ALCANTAR

                                                             Interim Decision #3220




                         MATTER OF ALCANTAR

                           In Deportation Proceedings

                                     A 72101831
                                       -




                       Decided by Board May 25, 1994

(1) An offense meets the definition of a "crime of violence" under 

(a)
  (1988), for purposes of determining whether it is an "aggravated felony" as defined in
  section 101(a)(43) of the Immigration and Nationality Act, 

(a)(43)
  (Supp. IV 1992), if the offense has as an element the use, attempted use, or threatened
  use of physical force against the person or property of another.
(2) An offense meets the definition of a "crime of violence" under 

(b), for
  purposes of determining whether it is an "aggravated felony" under section 101(a)(43)
  of the Act, if the offense is a felony and if the "nature of the crime —as elucidated by
  the generic elements of the offense—is such that its commission would ordinarily
  present a risk that physical force would be used against the person or property of
  another" irrespective of whether the risk develops or harm actually occurs.
(3) The respondent's conviction for involuntary manslaughter under Ill. Rev. Stat. ch.
  38, para. 9-3(a) (1992), for which he was sentenced to 10 years in prison, constituted a
  "crime of violence" under 

(b), and an "aggravated felony" as defined
  in section 101(a)(43) of the Act.

CHARGE:
Order. Act of 1952—Sec. 241(a)(1)(B) [

(a)(1)(B)]—Entered without
                    inspection
                     Sec. 241(a)(2)(A)(iii) [

 (a)(2)(A)(iii)l—Convicted of
                       aggravated felony
ON BEHALF OF RESPONDENT:                              ON BEHALF OF SERVICE:
 Pro se                                                Sheila M. Entenman
                                                       General Attorney

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members



   In a decision rendered on September 20, 1993, the immigration
judge found the respondent deportable under section 241(a)(1)(B) of
the Immigration and Nationality Act, 

(a)(1)(B) (Supp.
IV 1992), for entry without inspection, and ordered him deported to
Mexico. The immigration judge also determined that the respondent
was not deportable under section 241(a)(2)(A)(iii) of the Act for

                                           801
Interim Decision #3220

conviction of an "aggravated felony," and it is this determination
which the Immigration and Naturalization Service has challenged in
its appeal) The appeal will be sustained, and a new order of
deportation will be entered. The Service's request for oral argument
before this Board was withdrawn by Appellate Counsel for the Service.
    The Service's charge of deportability under section 241(a)(2)(A)(iii)
of the Act is based on the respondent's June 18, 1992, conviction in
the Circuit Court of Cook County, Chicago, Illinois, for involuntary
manslaughter committed on June 25, 1991. The respondent had been
charged with first degree murder on the grounds that he "without
lawful justification intentionally and knowingly struck Karla Alcantar
Lemus with his fists and killed her," but he pleaded guilty to, and was
convicted of, involuntary manslaughter. The respondent was sentenced to 10 years in prison. The Service contends that this conviction
is a "crime of violence," and therefore an "aggravated felony" within
the meaning of section 101(a)(43) of the Act, 

(a)(43)
(Supp. IV 1992).
           CRIME OF VIOLENCE UNDER 

    Section 101(a)(43) of the Act provides as follows:
   The term "aggravated felony" means murder, any illicit trafficking in any controlled
   substance (as defined in section 102 of the Controlled Substances Act), including any
   drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code,
   or any illicit trafficking in any firearms or destructive devices as defined in section
   921 of such title, any offense described in section 1956 of title 18, United States
   Code (relating to laundering of monetary instruments), or any crime of violence (as
   defined in section 16 of title 18, United States Code, not including a purely political
   offense) for which the term of imprisonment imposed (regardless of any suspension of
   such imprisonment) is at least 5 years, or any   attempt or conspiracy to commit any
   such act. Such term applies to offenses described in the previous sentence whether in
   violation of Federal or State law and also applies to offenses described in the
   previous sentence in violation of foreign law for which the term of imprisonment was
   completed within the previous IS years.

