In the
United States Court of Appeals
For the Seventh Circuit

Nos. 99-3861, 99-3917 and 99-3922

Jose A. Bazan-Reyes, Wincenty Z. Maciasowicz,
and Arnoldo Gomez-Vela,

Petitioners-Appellants,

v.

Immigration and Naturalization
Service and John D. Ashcroft,

Respondents-Appellees.

Petitions for Review of an Order of the
Board of Immigration Appeals.
Nos. A90 614 059, A44 224 586, A31 164 151

Argued November 9, 2000--Decided July 5, 2001


  Before Flaum, Chief Judge, and Ripple and
Kanne, Circuit Judges.

  Kanne, Circuit Judge.   Petitioners Jose
A. Bazan-Reyes, Wincenty Z. Maciasowicz,
and Arnoldo Gomez-Vela seek review of
decisions by the Immigration and
Naturalization Service ("INS") and the
Board of Immigration Appeals ("BIA")
finding them removable as a result of
state drunk driving offenses. These cases
were consolidated for the purposes of
appeal because they all raise the same
issue: are petitioners’ state drunk
driving convictions aggravated felonies
as defined by the Immigration and
Naturalization Act ("INA")? See 8 U.S.C.
sec. 1101(43). Petitioners argue that the
INS (in the case of Bazan-Reyes) and the
BIA (in the case of Maciasowicz and
Gomez-Vela) incorrectly determined that
they were removable because driving while
intoxicated is a crime of violence, and
thus an aggravated felony. See id.; 18
U.S.C. sec. 16. Because we conclude that
the INS and the BIA erred in finding that
petitioners’ state convictions are crimes
of violence, we vacate the deportation
orders of Bazan-Reyes, Maciasowicz, and
Gomez-Vela and remand for proceedings
consistent with this opinion.

I.   History
  Bazan-Reyes, Maciasowicz, and Gomez-Vela
appeal from decisions of either the INS
(in the case of Bazan-Reyes) or the BIA
(in the case of Maciasowicz and Gomez-
Vela) finding them removable. We will
briefly discuss the background of each
petitioner’s appeal.

A.   Bazan-Reyes

  Bazan-Reyes, a citizen of Mexico,
entered the United States without
inspection in 1972. He applied for
temporary resident alien status in 1988,
but his application was denied because he
did not submit information about his
criminal record, which up to that point
included four convictions for driving
while intoxicated ("DWI"). Subsequently,
on October 5, 1988, Bazan-Reyes was
paroled into the United States. Eleven
years later, in April 1999, Bazan-Reyes
pleaded guilty to a Class D felony,
Operating a Vehicle While Intoxicated, in
violation of section 9-30-5-3 of the
Indiana Code./1 As a result, he was
sentenced to three years imprisonment. In
June 1999, the INS commenced expedited
removal proceedings against Bazan-Reyes
pursuant to INA section 238. See 8 U.S.C.
sec. 1228(b)(2). The INS issued a notice
of intent to issue a final removal order,
charging Bazan-Reyes with removability
based on his April 1999 felony conviction
for DWI. In the notice of intent, the INS
alleged that Bazan-Reyes was guilty of an
aggravated felony and removable on that
basis. In October 1999, the INS issued a
final administrative order finding Bazan-
Reyes removable.

B.   Maciasowicz

  Maciasowicz, a citizen of Poland, was
admitted to the United States as a lawful
permanent resident in December 1993. In
February 1998, he pleaded guilty to two
counts of homicide by intoxicated use of
a vehicle under Wisconsin Statute Section
940.09./2 He was sentenced to
consecutive terms of five years on the
first count and ten years on the second
count; however, the sentence on the
second count was withheld and probation
ordered. In February 1999, the INS issued
Maciasowicz a Notice to Appear ("NTA")
charging him with removability pursuant
to 8 U.S.C. sec. 1227 (a) (2)(A)(iii)
based on his conviction for homicide by
intoxicated use of a vehicle. At the
hearing, the Immigration Judge ("IJ")
found that homicide by intoxicated use of
a vehicle under Wisconsin Statute Section
940.09 is an aggravated felony and
ordered Maciasowicz removed on that
basis. Maciasowicz appealed to the BIA,
but his appeal was dismissed on October
12, 1999. The BIA found that the IJ
correctly determined that Maciasowicz was
deportable under 8 U.S.C. sec. 1227
because he had been convicted of a crime
of violence.


