                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2005

Tran v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 02-3879




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                                               PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT
               ____________________

                        No. 02-3879
                   ____________________


                      SON DUC TRAN,

                                 Petitioner

                                v.

 ALBERTO GONZALES,* ATTORNEY GENERAL OF THE
              UNITED STATES,

                                  Respondent




           On Petition for Review of Order of the
               Board of Immigration Appeals
                 (Board No. A28-102-920)




                 Argued: April 18, 2004
  Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                    (Filed:   July 12, 2005)


RALF D. WIEDEMANN (ARGUED)
Klasko, Rulon, Stock & Seltzer
1800 John F. Kennedy Boulevard


     *
      Substituted pursuant to Fed. R. App. P. 43(c).
Suite 1700
Philadelphia, PA 19103
       Attorney for Petitioner

PETER D. KEISLER
Assistant Attorney General, Civil Division
DONALD E. KEENER
Deputy Director
GREG D. MACK (ARGUED)
Senior Litigation Counsel
LINDA S. WERNERY
JOHN M. McADAMS, JR.
United States Department of Justice
Office of Immigration Litigation
Ben Franklin Station
P.O. Box 878
Washington, DC 20044
       Attorneys for Respondent


                              _____

                     OPINION OF THE COURT


BECKER, Circuit Judge.

        Son Duc Tran petitions for review of an order of the Board
of Immigration Appeals (BIA) ordering him deported as an
aggravated felon. Tran pled guilty in a Pennsylvania court to the
crime of “reckless burning or exploding,” which the Board found
was a crime of violence under 18 U.S.C. § 16(b), and therefore an
aggravated felony supporting removal. Tran argues that, because
this crime required only a reckless mens rea, and involved no risk
that he would intentionally use force in the commission of the
crime, it was not a crime of violence under § 16(b).
        Our review of the language of § 16(b), and of the cases
interpreting it, leaves little doubt that a crime whose mens rea is
“pure” recklessness is not a crime of violence for immigration
purposes. Section 16(b) requires a substantial risk that physical

                                 2
force will be used against the person or property of another. Such
a risk is not synonymous with recklessness: the substantial risk
required in § 16(b) is a risk of the use of force, not a risk of injury
to persons or damage to property. As the use of force requires
intent, and as Tran ran no risk of intentionally using force in
committing his crime, he did not commit a crime of violence under
§ 16(b). We will therefore grant the petition for review.

                                  I.

       Tran is a native and citizen of Vietnam. He came to the
United States as a refugee in February 1989, fleeing mortal danger
in his homeland. He became a lawful permanent resident in
February 1991, and earned a bachelor’s degree from Western
Michigan University in 1996, where he remained to pursue a Ph.D.
in chemistry. His parents, sisters, and brothers-in-law all live in
Michigan, and he does not appear to have any immediate family in
Vietnam.
       In January of 1997, Tran received a call from a friend, who
had saved his life when they were fleeing persecution in Vietnam,
asking for his help with an unspecified matter. The friend was in
Michigan, and Tran, who also lived in Michigan, was temporarily
in Boston at the time. Tran agreed to drive the friend’s brother back
to Michigan to help the friend. When they arrived in Michigan, the
friend told Tran that he had killed another man in a fight over a
woman. The Immigration Judge (IJ) describes the events that
followed:

       [T]he friend wanted to dispose of the body in [a]
       way that made it look like the person was killed in an
       automobile accident. The respondent [Tran] did not
       want to be involved and said that his only
       involvement would be to drive the man’s brother
       back to Boston, if that should be necessary. They
       ended up going in a car and the man’s brother drove
       the car of the victim which had the body in it and set
       it on fire on the way from Michigan to Boston in
       Erie, Pennsylvania. The respondent had already gone
       ahead, not knowing that this is exactly where the
       body was going to be disposed of and he looked

                                  3
       back and saw the car on fire and the brother of the
       perpetrator running to the respondent’s car. They
       drove on then to Boston.