Section 101(a)(43) of the Act (emphasis added). The inclusion of
"crimes of violence" in the definition of an "aggravated felony" was
accomplished by section 501 of the Immigration Act of 1990 and
applies to offenses committed on or after November 29, 1990. See
section 501 of the Immigration Act of 1990, 

   1 The respondent did not request relief from deportation and, of course, is as
deportable under one charge as under two. Nevertheless, we will address the Service's
appeal because a finding of deportability based on conviction of an aggravated felony
carries its own additional liabilities and, therefore, is not mere surplusage. See, e.g.,
section 212(a)(6)(B) of the Act, 

 82(a)(6)(B) (Supp. IV 1992) (extending
requirement of consent to reapply after removal from United States to within 20 years of
removal in the case of an alien convicted of an aggravated felony).

                                          802
                                                                   Interim Decision #

, 5048 (effective Nov. 29, 1990), as corrected by section
306(a)(1) of the Miscellaneous and Technical Immigration and
Naturalization Amendments of 1991, 

 Stat.
1733, 1751 (enacted Dec. 12, 1991).
  The respondent's offense was committed on June 25, 1991,
subsequent to the November 29, 1990, effective date for considering
crimes of violence as aggravated felonies. See section 501(b) of the
Immigration Act of 1990, 10 4 Stat. at 5048. There is no suggestion
                                           -


that the offense was "purely political." In addition, the respondent was
sentenced to 10 years' imprisonment for his conviction and, therefore,
the 5 year sentence prerequisite in section 101(a)(43) of the Act has
          -


been satisfied. The only issue is whether the respondent's conviction
for involuntary manslaughter falls within the definition of "crime of
violence" found at 

 (1988).
   The term "crime of violence" is defined in 

 as
       (a) an offense that has as an element the use, attempted use, or threatened use of
       physical force against the person or property of another, or
       (b) any other offense that is a Moray 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.
       The respondent was convicted of involuntary manslaughter under
the following provision:
       A person who unintentionally kills an individual without lawful justification
       commits involuntary manslaughter if his acts whether lawful or unlawful which cause
       the death are such as are likely to cause death or great bodily harm to some
       individual, and he performs them recklessly, except in cases in which the cause of the
       death consists of the driving of a motor vehicle, in which case the person commits
       reckless homicide.
Ill.Rev. Stat. ch. 38, para_ 9-3(a) (1992). Conviction under this
provision is designated as a class 3 felony. 

 at para. 9-3(d).
   Without citing any authority, the immigration judge found that
"intent is crucial to finding that a conviction constitutes a crime of
violence for purposes of 

." As the provision
under which the respondent was convicted is based on unintentional
killing, the immigration judge concluded that the respondent was not
convicted of a crime of violence within 

, and,
consequently, was not convicted of an aggravated felony under section
101(a)(43) of the Act.
                      RELATED PROVISIONS
   Although relatively new to the Immigration and Nationality Act, the
term "crime of violence" as defined at 

 is used in many
places in the United States Code and has a history of interpretation in
the courts upon which we can draw in applying the term for purposes

                                                803
Interim Decision #3220

 of section 101(a)(43) of the Act. First, 

 serves as the
general definition of a "crime of violence" for title 18, see United
States v. Aragon, 

 (4th Cir. 1993), which includes
numerous references to the term. See 

(a)(1) (1988)
(possession of restricted ammunition in commission of crime of
violence); 

(a)(2) (1988 & Supp. IV 1992) (use of
interstate travel, commerce, or mail with intent to commit a crime of
violence); 

(a)(4) (1988) (threat, attempt, or conspiracy to commit crime of violence in aid of racketeering activity); 

(a)(1) (1988) (witness relocation and protection where
crime of violence is directed at witness); 

 (1988 &
Supp. IV 1992) (juvenile delinquency proceedings and transfer for
criminal prosecution); 

 (1988) (preparation and use
of juvenile records where act committed, if it had been committed by
an adult, would be felony and crime of violence); cf. 

(b) (1988) (use of ballistic knife in commission of crime of
violence); 20 U.S.C. § 1232g(b)(6) (Supp. II 1990) (release of postsecondary institution's disciplinary proceedings against alleged perpetrator of crime of violence); 

(b) (Supp. IV 1992)
(Indian child protection); 

(h), (i), (j) (1988) (duties of
United States Sentencing Commission); 40 U.S.C. § 212a (Supp. IV
1992) (arrests by Capitol Police for crimes of violence).
   In addition, separate definitions of the term "crime of violence"
which are virtually identical to that at 

 are found at 

(c)(3) and 3156(a)(4) (1988). And, 

 itself
was previously used at 

(c) and at section 4B1.2 of the
United States Sentencing Guidelines prior to the November 1, 1989,
amendments to section 4B1.2. See 18 U.S.C_A_ app. 4, § 4B1.2 (West
Supp. 1994) ("Sentencing Guidelines"). We will briefly look at each of
these sections.
   Under 

, increased liability is authorized for various
offenses, including any "crime of violence," which is defined, for
purposes of § 924 as
  an offense that is a felony and—
     (A) has as an element the use, attempted use, or threatened use of physical force
  against the person or property of another, or
     (B) 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.

