.S.C. S 1101(a)(43)(R), because the BIA did not utilize any
specific expertise in interpreting that provision of the INA.
Federal courts regularly interpret such terms. Id. at 247.

Clearly, the BIA did not rely upon any expertise in
interpreting the meaning of "felony" within 18 U.S.C. S 16;
a general criminal statute. Moreover, Chevron  instructs that
we accord deference only to the BIA's "construction of the
statute which it administers." Chevron, 467 U.S. at 842.
The BIA is not charged with administering 18 U.S.C.S 16,
and that statute is not transformed into an immigration law
merely because it is incorporated into the INA by
S 1101(43)(F). We therefore conclude that the BIA's
interpretation of 8 U.S.C. S 16 is not entitled to deference
under Chevron.8

Congress did not use the term "felony" inS 16(a). Rather,
S 16(a) is narrowly drawn to include only crimes whose
elements require the "use, attempted use, or threatened use
of physical force." Although S 16(b) is  specifically limited to
felonies, it does not include all felonies. It is limited to those
felonies that "by [their] nature involve[s] a substantial risk
that . . . force . . . may be used." Clearly, Congress intended
to include felonies and misdemeanors under subsection (a),
but only intended certain felonies to be included under
subsection (b). The Senate Report for the Comprehensive
Crime Control Act of 1984 makes this clear.

       The term `crime of violence' is defined, for purposes of
       all of Title 18 U.S.C. in Section 1001 of the Bill (the
       first section of Part A of Title X) . . . The term means
       an offense -- either a felony or a misdemeanor  -- that
       has as an element the use, attempted use, or
_________________________________________________________________
8. Moreover, for the reasons we set forth below, we would reverse the
decision of the BIA even if Chevron applied because the BIA's analysis is
not a reasonable interpretation of 8 U.S.C. S 1101(43)(F).

                                9.

       threatened use of physical force against the person or
       property of another, or any felony that, by its nature,
       involves the substantial risk that physical force against
       person or property may be used in the course of its
       commission.

S.Rep. No. 225 (1983), reprinted in 1984 U.S.C.C.A.N. 3182
(emphasis added). Congress was obviously aware that the
definition of a "felony" varies from jurisdiction to
jurisdiction, and it could certainly have defined an
"aggravated felony" under the INA to include any state
offense that would be classified as a felony under federal
law. It did not do so.

Francis' crime is only arguably a felony because of the
application of 18 U.S.C. S 3559. However,S 3559 was
intended as a last resort that would be employed only if
"[a]n offense that is not specifically classified . . . in the
section defining it, [provides for a] maximum term of
imprisonment [of] less than five years but more than one
year." Such crimes are, by default, categorized under
federal law as Class E felonies. 18 U.S.C. S 3559(a)(5)
(emphasis added). In United States v. Donley, we explained
that:

       Title 18 U.S.C. S 3559 assigns letter grades to offenses
       that previously had none on the basis of the maximum
       terms of imprisonment authorized by statutes describing
       the offenses. One letter grade comprises offenses that
       carry different statutory penalties in the underlying
       statutes describing them. For example, first and
       second degree murder are both classified as Class A
       felonies under S 3559.

878 F.2d 735, 739 (3d Cir. 1989) (emphasis added).
Labeling a particular offense as a misdemeanor should end
the matter for the purposes of S 16(b). After all, Francis did
not violate federal law, he violated state law. C.f. Doe v.
Hartz, 134 F.3d 1339, 1343 (8th Cir. 1998) (explaining in
the context of the Violence Against Women Act 42 U.S.C.
SS 13981-14040, that a state misdemeanor is not a crime of
violence within the meaning of S 16 (b) because "we cannot
simply borrow the federal classification of a felony and
apply it to conduct that could not constitute a crime under
federal law.")

                                10.

At oral argument, the INS contended that the adoption of
the federal definition for the term "felony" provides a
"federal objective standard" in treating all resident aliens
alike regardless of the states classification of the crime. The
INS argued that another state could charge the very same
conduct as a felony, and therefore, adopting a federal
classification affords equal treatment to all petitioners
regardless of the place of conviction. We reject this policy
argument for several reasons. First, as we have already
explained, S 16(a) includes misdemeanors and felonies.
Under S 16(a), similar conduct is included in the definition
of "aggravated felony" regardless of the state's label.

