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Interim Decision #3468

In re Luis Manuel RAMOS, Respondent

File A17 630 241 - Boston

Decided April 4, 2002

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) In cases arising in circuits where the federal court of appeals has not decided whether

the offense of driving under the influence is a crime of violence under 18 U.S.C. § 16(b)

(2000), an offense will be considered a crime of violence if it is committed at least

recklessly and involves a substantial risk that the perpetrator may resort to the use of force

to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of

the circuit will be applied to cases arising in that jurisdiction.

(2) The offense of operating a motor vehicle while under the influence of intoxicating

liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is

not a felony 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 and is

therefore not a crime of violence. Matter of Puente, Interim Decision 3412 (BIA 1999),

and Matter of Magallanes, Interim Decision 3341 (BIA 1998), overruled.

FOR RESPONDENT: Frederick Q. Watt, Esquire, New Bedford, Massachusetts

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John M. Furlong, Jr.

Assistant District Counsel

BEFORE: Board En Banc:

SCHMIDT, VILLAGELIU, GUENDELSBERGER,

ROSENBERG, MILLER, BRENNAN, ESPENOZA, and, OSUNA, Board

Members. Concurring Opinions: FILPPU, Board Member; PAULEY, Board

Member, joined by SCIALABBA, Acting Chairman. Dissenting Opinion:

HURWITZ, Board Member, joined by DUNNE, Vice Chairman; HOLMES,

COLE, GRANT, MOSCATO, OHLSON, and HESS, Board Members.

ROSENBERG, Board Member:

This case was last before us on August 8, 2001, when we granted the

respondent’s motion to reconsider and terminated removal proceedings. The

Immigration and Naturalization Service has filed a motion to reconsider under

8 C.F.R. § 3.2(b) (2001), asking us to reexamine our ruling on the

respondent’s motion and to find him removable as charged. We will grant the

Service’s motion and issue a new decision. Upon reconsideration, we again

terminate the removal proceedings brought against the respondent. We also

withdraw from our decisions in Matter of Puente, Interim Decision 3412 (BIA

1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), and

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hold that the offense of driving under the influence is not a crime of violence

under 18 U.S.C. § 16(b) (2000). See section 101(a)(43)(F) of the Immigration

and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000).

I. ISSUE

The key issue is whether operating a motor vehicle while under the

influence of intoxicating liquor, in violation of chapter 90, section 24(1)(a)(1)

of the Massachusetts General Laws, constitutes a crime of violence under

18 U.S.C. § 16(b), i.e., a felony 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.

II. BACKGROUND

The respondent is a native and citizen of Portugal. He entered the United

States as a visitor for pleasure on September 28, 1968, and adjusted his

status to that of a lawful permanent resident on June 2, 1969. On March 22,

2000, he was convicted in Massachusetts of operating a motor vehicle while

under the influence of intoxicating liquor. See Mass. Gen. Laws ch. 90,

§ 24(1)(a)(1) (2000). As this was the respondent’s second conviction within

10 years for driving while intoxicated, he was subject to enhanced penalties

and received a 2-year sentence of imprisonment.

On April 28, 2000, the Service placed the respondent in removal

proceedings and charged him with being removable under section

237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2000), based on

his conviction for an aggravated felony. The Service argued that the

respondent’s conviction was for a crime of violence under section

101(a)(43)(F) of the Act. The Immigration Judge found the respondent

removable as charged, and the respondent appealed. On February 28, 2001,

we affirmed the Immigration Judge’s decision without opinion pursuant to

Matter of Puente, supra. See 8 C.F.R. § 3.1(a)(7) (2001).

On March 14, 2001, the respondent moved for reconsideration of our

decision and we granted that motion. We looked to the specific terms of the

Massachusetts statute, which provides that “[w]hoever . . . operates a motor

vehicle while under the influence of intoxicating liquor . . . shall be

punished.” Mass. Gen. Laws ch. 90, § 24(1)(a)(1). Our examination

revealed that, as interpreted by the Massachusetts courts, the essential

element of “operating a vehicle” under the statute is “not limited to driving a

vehicle or setting it in motion, but encompasses also the intentional act of

starting the vehicle’s engine.” Commonwealth v. Eckert, 728 N.E.2d 312,

319 (Mass. 2000). Acts such as sleeping behind the wheel of a car with the

engine running or spinning the wheels of a car that cannot move might also

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qualify as “operating a vehicle” under Massachusetts law. See, e.g.,

Commonwealth v. Ginnetti, 508 N.E.2d 603, 603-05 (Mass. 1987);

Commonwealth v. Plowman, 548 N.E.2d 1278, 1281 (Mass. App. Ct. 1990).

Because we determined that the Massachusetts statute encompassed such

a broad range of offenses, we concluded that operating a vehicle while

intoxicated in violation of that statute was not, by its nature, an offense that

involved a substantial risk that force might be used in the commission of the

crime. We found the respondent’s conviction distinguishable from that in

Matter of Puente, supra, and concluded that the Service had not

demonstrated that the respondent’s offense was a crime of violence.

Accordingly, we vacated our February 28, 2001, order and terminated

proceedings against the respondent.

III. MOTION FOR RECONSIDERATION

A motion to reconsider is a “‘request that the Board reexamine its decision

in light of additional legal arguments, a change of law, or perhaps an argument

or aspect of the case which was overlooked.’” Matter of Cerna, 20 I&N

Dec. 399, 402 n.2 (BIA 1991) (quoting Hurwitz, Motions Practice Before the

Board of Immigration Appeals, 20 San Diego L. Rev. 79, 90 (1982)), aff’d,

Cerna v. INS, 979 F.2d 212 (11th Cir. 1992). The Service’s motion to

reconsider does not challenge our reading of Massachusetts law or our

conclusion that an act such as sleeping behind the wheel of a car with its

engine running is not a crime of violence under 8 U.S.C. § 16(b). The

Service argues only that additional information included in the judgment of

conviction is sufficient to establish that the respondent was, in fact, driving

under the influence of alcohol and that he was convicted of that particular

offense. See Montero-Ubri v. INS, 229 F.3d 319 (1st Cir. 2000) (permitting

consideration of related charges, continued without a finding, which were

reflected in the official conviction documents).