(c)(3); see also 

(c)(1) (increasing
liability for "drug trafficking crimes" and "crimes of violence"
committed with the use of or while carrying a firearm), (d)(3), (g)(4),
and (h) (1988 & Supp. IV 1992). "Crime of violence" for purposes of

(c) was previously defined by reference to 18 U.S.C.

                                         804
                                                                Interim Decision #3220

§ 16. See United States v. Diaz, 

 (2d Cir. 1985), cert.
denied, 

 (1988). The definition at 

(c)(3)
was added in 1986 and, subsequently, courts have found the analysis
under 

(c)(3) and 18 U.S.0 § 16 to be the same. See
United States v. Clark, 

 (M.D. Ga. 1991) (applying
analysis of 

 to § 924(c)(3)).
   "Crime of violence" is defined at 

(aX4) for
purposes of the Bail Reform Act as follows:
  [TJhe term "crime of violence" means—
       (A)an offense that has as an element of the offense 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.
See also 

 (1988 & Supp. IV 1992) (indicating effect
of "crime of violence" in determining pretrial detention), 3143 (1988
& Supp. IV 1992) (concerning detention pending sentence or appeal).
As with 

 and 924(c)(3), courts have equated 1R U.S.C.
§§ 16 and 3156(a)(4). See, e.g., United States v. Sloan, 

 (S.D. Ind. 1993); United States v. Marzullo, 

 (W.D. Mo. 1991) ("[I]t is reasonable to conclude that Congress, in
choosing to use the same language in enacting 

 and 

 and choosing to enact them as part of the same bill on
the same day, intended that both sections would mean the same
thing."); cf. United States v. Patin, 

 (2d Cir.) (finding
analysis of "crime of violence" at 

(a)(4) "dispositive"
of analysis under 

(c)(3)), cert. denied, 

(1992).
   Prior to the November 1, 1989, amendments to section 4B1.2 of the
Sentencing Guidelines and its application notes, the term "crime of
violence" was defined by incorporating the definition at 

, just as is currently done in section 101(a)(43) of the Immigration
and Nationality Act. United States v. Wilson, 

, 587-88 &
n.2 (4th Cir. 1991), cert. denied, 

, (1992).2
  2 Use of the term "crime of violence" under the Sentencing Guidelines arises perhaps
most commonly in section 4B1.1 which provides sentence enhancements for any
defendant who qualifies as a "career offender." Under this provision, a defendant is a
career offender if
     (1) the defendant was at least eighteen years old at the time of the instant offense,
  (2) the instant offense of conviction is a felony that is either a crime of violence or a
  controlled substance offense, and (3) the defendant has at least two prior felony
  convictions of either a crime of violence or a controlled substance offense.

Sentencing Guidelines, § 4B1.1 (emphasis added). The term also operates for purposes

                                             805
Interim Decision #3220


The 1989 amendments dropped reference to 

, eliminated from coverage offenses that involve force only against property,
enumerated certain offenses as qualifying as crimes of violence, and
dropped the words "by its nature" in the second part of the definition.
See 

 As such, with respect to cases interpreting section 4B1.2 prior
to the November 1989 amendments, the same "crime of violence"
definition that was being interpreted in those cases is the one
applicable here, with the caveat that the application notes to section
4B1.2 play an additional role in the interpretation of section 4B1.2 as
is discussed, infra, at pages 15-18.3
of sections 2E1.2, 2K1.3, 2K2.1, 21.1.2, 3D1.1, 4A1.1, 4A1.2, 4B1.4, and 7B1.1 of the
Sentencing Guidelines.
  3 Section 4B1.2(1) of the Sentencing Guidelines now reads as follows:
     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 as 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.

This amended definition was derived from the definition of the term "violent felony" at

(e)(2)(B):
    Mhe term "violent felony" means any crime punishable by imprisonment for a
 term exceeding one year, or any act of juvenile delinquency involving the use or
  carrying of a firearm, knife, or destructive device that would be punishable by
 imprisonment for such term if committed by an adult, that-
       (i) has as an element the use, attempted use, or threatened use of physical force
    against the person of another; or
       (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
    involves conduct that presents a serious potential risk of physical injury to another
    .... 