        A few days later, Tran returned to his family in Michigan.
The police questioned him about the murder, and he confessed to
his involvement. He cooperated fully with the police and testified
against his friend in a Michigan murder trial. He was not
prosecuted in Michigan, and seems to have been granted immunity
in exchange for his testimony.
        Some two years later, Tran was told that he was wanted in
Pennsylvania on charges related to the destruction of the body. He
went to Pennsylvania, was set free on bond, and appeared for court
proceedings. In October 1999, he pled guilty to several crimes,
including conspiracy to commit reckless burning, and was
sentenced to 6 to 24 months imprisonment. He served six months
at Waymart State Correctional Institution, and was paroled in mid-
2000.
        In November 2000, the Immigration and Naturalization
Service (INS) issued a Notice to Appear charging Tran with
removability as an aggravated felon pursuant to 8 U.S.C.
§ 1227(a)(2)(A)(iii). Tran contested removability and applied for
withholding of removal under 8 U.S.C. § 1231(b)(3)(A). He
presented letters of support from the Pennsylvania judge who
convicted and sentenced him,1 the superintendent of the prison
where he served his sentence, and from clergy, professors, family,
and friends.
        The IJ found that Tran’s crimes did not constitute
aggravated felonies under the immigration laws, and therefore held
that he was not removable. The government appealed to the Board
of Immigration Appeals. The BIA reversed, finding that the IJ had
misapplied the law in finding that the conspiracy to commit
reckless burning was not an aggravated felony. It also denied


       1
        That judge, the Honorable Fred P. Anthony of the Court of
Common Pleas of Erie County, explained that, in some 29 years on the
bench, he had never before written such a letter, as he generally
supported deportation in such cases. He felt that Tran’s case was unique,
and commended Tran’s penitence for his crime and his responsible
citizenship in other respects.

                                   4
Tran’s petition for withholding of removal, finding insufficient
evidence that he faced serious risks in returning to Vietnam.
      Tran filed a timely petitition for review challenging the
BIA’s decision that he is an aggravated felon.

                                   II.

       The government contends that Tran is removable under
8 U.S.C. § 1227(a)(2)(A)(iii), which classifies as removable “[a]ny
alien who is convicted of an aggravated felony at any time after
admission.” The term “aggravated felony” is defined by 8 U.S.C.
§ 1101(a)(43); the term includes “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. § 1101(a)(43)(F). The government contends that Tran’s
Pennsylvania crime was a crime of violence under 18 U.S.C. § 16,
and thus qualifies as an aggravated felony.
       We have jurisdiction over Tran’s petition for review
pursuant to 8 U.S.C. § 1252(a)(1). The recent Real ID Act clarifies
that our jurisdiction extends to “questions of law raised upon a
petition for review,” including petitions for review of removal
orders based on aggravated felony convictions. See Real ID Act
§ 106(a)(1)(A)(iii), Pub. L. No. 109-13, 119 Stat. 231, 310 (2005),
to be codified at 8 U.S.C. § 1252(a)(2)(D). We are thus free to
consider Tran’s purely legal claim that his crime was not, in fact,
an aggravated felony under the relevant law. See Papageorgiou v.
Gonzales, No. 04-3135, — F.3d —, 2005 WL 1490454, *2 (3d Cir.
June 24, 2005).2


       2
         Prior to the Real ID Act, our jurisdiction to review orders of
removal for aggravated felonies was limited. The statute granting us
jurisdiction to review immigration orders provides that “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).” 8 U.S.C. § 1252(a)(2)(C)
(1999). We did, however, “have jurisdiction to consider our
jurisdiction,” Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir. 2004), that
is, to decide whether the “jurisdictional facts” of § 1252(a)(2)(C) were
present, Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). If we found
that the relevant facts—i.e., that the petitioner was an alien and that he

                                    5
        In Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004), we
canvassed our precedents to determine the deference due to the
BIA’s interpretation and application of the aggravated felony
statute. See 383 F.3d at 150-152. While there we “expressly
reserve[d] decision on whether some BIA interpretations of
§ 1101(a)(43) are entitled to deference,” id. at 152, the parties here
are in agreement that no deference is due, and that our review is de
novo. We will conduct such a de novo review, mindful that the
statute at issue here is not the Immigration and Naturalization Act,
but rather the criminal provisions of Title 18 of the United States
Code. The interpretation of criminal statutes is a task outside the
BIA’s special competence and congressional delegation, while it
is very much a part of this Court’s competence. See Francis v.
Reno, 269 F.3d 162, 168 (3d Cir. 2001).