According to the Service, our rulings in Matter of Puente, supra, and

Matter of Magallanes, supra, support the conclusion that driving under the

influence, 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. The Service therefore claims that we should vacate our decision

terminating the respondent’s removal proceedings and find him removable as

charged.

IV. INTERPRETATION OF “CRIME OF VIOLENCE”

The definition of an aggravated felony under section 101(a)(43)(F) of the

Act includes a “crime of violence (as defined in section 16 of title 18, United

States Code, but not including a purely political offense)” for which an alien

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Interim Decision #3468

receives a term of imprisonment of at least 1 year. In turn, 18 U.S.C. § 16

defines a “crime of violence” 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.

Interpretation of statutory language begins with the terms of the statute

itself, and if those terms, on their face, constitute a plain expression of

congressional intent, they must be given effect. Chevron, U.S.A., Inc. v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984). If

the statutory terms are ambiguous, the implementing agency must provide a

reasonable interpretation of the provision that corresponds with congressional

intent. Id. Where, as here, the language is plain, we are bound to “‘“assume

‘that the legislative purpose is expressed by the ordinary meaning of the

words used.’”’” INS v. Cardoza-Fonseca, 480 U.S. 421, 431-32 (1987)

(quoting INS v. Phinpathya, 464 U.S. 183, 189 (1984) (quoting American

Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Richards v.

United States, 369 U.S. 1, 9 (1962)))).

Neither party claims that the respondent’s offense qualifies as a crime of

violence under 18 U.S.C. § 16(a). Moreover, in connection with the

Service’s motion to reconsider, neither party has questioned our prior ruling

that the respondent’s offense is a felony for purposes of § 16(b). See, e.g.,

Matter of Madrigal, 21 I&N Dec. 323, 326 (BIA 1996) (declining to address

an issue that was not critical to the outcome of the case and was not raised

by either party). The Service’s motion turns on two arguments: its claim that

the respondent was convicted of driving under the influence, and its assertion

that this offense constitutes a crime of violence. The Service bases its

second argument on our interpretation of § 16(b) in Matter of Puente, supra.

A. Board Precedent

We have construed the terms of section 101(a)(43)(F) of the Act, defining

a crime of violence, in a number of decisions that guide our review in this

matter. As we first held in Matter of Alcantar, 20 I&N Dec. 801, 812 (BIA

1994), the nature of a crime, as elucidated by its generic elements,

determines whether it is a crime of violence under § 16(b). See also United

States v. Winter, 22 F.3d 15, 18 (1st Cir. 1994) (recognizing that “[t]o

constitute a crime of violence, a felony must fit into one of several

pigeonholes”). Thus, we follow a categorical approach, under which “we

look to the statutory definition, not the underlying circumstances of the

crime.” Matter of B-, 21 I&N Dec. 287, 289 (BIA 1996).

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We have held that although § 16(b) “does not require specific intent to do

violence,” an offense must have been committed at least recklessly to qualify

as a crime of violence under this provision. See Matter of Alcantar, supra,

at 813. We also have ruled consistently that in determining the nature of the

offense under § 16(b), it is the conduct required to obtain a conviction, rather

than the consequence resulting from the crime, that is relevant to our

adjudication. See Matter of Sweetser, Interim Decision 3390, at 6-8 (BIA

1999). Specifically, we have recognized that “‘the use of physical force’ is

an act committed by a criminal defendant, while the ‘risk of physical injury’

is a consequence of the defendant’s acts.” Id. at 8 (distinguishing the risk of

force from the risk of injury and citing Matter of Alcantar, supra, at 806 n.3);

see also Matter of Puente, supra, at 11 (distinguishing the use of physical

force as “an act committed by a criminal defendant” from the risk of physical

injury, which is “a consequence of a criminal defendant’s actions”).

If the language of a statute encompasses some offenses that would

constitute a crime of violence under § 16(b) and some that would not, we may

look to the record of conviction and the other documents admissible in

proving a criminal conviction to assess the nature of the specific offense for

which the alien was convicted. Matter of Sweetser, supra; see also United

States v. Winter, supra, at 18 (stating that “if the statutory description is

inscrutable, or if it blankets both violent and non-violent crimes, a court may

peek beneath the coverlet”). In making such an inquiry, we still do not delve

into the underlying facts that may have been presented in the criminal

proceeding, but focus instead on the elements of the offense that had to be

proven to sustain a conviction. Matter of Sweetser, supra, at 6, 7.

B. Matter of Puente

In Matter of Puente, supra, we concluded that driving while intoxicated

under section 49.04 of the Texas Penal Code was a crime of violence under

18 U.S.C. § 16(b). We found that “[t]he plain meaning of the word ‘operate’

connotes an effort, or the doing of something by the operator,” and that

Ҥ 16(b) is not limited to crimes of specific intent, but includes at a minimum

reckless behavior.” Id. at 9-10 (citing Matter of Alcantar, supra, at 813).

We also restated our finding in Matter of Magallanes, supra, that “drunk

driving is an inherently reckless act.” Matter of Puente, supra, at 10.

Although we “recognize[d] that criminal offenses that have the potential for

harm do not always carry a substantial risk that force will be used in their

commission,” we reiterated that “driving under the influence involves a

substantial risk that a driver will injure someone in an accident.” Matter of

Puente, supra, at 11 (citing Matter of Magallanes, supra). Thus, in Matter

of Puente, we went one step beyond our ruling in Matter of Alcantar and

concluded that driving under the influence, which is a strict liability offense

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under Texas law, was a crime of violence. Id. at 10; cf. Matter of Alcantar,

supra, at 813.

