                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1071

L EONEL JIMENEZ-G ONZALEZ,
                                                      Petitioner,
                              v.

M ICHAEL B. M UKASEY, United States
Attorney General,
                                                     Respondent.


                  Petition for Review of an Order
              of the Board of Immigration Appeals.
                          No. A42-914-629



  A RGUED S EPTEMBER 10, 2008—D ECIDED N OVEMBER 21, 2008




  Before C OFFEY, R IPPLE and M ANION, Circuit Judges.
  R IPPLE, Circuit Judge. Leonel Jimenez-Gonzalez’s petition
for review presents an issue of first impression in this
circuit: whether criminal recklessness constitutes a crime
of violence under 18 U.S.C. § 16(b). Aliens are removable
under 8 U.S.C. § 1227(a)(2)(A)(iii) if they commit an
aggravated felony. The definition of “aggravated felony”
includes a conviction for a “crime of violence []as defined
in section 16 of Title 18,” for which the term of imprison-
2                                               No. 08-1071

ment is at least one year. 8 U.S.C. § 1101(a)(43)(F). Mr.
Jimenez-Gonzalez, a permanent resident, pleaded guilty
to criminal recklessness for shooting a firearm into an
inhabited dwelling in violation of Indiana Code § 35-42-2-
2(c)(3). The Department of Homeland Security ordered
Mr. Jimenez-Gonzalez removed to his native Mexico for
having committed a crime of violence. Because crimes of
violence, as defined under § 16(b), are limited to society’s
most serious offenses—offenses that do not include
reckless or accidental conduct—we grant Mr. Jimenez-
Gonzalez’s petition for review and hold that criminal
recklessness is not a crime of violence for immigration
purposes.


                             I
                    BACKGROUND
A. Facts
  Leonel Jimenez-Gonzalez, the youngest of eight children,
came to the United States as a small child in 1991. He
lived with his mother, father and seven siblings in various
cities, eventually settling in Indianapolis. Mr. Jimenez-
Gonzalez and his family became lawful permanent resi-
dents, and, although his parents eventually chose to
return to Mexico, Mr. Jimenez-Gonzalez and his siblings
settled here as adults.
  In October 2005, Mr. Jimenez-Gonzalez pleaded guilty
to two counts of criminal recklessness, a Class C felony.
Class C criminal recklessness is defined in Indiana as
follows:
No. 08-1071                                                3

    (b) A person who recklessly, knowingly, or intention-
    ally performs:
        (1) an act that creates a substantial risk of bodily
        injury to another person
        ...
    commits criminal recklessness.
    (c) The offense of criminal recklessness as defined
    in subsection (b) is:
        ...
        (3) a Class C felony if:
              (A) it is committed by shooting a firearm into
              an inhabited dwelling or other building or
              place where people are likely to gather.
Ind. Code § 35-42-2-2(b)(1), (c)(3). According to his pre-
sentence report, Mr. Jimenez-Gonzalez had admitted in
his plea agreement to committing two counts of criminal
recklessness by shooting a firearm from his truck into
an apartment located in a residential neighborhood. He
was then sentenced to four years’ imprisonment. Based
on this conviction the Department of Homeland
Security initiated removal proceedings against Mr.
Jimenez-Gonzalez.


B. Immigration Proceedings
  When Mr. Jimenez-Gonzalez appeared before an Immi-
gration Judge (“IJ”), he admitted that he had been con-
victed of criminal recklessness and testified that he did not
4                                               No. 08-1071

have any fear that he would be harmed or mistreated
if removed to Mexico. The IJ admitted evidence
detailing Mr. Jimenez-Gonzalez’s convictions for crim-
inal recklessness including the abstract of judgment, pre-
sentence report and officer’s probable cause affidavit.
Mr. Jimenez-Gonzalez then argued that criminal reckless-
ness was not a crime of violence and that, therefore, he
was not removable for having committed an aggravated
felony.
  The IJ disagreed and held that criminal recklessness is
a crime of violence because it creates a substantial risk
that the actor intentionally would use force in furtherance
of the offense. The Board of Immigration Appeals
affirmed the IJ’s decision; it held that felony criminal
recklessness committed by “shooting a firearm into an
inhabited dwelling or other building or place where
people are likely to gather” in violation of Indiana Code
§ 35-42-2-2(c)(3) constituted a crime of violence. The BIA
reasoned that shooting a gun into an apartment neces-
sarily caused a substantial risk that the offender would
use physical force against the person or property of
another during the commission of the offense.