Moreover, the government's argument for uniformity
ignores that maximum penalties will also vary from
jurisdiction to jurisdiction. See The Unconstitutionality of
Nonuniform Immigration Consequences of "Aggravated
Felony" Convictions, 74 N.Y.U. L.Rev. 1696,1725-29 (1999).
Therefore, relying upon the maximum penalty prescribed by
a given state to determine if an offense is a felony using
S 3559 does not eliminate nonuniform treatment of
offenders from state to state. The disparity merely shifts to
the differing maximum sentences prescribed, rather than a
state's classification.

In addition, the INS' "equality" argument fails to give
effect to the language of S 1101(a)(43)(F). Section
1101(a)(43)(F) defines aggravated felony as a "crime of
violence [ ] as defined in section 16 of Title 18 for which the
term of imprisonment [is] at least one year." 8 U.S.C.
S 1101(a)(43)(F) (emphasis added). It would create a
redundancy to define "felony" in S 16(b) as an offense
involving "a substantial risk of force" for which the
maximum sentence is more than one year, see 18 U.S.C.
S 3559(a)(5), when S 1101(a)(43)(F) already defines an
aggravated felony to include "crime[s] of violence as defined
in section 16 Title 18 for which the term of imprisonment
[is] at least one year.9  Section 1101(a)(43)(F) has already
captured those offenses. In this context, we think it is
_________________________________________________________________
9. In 1996, Congress amended S 1101(a)(43)(F),(G),(N), and (P), by
lowering the maximum penalty threshold from at least five years to at
least one year. 110 Stat. 3009, 3009-627.

                                11.

incongruous to read "felony" in S 16(b) as being defined by
the applicable term of imprisonment set by the underlying
state offense. The Board is already applying a "federal
objective standard" to all resident aliens, one that has been
expressly dictated by Congress' use of the words"for which
the term of imprisonment [is] at least one year." Since this
phrase already includes or excludes aliens based on the
length of the sentence, we see no reason why we should
read the term "felony" in Section 16(b) as contingent upon
the term of imprisonment rather than a state's
categorization.

Reading the statute without importing the default
classifications in 18 U.S.C. S 3559 eliminates this
redundancy. If a state has categorized an offense as a
misdemeanor or a felony, subsection (a) will define the
offense as an "aggravated felony" if the elements include the
"use, attempted use, or threatened use of . . . force." 18
U.S.C. S 16(a). Certain offenses categorized as felonies
under state law, having a maximum of at least one year, as
required by 8 U.S.C. S 1101 (43) (F), are also"aggravated
felonies." This captures those instances where a state may
define felonies to include offenses that have a shorter
maximum than one year imprisonment. However, where as
here, the offense is categorized as a misdemeanor under
state law, it is excluded unless it involves force and falls
under subsection 16(a). Thus, by relying upon state law to
provide the categorization, we eliminate the redundancy
that would otherwise result from including both a
maximum of one year imprisonment under S 1101(43)(F)
and the condition precedent of "felony" inS 16(b) that is
expressly incorporated into S 1101(43)(F). 10

This interpretation is also consistent with the rule of
lenity as embodied in "the longstanding principle of
construing any lingering ambiguities in deportation statutes
in favor of the alien." INS v. Cyr, ___ U.S. ___, 2001 WL
_________________________________________________________________
10. Our approach of using the state label is consistent with United States
v. Villanueva-Gaxiola, 119 F. Supp.2d 1185,1190 (Dist. Kansas 2000)
(finding that "[b]ecause California Penal Code S 12020 encompasses
misdemeanor offenses, it cannot meet the definition of `crime of violence'
in 18 U.S.C. S 16(b).").

                                12.

703922 *14 (U.S. June 25, 2001) (quoting INS v. Cardoza-
Fonseca, 480 U.S. 42, 449 (1987)).11  This is no small
consideration given the changes in immigration law
effectuated by the IIRIRA. For all the reasons set forth
above, we conclude that Francis' state court conviction was
not an "aggravated felony" under the INA.

B. Whether Homicide By Vehicle Can Otherwise
Fall Under S (16(b)

Moreover, even if we assume arguendo that Francis'
misdemeanor conviction of vehicular homicide can
somehow be converted into a felony for S 16(b) purposes, we
would still conclude that his conviction is not an
"aggravated felony." As noted above, S 16(b) also requires
that he be convicted of a crime that, "by its nature, involves
a substantial risk that physical force against the person or
property of another may be used in the course of
committing the offense." 18 U.S.C. S 16(b). Homicide by
vehicle in Pennsylvania is not such an offense.