C. Circuit Court of Appeals Rulings on

Driving Under the Influence

Since we issued Matter of Puente in 1999, two federal circuit courts of

appeals have deferred to our ruling in that decision. See Tapia Garcia v.

INS, 237 F.3d 1216 (10th Cir. 2001) (deferring to the Board’s interpretation

of the statute because it is reasonable); Le v. United States Attorney General,

196 F.3d 1352 (11th Cir. 1999) (same). In contrast, four circuit courts that

have reviewed the statute, de novo, have agreed that the risk involved in

driving under the influence is not the risk that the driver may “use” force

against the person or property of another to carry out the crime and therefore

driving under the influence does not amount to an offense covered by § 16(b).

See United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Dalton

v. Ashcroft, 257 F.3d 200, 207-08 (2d Cir. 2001); Bazan-Reyes v. INS,

256 F.3d 600, 611 (7th Cir. 2001); United States v. Chapa-Garza, 243 F.3d

921, 926 (5th Cir. 2001); see also Montiel-Barraza v. INS, 275 F.3d 1178

(9th Cir. 2002).

Of these circuits, three have specifically reversed our decisions. The

fourth has mandated that its decisions interpreting provisions of section

101(a)(43) of the Act in the context of federal sentence enhancement are

applicable in immigration proceedings. See United States v. HernandezAvalos, 251 F.3d 505 (5th Cir.), cert denied, 122 S. Ct. 305 (2001); see also

Matter of Olivares, 23 I&N Dec. 148 (BIA 2001). We are unquestionably

bound to follow these rulings. See Matter of K-S-, 20 I&N Dec. 715 (BIA

1993); Matter of Anselmo, 20 I&N Dec. 25 (BIA 1989).

In addition, the decisions of the United States Court of Appeals for the

Third Circuit strongly suggest that it would find, at the very least, that a crime

requiring only criminal negligence or no mens rea at all is not an offense that,

by its nature, involves a substantial risk that physical force may be used in

the course of committing the crime. See Francis v. Reno, 269 F.3d 162,

172-73 (3d Cir. 2001) (stating that vehicular homicide, which requires only

proof of criminal negligence, is not an offense that, by its nature, involves a

substantial risk that physical force may be used in its commission); United

States v. Parson, 955 F.2d 858, 866 (3d Cir. 1992) (indicating that “use of

physical force” refers to an intentional act, and that although a drunk driver

may risk causing injury, in most cases he does not intend to “use” force to

cause this harm). Therefore, the rulings of the Third Circuit suggest that it

may be inclined to follow the Second, Fifth, Seventh, and Ninth Circuits in

concluding that driving under the influence is not a crime of violence.

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The First Circuit, in which the present case arises, has indicated that the

term “violent felony” in 18 U.S.C. § 924(e)(2), covering offenses that present

a serious potential risk of physical injury, calls to mind “a tradition of crimes

that involve the possibility of more closely related, active violence.” United

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992). The court found, in dicta,

no reason to believe that Congress intended a risk-creating crime such as

drunken driving to constitute a violent felony, warranting sentence

enhancement. Id. However, the First Circuit has yet to rule squarely on

whether driving under the influence is a crime of violence under § 16(b),

covering offenses that pose a substantial risk that physical force may be used

in committing the offense. Accordingly, if we were to agree with the

Service’s contention that the judgment of conviction establishes that the

respondent was convicted of driving a motor vehicle while under the

influence of alcohol, our ruling in Matter of Puente would be controlling.

Matter of Olivares, supra.

We do not feel, however, that we can simply apply Matter of Puente to the

respondent’s case without examining that decision in light of the development

of circuit court law since we first addressed whether driving under the

influence is a crime of violence. Under these circumstances, we need not

decide whether the respondent was actually convicted of driving under the

influence, but will turn directly to the question whether driving under the

influence is a crime of violence under § 16(b).

V. DRIVING UNDER THE INFLUENCE AS A

CRIME OF VIOLENCE

The Second, Fifth, Seventh, and Ninth Circuits disagree with our decision

in Matter of Puente, supra, that a conviction for driving under the influence,

without more, is sufficient to constitute a crime of violence as defined under

18 U.S.C. § 16(b). Although these circuit courts have followed different

lines of reasoning to arrive at the conclusion that driving under the influence

is not a crime of violence, they agree on one point: the language of § 16(b)

specifically excludes offenses in which the accidental application of physical

force may result from the commission of the offense.

In other words, the physical force involved must be volitional rather than

accidental, and there must be a substantial risk that such force may be used

in the course of committing the crime, i.e., to accomplish the original criminal

objective. The circuit courts adopting this common conclusion have based

their views on the meaning of the particular terms “use,” “against,” and “in the

course of committing the offense” that are found in § 16(b), as well as on

their conclusion that the mens rea involved must be either intentional or

reckless.

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A. “May Be Used” and “Against”

The Second, Fifth, Seventh, and Ninth Circuits have each analyzed the

phrase “may be used” in § 16(b) and concluded that this phrase, when read

alone or in conjunction with the rest of the provision, requires volitional, and

not accidental, force. In United States v. Chapa-Garza, supra, at 926, the

Fifth Circuit found that “[t]he criterion that the defendant use physical force

against the person or property of another is most reasonably read to refer to

intentional conduct, not an accidental, unintended event.” In support of its

conclusion, the court cited the definition of “use” in the American Heritage

College Dictionary. Id. It noted that its interpretation was consistent with the

reasoning articulated in United States v. Parson, supra, at 866, in which the

Third Circuit found that the “use of physical force” is an intentional act and

noted that drunk drivers do not intend to “use” force to harm others. United

States v. Chapa-Garza, supra, at 926.