                             II
                      DISCUSSION
  In his petition for review, Mr. Jimenez-Gonzalez argues
that he is not subject to removal because criminal reckless-
ness is not a crime of violence. As relevant here, “crime of
violence” is defined in 18 U.S.C. § 16(b) as an offense “that
No. 08-1071                                                    5

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.” See also Leocal v. Ashcroft, 543 U.S. 1, 10 n.7 (2004).
Both parties agree that Mr. Jimenez-Gonzalez’s convic-
tions were felonies. We review de novo whether a con-
viction qualifies as a crime of violence under Section 16(b).
See LaGuerre v. Mukasey, 526 F.3d 1037, 1039 (7th Cir. 2008).
  Mr. Jimenez-Gonzalez submits that his conviction
for criminal recklessness cannot be a crime of violence
because Section 16(b) requires that a crime of violence
have a mens rea higher than recklessness. The Supreme
Court examined the scope of Section 16(b) in Leocal v.
Ashcroft, holding that a conviction for drunk driving did
not qualify as a crime of violence under Section 16(b). 543
U.S. at 13. In reaching that conclusion, the Court held
that a crime based on strict liability or negligence could
not be a crime of violence, because “[i]nterpreting § 16 to
encompass accidental or negligent conduct would blur
the distinction between the ‘violent’ crimes Congress
sought to distinguish for heightened punishment and
other crimes.” Id. at 11. The Court reserved for another
day the issue whether reckless crimes could qualify as
crimes of violence. Id. at 13 (“This case does not present
us with the question whether a state or federal offense
that requires proof of the reckless use of force against a
person or property of another qualifies as a crime of
violence.”).
  In the wake of Leocal, five other circuits have held that
reckless crimes cannot be crimes of violence under
6                                                 No. 08-1071

Section 16(b). See United States v. Zuniga-Soto, 527 F.3d 1110,
1124 (10th Cir. 2008) (holding that reckless assault on a
police officer was not a crime of violence); United States v.
Portela, 469 F.3d 496, 499 (6th Cir. 2006) (holding that
reckless vehicular homicide was not crime of violence);
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1129-31 (9th
Cir. 2006) (en banc) (discussing Leocal and holding that
reckless domestic violence was not a crime of violence);
Garcia v. Gonzales, 455 F.3d 465, 468-69 (4th Cir. 2006)
(holding that reckless assault was not a crime of violence);
Oyebanji v. Gonzales, 418 F.3d 260, 263-65 (3d Cir. 2005)
(holding that reckless vehicular homicide was not a
crime of violence). These circuits have interpreted Leocal to
limit the scope of Section 16(b) to crimes that require
purposeful conduct, rather than negligent or reckless
conduct.
  Today we join our sister circuits and hold that reckless
crimes are not crimes of violence under Section 16(b). As
the Third Circuit persuasively reasoned, “[t]he cornerstone
of the Leocal Court’s reasoning was that the concept of the
use of physical force against the person or property of
another ‘requires active employment’ and ‘naturally
suggests a higher degree of intent than negligent or merely
accidental conduct.’” Oyebanji, 418 F.3d at 263 (quoting
Leocal, 543 U.S. at 9 (emphasis in original)). And we
believe that accidental and reckless crimes are not the
type of “violent” crimes Congress intended to dis-
tinguish as worthy of removal. See Leocal, 543 U.S. at 11;
Garcia, 455 F.3d at 468-69.
  Additionally, the Supreme Court’s heavy reliance on
burglary as the prototypical example of a crime of violence
No. 08-1071                                                7