A brief review of the procedural history places our
discussion in its proper context. Francis was convicted of
two counts of homicide by vehicle following a trial, and he
appealed to the Superior Court of Pennsylvania. He argued
that the evidence presented at trial was insufficient to
sustain a conviction. The Superior Court rejected this
argument. Commonwealth v. Francis, 665 A.2d 821,823 (Pa.
Super. 1995). In doing so, the court held that Francis was
guilty of criminal negligence rather than recklessness. The
court reasoned:
_________________________________________________________________

11. We are aware that we refused to apply the rule of lenity in Graham,
however, as we note in our discussion of Graham , supra, there was no
ambiguity in the text we were interpreting there. As is evident from our
discussion, the same can not be said of the statutes at issue here.
Moreover, we expressly allowed for the rule of lenity in Steele v.
Blackman, 236 F3d 130, (3rd Cir. 2001) ("Since the distribution of
marijuana . . . is not inherently a felony, it seems to us that the only
alternative to so regarding it consistent with the rule of lenity would be
to treat any S 844 offense in this context as a misdemeanor.") (emphasis
added).

                                13.

       The Commonwealth established beyond a reasonable
       doubt that appellant violated S75 Pa.C.S. 4903, which
       prohibits any backing up on a limited access highway
       such as I-95. The Commonwealth also proved beyond
       a reasonable doubt, through expert and eyewitness
       testimony, that appellant's act of backing up his
       vehicle into traffic directly caused Mr. Rutter to lose
       control of his vehicle, which precipitated the multiple
       vehicle accident in which the Rutters were killed.
       Finally, we find that appellant's conduct was criminally
       negligent, as the backing up of a vehicle into oncoming
       traffic traveling 55 miles per hour is a gross deviation
       from the standard of care observed by a reasonable
       person. See Heck, 517 Pa. at 201, 535 A.2d at 580
       (criminal negligence requires gross deviation from
       standard of care reasonable person would observe); In
       the Interest of Hyduke, 371 Pa.Super. 380, 388, 538
       A.2d 66, 70 (1988) (criminal negligence established
       where appellant drove 85 miles per hour, lost control of
       his vehicle, and crossed the center line); Cheatham,
       419 Pa.Super. at 611-12, 615 A.2d at 806-07 (epileptic
       was criminally negligent for driving while knowing he
       was subject to seizures). Accordingly, we find that
       appellant's sufficiency claim has no merit.

Id. at 823-24.

Under Taylor v. United States, 495 U.S. 575, 600 (1990),
we use the "categorical approach" to determine if Francis'
conviction for vehicular homicide comes within the meaning
of the second part of S 16(b). Drakes v. Zimski, 240 F.3d
246, 249 (3d Cir. 2001) (citing Taylor v. United States, 495
U.S. 575, 600 (1990) and In re Alcantar, 20 I.&N.Dec. 801,
809 (B.I.A. 1994)). Therefore, we must look to
Pennsylvania's definition of homicide by vehicle. As noted
previously, 18 Pa. C.S.A. S 3732 provides:

       Any person who unintentionally causes the death of
       another person while engaged in the violation of any
       law of this Commonwealth or municipal ordinance
       applying to the operation or use of a vehicle or to the
       regulation of traffic except section 3731 (relating to
       driving under influence of alcohol or controlled
       substance) is guilty of homicide by vehicle, a

                                14.

       misdemeanor of the first degree, when the violation is
       the cause of death.

18 Pa. C.S.A. S 3732. On its face, homicide by vehicle is
certainly not an offense that "by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of
committing the offense." 18 U.S.C. S 16(b). The BIA
acknowledged that S 3732 involves a range of behavior that
"may or may not" fall under S 16(b).

The categorical approach does "permit the sentencing
court to go beyond the mere fact of conviction in a narrow
range of cases where a jury was actually required to find all
the elements of [the relevant] generic [offense]." Taylor, 495
U.S. at 602. Here, the criminal complaint stated:

       Southbound on Route 95 in the vicinity of Comly Street
       the defendant unintentionally caused the death of the
       decedent #1 Harry B. Rutter, Driver of vehicle #1, by
       operating a 1985 Chevrolet Caprice, Pa. License ADB
       7268, while his operating privilege was suspended, and
       in such a manner as to cause a eight vehicle accident
       between four cars, one van, and three tractor trailers
       and a near miss by a tanker truck carrying 8000
       gallons of gasoline, causing the deaths of two people
       and injuring a third.