The Seventh Circuit also cited Parson and found that § 16(b) requires

intentional rather than accidental force. See Bazan-Reyes v. INS, supra, at

607. The court noted that it had considered the meaning of the word “use” in

the context of its construction of the United States Sentencing Guidelines in

United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995), and determined that

the phrase “use of physical force” implies “‘an intentional act rather than the

mere application or exertion of force.’” Bazan-Reyes v. INS, supra, at 608

(quoting United States v. Rutherford, supra, at 372-73). 1 In Rutherford, the

court explained:

Force is exerted in many instances where it is not employed for any particular purpose. For

example, earthquakes and avalanches involve the exertion of a tremendous amount of

force. . . . Referring to a randomly occurring avalanche as a “use” of force would torture

the English language. . . . A drunk driver who injures a pedestrian would not describe the

incident by saying he “used” his car to hurt someone. In ordinary English, the word “use”

implies intentional availment. No availment of force in order to achieve an end is present

in a drunk driving accident.

United States v. Rutherford, supra, at 372-73 (footnote omitted).

The Second Circuit concurred, finding that the word “use” indicates that

§ 16(b) “‘refers only to those offenses in which there is a substantial likelihood

that the perpetrator will intentionally employ physical force . . . not [to] an

accidental, unintended event.’” Dalton v. Ashcroft, supra, at 208 (quoting

United States v. Chapa-Garza, supra, at 926) (emphasis added). The court

stated that the language of § 16(b) “fails to capture the nature of the risk

1

In Bazan-Reyes v. INS, supra, the Seventh Circuit found that its reference in Rutherford to

a statutory provision that was analogous to § 16(a) applied equally to § 16(b). Id. at 608.

Accordingly, the court ruled that the language of § 16(b) simply did not support a finding that

a risk that one object will apply force to another is enough to constitute a crime of violence.

Id.

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inherent in drunk driving,” noting that the risk in drunk driving is the risk of an

ensuing accident, not the risk that the driver will use physical force in the

course of driving the vehicle. Dalton v. Ashcroft, supra, at 206. The court

stated that physical force could not reasonably be interpreted as a foot on the

accelerator or a hand on the steering wheel, or all driving would, by definition,

involve the use of force. Id. Moreover, the court dismissed the Government’s

argument that a defendant would be using physical force if he or she had an

accident. The court stated that an accident “may properly be said to involve

force,” but “one cannot be said to use force in an accident as one might use

force to pry open a heavy, jammed door.” Id.

Finally, the Ninth Circuit stated that “in ordinary, contemporary, and

common parlance, the ‘use’ of something requires a volitional act.” United

States v. Trinidad-Aquino, supra, at 1145 (citing Black’s Law Dictionary 1541

(6th ed. 1990)). The court also noted that § 16(b)’s requirement that the

physical force be used against the person or property of another indicated that

“there must be a volitional feature with regard to the impact or collision, and

not simply with regard to the use of the physical force itself.” Id. The court

indicated that “it does not make sense to say that [a] person is volitionally

using physical force against someone or something when he neither intended

to hit the person or thing nor consciously disregarded the risk that he might do

so.” Id.; see also Montiel-Barraza v. INS, supra, at 1180 (“If driving under

the influence with injury to another does not amount to an aggravated felony,

then logically a violation of the lesser offense cannot qualify as an aggravated

felony.”).

B. “In the Course of Committing the Offense”

The circuit courts also agree, either implicitly or explicitly, that the phrase

“in the course of committing the offense” in § 16(b) indicates that the

provision relates to the potential acts an offender might undertake to carry out

the principal offense rather than the potential consequences that might result

from a crime. See also Matter of Sweetser, supra. Pointing to its ruling in

United States v. Velazquez-Overa, 100 F.3d 418 (5th Cir. 1996), the Fifth

Circuit stated that “the physical force described in section 16(b) is that ‘used

in the course of committing the offense’, not that force that could result from

the offense having been committed.” United States v. Chapa-Garza, supra,

at 924.

The Second and Seventh Circuits have followed the Fifth Circuit’s ruling

in this regard. In doing so, the Seventh Circuit found specifically that

“[a]lthough we agree with the BIA that the nature of the crime is the ‘core

concept of § 16(b),’ the words ‘by its nature’ do not change the meaning of the

words ‘may be used in the course of committing the offense.’” Bazan-Reyes

v. INS, supra, at 611; see also Dalton v. Ashcroft, supra, at 206 (stating that

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the risk involved in drunk driving is the risk of an ensuing accident, “it is not

the risk that the driver will ‘use physical force’ in the course of driving the

vehicle”). The Ninth Circuit did not address this issue, but its finding that a

driver does not volitionally use force against the person or property of another

simply by driving the car implies that it agrees with this reading of § 16(b).

See United States v. Trinidad-Aquino, supra, at 1145.

C. Level of Intent Required: At Least Recklessness

In finding that a crime must involve volitional rather than accidental force

before it may qualify as a crime of violence under § 16(b), the Fifth, Seventh,

and Ninth Circuits all addressed the level of intent required to place a crime

in this category. On the one hand, the Fifth and Seventh Circuits have implied

that a mens rea of pure recklessness may not be enough; an individual must

instead act with “recklessness plus” or “recklessness as regards the

substantial likelihood that the offender will intentionally employ force against

the person or property of another in order to effectuate commission of the

offense.” United States v. Chapa-Garza, supra, at 925, 927 (emphasis

added); see also Bazan-Reyes v. INS, supra, at 611. The Seventh Circuit has

concluded that drunk driving convictions are not crimes of violence under

§ 16(b) “[b]ecause ‘[i]ntentional force . . . is virtually never employed to

commit’ any of the [drunk driving] offenses for which petitioners were

convicted.” Bazan-Reyes v. INS, supra, at 612 (quoting United States v.