C.   Gomez-Vela

  Gomez-Vela, a citizen of Mexico, was
admitted to the United States as a lawful
permanent resident in November 1971. In
June 1997, Gomez-Vela was arrested for
driving under the influence ("DUI").
Because he had two previous drunk driving
convictions, he was charged with
aggravated driving under the influence.
See 625 Ill. Comp. Stat. 5/11-501(d)(1)
(1997)./3 Gomez-Vela pleaded guilty and
was sentenced to twenty-six months in
prison. The INS commenced removal
proceedings against Gomez-Vela on March
2, 1999 by issuing a NTA. The NTA alleged
that Gomez-Vela was removable because he
was guilty of an aggravated felony under
8 U.S.C. sec. 1101(a)(43)(F). At his
hearing before the IJ, Gomez-Vela
admitted that he had been convicted for
aggravated driving under the influence
and sentenced to twenty-six months
imprisonment. The IJ found that
aggravated driving under the influence is
a crime of violence as defined in 18
U.S.C. sec. 16(b), and therefore is an
aggravated felony. On that basis, the IJ
ordered Gomez-Vela removed. Gomez-Vela
appealed the IJ’s determination that he
was guilty of an aggravated felony to the
BIA, but the BIA dismissed his appeal on
October 22, 1999.

  Petitioners Bazan-Reyes, Maciasowicz,
and Gomez-Vela all filed timely petitions
for review of the INS and BIA decisions
finding them removable. On appeal,
petitioners argue that the INS and the
BIA erred in their determination that
Bazan-Reyes and Gomez-Vela’s prior
convictions for DWI and Maciasowicz’s
conviction for homicide by intoxicated
use of a vehicle are aggravated felonies
rendering them removable under 8 U.S.C.
sec.1227(a)(2)(A)(iii).
II.    Analysis

A.    Jurisdiction

  The Illegal Immigration Reform and
Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110
Stat. 3009 (1996), limits our review of
orders of removal. Under 8 U.S.C. sec.
1252(a)(2)(C), as amended by the IIRIRA,
"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 . . .
1227(a)(2)(A)(iii)." Nevertheless, the
government concedes that we retain
jurisdiction in order to determine
jurisdiction and may thus review the
threshold issue of whether petitioners’
convictions for driving while intoxicated
are indeed aggravated felonies as defined
by 8 U.S.C. sec. 1227 (a)(2)(A)(iii). See
Solorzano-Patlan v. INS, 207 F.3d 869,
872 (7th Cir. 2000); Xiong v. INS, 173
F.3d 601, 604 (7th Cir. 1999). Here, the
jurisdictional question and the merits
collapse into one because the issue of
whether petitioners’ convictions were
aggravated felonies also provides the
basis for their challenges to removal.
See Guerrero-Perez v. INS, 242 F.3d 727,
729-30 (7th Cir. 2001). Thus, we must
decide whether the state drunk driving
convictions of Bazan-Reyes, Maciasowicz,
and Gomez-Vela/4 can be considered
aggravated felonies under 8 U.S.C. sec.
1101(a)(43).

B. Was Bazan-Reyes Properly Placed in Expedited
Removal Proceedings?

  Before turning to the question of
whether petitioners have committed
aggravated felonies, we must first
address Bazan-Reyes’ claim that the INS
lacked subject matter jurisdiction to
issue a final order of removal against
him because he was improperly placed into
expedited removal proceedings under
section 238 of the INA, 8 U.S.C. sec.
1228. Unlike petitioners Maciasowicz and
Gomez-Vela, Bazan-Reyes was not a lawful
permanent resident at the time the INS
commenced deportation proceedings against
him because he was paroled rather than
admitted to the country. Therefore, the
INS placed Bazan-Reyes in expedited
removal proceedings pursuant to 8 U.S.C.
sec. 1228. Section 1228(b) allows the
Attorney General to issue an order of
removal for a non-permanent resident
alien if the alien is deportable under 8
U.S.C. sec. 1227(a)(2)(A)(iii), i.e., if
the alien has committed an aggravated
felony. Bazan-Reyes claims that he is not
deportable under 8 U.S.C. sec.
1227(a)(2)(A)(iii) because the language
of that provision forbids its application
to parolees.

