Francis v. Reno

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

10-16-2001

Francis v. Reno

Precedential or Non-Precedential:

Docket 00-2375

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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

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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

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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.

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A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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