Chapa-Garza, supra, at 927).

The Ninth Circuit, on the other hand, has concluded that a mens rea of

recklessness is sufficient to constitute a crime of violence. See United States

v. Trinidad-Aquino, supra, at 1145. The Second Circuit has not specifically

articulated an intent requirement, but in recognizing that “[t]here are many

crimes that involve a substantial risk of injury but do not involve the use of

force,” the court recognized that “[c]rimes of gross negligence or reckless

endangerment, such as leaving an infant alone near a pool, involve a risk of

injury without the use of force.” Dalton v. Ashcroft, supra, at 207.

The common thread in all of these rulings is that, according to the statutory

language, something more than negligence is required before an offense may

qualify as a crime of violence under § 16(b). In other words, a crime must be

committed at least recklessly before it can be found to involve a substantial

risk that the perpetrator will resort to force to complete it.

VI. REEXAMINATION OF MATTER OF PUENTE

A majority of the federal circuit courts that have addressed whether driving

under the influence is a crime of violence, and therefore an aggravated felony

under section 101(a)(43)(F) of the Act, have, either explicitly or implicitly,

disagreed with our reasoning in Matter of Puente, supra. Consistent with our

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decision in Matter of Alcantar, supra, at 812, these courts have looked to the

elements of the offense necessary to obtain a conviction and focused on the

risk that the perpetrator may resort to physical force in committing the

offense. They have not given any weight to the “inherent risk” that an

accident may occur. Cf. Matter of Puente, supra, at 10.

The offenses at issue in each circuit, like the Texas offense at issue in

Matter of Puente, were either strict liability crimes or crimes that required

only proof of negligence for conviction. The courts found that, at a minimum,

an offense must be committed at least recklessly to meet the “volitional

force” requirement contained in the word “use.” In addition, these courts

declined to differentiate between the terms “use” and “may be used.” Cf. id.

at 10 (criticizing the respondent’s argument for “fail[ing] to acknowledge the

significant contextual distinction between the term ‘use’ in § 16(a) and the

phrase ‘may be used’ in § 16(b)”). These courts have also concluded that the

risk that an accident that may occur as the result of driving under the

influence does not establish that, by its nature, the crime of driving under the

influence involves a substantial risk that force may be used in the course of

committing the offense. Cf. id. Accordingly, none of the offenses were found

to qualify as crimes of violence under § 16(b).

These circuit court decisions are compatible with the majority of the

decisions in which we have interpreted the term “crime of violence.” For

example, requiring that an offense be committed at least recklessly before it

can be deemed a crime of violence under § 16(b) echoes our ruling in Matter

of Alcantar, supra, in which we determined that a mens rea of at least

recklessness was required. In Alcantar, we also recognized that the risk of

force related to acts the offender might undertake in carrying out the principal

offense. Id. at 808 (finding that the covered crimes were ones that “‘“ by

their nature” create a situation in which it is likely that the criminal may resort

to physical force to accomplish the criminal end.’” (quoting United States v.

Springfield, 829 F.2d 860, 863 (9th Cir. 1987)). Thus, we suggested that

§ 16(b) required active violence, rather than accidental force.

In addition, requiring that an individual affirmatively use force to carry out

a crime is consistent with our ruling in Matter of Sweetser, supra, in which

we held that negligent homicide was not a crime of violence. The focus on

action rather than inaction in these circuit courts’ driving under the influence

decisions underscores that it is the conduct that may be used to perpetrate the

offense, rather than the risk of injury or consequences flowing from the crime,

that is crucial in determining the nature of the offense. See Matter of

Sweetser, supra, at 6, 8.

Given these considerations and our strong interest in ensuring that aliens

receive uniform treatment nationwide, we withdraw from our rulings in Matter

of Puente, supra, and Matter of Magallanes, supra. We will follow the law

of the circuit in those circuits that have addressed the question whether

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driving under the influence is a crime of violence. See Matter of Anselmo,

supra. In those circuits that have not yet ruled on the issue, we will require

that the elements of the offense reflect that there is a substantial risk that the

perpetrator may resort to the use of force to carry out the crime before the

offense is deemed to qualify as a crime of violence under § 16(b). Moreover,

we will require that an offense be committed at least recklessly to meet this

requirement.

VII. APPLICATION TO THE RESPONDENT

In this case, the respondent was convicted of operating a motor vehicle

while under the influence of intoxicating liquors in violation of chapter 90,

section 24(1)(a)(1) of the Massachusetts General Laws. We have assumed,

for the purpose of this motion, that he was convicted of actually driving under

the influence rather than of engaging in any other act that might qualify as

“operating” under Massachusetts law.

We find that the respondent’s offense of driving under the influence in

violation of Massachusetts law is not a crime that, by its nature, involves a

substantial risk that the perpetrator may use force against the person or

property of another to carry out the particular offense. Simply put, the risk

that the respondent may have an accident is not the same as the risk

contemplated by § 16(b). The crime is accomplished when the perpetrator

unlawfully drives while under the influence.

First, even if there is a risk that an accident might occur, a conviction for

this offense does not require a showing that the respondent intentionally, or

even volitionally, used force against another in the course of driving under the

influence. See Commonwealth v. Wallace, 439 N.E.2d 848 (Mass. App. Ct.

1982) (discussing the mental element of chapter 90, section 24(1)(a)(1) of the

Massachusetts General Laws and finding that, to be convicted under this

statute, an alien must have known, or had reason to know, of the possible

effects of a drug or alcohol on his driving abilities). Second, there is no basis

to conclude that the respondent might have to cause such an accident in order

to carry out his crime. Accordingly, the respondent’s offense cannot

constitute a crime of violence under § 16(b) of the Act, and it does not

qualify as an aggravated felony under section 101(a)(43)(F) of the Act.