                                   III.

       Tran pled guilty to three crimes: hindering apprehension,
abusing a corpse, and criminal conspiracy to commit reckless
burning or exploding.
       Hindering apprehension is prohibited by 18 Pa. Cons. Stat.
§ 5105, which defines the crime to include harboring, concealing,
or aiding another person “with intent to hinder the apprehension,
prosecution, conviction or punishment of another for [a] crime.”
The INS argued before the Immigration Judge that this crime
constitutes an “offense relating to obstruction of justice,” which is
an aggravated felony under 8 U.S.C. § 1101(a)(43)(S). The IJ
rejected this argument, citing In re Espinoza, 22 I. & N. Dec. 889
(BIA 1999), for the proposition that “obstruction of justice”
offenses must interfere with ongoing judicial proceedings. The BIA
declined to address this issue on appeal, and the government does


had committed an enumerated offense—were present, then we were
obligated to dismiss the petition for lack of jurisdiction. If, on the other
hand, we found that the underlying crime was not an aggravated felony,
we had jurisdiction over the petition. While the statutory mechanism
differed, the end result was the same: we are, and were, free to consider
a petitioner’s legal claims that his crime was not an aggravated felony,
but we are, and were, without jurisdiction to reconsider the BIA’s factual
findings. See generally Papageorgiou, 2005 WL 1490454, at *2.

                                     6
not raise it here.
        Similarly, Tran’s plea to abusing a corpse, in violation of 18
Pa. Cons. Stat. § 5510, is not before us. The IJ found that it was not
an aggravated felony, and the BIA did not disturb this finding on
appeal.
        The only crime that is before us is Tran’s conviction for
conspiracy to commit reckless burning or exploding. Criminal
conspiracy is defined by 18 Pa. Cons. Stat. § 903, a traditional
conspiracy statute.3 Reckless burning or exploding is prohibited by
18 Pa. Cons. Stat. § 3301, a section entitled “Arson and related
offenses” and comprising several distinct crimes. The crime to
which Tran pled is defined as follows:

       (d) Reckless burning or exploding.—A person
       commits a felony of the third degree if he
       intentionally starts a fire or causes an explosion, or
       if he aids, counsels, pays or agrees to pay another to
       cause a fire or explosion, whether on his own
       property or on that of another, and thereby
       recklessly:
       (1) places an uninhabited building or unoccupied
       structure of another in danger of damage or
       destruction; or
       (2) places any personal property of another having a
       value that exceeds $5,000 or if the property is an
       automobile, airplane, motorcycle, motorboat or other
       motor-propelled vehicle in danger of damage or
       destruction.

18 Pa. Cons. Stat. § 3301(d).
       The government contends that this definition describes a
crime of violence. For federal immigration purposes, a crime of
violence is:



       3
         Conspiracy to commit an aggravated felony is itself an
aggravated felony. 8 U.S.C. § 1101(a)(43)(U). We therefore proceed as
though Tran had been convicted of the substantive offense of reckless
burning, though in fact he pled only to conspiracy to commit that
offense.

                                  7
       (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. § 16.
        The government, as it must, argues that section 3301(d)(2),
on its face, constitutes a crime of violence—not that Tran’s
conduct, as proved by extrinsic evidence, falls under § 16’s
strictures. That is because the language of § 16 “requires us to look
to the elements and the nature of the offense of conviction, rather
than to the particular facts relating to petitioner’s crime.” Leocal v.
Ashcroft, — U.S. —, 125 S. Ct. 377, 381 (2004). We have referred
to this requirement as the “formal categorical approach” of Taylor
v. United States, 495 U.S. 575 (1990). See Singh, 383 F.3d at 147.4

                                   IV.