  Bazan-Reyes’ argument that parolees may
not be placed in expedited removal
proceedings is based on the introductory
paragraph to 8 U.S.C. sec. 1227(a) which
provides: "Any alien . . . in and
admitted to the United States shall . . .
be removed if the alien is within one or
more of the following classes of
deportable aliens." Bazan-Reyes argues
that, since he has not been admitted to
this country, he does not fall under 8
U.S.C. sec. 1227, and thus may not be
placed in expedited proceedings. We
disagree. Section 1228(b) of Title 8 of
the United States Code, entitled "Removal
of aliens who are not permanent
residents," allows the Attorney General
to utilize expedited proceedings to
remove certain aliens who are not lawful
permanent residents, including those who
have been convicted of aggravated
felonies. Nothing in that section
prohibits its application to parolees,
and, as the government points out,
construing the statute to forbid its
application to parolees would provide
more favorable treatment for parolees
than for lawfully admitted aliens. We
cannot believe that Congress intended
such a result. We find it more plausible
that the reference to sec.
1227(a)(2)(A)(iii) simply operates to
incorporate the definition of aggravated
felony set out in that section to
elucidate which non-lawful resident
aliens may be placed in expedited
proceedings. Therefore, we reject Bazan-
Reyes’ argument that he was improperly
placed in removal proceedings and will
consider whether his prior conviction--as
well as the prior convictions of
petitioners Maciasowicz and Gomez-Vela--
was properly found to be an aggravated
felony.

C. Is Driving While Intoxicated an
Aggravated Felony?
1.   Statutory Framework

  Section 237(a)(2)(A)(iii) of the INA
provides that "[a]ny alien who is
convicted of an aggravated felony . . .
is deportable." 8 U.S.C. sec.
1227(a)(2)(A)(iii). Petitioners dispute
neither the fact of their convictions nor
their alien status. Therefore, the only
remaining issue in these consolidated
appeals is whether the petitioners’
convictions may be deemed aggravated
felonies under 8 U.S.C. sec. 1227(a)(2)
(A)(iii). Although we review de novo the
determinations by the INS and the BIA
that petitioners are removable because
they committed aggravated felonies, see
Xiong v. INS, 173 F.3d 601, 605 (7th Cir.
1999), the BIA’s interpretation of the
statute it administers is entitled to
deference. See Guerrero-Perez, 242 F.3d
727, 730 (7th Cir. 2001).

  The INA provides that the term
"aggravated felony" includes, inter alia,
"a crime of violence (as defined in
section 16 of Title 18, but not including
a purely political offense) for which the
term of imprisonment [is] at least one
year." 8 U.S.C. sec. 1101(a)(43)(F)./5
All of the petitioners were sentenced to
a year or more of imprisonment. Thus, in
order to determine whether Bazan-Reyes,
Maciasowicz, and Gomez-Vela were properly
found to have committed aggravated
felonies, we must determine whether their
state convictions for driving while
intoxicated are crimes of violence as
defined in 18 U.S.C. sec. 16. See
Solorzano-Patlan v. INS, 207 F.3d 869,
875 (7th Cir. 2000).

2.   Categorical Approach

  In order to determine whether Congress
intended the term "crime of violence" as
defined in 18 U.S.C. sec. 16 to encompass
conduct prohibited under a specific state
statute, we generally employ a
categorical approach. See Lara-Ruiz v.
INS, 241 F.3d 934, 941 (7th Cir. 2001).
In other words, we ask only whether the
generic elements of the statute under
which the alien was convicted together
with the indictment constitute a crime of
violence. See id. In using such an
approach, however, we will not categorize
all conduct covered by a statute as crime
of violence conduct if the statute covers
both conduct that constitutes a crime of
violence and conduct that does not. See
Xiong v. INS, 173 F.3d 601, 605 (7th Cir.
1999). We will look past the charging
documents to the aliens’ specific conduct
if "’it [i]s otherwise impossible to
determine the proper classification of
the offense’" and such an inquiry would
not require evidentiary hearings into
disputed issues of fact. Id. (quoting
United States v. Shannon, 110 F.3d 382,
384 (7th Cir. 1997)); see also Taylor v.
United States, 495 U.S. 575, 602, 110 S.
Ct. 2143, 109 L. Ed. 2d 607 (1990)
(determining that an offense constitutes
burglary under the Armed Career Criminal
Act, 18 U.S.C. sec. 924(e), if either the
statutory definition or the charging
papers and jury instructions actually
required the jury to find all of the
elements of burglary).