supports our holding that reckless crimes are not crimes
of violence. The Court reasoned that burglary was a
crime of violence under Section 16(b) “not because the
offense can be committed in a generally reckless way or
because someone may be injured, but because burglary,
by its nature, involves a substantial risk that the burglar
will use force against a victim in completing the crime.”
Leocal, 543 U.S. at 10. The act of burglary requires inten-
tional conduct and intentionally burglarizing a home
risks having to use force. By contrast, criminal recklessness
as defined by § 35-41-2-2 of the Indiana Code does not
require any purposeful conduct. Furthermore, criminal
recklessness does not necessarily create a risk that force
may be used as a means to an end during the commission
of the offense. Unlike burglary, where there necessarily
is a risk of force being employed in a confrontation
inside the dwelling, the offense of criminal recklessness
is complete when the gun is fired. See Leocal, 543 U.S. at
10; Bejarano-Urrutia v. Gonzales, 413 F.3d 444, 446-47 (4th
Cir. 2005) (holding that risk of force must be a “means to
an end” in the commission of the offense); see also Bazan-
Reyes v. INS, 256 F.3d 600, 612 (7th Cir. 2001) (requiring
recklessness “with respect to the risk that intentional
physical force will be used in the course of committing
the offense”).
   In this case, although the result seems, at first glance,
counterintuitive, we must look at the statute as a whole
in order to determine whether the elements of the under-
lying offense categorically constitute a crime of violence.
See LaGuerre, 526 F.3d at 1039; Bazan-Reyes, 256 F.3d at 612.
It is important to recognize that, under Indiana law, Class
8                                                No. 08-1071

C criminal recklessness may be committed in many
different ways, some of which require no intentional
conduct at all. Because the elements of criminal reckless-
ness can encompass both accidental and aggressive
conduct, it cannot be a crime of violence under
Section 16(b).
  The Government argues, despite the decisions of our
sister circuits, that Section 16(b) does not require that a
crime have a mens rea higher than recklessness. Only
two cases have held that a crime involving reckless be-
havior is a crime of violence under Section 16(b). Impor-
tantly, in both of those cases, the underlying crimes
of conviction required intentional conduct exhibiting a
reckless disregard to the likelihood of injury. In Blake v.
Gonzales, 481 F.3d 152, 159-63 (2d Cir. 2007), the Second
Circuit held that a conviction for reckless assault and
battery of a police officer was a crime of violence
because the statute required an intentional assault on an
officer with reckless disregard to the likelihood that the
officer may be injured.1 Similarly, the Fifth Circuit held
that facilitation of a drive-by shooting was a crime of
violence because the statute in question required both
(1) intentional facilitation and (2) the intentional discharge
of a weapon by another occupant in the car. Nguyen v.
Ashcroft, 366 F.3d 386, 389 (5th Cir. 2004). Although the
alien in Nguyen was merely reckless regarding the



1
  Cf. Jobson v. Ashcroft, 326 F.3d 367, 373-74 (2d Cir. 2003)
(holding that second-degree manslaughter, which required
only reckless conduct, was not a crime of violence).
No. 08-1071                                                 9

potential for injury, the alien also intentionally committed
an act that, by its nature, created a substantial likelihood
that force would be used. Id. The crimes in Blake and
Nguyen, unlike the crime at issue in this case, involved
conduct that was not purely reckless.
  The Government also relies upon a recent case from
this circuit, Quezada-Luna v. Gonzales, 439 F.3d 403, 406 (7th
Cir. 2006). There, we recognized that the act of dis-
charging a weapon into a home “describes conduct that
presents a substantial risk that physical force against the
person or property of another may be used.” Quezada-Luna,
however, dealt with a conviction for the intentional
discharge of a weapon into a home, a crime that could not
be committed in a merely reckless or accidental way.
Therefore the Government’s arguments are not persuasive
because the authorities upon which it relies all involved
proscribed activity that necessarily required the use of
force.
   Recently the Supreme Court, and this court, have inter-
preted a similar statute in a manner that casts a useful
cross-light on the interpretive task before us today. In
those cases, the statute at issue was the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §§ 924(e)(1), 924(e)(2)(B).
The Act defines a “violent felony” as one that “is burglary,
arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious po-
tential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). Violent felonies that are not among the
listed offenses fall under the second or “residual clause” of
the section. The Supreme Court recently held that drunk
10                                                No. 08-1071