       Our question, then, is simply whether the Pennsylvania
crime of reckless burning or exploding is categorically a crime of
violence under 18 U.S.C. § 16.

                                 A.
       Neither party now contends that reckless burning falls under
§ 16(a), which requires the “use” of “physical force” against the
person or property of another. The reckless burning statute
criminalizes the act of intentionally starting a fire with a reckless


       4
         In Singh, we also concluded that the formal categorical approach
does not bar us from considering which numbered subsection of a
criminal statute the petitioner has violated. See 383 F.3d at 162. Thus our
inquiry is whether the conduct covered by subsection
3301(d)(2)—intentionally starting a fire, on one’s own property or that
of another, and thereby recklessly placing certain personal property of
another in danger of destruction—is a crime of violence, not whether any
conduct covered by section 3301 is such a crime. See also United States
v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005).

                                    8
mens rea regarding damage to the property of another. 18 Pa. Cons.
Stat. § 3301(d)(2). The first element of the crime, intentionally
starting a fire on one’s own property or that of another, does not in
itself necessitate the use of physical force against the property of
another.
        One might make the argument that recklessly damaging (or
risking damage to) the property of another, the second element of
section 3301, constitutes using force against the property of
another, and thus qualifies as a crime of violence under § 16(a). In
Leocal, supra, the Supreme Court reserved judgment on this
question, deciding only that “[t]he key phrase in § 16(a)—the ‘use
. . . of physical force against the person or property of
another’—most naturally suggests a higher degree of intent than
negligent or merely accidental conduct.” 125 S. Ct. at 382. This
language leaves open the door for an argument that reckless
conduct qualifies as the “use of force.” But neither the BIA’s
decision nor the government’s argument before us raised this
contention—both relied instead on § 16(b)—and we consider it
waived.
        That said, we must nonetheless address the issue because its
resolution is essential to our discussion of § 16(b). Our own Court
has stated unequivocally that the “use of physical force” under
§ 16(a) requires specific intent; recklessness will not suffice. “Use
of physical force is an intentional act, and therefore the first prong
of [§ 16] requires specific intent to use force.” United States v.
Parson, 955 F.2d 858, 866 (3d Cir. 1992). The BIA held, and the
government now argues, that Parson is not controlling here
because its holding concerned the United States Sentencing
Guidelines and not § 16. We acknowledge that other courts have
referred to our discussion of § 16 in Parson as “dicta,” see United
States v. Gonzalez-Lopez, 335 F.3d 793, 797 (8th Cir. 2003); Park
v. INS, 252 F.3d 1018, 1023 (9th Cir. 2001). Indeed, our own Court
may have implied as much in Francis v. Reno, 269 F.3d 162, 173-
74 (3d Cir. 2001).
        As we explain in the margin, we are not convinced that
Parson’s interpretation of § 16 is dictum.5 At all events, we need

       5
         The Parson panel was ultimately concerned with the
interpretation of what is now United States Sentencing Guidelines
§ 4B1.2(a), but it first dealt with the preliminary question whether that

                                   9
not decide that question, because we are satisfied that Parson’s
requirement of specific intent under § 16(a) is correct and that “use
of physical force is an intentional act.” Parson, 955 F.2d at 866.
        The verb “use” means “[t]o make use of; to convert to one’s
service; to employ; to avail oneself of; to utilize; to carry out a
purpose or action by means of; to put into action or service,
especially to attain an end.” Black’s Law Dictionary 1541 (6th ed.
1990). The Oxford English Dictionary defines the verb to mean, in
its most common usages, “[t]o make use of (some immaterial
thing) as a means or instrument; to employ for a certain end or
purpose,” “[t]o employ or make use of (an article, etc.), esp. for a
profitable end or purpose; to utilize, turn to account,” or “[t]o work,
employ, or manage (an implement, instrument, etc.); to manipulate,
operate, or handle, esp. to some useful or desired end.” Oxford
English Dictionary 3574 (compact ed. 1971) (s.v. “use, v.,”
definitions 7a, 8a, 9a). These definitions show an obvious
commonality: the “use” of force means more than the mere
occurrence of force; it requires the intentional employment of that
force, generally to obtain some end.
        The plain language of the statute therefore compels the
conclusion that the “use” of force requires specific intent to employ
force, and not mere recklessness as to causing harm. In United
States v. Trinidad-Aquino, 259 F.3d 1140, 1145 & n.2 (9th Cir.
2001), the Ninth Circuit cited similar definitions of the word “use”
to conclude that the word “contain[s] a volitional requirement.” It