AR at 110 (emphasis added).

Francis was therefore charged with the "unintentional"
conduct, of operating an automobile in such a manner as
to cause a car accident resulting in two deaths. The phrase
"while his operating privilege was suspended" is the
attendant circumstance that furnishes the violation of law
that is the condition precedent to criminal culpability. The
BIA, however, reviewed the criminal complaint and found
that driving with a suspended license, could "in and of
itself, present a `substantial risk' that physical force would
be used against the person or property of another." Id. at 6.
Relying on United States v. Galvan-Rodriguez, 169 F.3d
217, 219 (5th Cir. 1999) and Matter of Magallanes, Interim
Decision 3341 at 6-7 (BIA 1998), the BIA reasoned that "a
motor vehicle in the wrong hands has enormous potential
to cause damage to the vehicle and other property, as well

                                15.

as personal injuries and death to innocent people." AR at 6.
Further, the BIA reasoned that "the precise risk created by
[Francis'] conduct was actually realized in the present case
with devastating consequences." AR at 6-7. However,
nothing on this record establishes that driving with a
suspended license, in and of itself, involves a substantial
risk of physical force.

There are undoubtedly many reasons why a state would
suspend a person's driving privileges, some of which may
have no relation to a person's fitness to drive or the
likelihood that he or she will use physical force. See
Commonwealth Dept of Transportation v. Empfield, 526 Pa.
220 (1991) (setting forth numerous infractions of the
Pennsylvania Vehicle Code that justify suspension of a
driver's license including the ministerial act of failing to
renew a valid license). Moreover, we find both Galvan-
Rodriguez and Matter of Magallanes distinguishable.

Galvan-Rodriguez involved the state offense of
unauthorized use of an automobile; a crime that is similar
to car theft with all of the attendant dangers of high speed
chases, speeding, and recklessness endemic in car theft.
Clearly, one who steals a car will be far more likely to
operate it recklessly than the car's owner. Matter of
Magallanes involved the state offense of aggravated driving
under the influence. The dangers of operating an
automobile while one's faculties are impaired by drugs or
alcohol are all too obvious, and too common to require
further elaboration. Significantly, homicide by vehicle is
specifically defined to exclude the traffic violation of driving
under the influence under 18 Pa. C.S.A. S 3731. Homicide
by vehicle, as the Superior Court noted in affirming Francis'
conviction, arises from criminally negligent behavior.

In Commonwealth v. Heck 517 Pa. at 201, the
Pennsylvania Supreme Court held that ordinary negligence
is not sufficient to sustain a conviction of homicide by
vehicle under 18 Pa.C.S.A. S 3732. 535 A.2d 575,579 (Pa.
1987). The court found that the government must establish
recklessness or criminal negligence. Id. In Pennsylvania,
criminal negligence is defined as follows:

       A person acts negligently with respect to a material
       element of an offense when he should be aware of  a

                                16.

       substantial and unjustifiable risk that the material
       element exists or will result from his conduct. The risk
       must be of such a nature and degree that the actor's
       failure to perceive it, considering the nature and intent
       of his conduct and the circumstances known to him,
       involves a gross deviation from the standard of care
       that a reasonable person would observe in the actor's
       situation.

Heck, 517 Pa. at 201 (citing 18 Pa. C.S 302(b)(4)) (emphasis
added). In contrast, Pennsylvania defines reckless conduct
as follows:

       A person acts recklessly with respect to a material
       element of an offense when he consciously disregards a
       substantial and unjustifiable risk that the material
       element exists or will result from his conduct. The risk
       must be of such a nature and degree that, considering
       the nature and intent of the actor's conduct and the
       circumstances known to him, its disregard involves a
       gross deviation from the standard of conduct that a
       reasonable person would observe in the actor's
       situation.

18 Pa. C.S.A. S 302(b)(3) (emphasis added). The BIA
determined that Francis' conduct was reckless. It may well
have been. However, recklessness was not charged, and he
was not convicted of an offense requiring that mens rea.
The criminal complaint alleges only that Francis
unintentionally caused the death of two persons by driving
a car "while his operating privilege was suspended, and in
such a manner as to cause a eight vehicle accident .. ."
The complaint expressly uses the term "unintentional[ ]." It
did not charge him with recklessness. Given the criminal
complaint, and the Superior Court's opinion, it was error
for the BIA to conclude that Francis was convicted of
recklessness. He was convicted of criminal negligence.