We therefore conclude that the Service has failed to establish that the

respondent is removable as an aggravated felon under section

237(a)(2)(A)(iii) of the Act, and we again terminate the proceedings against

the respondent.

ORDER: The motion to reconsider submitted by the Immigration and

Naturalization Service is granted, and the August 8, 2001, decision of the

Board is vacated.

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FURTHER ORDER: The removal proceedings against the respondent are

terminated.

CONCURRING OPINION: Lauri Steven Filppu, Board Member

I respectfully concur.

In Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of

Magallanes, Interim Decision 3341 (BIA 1998), we faced the question

whether a felony offense for driving under the influence of alcohol constituted

a crime of violence under 18 U.S.C. § 16(b) (2000) at a time when there was

little case law from the federal courts of appeals on the issue and no

controlling precedent directly on point. Since then, several courts of appeals

have explicitly rejected our reading of 18 U.S.C. § 16(b), two circuits have

deferred to us, but no circuit has independently agreed with and adopted our

interpretation as its own understanding of the statute.

In view of this more recent case law, the majority’s current interpretation

of 18 U.S.C. § 16(b) reflects a very reasonable reading of this criminal law

provision. But I also understand the reasonableness of the view we initially

adopted in Puente and Magallanes to be reflected in the various rulings that

give deference to our prior interpretation, as well as in the circuit court

dissents that are consistent with that prior reading. See United States v.

Trinidad-Aquino, 259 F.3d 1140, 1147-48 (9th Cir. 2001) (Kozinski, J.,

dissenting); Dalton v. Ashcroft, 257 F.3d 200, 209-10 (2d Cir. 2001) (Walker,

C.J., dissenting); Tapia Garcia v. INS, 237 F.3d 1216 (10th Cir. 2001)

(deferring to the Board’s prior interpretation); Le v. United States Attorney

General, 196 F.3d 1352 (11th Cir. 1999) (same). Despite what appears to

be the inconclusive state of the law, I agree with the majority that we should

not continue to apply Puente and Magallanes in circuits that have not

specifically spoken on this issue.1

The meaning of the crime of violence provision in 18 U.S.C. § 16 is a

question of federal criminal law. At its core, it does not become a question

of civil immigration law merely because the statute incorporates it by

reference in the “aggravated felony” definition in section 101(a)(43)(F) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F) (2000). Because

it is a question of federal criminal law, we owe deference to the construction

given the statute by the federal circuit courts of appeals. Those courts do not

owe deference to our reading of 18 U.S.C. § 16. See Adams Fruit Co. v.

Barrett, 494 U.S. 638 (1990) (explaining that deference does not extend to an

agency’s interpretation of a judicially enforceable portion of a statute);

Crandon v. United States, 494 U.S. 152, 168 (1990) (Scalia, J., concurring

1

I would continue to follow our prior rulings in the United States Courts of Appeals for the

Tenth and Eleventh Circuits because, as the dissenting opinion notes, there are indications that

these circuits agreed with our rulings, in addition to deferring to them.

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in judgment) (stating that deference does not apply to the interpretation of a

criminal statute administered by the courts).

When resolving an ambiguity in the meaning of a federal criminal statute,

we should look first to the law of the circuit in which the case arises. If that

fails to provide an answer, an examination of the law of other circuits should

follow. We ought further to apply the interpretation in any consistent body

of case law we find, absent strong reasons to believe that interpretation is

wrong. We may, of course, be forced to offer our own interpretation of

federal criminal law at times, but our reading of a criminal statute does not

carry any extra weight merely because we faced the question before the

courts of appeals faced it. Importantly, we should withdraw from our own

reading of criminal law in the face of a consistent rejection of that reading by

the courts of appeals, just as we would follow a consistent judicial

interpretation that already exists when we first confront a question of federal

criminal law that has arisen many times before in the criminal context, but

perhaps not in our own context.

The principal concern I have with the majority’s ruling is that it once again

can be seen to announce the Board’s reading of criminal law for Immigration

Judges and the parties to follow in removal cases, if there is no controlling

law in the particular circuit in which the case arises. We tread on thin ice,

however, when we attempt to offer yet another definitive reading of criminal

law, particularly given the various rationales offered by the courts of appeals

on the meaning of a “crime of violence” in this precise context.

As sensible as the majority’s reading currently appears, we would do better

to refer the parties and the Immigration Judges to circuit court law as their

starting point in cases such as this. Although the rationales of the courts vary,

those courts which clearly announce their own interpretations of the statute

have all agreed that a driving while intoxicated crime such as the respondent’s

is not a crime of violence. I concur in the result reached by the majority

because these courts of appeals have rejected our interpretation and no court

has independently determined that the criminal law actually means what we

declared it to be in Puente and Magallanes.

CONCURRING OPINION: Roger A. Pauley, Board Member, in which

Lori L. Scialabba, Acting Chairman, joined

I respectfully concur and write to emphasize my understanding of the

limited nature of the holding in this case.

Although a determination that an offense is a “crime of violence” under

18 U.S.C. § 16(b) (2000) necessitates a finding that the crime involves a

volitional, rather than negligent, act, as the majority opinion amply explains,1

1

As the majority opinion finally gets around to noting, in its penultimate paragraph, the

(continued...)

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it also requires a determination that the act involves a risk that physical force

will be used in the offense (more precisely, the “substantial risk that physical

force against the person or property of another may be used in the course of

committing the offense”).