(e)(2)(B) (1988 & Supp. IV 1992). Thus, while these two
    definitions retain classes similar to the definition at 18 U.S.0 § 16, see United
    States v. 

 at 588 n.2, and are useful in interpreting § 16, they do
    differ, and the extent of any permissible analogy between § 16 and the current
    definitions of a "crime of violence" at section 4B1.2(1) of the Sentencing
    Guidelines, or of "violent felony" at 

(e)(2)(B), must be careful to
    reflect these differences. See generally Infra, pages 12 15 (appropriateness of
                                                                 -


    consideration of facts underlying conviction under part two of the varying
    definitions); United States v. 

 at 588 n.2 (noting that definition of
    "crime of violence" at section 4B1.2(1) of the Sentencing Guidelines, as amended in
    1989, and definition of "violent felony" at 

(e)(2)(B) do not
    encompass offenses that involve force only against property); United States v. 

 at 1139 & n.8 (noting that 18 U.S.0 §§ 16 and 3156(a)(4) include both
    felonies and misdemeanors under part one of their definitions, but that section
    4B1.2(1) of the Sentencing Guidelines, as amended in 1989, and 

(e)(2)(B) include only felonies under part one; also, equating definitions of
    "crime of violence" found at 

 and 3156(a)(4) and distinguishing
    them from the amended (post-November 1, 1989) definition of "crime of violence"

                                           806
                                                             Interim Decision #3220

   Consequently, our analysis of the term "crime of violence" is
preceded by a history of interpretation of the same term for other
purposes in the United States Code. 4 As such, in some cases the
question whether a conviction under a particular statutory provision is
a "crime of violence" will have been answered using the same term in
another context and may be persuasive or even binding on us. 5
                                                                                         Furthemo,wnaterm"gvdflonyhasrec
beyond immigration law and therefore consideration of the specific
question of whether the term "crime of violence" constitutes an
"aggravated felony" will also be found outside immigration proceed-

      at section 4B1.2(1) of the Sentencing Guidelines and from the definition of "violent
      felony" at 

(e)).
   4 1t should be noted that two additional but very different definitions of "crime of
violence" have also originated in the United States Code. One appears at 

(c) (1988) with respect to rehabilitation of narcotics addicts, and a second
appeared at 

(b) (1988), which also concerned narcotics addicts. The
provision at 

(b) was repealed effective November 1, 1987, but
remained applicable for 5 years to individuals wno committed an Off lbC or act of
juvenile delinquency prior to November I, 1987. 

tit. 11, § 218(a)(6),

, 2031 (1984).
   5 See, e.g., United States v. Reyes-Castro, 

 (10th Cir. 1993) (stating that
rape and attempted sexual abuse of a child constitute crimes of violence under 

(b) for purposes of determining "aggravated felony"); United States v. 

(finding attempt to rescue or assist a prisoner to escape to be a crime of violence under
 

(b) for purposes of 

); United States v. 

(stating that kidnapping is a crime of violence under 

(c)(3)(A);
conspiracy to commit kidnapping qualifies as a crime of violence under 18 U.S.0
§ 924(c)(3)(B)); United States v. 

 (robbery held to be a crime of violence
under 

(a) as incorporated at section 4131.2 of the Sentencing Guidelines
prior to the November 1989 amendments); Untied States v. Gonzalez Lopez, 911 F.2d
                                                                        -


542 (11th Cir_ 1990), cert. denied, 

 (1991) robbery held to be a crime of
violence under 

(a) and under § 16(b) for purposes of section 4B1.2 of the
Sentencing Guidelines prior to the November 1989 amendments; residential burglary
also found to be a crime of violence under 

(b)); United States V. CrUZ, 

 (5th Cir. 1989) (finding that burglary of a habitation under Texas Penal Code
§ 30.02 qualified, without reference to whether violence actually occurred, as a crime of
violence under section 4B1.2 of the Sentencing Guidelines prior to the November 1989
amendments); United States v. 

 (finding that narcotics offenses do not
constitute crimes of violence under 

 for purposes of 

(c));
United States v. 

 (arson is a crime of violence against both person and
property under 18 U.S.0 §§ 3156(a)(4)(A) and (B)); United States v. 