driving was not a violent felony under that clause of the
ACCA because drunk driving was not “similar to” the
listed offenses in that it did not “typically involve pur-
poseful, violent, and aggressive conduct.” Begay v. United
States, ___ U.S. ___, 128 S. Ct. 1581, 1586 (2008).
  The definition of a crime of violence under Section 16(b)
is slightly different from the residual clause of the
ACCA. Section 16(b) requires a substantial likelihood that
force will be used in the commission of the offense; the
residual clause, by contrast, requires a substantial likeli-
hood of physical injury. Leocal, 543 U.S. at 10 n.7; Bazan-
Reyes, 256 F.3d at 609-12. 2 Despite the slightly different
definitions, the Supreme Court’s holding in Begay perfectly
mirrored the analysis in Leocal regarding whether drunk
driving was a crime of violence under Section 16(b). In
both Begay and Leocal, the Court held that negligence and
strict-liability crimes were not violent crimes but declined
to decide whether crimes of recklessness could be.
  After Begay, we held that crimes of recklessness are not
violent felonies under the ACCA. United States v. Smith,
___ F.3d ___, 2008 WL 4182648, at *4 (7th Cir. Sept. 12,
2008). Analyzing a different subsection of the same
Indiana recklessness statute before us today, id. at *2, n.2,
we noted that the non-purposeful nature of the DUI
offense was the “primary distinction” relied on by the
Supreme Court in Begay. See id. at 8; United States v. Spells,


2
  See also Ramirez v. Mukasey, 520 F.3d 47, 50 (1st Cir. 2008);
Canada v. Gonzales; 448 F.3d 560, 571 n.8 (2d Cir. 2006);
United States v. Sawyers, 409 F.3d 732, 740 (6th Cir. 2005).
No. 08-1071                                                11

537 F.3d 743, 751-52 (7th Cir. 2008). Significantly, the non-
purposeful nature of the DUI offense was the sole factor
relied on by the Supreme Court in Leocal when it held
that drunk driving did not qualify as a crime of violence
under Section 16(b). See Leocal, 543 U.S. at 11-12. Given
that Section 16(b) and the residual clause of the ACCA
contain similar language and that the Supreme Court
applied similar logic in Leocal and Begay, we believe that
the reasoning in Smith supports the view that crimes
with a mens rea of recklessness are not crimes of violence
under Section 16(b).
  Finally, we note that Congress has recognized the
seriousness of firearms offenses in a different provision of
the Immigration and Nationality Act. An alien who has
been convicted of violating any federal or state law
that makes it a crime to attempt to use any weapon
“which is a firearm or destructive device” as defined in
18 U.S.C. § 921(a) is removable. 8 U.S.C. § 1227(a)(2)(C); see
Dave v. Ashcroft, 363 F.3d 649, 650-52 (7th Cir. 2004) (deny-
ing alien’s petition for review of removal order where
alien was convicted of reckless discharge of a firearm).
The key difference is that an alien removed for having
committed a crime of violence is permanently barred
from returning to the United States, but an alien who is
removed based on a firearms conviction under 8 U.S.C.
§ 1227(a)(2)(C) may apply for readmission after ten years.
Quezada-Luna, 439 F.3d at 404. As a reviewing court, we
cannot deny Mr. Jimenez-Gonzalez’s petition based on
a rationale that neither the BIA, nor the IJ, relied upon.
See SEC v. Chenery Corp., 332 U.S. 194, 196-97 (1947);
Gebreeyesus v. Gonzales, 482 F.3d 952, 955-56 (7th Cir.
12                                            No. 08-1071

2007). Thus, because Mr. Jimenez-Gonzalez was not
charged as removable for having committed a firearms
offense—and therefore neither the IJ nor the BIA relied on
this rationale—we cannot deny Mr. Jimenez-Gonzalez’s
petition based on § 1227(a)(2)(C). Yet in deciding that
reckless-firearms offenses cannot be crimes of violence
under Section 16(b), we think it particularly important
to note that Congress has recognized the potential
danger inherent in the reckless use of a firearm and
has provided a means for DHS to remove individuals
who are convicted of these grave offenses.


                       Conclusion
  For the foregoing reasons, Mr. Jimenez-Gonzalez’s
petition for review is granted, the judgment of the Board
of Immigration Appeals is reversed, and the case is re-
manded for proceedings consistent with this opinion.
The Petitioner may recover his costs for this appeal.
                           P ETITION FOR R EVIEW G RANTED




                         11-21-08