3. Do Petitioners’ Convictions Qualify as Crimes
of Violence Under 18 U.S.C. sec. 16?

  As is evident from the case at hand, the
BIA has interpreted the definition of
crime of violence set out in sec. 16 to
include crimes of recklessness--such as
drunk driving--that pose a substantial
risk that one object will exert a force
upon another. See In re Puente, Interim
Decision 3412, 1999 WL 770709 (BIA 1999);
In re Magallanes, Interim Decision 3341,
1998 WL 133301 (BIA 1998); Matter of
Alcantar, 20 I. & N. Dec. 801, 814 (BIA
1994); see also In re Sweetser, Interim
Decision 3390, 1999 WL 311950 (BIA 1999)
(finding that petitioner’s conviction for
criminally negligent child abuse was not
a crime of violence because "although a
parent who negligently leaves a young
child unattended near a body of water may
risk serious ’injury’ to the child, there
is no risk that ’force’ will be used in
the commission of the offense").
According to the BIA, the term crime of
violence as articulated in sec. 16(b) is
not limited to crimes of specific intent,
but also includes offenses that involve
reckless (and possibly negligent)
behavior. Petitioners challenge this
interpretation; they argue that sec.
16(a) requires intentional force and that
sec. 16(b) requires a substantial risk of
intentional force. Because the offenses
of which they were convicted do not
normally involve intentional force or a
substantial risk of intentional force,
petitioners claim that they are not
guilty of crimes of violence and are
therefore not removable.

  The circuits are split on the issue of
whether a prior conviction for DWI is a
crime of violence under sec. 16. Compare
United States v. Chapa Garza, 243 F.3d
921, 927 (5th Cir. 2001) (holding that
sec. 16(b) requires recklessness with
respect to the risk that intentional
force may be used in the course of
committing the offense), and United
States v. Parson, 955 F.2d 858, 866 (3d
Cir. 1999) (suggesting, in dicta, that
DWI is not a crime of violence because
sec. 16(b) requires a willingness to risk
having to commit a crime of specific
intent), with Park v. INS, No. 97-71373,
2001 WL 604223 (9th Cir. June 5, 2001)
(holding that a reckless mens rea is
sufficient to constitute a crime of
violence under sec. 16(a) and sec.
16(b)), Tapia Garcia v. INS, 237 F.3d
1216, 1222-23 (10th Cir. 2001) (relying
on sentencing guidelines cases
interpreting the term crime of violence
to uphold the BIA’s determination that
drunk driving is a crime of violence
under sec. 16(b)), and Le v. U.S.
Attorney Gen., 196 F.3d 1352, 1354 (11th
Cir. 1999) (holding that petitioner’s
conviction for causing serious bodily
injury while driving under the influence
satisfies the definition of a "crime of
violence" under 18 U.S.C. sec. 16(a)
because one element of the offense
includes the actual use of physical
force).

  We have never directly addressed the
issue of whether drunk driving is a crime
of violence for the purposes of sec. 16.
In United States v. Rutherford, 54 F.3d
370 (7th Cir. 1995), however, we examined
the related issue of whether a conviction
for causing serious bodily injury while
driving under the influence/6 qualified
as a crime of violence for the pur-poses
of section 4B1.2(1) of the United States
Sentencing Guidelines (U.S.S.G)./7 Id.
In Rutherford, the defendant argued on
appeal that the district court
impermissibly enhanced his sentence as a
career criminal because the court erred
in finding that his prior conviction
qualified as a crime of violence under
section 4B1.2(1). See id. at 371-73. He
argued that both prongs of section
4B1.2(1) require willful--not reckless--
conduct, and that the sentencing court
therefore erred in finding that he had
committed a crime of violence because
drunk driving does not involve specific
intent. See id. at 372. We accepted the
defendant’s argument with respect to the
first prong, section 4B1.2(1)(i), but not
with respect to the second prong, section
4B1.2(1)(ii). See id. at 373-76.

  Although both parties agree that our
decision in Rutherford is central to the
issue at hand, they vigorously dispute
its proper application. Because our
analysis depends in part on a comparison
of the language defining the term crime
of violence in sec. 16(b) with the
language of section 4B1.2(1) of the
sentencing guidelines, we set out the
language of both provisions here. Crime
of violence is defined by section 16 of
Title 18 of the United States Code to
include the following:

(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. sec. 16. Section 4B1.2(1) of
the sentencing guidelines provides that:

(1) The term "crime of violence" means
any offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that--

(i) has an element the use, attempted
use, or threatened use of physical force
against the person of another, or

(ii) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or
otherwise involves conduct that presents
a serious potential risk of physical
injury to another.