(concluding tbat—in contrast to extortion induced by wrongful use of actual or
threatened force, violence, or fear—crime of extortion under color of official right as
defined in 

(a) and (b)(2) is not a crime of violence under 

(c)(3)); United States v. Saunders, 

 (E.D. Va. 1990) (finding that
rape, armed robbery, felonious assault, and unlawful wounding are crimes of violence
under 

 for purposes of section 481.2 of the Sentencing Guidelines prior
to the November 1989 amendments), of d, 

 (4th Cir. 1991), cert. denied,
uS_ , 112 S_ Ct. 1199 (1992).
                                          on-,
Interim Decision #3220

ings. See, e.g., United States v. Frias-Trujillo, 

 (10th Cir.
1993) (defendant's crime constituted a "crime of violence" and
therefore an "aggravated felony," thereby warranting 16 level increase
under section 2L1.2(b)(2) of the Sentencing Guidelines); United States
v. Rodriguez, 

 (8th Cir. 1992) (same).
                   UNITED STATES V. SPRINGFIELD
   With this context in mind, we find that an issue similar to the one
before us was addressed by the United States Court of Appeals for the
Ninth Circuit in United States v. Springfield, 

 (9th Cir.
1987). In Springfield, the court was required to decide whether a
federal conviction for involuntary manslaughter constituted a "crime
of violence" under 

(c)(3), which, as noted above,
defines the term "crime of violence" by the same elements as it is
defined at 

.
   Contrary to the opinion of the immigration judge in the present case
that specific intent was required to find a crime of violence, the court
in Springfield noted the following;
  The legislative history indicates that Congress did not intend to limit "crimes of
  violence" to crimes of specific intent: "Since no culpability level is prescribed in this
  section. the applicable state of mind that must be shown is, at a minimum, 'reckless,'
  i.e., that the defendant was conscious of but disregarded the substantial risk that the
  circumstances existed."
United States v. 

 at 863 n.1 (citing S. Rep. No. 307,
97th Cong., 1st Sess. 890-91 (1982)).
  The involuntary manslaughter provision at issue in Springfield was
defined as "the unlawful killing of a human being without malice .
[i]n the commission of an unlawful act not amounting to a felony, or in
the commission in an unlawful manner, or without due caution or
circumspection, of a lawful act which might produce death." 

 (1988); see United States v. 

. As to the
first part of the definition of a "crime of violence" under 

(c)(3), the court in Springfield found that "[t]he 'use, attempted
use, or threatened use of physical force' is not an element in the crime
of involuntary manslaughter." United States v. 

. The court then explained that the second part of the definition of
"crime of violence" at § 924(c)(3) "covers crimes such as robbery that
do not have as an element the use of physical force but 'by their nature'
create a situation in which it is likely that the criminal may resort to
physical force to accomplish the criminal end." Id. at 863 (citing S.
Rep. No. 225, 98th Cong., 2d Sass. 307, reprinted in 1984
U.S.C.C.A.N. 3182, 3486-87). As to this second part of the definition,
the court found that li]nvoluntary manslaughter does, in the sense
intended in the statute, carry with it the 'risk' of physical force." Id.
                                          808
                                                            Interim Decision #3220

The court rejected the defendant's contention that the definition of a
"crime of violence" was limited to crimes that are anticipated and
intended, and it concluded that "involuntary manslaughter, which 'by
its nature' involves the death of another person, is highly likely to be
the result of violence. It thus comes within the intent, if not the precise
wording, of section 924(c)(3)." Id The court summed up with the
following statement: "Our analysis of involuntary manslaughter in
terms of the likelihood of the occurrence of violence reconciles the
words of the statute and the legislative intent to include non-intent
crimes." Id. at 863 n.1.
   We will follow the reasoning in Springfield. As noted, 

(c)(3), at issue in Springfield, defines a "crime of violence" by
the same elements as it is defined at 

, and the analysis
under each section has been held to be analogous. See United States v.

. Like the federal provision in Springfield,
involuntary manslaughter under paragraph 9-3(a) of the Illinois law
does not have as an element the "use, attempted use, or threatened use
of physical force" as required under 

(a). See, e.g.,
United States v. 

 (stating that first part of the
definition of a crime of violence examines elements of criminal statute
or provision and forbids any factual inquiry); United States v. 