Guidelines section was a permissible expansion of the statutory
definition of a “crime of violence” in § 16. See 955 F.2d at 866-67. Our
interpretation of § 16 was a prerequisite to our final conclusion that
Guidelines § 4B1.2(a) was valid; thus, that interpretation would seem to
be part of the holding rather than dictum.
        Francis did indeed decline to draw conclusions about § 16(b)
from our discussion of § 4B1.2(a) in Parson, noting that the language of
the two provisions differs, and that the Sentencing Guidelines are
concerned with conduct rather than with the categorical approach
required under § 16(b). While our discussion of the Sentencing
Guidelines in Parson is irrelevant here, our discussion of § 16(b) was
necessary to our holding in Parson and is quite relevant in this case. The
fact that Parson interpreted § 16 in the Sentencing Guidelines context,
while we now interpret it in the immigration context, does not prevent
our interpretation of § 16 in that case from binding us now.

                                   10
thus excluded the possibility of negligent use of force, but
nonetheless held that recklessness—that is, “conscious disregard of
a risk of a harm that the defendant is aware of,” id. at
1146—satisfies this volitional requirement.6 We respectfully
disagree. As the Supreme Court said in Leocal, “‘use’ requires
active employment.” 125 S. Ct. at 382 (emphasis added). The
active employment of force, generally to achieve some end,
corresponds closely to the concept of intent, not recklessness.
Intent means a “[a] state of mind in which a person seeks to
accomplish a given result through a course of action.” Black’s Law
Dictionary 810 (6th ed. 1990). The idea of purposeful action, of
actively employing a means to achieve an end, is an essential
component of both “use” and “intent,” and is absent from the
concept of “recklessness.” We therefore hold that the “use of
force” in § 16(a) requires specific intent to use force.7




        6
         In United States v. Nason, 269 F.3d 10 (1st Cir. 2001), the First
Circuit considered the import of an analogous provision, 18 U.S.C.
§ 922(g)(8)(C)(ii), which also implicated the “use of physical force.”
Nason had been convicted of assault under Maine law, defined as
“intentionally, knowingly, or recklessly caus[ing] bodily injury or
offensive physical contact to another.” Me. Rev. Stat. Ann. tit. 17-A,
§ 207(1) (emphasis added). The First Circuit declared that this
legislation “unambiguously involves the use of physical force.” Nason,
269 F.3d at 20. While that Court’s ruminations are less than pellucid, we
conjecture that it reached its determination based not on a linguistic
dissection of the statute but on a Maine Supreme Court opinion glossing
it to require “use of unlawful force against another causing bodily
injury.” Id. (quoting State v. Griffin, 459 A.2d 1086, 1091 (Me. 1983)).
At all events, to the extent that the First Circuit’s conclusion is
coterminous with the Ninth Circuit’s decision that recklessness can
suffice for the use of force, we (again) disagree.
        7
         This conclusion is buttressed by the fact that § 16(a) covers not
merely the use of physical force, but also the attempted or threatened use
of such force. As we recently stated, in discussing a New York common-
law attempt crime, “the concept of an attempted recklessness crime is
nonsensical.” Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004). If one
can attempt to use force, it stands to reason that the use of force requires
something more than mere recklessness.