U.S.S.G. sec. 4B1.2(1). Initially, these
two provisions were identical because the
guidelines defined crime of violence by
simply incorporating the definition found
in sec. 16(b). See U.S. Sentencing Guidelines
Manual, app. C at 106-07 (1991). This
changed in 1989, however, when the
Sentencing Commission adopted the
definition of crime of violence now found
in section 4B1.2(1). See id. A side-by-
side comparison of the current provisions
reveals that the language of the first
prongs of both definitions is nearly
identical while the language of the
second prong of the 4B1.2(1) is distinct
from the second prong of sec. 16.

  In Rutherford, we found that the term
"use of physical force" in U.S.S.G.
section 4B1.2(1)(i) implies "an
intentional act rather than the mere
application or exertion of force."
Rutherford, 54 F.3d at 372-73. But see
id. at 378 (Easterbrook, J., concurring)
(arguing that section 4B1.2(1)(i) does
not require intent to use force because
the word "use" refers not to mens rea of
the actor, but rather to the actus reus).
Our finding was based on the dictionary
definition as well as the common
understanding of the word "use". See id.
at 372. In making this determination, we
noted the following:

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.

Id. at 372-73.

  We did, however, find that specific
intent to use force was not required
under the second prong of U.S.S.G.
section 4B1.2(1). See id. at 376. Section
4B1.2(1)(ii), in addition to naming
specific crimes such as burglary and
arson, also provides that an offense that
"otherwise involves conduct that presents
a serious potential risk of physical
injury to another" is considered a crime
of violence. In rejecting defendant’s
argument that the Sentencing Commission
intended this section to include only
intentional conduct, we found that
section 4B1.2(1)(ii) does not contain any
indication that specific intent is
required. Rutherford, 54 F.3d at 374.
Instead, we found that section
4B1.2(1)(ii) encompasses reckless conduct
that presents a serious risk of injury.
See id. Our determination that section
4B1.2(1)(i) requires intent while section
4B1.2(1)(ii) does not was partially based
on our concern that a contrary
interpretation would conflate the two
prongs of section 4B1.2(1), thereby
making the second prong redundant. See
id. ("[W]e are persuaded that the
Commission intended subsections (i) and
(ii) to complement rather than compete
with each other."). Applying our finding
that the second prong of the guideline
does not require intentional force, we
thus found that drunk driving does
constitute a crime of violence under
section 4B1.2(1)(ii) because the "risk of
injury from drunk driving is neither
conjectural nor speculative." Id. at 376.

  Turning to the issue at hand, we must
now decide the impact of our holding in
Rutherford on the question of whether
drunk driving is a crime of violence
under 18 U.S.C. sec. 16. The application
to the first prong of sec. 16 is clear
because the language of sec. 16(a) is
nearly identical to the language of
U.S.S.G. section 4B1.2(1)(i). Therefore,
our finding that the word "use" requires
volitional conduct prohibits a finding
that drunk driving is a crime of violence
under sec. 16(a). The government concedes
that Bazan-Reyes’ and Gomez-Vela’s felony
DWI convictions are not crimes of
violence under sec. 16(a), but maintains
that Maciasowicz’s conviction for
homicide by intoxicated use of a vehicle
is a crime of violence under sec. 16(a)
because homicide by the intoxicated use
of a vehicle has the use of force against
a person as an element. We disagree.
Although a conviction for homicide by
intoxicated use of a vehicle requires
that the offender actually hit someone,
it does not require that he intentionally
used force to achieve that result. Like
Maciasowicz, the defendant in Rutherford
was convicted of an offense that included
causing injury to another person while
under the influence of alcohol.
Therefore, application of sec.16(a) to
Maciasowicz’s conviction is foreclosed by
our determination in Rutherford that
section 4B1.2(1)(i) did not apply to the
defendant’s conviction
  Notwithstanding the proper application
of sec. 16(a), the government maintains
that all three petitioners are guilty of
crimes of violence under sec. 16(b). The
government asserts that our holding in
Rutherford requires a finding that drunk
driving is a crime of violence under sec.
16(b) because the language of sec. 16(b)
is substantially similar to the language
of U.S.S.G. section 4B1.2(1)(ii) and the
second prong of sec. 16(b) is aimed at
the same type of risky or reckless
behavior that is targeted by section
4B1.2(1)(ii). In support of this
argument, the government also points out
that the Sentencing Commission, in
amending the original section 4B1.2(1),
noted that the amendment was not intended
to change the substance of the guideline,
but only to clarify the language.

