Rodolfo BEJARANO-URRUTIA, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent, 413 F.3d 444

Petition granted and remanded by published opinion. Chief Judge WILKINS wrote the majority opinion, in which Judge SHEDD joined. Judge NIEMEYER wrote a dissenting opinion. WILLIAM W. WILKINS, Chief Judge. Rodolfo Bejarano-Urrutia (Petitioner) petitions for review of a final order of removal. We grant the petition and remand for further proceedings. I. Petitioner, a citizen and native of Mexico, legally entered the United States in 1994. After remaining here continuously from that time, in 1998 he .became a lawful permanent resident.

In 2001, Petitioner was involved in an automobile accident in which the driver of the other vehicle was killed. As a result, he .was indicted by a Chesterfield County, Virginia grand jury for aggravated involuntary manslaughter, see Va.Code Ann. § 18.2-36.1 (LexisNexis 2004), and for driving under the influence, see Va.Code Ann. § 18.2-266 (LexisNexis 2004). Pursuant to a plea agreement, the Government amended the indictment, and Petitioner pleaded guilty to simple involuntary manslaughter in violation of Va.Code Ann. § 18.2-36 (LexisNexis 2004) and to the driving under the influence charge.

He was sentenced to 10 years’ imprisonment, with eight years suspended. ■ After being remanded, to state custody, Petitioner was served with a notice to appear charging him with removability under 8 U.S.C.A. § 1227(a)(2)(A)(iii) (West 1999) for having been convicted of an aggravated felony. Petitioner was subsequently also charged with removability under 8 U.S.C.A. § 1227(a)(2)(A)(i)(I) (West 1999) for having been convicted of a crime involving moral ■ turpitude within five years of his entry into the United States. Petitioner denied removability and moved to dismiss the removal action.

The immigration court granted the motion, and the Government appealed. While that appeal was pending, Petitioner completed his prison sentence and was remanded to- federal custody. Subsequently, , the Board of Immigration Appeals, in a two-to-one decision, .reversed the ruling of the immigration court as to Petitioner’s removability under 8 U.S.C.A. § 1227(a)(2)(A)(iii) (conviction of an aggravated felony) and entered a final removal order.. The Board made no ruling regarding Petitioner’s re-movability under 8 U.S.C.A. § 1227(a)(2) (A) (i) (I). II.

Petitioner argues that the Board erred in determining that his conviction for involuntary manslaughter, under Va.Code Ann. § 18.2-36 was for an aggravated felony. We agree. ' An alien is removable under 8 U.S.C.A. § 1227(a)(2)(A)(iii) if he has been convicted of an aggravated felony after being admitted to this country. The Government maintains that Petitioner’s involuntary manslaughter offense was an aggravated felony because it was a crime of violence.

See 8 U.S.C.A. § 1101(a)(43)(F) (West 1999) (defining “aggravated felony” to include “a crime of violence ... for which the term of imprisonment [is] at least one year” (internal quotation marks & footnote omitted)). As is relevant here, “crime of violence” means “any ... 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.A. § 16(b) (West 2000) (internal quotation marks omitted).

In determining whether a crime fits this definition, the court must look to the “intrinsic nature of the crime, not to the facts of each individual commission of the offense.” United States v. Aragon, 983 F.2d 1306, 1312 (4th Cir.1993); see Leocal v. Ashcroft, — U.S. —, —, 125 S.Ct. 377, 381, 160 L.Ed.2d 271 (2004) (holding that 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”).

The crime at issue here, a violation of Va.Code Ann. § 18.2-36, requires the killing of a person as a proximate result of the defendant’s reckless disregard for human life. See Hargrove v. Commonwealth, 10 Va.App. 618, 394 S.E.2d 729, 731 (1990). The United States Supreme Court recently interpreted § 16(

b) in a way that makes plain the correct result in this case: [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. Leocal, 125 S.Ct. at 383 (footnote omitted). Indeed, the Leocal Court went on to explain that, under this definition of “use,” a violation of the Florida DUI statute there at issue was not a § 16(

b) crime of violence because “[t]he risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may ‘use’ physical force against another in committing the DUI offense.” Id. at 383 n. 7. For this reason, the Court added that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of operating a vehicle while intoxicated and causing injury.” Id. at 383.

For the same reason, a violation of Va.Code Ann. § 18.2-36 — which here was apparently accomplished with the very conduct that the Leocal Court explained did not involve the potential “use” of physical force — is not a crime of violence under § 16(b). Although the crime of violating Va.Code Ann. § 18.2-36 intrinsically involves a substantial risk that the defendant’s actions will cause physical harm, it does not intrinsically involve a substantial risk that force will be applied “as a means to an end.” Jobson v.

Ashcroft, 326 F.3d 367, 373 (2d Cir.2003) (employing the same analysis to hold that a New York conviction for involuntary manslaughter was not a crime of violence under § 16(b)).

The Government argues that Leocal is not controlling here because the Leocal Court explained — in dictum — that it was not presented “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” since “DUI statutes such as Florida’s do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less.” Leocal, 125 S.Ct. at 384.

The Government points out that a violation of § 18.2-36, on the other hand, does require reckless disregard for human life. See Gallimore v. Commonwealth, 246 Va. 441, 436 S.E.2d 421, 424 (1993). However, it bears repeating that a reckless disregard for human life is distinguishable from a reckless disregard for whether force will need to be used. See Leocal, 125 S.Ct. at 383 n. 7.

Moreover, the conclusion of the Leocal Court that “[i]n no ‘ordinary or natural’ sense can it be said that a person risks having to ‘use’ physical force against another person in the course of operating a vehicle while intoxicated and causing injury,” id. at 383, strongly indicates that the result in Leocal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence. Thus, we conclude that Leocal is controlling here. III.

In sum, because the Board erred in holding that Petitioner’s § 18.2-36 conviction was for an aggravated felony, we grant the petition for review and remand to the Board for further proceedings consistent with this opinion. PETITION GRANTED AND REMANDED. We note that Leocal had not yet been decided when the Board issued its decision.