The BIA also discussed our decision in United States v.
Parson, 955 F.2d 858 (3d Cir. 1992). The BIA believed that
Parson supports the conclusion that homicide by vehicle
falls under 18 U.S.C. S 16(b) because Francis was willing to
"engage in conduct that carries enormous potential risk
that physical force will be used against persons or

                                17.

property." AR at 7. However, in Parsons, we interpreted a
provision of the Sentencing Guidelines that is distinguished
from S 16(b) despite similar wording. The relevant provision
of the Guidelines at issue in Parsons was U.S.S.G.
S 4B1.2(1); the Career Offender provision. In deciding that
Parsons was a career offender we noted that U.S.S.G.
S 4b1.2(ii) included within the definition of"crime of
violence" any offense that "involves conduct that presents a
serious potential risk of physical injury to another."
(Emphasis added). Id. at 867. Thus, to the extent that the
discussion there has any relevance to our inquiry here at
all, we note our focus there was on conduct. Here, S 16(b)
requires that we focus upon the nature of the underlying
felony rather than the conduct that caused Francis to be
convicted of the felony. Parsons had been convicted of
"recklessly endangering" others under state law. We cannot
conclude that Francis' crime, involving criminal negligence,
so strongly implicates the use of force or risk of force as to
sweep Francis' conviction within "crime of violence" here.

Parson's state conviction satisfied the requirement for a
career offender because he pled guilty to, and was
convicted of, " `conduct that presents a serious risk of
physical injury to another' " under Delaware law. Id. at 872
(emphasis added). Though Francis' conduct may well have
also posed such a risk, the statute he was convicted under
does not, by its nature, require it.12  Any level of negligence
poses a risk of some kind of injury. However, as noted
above, driving while one's license is suspended simply does
not bear a sufficient risk of physical injury to allow us to
conclude that the nature of Francis' offense satisfies
S 16(b). See United States v. Galo, 239 F.3d 572, 577 (3rd
Cir. 2000) ("Under the `categorical approach' the sentencing
court can look only to the fact of conviction and the
statutory definition of the prior offense. The court's analysis
_________________________________________________________________

12. Significantly, to the extent that his level of criminal "negligence" was
so reckless as to be wanton or constitute malice, he could have been
charged with third degree murder. See Commonwealth v. Marcelette
Miller, 627 A.2d 741 (Pa. Super. 1993). That would have been the kind
of offense that, "by its nature" involves the use or substantial risk that
force will be used.

                                18.

is not controlled by the conduct giving rise to the
conviction.") (citing Taylor, 495 U.S. at 600-602.).

After considering the text of S 3732, the criminal
complaint, and Pennsylvania precedent together with our
own, we find that Francis' conviction for vehicular homicide
is not an offense that "by its nature, involves a substantial
risk that physical force against the person or property of
another may be used in the course of committing the
offense." 18 U.S.C. S 16(b).

We do not for a moment minimize the tragic
consequences of Francis' conduct nor the loss that he
caused the families of the two people killed by his
negligence. However, the tragic nature of the accident he
caused does not mean that he was convicted for a crime
that, "by its nature, involves a substantial risk that
physical force" will result. See 18 Pa. C.S.A. S 302(4)(d).13

IV. Conclusion

For the reasons set forth above, we hold that Francis has
not committed a "crime of violence" that is a predicate for
"aggravated felony" status pursuant to 8 U.S.C.
SS 1101(a)(43)(F). Therefore, we have jurisdiction over this
petition as Francis is not "removable by reason of having
committed a criminal offense covered in section . . .
1227(a)(2)(A)(iii)," which refers to an alien who is convicted
of an aggravated felony. See 8 U.S.C. 1252(a)(2)(C).
Inasmuch as Francis had not been convicted of an
"aggravated felony" he was not removable as charged by the
INS. Accordingly, Francis' petition for review is granted and
we will remand to the BIA with instructions to vacate its
order of removal.
_________________________________________________________________

13. 18 Pa. C.S.A. S 302(4)(d) provides:

       Prescribed culpability requirement applies to all material elements.
       --When the law defining an offense prescribes the kind of culpability
       that is sufficient for the commission of an offense, without
       distinguishing among the material elements thereof, such provision
       shall apply to all the material elements of the offense, unless a
       contrary purpose plainly appears.

                                19.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                20



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