  We are not convinced by the government’s
argument that the two provisions should
be interpreted in the same way simply
because the Sentencing Commission, in
amending section 4B1.2(1), specifically
noted that the amendment was not intended
to change the substance of the guideline,
but only to clarify its meaning. See U.S.
Sentencing Guidelines Manual app. C at 106-07
(1991). Our task at hand is to interpret
sec. 16(b), not the guideline; therefore
the evolution of the guideline does not
control our discussion. Moreover, while
it is true that, in amending U.S.S.G.
section 4B1.2(1), the Commission stated
its desire to clarify the definition of
18 U.S.C. sec. 16(b) rather than change
its substance, see id., the relevant
inquiry is not whether the amendment was
intended to change the guideline, but
whether it actually did. On that point,
we agree with the conclusion of United
States v. Parson, 955 F.2d 858 (3d Cir.
1999), that the 1989 amendment to section
4B1.2(1) changed, and in fact expanded,
the coverage of section 4B1.2(1)(ii). See
id. at 866. "Whatever the amendment’s
purpose, what it did was scrap the
earlier cross-reference to 18 U.S.C. sec.
16 and replace it with a significantly
different definition based on 18 U.S.C.
sec. 924(e)." Id., at n.10. (citing U.S.
Guidelines Manual app. C at 110-111).

  The government urges us to follow the
Tenth and Eleventh Circuits and find that
drunk driving is a crime of violence. By
arguing that sec. 16(b) covers all
felonies that involve a substantial risk
of one object exerting force upon
another, the government asks us to
interpret the language of sec. 16(b) as
if it were equivalent to the language of
U.S.S.G. section 4B1.2(1)(ii). If we were
to oblige, almost any felony offense that
involves a substantial risk of physical
harm--accidental or otherwise--would be a
crime of violence under sec. 16(b)
because physical harm is nearly always
the result of some type of physical
force. Such an interpretation would
include many offenses that are not
generally thought of as violent crimes.
For example, a felony conviction for
involuntary manslaughter that was the
result of speeding would become a crime
of violence. While it is, of course,
possible that Congress intended sec.
16(b) to reach conduct that is normally
not considered violent (as the Sentencing
Commission did in crafting section 4B1.2
(1)(ii)), we will not make such a finding
unless this interpretation is supported
by the plain language of the statute.

  Contrary to the government’s assertion
that the language of U.S.S.G. section
4B1.2(1)(ii) and sec. 16(b) are
substantially similar, a side-by-side
comparison reveals significant
differences between the language of the
two provisions. While this fact alone
does not mandate that the two provisions
be interpreted differently, it certainly
requires us to carefully scrutinize the
language of the two statutes before
finding that the two provisions should be
interpreted in the same manner. In United
States v. Chapa Garza, 243 F.3d 921 (5th
Cir. 2001), the Fifth Circuit rejected
the government’s contention that sec.
16(b) should be interpreted in the same
manner as section 4B1.2(1)(ii) and
concluded that felony DWI is not a crime
of violence under sec. 16(b). Id. at 927.
The court found that the two provisions
should not be interpreted to mean the
same thing because the language of
section 4B1.2 (1)(b) is substantially
broader than that of sec. 16(b):

Guideline 4B1.2(a)(2)’s otherwise clause
concerns only the risk of one particular
effect (physical injury to another’s
person or property) of the defendant’s
conduct. Section 16(b) is focused on the
defendant’s conduct itself, as there is
no requirement that there be a
substantial risk that another’s person or
property will sustain injury, but only
that there be a substantial risk that the
defendant will use physical force against
another’s person or property in the
course of committing the offense.