I agree with the federal courts of appeals that have focused on the type of

“physical force” contemplated by the statute that, consistent with the title of

the statutory provision in question and the terminology of the phrase being

defined (i.e., “crime of violence”), the type of physical force involved must

be violent or destructive in nature. See, e.g., Dalton v. Ashcroft, 257 F.3d

200, 206 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600, 611 (7th Cir.

2001); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172 (9th Cir.

2000). 2 Some volitional uses of a vehicle, e.g., unlawfully stopping a vehicle

to rest on a highway while under the influence of alcohol or drugs, do not

involve the kind of physical force necessary to meet the “crime of violence”

definition.

However, other volitional uses of a vehicle may qualify. A person may

unleash destructive or violent force through a nonviolent act, such as pulling

the trigger of a loaded firearm or pressing a button that electronically sets off

a bomb or releases a torrent of water. A vehicle may also be used in this

manner, as by recklessly, knowingly, or deliberately releasing the brake or

stepping on the gas. Thus, I do not wish that my joining in the majority

opinion should be construed as expressing or implying a belief that volitional

misuse of a vehicle, while the actor is intoxicated or otherwise, can never be

a crime of violence. Indeed, it is only because the statute in this case reaches

negligent misuse that the respondent’s (assumed) act of driving the vehicle

while under the influence of alcohol escapes the “crime of violence”

definition. See Francis v. Reno, 269 F.3d 162, 172-73 (3d Cir. 2001).

Moreover, even if I believed that Matter of Puente, Interim Decision 3412

(BIA 1999), was properly decided, the fact that, as the majority opinion points

out, at least four courts of appeals have rejected its reasoning, whereas none

has endorsed it other than by according it “Chevron” deference, would cause

me at this juncture to bow to the weight of federal appellate court authority

in the interest of uniform application of the immigration laws. The four

circuits that have rejected Matter of Puente, supra—the Second, Fifth,

1

(...continued)

Massachusetts statute at issue in this case has been authoritatively construed by the

Massachusetts Supreme Judicial Court as requiring no more than a negligent state of mind.

Hence, and crucially, the respondent cannot satisfy the volitional element of the “crime of

violence” definition.

2

The Ceron-Sanchez decision construed 18 U.S.C. § 16(a), but as both branches of the

“crime of violence” definition employ the identical phrase, “physical force,” it would be a

strange jurisprudence to find that Congress intended a different meaning for the same words

in the two branches.

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Seventh, and Ninth—collectively account for a large percentage, perhaps a

majority, of the cases that come before Immigration Judges and the Board.

Accordingly, for the Board to persist in defending a precedent decision in the

remaining circuits (two more of which, as the majority opinion also shows,

have issued decisions that appear to indicate that they, too, would likely not

uphold the reasoning or result in Matter of Puente) would only have the effect

of continuing and exacerbating an uneven application of the immigration laws

relating to the recurring issue whether driving under the influence, pursuant

to a statute that punishes such conduct when committed negligently,

constitutes a crime of violence.

Although I do not believe that the Board should withdraw from precedent

decisions it considers to be well reasoned simply because one or more courts

of appeals announces its disagreement, here the number of adverse appellate

court rulings, and the fact that the scoreboard is so lopsidedly arrayed against

the Puente precedent, counsels strongly in favor of the Board’s abandoning

Puente and adopting the prevailing appellate court view. If Congress wishes

to overturn this outcome and to include negligent DUI felony offenses within

the “crime of violence” definition, it is of course free to do so.

DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in which

Mary Maguire Dunne, Vice Chairman; David B. Holmes, Patricia A. Cole,

Edward R. Grant, Anthony C. Moscato, Kevin A. Ohlson, and Frederick

D. Hess, Board Members, joined

I respectfully dissent. I believe that our ruling in Matter of Puente, Interim

Decision 3412 (BIA 1999), is correct. Moreover, I do not believe that the

federal courts have adopted a uniform approach to the question whether

driving under the influence is a crime of violence under 18 U.S.C. § 16(b)

(2000). I therefore would continue to apply Matter of Puente to cases like

the respondent’s where there is no controlling circuit court precedent.

We first addressed the question whether driving under the influence

qualifies as a crime of violence in Matter of Magallanes, Interim Decision

3341 (BIA 1998). In that case, we discussed the risks inherent in drunk

driving, and we found that aggravated driving under the influence in violation

of Arizona law “is the type of crime that involves a substantial risk of harm

to persons and property.” Matter of Magallanes, supra, at 6. We also found

that drunk driving is an inherently reckless act. Id. We therefore concluded

that driving under the influence was a crime of violence under § 16(b).

In Matter of Sweetser, Interim Decision 3390 (BIA 1999), we clarified our

ruling in Matter of Magallanes, supra. We noted that, although we had used

the phrase “risk of harm” in determining that driving under the influence was

a crime of violence under § 16(b), our ruling in Matter of Magallanes had

turned on the conduct required for conviction rather than on the risk of injury.

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We explained that driving under the influence does involve a substantial risk

that a driver will injure another in an accident, but we noted that this risk is

directly related to the risk that physical force may be used. We stressed that

this link between the use of force and the risk of harm is required before a

crime may qualify as a crime of violence under § 16(b). See Matter of

Sweetser, supra, at 9.

In Matter of Puente, supra, we again addressed the question whether

driving under the influence qualifies as a crime of violence under § 16(b), and

we expanded upon our rulings in Matter of Magallanes and Matter of

Sweetser. The Texas statute at issue in Matter of Puente punished a slightly

wider range of conduct than the statute at issue in Matter of Magallanes,

supra. Nevertheless, we found that operating a motor vehicle in a public

place while under the influence, as defined in Texas law, involved a

substantial risk that physical force against the person or property of another

might be used in the course of committing the offense. Matter of Puente,

supra, at 10-11.

The respondent in Matter of Puente argued that his crime did not fall

within § 16(b) because that provision required a specific intent to use force.