 (same). Thus, if the respondent's offense is to qualify
as a crime of violence it must do so under the second part of the
definition, part (b) of § 16.
                 THE CATEGORICAL APPROACH
   The approach used in Springfield under the second part of the
definition of a "crime of violence," which is sometimes referred to by
courts as the "catchall" provision, is a generic or categorical approach.
That is, the catchall provision of the definition of a "crime of
violence" at issue in Springfield and, by analogy, at issue here, focuses
on the offense's inherent potential for risk of physical force as opposed
to the actual harm caused. As expressed in United States v. Gonzalez-Lopez, 

 (11th Cir. 1990), cert. denied, 

,
(1991):
  Section 16(b) contemplates a generic category of offenses which typically present the
  risk of injury to a person or property irrespective of whether the risk develops or
  harm actually occurs. Offenses within the scope of section 16(b) have as a commonly
  shared characteristic the potential of resulting in harm. Once the court determines
  that the defendant has been convicted of a crime that usually involves a risk of harm,
  the inquiry ends; it does not matter whether that risk has matured into actual harm.
Id. at 547 (interpreting 

(b) for purposes of section 4B1.2
of the Sentencing Guidelines prior to the November 1989 amendments).
                                         809
Interim Decision #3220

   There is a history of dispute in cases interpreting the various
definitions of a "crime of violence" concerning whether the inquiry
under part two of the definition can or should go beyond the
"categorical" or "generic" form of the crime to the "particularized"
consideration of underlying facts of the conviction. However, as the
following discussion addresses, this dispute originates mainly from the
commentary to Sentencing Guidelines and from interpretations of
the November 1, 1989, amended "crime of violence" definition in the
Sentencing Guidelines. We find the particularized approach to be
inapposite to the definition at 

.
   Prior to November 1, 1989, when the term "crime of violence" was
still defined for purposes of the Sentencing Guidelines at section 4B1.2
by simple incorporation of the definition at 

, the
commentary to section 4B 1.2 read in part as follows:
  Other offenses are covered only if the conduct for which the defendant was specifically
  convicted meets the above definition. For example, conviction for an escape
  accomplished by force or threat of injury would be covered; conviction for an escape
  by stealth would not be covered. Conviction for burglary of a dwelling would be
  covered; conviction for burglary of other structures would not be covered.
Sentencing Guidelines, § 4B1.2, application note 1 (1988). Some
courts read this language as allowing inquiry to reach beyond the
elements of the crime to the specific conduct or underlying facts of the
conviction. See, e.g., United States v. Goodman, 

 (5th Cir.
 1990) (defendant's admission that he was returning to the scene of a
scuffle armed with a rifle was considered in finding that possession of
a firearm by a convicted felon was crime of violence), abrogated by
United States v. Fitzhugh, 

 (5th Cir. 1992), cert. denied,

 (1993); United States v. McNeal, 

 (7th
Cir. 1990) (evidence that gun had been fired considered in finding that
felon in possession of firearm is crime of violence); United States v.
Williams, 

 (3d Cir. 1989) (finding that possession of
gun while firing it is crime of violence, but mere possession is not),
cert. denied, 

 (1990). However, in addition to the fact that
it no longer exists in the above-quoted form, this application note had
no direct application to the interpretation of 

 for
purposes other than the Sentencing Guidelines and, as such, would not
apply to 

 for purposes of section 101(a)(43) of the Act.
   The November 1, 1989, amendments to section 4B1.2 of the
Sentencing Guidelines and to its commentary substituted a definition
of a "crime of violence" which dropped the words "by its nature" from
the text, see supra note 3, but continued them in the commentary. In
addition, the commentary clarified its reference to "conduct" by
including "conduct set forth in the count of which the defendant was
convicted [which] involved use of explosives or, by its nature,

                                         810
                                                  Interim Decision #3220

presented a serious potential risk of physical injury to another."
Sentencing Guidelines, § 4B1 .2, application note 2 (1990) (emphasis
added). The 1991 amendments to the commentary further refined the
reference to "conduct" by adding the words "expressly charged" to
application note 2 to state that "the conduct set forth (i.e., expressly
charged) in the count ... presented a serious risk of physical injury."
Sentencing Guidelines, § 4B 1.2, application note 2 (1992).
   Even with the 1989 and 1991 amendments, controversy over
whether particularized conduct may be considered in determining a
 "crime of violence" under the Sentencing Guidelines has continued.
 Compare United States v. Willson, supra, at 589 90 & n.6 (finding
                                                     -


 categorical approach appropriate under both parts of the amended
"crime of violence" definition at section 4B1.2(1) of the Sentencing
Guidelines, but recognizing that some circuits have permitted particularized inquiry under the second part of the definition) with United
States v. 