Id. at 925. Therefore, the Fifth Circuit
found that sec. 16(b) applies only "when
the nature of the offense is such that
there is a substantial likelihood that
the perpetrator will intentionally employ
physical force against another’s person
or property in the commission thereof."
Id. at 924. Similarly, in considering the
issue of whether sec. 16(b) requires
intent, the Third Circuit contrasted the
language of section 4B1.2(1)(ii) with
sec. 16(b):

  At first blush, the difference in
phrasing appears trivial because most
physical injury comes from the use of
physical force. But the distinction is
significant. Use of physical force is an
intentional act, and therefore the first
prong of both definitions require
specific intent to use force. As to the
second prong of [sec. 16], a defendant’s
commission of a crime that, by its
nature, is likely to require force
similarly suggests a willingness to risk
having to commit a crime of specific
intent. For example, a burglar of a
dwelling risks having to use force if the
occupants are home and hear the burglar.
In such a case, the burglar has a mens
rea legally nearly as bad as a specific
intent to use force, for he or she
recklessly risks having to commit a
specific intent crime.

  In contrast, under the second prong of
[section 4B1.2 (1)(ii)], criminals whose
actions merely risk causing physical
injury may have a lower mens rea of
"pure" recklessness.

Parson, 955 F.2d at 866.

  We are in agreement with the Third and
Fifth Circuits that the phrase "may be
used in the course of committing the
offense" counsels against interpreting
sec. 16(b) to be equivalent to section
4B1.2(1)(ii). Our determination in
Rutherford that the word "use" implies
intentional availment requires that the
words "may be used" in sec. 16(b) also
contain an intent requirement. Thus, the
physical force that "may be used in the
course of committing the offense" must be
accompanied by intent to use that force.
Additionally, the fact that the
petitioners did employ intentional force
at some point, in opening the car door or
pressing the accelerator for example,
does not constitute the use of physical
force as required by the statute. In
Solorzano-Patlan v. INS, 207 F.3d 869
(7th Cir. 2000), we found that the term
"physical force" in 18 U.S.C. sec. 16(b)
refers to actual violent force. See id.
at 875. In finding that the statute at
issue encompassed both conduct that
involved the use of physical force and
conduct that did not, we noted that "the
force necessary to trigger [18 U.S.C.
sec. 16(b)] is more than merely opening a
car door. We are of the opinion that the
force necessary to constitute a crime of
violence, must actually be violent." Id.
at 875 n.10; see also Sareang Ye v. INS,
214 F.3d 1128, 1134 (9th Cir. 2000)
(holding that vehicle burglary is not a
crime of violence under sec. 16(b)
because "entry into a locked vehicle is
not essentially ’violent in nature’"
because a person can commit vehicle
burglary in numerous ways short of using
violent physical force); United States v.
Rodriquez-Guzman, 56 F.3d 18, 20 n.8 (5th
Cir. 1995) (finding that the word "force"
in sec. 16(b) refers to destructive or
violent force). Finally, the fact that
the statute requires the physical force
to be used "in the course of committing
the offense" also supports the conclusion
that the force that "may be used" refers
to intentional force. Chapa-Garza, 243
F.3d at 927.

  The combination of the phrases "physical
force," "may be used," and "in the course
of committing the offense" in sec. 16(b)
(and their corresponding absence from
section 4B1.2 (1)(ii)) is a material
difference between the two definitions--
one that requires sec. 16(b) to be
interpreted to exclude felony DWI from
the definition of crime of violence.
Notwithstanding the BIA’s finding in
Puente, Interim Decision 3412, 1999 WL
770709 (BIA 1999), that an approach that
attempts to determine the meaning of each
individual phrase takes the words "may be
used" out of context, we hold that the
language of sec. 16(b) simply does not
support a finding that a risk that one
object will apply force to another is
enough to constitute a crime of violence
under the statute. Although we agree with
the BIA that the nature of the crime is
the "core concept of sec. 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." Id.
Therefore, we agree with the Fifth
Circuit that sec. 16(b) only applies
"when the nature of an offense is such
that there is a substantial likelihood
that the perpetrator will intentionally
employ physical force against another’s
person or property in the commission
thereof." Chapa Garza, 243 F.3d at 925.

  The government argues that, even if we
determine that the language of the second
prong suggests that intent is required,
we should decline to make such a finding
because such an interpretation would make
the second prong of sec. 16 redundant. We
disagree with the government’s contention
that any interpretation of sec. 16(b)
that includes a mental state requirement
will necessarily make the two prongs
redundant. For example, criminal
confinement by fraud or enticement might
constitute a crime of violence under sec.
16(b). In addition, several state
burglary offenses that do not fall within
the definition of burglary in 8 U.S.C.
sec. 1101(a)(43)(G) might not have the
intentional use of physical force as an
element but by their nature have a
substantial risk that intentional force
may be used in the course of committing
the offense. Therefore, we are not
persuaded that our decision today will
render sec. 16(b) meaningless.