                                    11
                                  B.
        Once we conclude that the “use of physical force” in § 16(a)
requires specific intent, our interpretation of § 16(b) is determined
by the language of the statute and by our precedents. Section 16(b)
covers any 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.” Given the definition
of use of physical force reached above, we can only conclude that
§ 16(b) crimes are those raising a substantial risk that the actor will
intentionally use force in the furtherance of the offense.
        Parson is explicit on this point:

       Use of physical force is an intentional act, and
       therefore [§ 16(a)] requires specific intent to use
       force. As to [§ 16(b)], 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.

955 F.2d at 866. In Parson, we went on to contrast the requirement
of § 16(b), in which the actor runs a risk of intentionally using
force, with the lower mens rea that we characterized as “‘pure’
recklessness.” Id. We noted that crimes like reckless endangering
and drunk driving, though they involve a serious risk of injuring
others, do not involve any risk of intentional harm or use of force.
Id.8


       8
         The government cites dicta in Francis v. Reno, 269 F.3d 162 (3d
Cir. 2001), to support the proposition that recklessness may suffice for
a § 16(b) crime. In Francis we held that a Pennsylvania conviction for
vehicular homicide, a misdemeanor requiring a mens rea of criminal
negligence, did not constitute a crime of violence under § 16(b). We
noted there that, although the Pennsylvania courts had specifically held
that Francis’s crime required only negligence, the BIA had found that he

                                  12
       Our conclusion in Parson gains support from the Supreme
Court’s recent decision in Leocal. The Court discussed § 16(b) in
terms that echo our discussion in Parson:

       [Section 16(b)] simply covers offenses that naturally
       involve a person acting in disregard of the risk that
       physical force might be used against another in
       committing an offense. The reckless disregard in
       § 16 relates not to the general conduct or to the
       possibility that harm will result from a person’s
       conduct, but to the risk that the use of physical force
       against another might be required in committing a
       crime. The classic example is burglary. A burglary
       would be covered under § 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.

125 S. Ct. at 382-383 (footnote omitted). In a footnote, the Court
was even more explicit that “[t]he ‘substantial risk’ in § 16(b)
relates to the use of force, not to the possible effect of a person’s
conduct,” and drew the same distinction that we did in Parson
between the risk of use of force in § 16(b) and the distinct risk of
injury in United States Sentencing Guidelines § 4B1.2(a)(2).



acted recklessly. 269 F.3d at 173. This, we held, was error: the BIA
should have applied the categorical approach, and considered only
Francis’s crime of conviction (negligence) rather than its own view of
his underlying conduct (recklessness). We stated that “recklessness was
not charged, and [Francis] was not convicted of an offense requiring that
mens rea.” Id.
         We do not take this language to decide that recklessness would
suffice for a § 16(b) crime; indeed, given the precedent of Parson, the
Francis panel was foreclosed from so deciding. Instead, this language
from Francis indicates only that the BIA erred in failing to follow the
categorical approach, and that the proper question was whether Francis’s
negligence constituted a crime of violence under § 16(b). Of course, we
held, it did not. Id. at 174-75.

                                   13
Leocal, 125 S. Ct. at 383 n.7; see also Parson, 955 F.2d at 866.
        Three other Courts of Appeals have followed the approach
of Parson, which we reaffirm today. See Jobson v. Ashcroft, 326
F.3d 367, 372-73 (2d Cir. 2003); United States v. Chapa-Garza,
243 F.3d 921, 925-27 (5th Cir. 2001); Bazan-Reyes v. INS, 256
F.3d 600, 610-11 (7th Cir. 2001). Four others have not required
specific intent to qualify as a § 16(b) crime of violence. See Omar
v. INS, 298 F.3d 710, 715-16 (8th Cir. 2002); Park, 252 F.3d at
1023-24; Tapia Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir.
2001); Le v. United States Attorney General, 196 F.3d 1352, 1354
(11th Cir. 1999). The approaches of the Eighth, Tenth, and
Eleventh Circuits did not require even a reckless mens rea to meet
the § 16(b) standard, and thus have been abrogated, at least to that
extent, by Leocal. Compare Leocal, 125 S. Ct. at 382-83, with
Omar, 298 F.3d at 715-16, Tapia Garcia, 237 F.3d at 1222, and
Le, 196 F.3d at 1354. The Ninth Circuit’s approach relies on its
holding that the “use of force” requirement of § 16(a) may be
satisfied by a reckless mens rea, see Park, 252 F.3d at 1024; we
have rejected this conclusion both in Parson, 955 F.2d at 866, and
at greater length in Part IV.A, supra.
        We thus conclude, following Parson and Leocal, that a
crime of violence under § 16(b) must involve a substantial risk that
the actor will intentionally use physical force in committing his
crime.