We disagreed, explaining that we had addressed this question in Matter of

Alcantar, 20 I&N Dec. 801 (BIA 1994), and had concluded that Ҥ 16(b) is

not limited to crimes of specific intent, but includes at a minimum reckless

behavior.” Matter of Puente, supra, at 10. We also noted that driving under

the influence is an inherently reckless act. Id. (citing Matter of Magallanes,

supra). And we found that imposing a specific intent requirement was not

reasonable given the language of the statute. We pointed out that § 16(a)

employed the term “use” whereas § 16(b) contained the phrase “may be

used.” We found that this distinction was significant and counseled against

reading a specific intent requirement into § 16(b). Matter of Puente, supra.

Since we issued our ruling in Matter of Puente, two federal circuit courts

have agreed that driving under the influence is a crime of violence. In Le v.

United States Attorney General, 196 F.3d 1352, 1354 (11th Cir. 1999), the

United States Court of Appeals for the Eleventh Circuit found that driving

under the influence with serious bodily injury, in violation of section

316.193(3) of the Florida Statutes, was a crime of violence under 18 U.S.C.

§ 16(a) because the use of physical force was an element of the crime. And

in Tapia Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir. 2001), the Tenth

Circuit upheld our ruling that driving under the influence of alcohol or drugs

in violation of Idaho law was a crime of violence under § 16(b).

The Tenth Circuit applied a deferential standard of review in evaluating

our ruling, but it also inserted some of its own reasoning to support its

conclusion that our interpretation of § 16(b) was reasonable. See id. at

1222-23. The court cited case law which described the risks involved in

drunk driving and stated that “the well-documented danger inherent in drunk

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driving supports the conclusion that a DUI offense may also constitute a

crime of violence under § 16(b) because the generic elements of the offense

present ‘a substantial risk that physical force . . . may be used.’” Id. at 1223.

These statements suggest that the court not only deferred to our view but also

agreed with our approach.

Four other circuits have addressed the drunk driving issue and have

disagreed with our ruling in Matter of Puente, supra. See United States v.

Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); Dalton v. Ashcroft,

257 F.3d 200 (2d Cir. 2001); Bazan-Reyes v. INS, 256 F.3d 600 (7th Cir.

2001); United States v. Chapa-Garza, 243 F.3d 921 (5th Cir. 2001); see also

Montiel-Barraza v. INS, 275 F.3d 1178 (9th Cir. 2002). The rulings of these

circuits, however, are not identical. Each circuit has approached the issue

slightly differently, and the circuits do not agree on the type of force required

under § 16(b). The Fifth and Seventh Circuits have found that § 16(b) refers

only to those offenses in which there is a substantial likelihood that the

perpetrator will intentionally employ physical force against the person or

property of another. See United States v. Chapa-Garza, supra, at 925;

Bazan-Reyes v. INS, supra, at 611. The Ninth Circuit, on the other hand, has

found that intentional conduct is not required. See United States v. TrinidadAquino, supra, at 1146. And the Second Circuit has not directly addressed

the intent requirement. The Second Circuit instead has stated that the risk

inherent in drunk driving is not the risk that the driver will “use physical

force” in the course of driving the vehicle. See Dalton v. Ashcroft, supra, at

206-07.

These rulings do not offer either a uniform reading of § 16(b) or a

consistent approach to the question whether driving under the influence is a

crime of violence. Moreover, two of the decisions contain strong dissents.

See Dalton v. Ashcroft, supra, at 209 (Walker, C.J., dissenting); United

States v. Trinidad-Aquino, supra, at 147-48 (Kozinski, J., dissenting). Chief

Judge John M. Walker of the Second Circuit dissented from his colleagues

because he found that, even if the word “use” in § 16(b) involves intentional

availment, “driving inevitably involves intentional use of force: the driver

necessarily intends to use mechanized force to propel the vehicle to its

destination.” Dalton v. Ashcroft, supra, at 209. Chief Judge Walker went on

to state that all driving involves some risk that physical force my be used

against the person or property of another, but driving under the influence

makes that risk substantial. Id.

Judge Kozinski of the Ninth Circuit also found that driving under the

influence fell within the confines of § 16(b). He agreed with the

Trinidad-Aquino majority that recklessly disregarding a known risk is a

sufficient mental state to form the basis of an aggravated felony under

§ 16(b), but he noted that the majority ignored the reckless conduct involved

in driving under the influence, namely, drinking and driving. Judge Kozinski

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found that this conduct qualified as a crime of violence under Ninth Circuit

precedent, and he therefore disagreed with the majority’s conclusion. United

States v. Trinidad-Aquino, supra, at 1148.

In addition, Judge Rhesa Hawkins Barksdale of the Fifth Circuit dissented

from her circuit’s denial of a petition to rehear United States v. ChapaGarza, supra, en banc. See United States v. Chapa-Garza, 262 F.3d 479

(5th Cir. 2001) (Barksdale, J., dissenting). In her dissent, she indicated that

she disagreed with the ruling in United States v. Chapa-Garza, 243 F.3d 921,

and stated that the gravity of the drunk driving issue demanded further

review. United States v. Chapa-Garza, 262 F.3d at 485 (Barksdale, J.,

dissenting).

These dissents show that, even within the circuits that have disagreed with

Matter of Puente, there is support for the Board’s ruling. Moreover, they

highlight the lack of uniformity in the circuit court findings. The circuit

courts have approached the drunk driving issue from a variety of perspectives

and have not offered a clear and uniform interpretation of § 16(b). Given this

lack of unanimity, I do not believe it is appropriate to withdraw from our

ruling in Matter of Puente, supra. I would therefore continue to apply Matter

of Puente to cases like the respondent’s that arise within the circuits that have

not ruled on the issue or have not differed with our interpretation.

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