  Having found that sec. 16(b) is limited
to crimes in which the offender is
reckless with respect to the risk that
intentional physical force will be used
in the course of committing the offense,
we turn our attention to the ultimate
question of whether petitioners’ prior
convictions qualify as crimes of violence
under this interpretation. As we noted
above, we apply a categorical approach in
order to determine whether a conviction
under a specific statute is a crime of
violence. We look only to the generic
elements of the statute, and determine if
those elements, by their nature, give
rise to a substantial risk that
intentional physical force will be used
in the course of perpetrating the
offense. Because "[i]ntentional force . .
. is virtually never employed to commit"
any of the offenses for which petitioners
were convicted, Chapa-Garza v. INS, 243
F.3d at 927, we find that petitioners
convictions are not crimes of violence
under sec. 16(b).


III.   Conclusion

  Our decision today does not minimize the
seriousness of crimes involving drunk
driving. There is no question that drunk
driving "exacts a high societal toll in
the forms of death, injury and property
damage." Magallanes, Interim Decision
3341, 1998 133301 (BIA 1998). This fact
does not, however, change our observation
in Rutherford, that "a drunk driving
accident is not the result of plan,
direction, or purpose, but of
recklessness at worst and misfortune at
best." 54 F.3d at 372. Based on the
foregoing reasons, we VACATE the
deportation order of petitioners Bazan-
Reyes, Maciasowicz, and Gomez-Vela, and
REMAND for proceedings consistent with
this opinion.

FOOTNOTES

/1 The relevant provisions of section 9-30-5-3
provide:

A person commits a Class D felony if:

(1) the person has a previous conviction of
operating while intoxicated; and

(2) the previous conviction of operating while
intoxicated occurred within the five (5) years
immediately preceding the occurrence of the
violation of section 1 or 2 of this chapter.

Ind. Code sec. 9-30-5-3 (1998).

  Section 1 provides:

(a) A person who operates a vehicle with at
least ten-hundreths percent (0.10%) of alcohol by
weight in grams in:

(1) one hundred (100) milliliters of the person’s
blood; or

(2) two hundred ten (210) liters of the person’s
breath; commits a Class C felony

Ind. Code sec. 9-30-5-1 (1998).

/2 Section 940.09 provides in part:
Homicide by intoxicated use of vehicle or firearm

(1) Any person who does any of the following is
guilty of a Class C felony:

(a) Causes the death of another by the operation
or handling of a vehicle while under the influ-
ence of an intoxicant

(b) Causes the death of another by the operation
of a vehicle while the person has a prohibited
alcohol concentration, as defined in sec.
340.01(46m).

Wis. Stat. sec. 940.09 (1996).

/3 At the time of the offense, the statute provided:

(d)(1) Every person convicted of committing a
violation of this Section shall be guilty of
aggravated driving under the influence of alcohol
or drugs or a combination of both if:

  (A) the person committed a violation of this
Section, or a similar provision of a law of
another state or a local ordinance when the cause
of action is the same as or substantially similar
to this Section, for the third subsequent time .
. . .

Ill. Rev. Stat. Ch. 625, sec. 5/511-501(d)(1)
(1997).

/4 As explained above, Bazan-Reyes and Gomez-Vela
were convicted of DWI and aggravated DUI respec-
tively, while Maciasowicz was convicted of homi-
cide by intoxicated use of a vehicle. Unless
otherwise indicated, the term "DWI" is intended
to refer to all of the petitioners’ convictions.

/5 18 U.S.C. sec. 16 provides:

The term "crime of violence" means

(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.

/6 In Rutherford, the petitioner was convicted of
assault in the first degree for violating section
13A-6-20(a)(5) of the Alabama Code which provides
that a person is guilty of the crime of assault
in the first degree if "[w]hile driving under the
influence of alcohol . . . he causes serious
bodily injury to the person of another with a
motor vehicle."

/7 Guideline 4B1 has been renumbered so that section
4B1.2(1) is now section 4B1.2(a) and so forth.
See U.S. Sentencing Guidelines Manual app. C at
416 (1997).