                                   C.
        It remains for us to decide whether Tran’s crime of
conviction, on its face, involves such a risk of intentionally using
force in the commission of the crime. We hold that it does not.
        Tran intentionally started a fire, but of course starting a fire
is not in itself a crime, much less a crime of violence. The second,
dispositive element of his crime is the reckless endangering of the
property of another. This element, on its face, involves a substantial
risk of causing injury to the property of another. But it does not
involve a substantial risk of using force against the property of
another. The substantial risk involved in the Pennsylvania statute
is the risk that the fire started by the offender will spread and
damage the property of another. This risk cannot be said to involve
the intentional use of force, as required by Parson. The statute does
not contemplate a risk that the reckless-burning offender will step

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in and commit an intentional act of violence; instead, the only risk
is that his initial reckless act will cause further damage.
        Tran’s counsel cites several examples of actions that might
qualify as reckless burning or exploding under Pennsylvania law.
“A person setting fire to a pile of leaves in his or her yard, placed
close to a neighbor’s car” would qualify, as would one who “set[s]
off firecrackers or sparklers near a gas station.” Such reckless
actions are likely to cause harm in many cases, and Pennsylvania
certainly has an interest in punishing them. But they are not the
kind of “violent, active crimes,” Leocal, 125 S. Ct. at 383, that
qualify as crimes of violence under § 16. Needless to say, the facts
of this case are very different from these hypotheticals. But we
reiterate that we are limited to deciding whether Tran’s crime of
conviction is a crime of violence on its face, not whether his
conduct was in fact violent. See Leocal, 125 S. Ct. at 381.
        The government, like the BIA, relies on the BIA precedent
of In re Palacios, 22 I. & N. Dec. 434 (BIA 1998), which held that
first-degree arson under Alaska law constituted a crime of violence
under § 16(b). The Alaska statute criminalized intentional damage
to property by fire that recklessly places another person in danger
of serious physical injury. See 22 I. & N. Dec. at 435. The BIA
held that “arson in the first degree, by its very nature, requires a
substantial risk of physical force against another person or
property.” Id. at 437. But its analysis was limited to its conclusion
that

       the intentional starting of a fire or causing an
       explosion ordinarily would lead to the substantial
       risk of damaging property of another. Not only is
       there a risk to items belonging to others that are on
       or in the property, i.e., such as items left in a store,
       there always exists the risk that the fire will spread
       beyond the original intended property.

Id.
        Thus the BIA did not conduct the inquiry, mandated by
Parson and Leocal, into whether the Alaska arson statute
necessarily involved a substantial risk of using force. Instead, it
merely assumed that a substantial risk of damaging property
satisfied the requirements of § 16(b). In our Circuit, that

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assumption was foreclosed by Parson; it has now been foreclosed
nationally by Leocal. While we express no opinion on whether the
Alaska arson statute in Palacios defines a crime of violence under
§ 16, we think it clear that the analysis of Palacios must now be
considered to have been in error, and that it does not control this
case. Morever, even were its analysis correct, Palacios is clearly
distinguishable: the Alaska statute in Palacios required
intentionally causing damage to property, and thus contained a
specific intent element lacking in the Pennsylvania statute here.
       Thus, Tran’s crime—the Pennsylvania offense of reckless
burning or exploding—involved neither the use of force nor a
substantial risk that he might use force. He therefore did not
commit a crime of violence under § 16. Accordingly, we will grant
the petition for review and remand to the BIA for further
proceedings consistent with this opinion.




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