 (finding that 1989 and 1991 amendments to
section 4B1.2 clarify that sentencing court, in determining "crime of
violence" based on risk of physical injury, may consider conduct
expressly charged in the count of which the defendant was convicted,
but not any other conduct that might be associated with the offense)
and United States v. Chapple, 

 (7th Cir. 1991) (decided
prior to 1991 amendment, citing commentary as authority to consider
underlying facts; policy questioned in dissent) and United States v.
 Wright, 

 (8th Cir.) (subsequent to 1991 amendment
continuing to allow examination of the facts underlying a conviction
when deciding whether an offense involves conduct that presents a
serious risk of physical injury under part two• of the amended
definition at section 4131.2(1)), cert. denied, 

 (1992). See
generally United States v. Sm ith, 

 (10th Cir. 1993)
(noting continuing disagreement among courts in analyzing catchall
clause of section 4B1.2(1)).
   We find inapposite those cases interpreting the amended definition
of a "crime of violence" in the Sentencing Guidelines to include
consideration of the particular conduct underlying the conviction. The
language of 

 directs us to examine the "nature" of the
offense, and the language under section 4B1.2(1) of the Sentencing
Guidelines and its comment ary, which drives the inquiry under part
two of the defmition from the general to the specific, from the nature
of the crime to the specific conduct of the offense, is not controlling.
United States v. 

 (finding categorical approach
required under 18 U.S.C. § L6(b); noting that commentary to Sentencing Guidelines led to dispute among courts over whether factual
analysis of the actual conduct was permitted under catchall provision,
and distinguishing that dispute from the analysis of 18 § 16 on

                                   811
Interim Decision #3220

its own terms); United States v. 

 at 662-63 n.8 (analysis
of conduct under Sentencing Guidelines defmition of "crime of
violence" deemed inapposite to definition of "crime of violence" at 18
         § 3156, which parallels that at 

).
   Moreover, in facing a choice between the particularized and the
categorical approach for purposes of the definition of a "violent
felony" at 

(e)(2)(B), from which the amended defmition at section 4B1.2(1) of the Sentencing Guidelines was derived, the
United States Supreme Court clearly chose the categorical approach
and forbade any inquiry into the particular facts underlying the
conviction. Taylor v. United States, 

 (1990) ("We
think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like
the zest of the enhancement statute, it generally requires the trial court
to look only to the fact of conviction and the statutory definition of the
prior offense. This categorical approach, however, may permit the
sentencing court to go beyond the mere fact of conviction in a narrow
range of cases where a jury was actually required to find all the
elements of generic burglary."); see also United States v. Reyes-Castro,

 (10th Cir. 1993) (citing Taylor in adopting the
categorical approach to 

(b) in determining if crime is
"aggravated felony" for deportation purposes); United States v.

 at 589 90 (referring to Taylor in adopting the categori-
                      -


cal approach to part two of the amended Sentencing 'Guidelines'
definition of "crime of violence"); United States v. Becker, 

 (9th Cir. 1990) (citing Taylor in adopting the categorical
approach to 

(b) for purposes of section 4B1.2 of the
Sentencing Guidelines prior to the November 1989 amendments), cert.
denied, 

 (1991); United States v. 

 at 1535 &
n.4 (finding the Taylor test for "violent felony" to be "analogous" to
determination of "crime of violence" under 

 and
924(c)(3)); cf. United States v. Headspeth, 

 (4th Cir. 1988)
(applying law of lenity to limit the catchall clause of definition of
"violent felony" to offenses which pose by their very nature a serious
potential risk of injury, even though definition does not contain the
 by its nature" language of 

(b)), abrogated on other
grounds by Taylor v. United States, supra.
   Therefore, we apply the generic or categorical approach to 

(b). That is, analysis under 

(b) requires first that
the offense be a felony; and, if it is, that the "nature of the crime—as
elucidated by the generic elements of the offense is such that its
                                                       —


commission would ordinarily present a risk that physical force would
be used against the person or property of another" irrespective of
whether the risk develops or harm actually occurs. United States v.

; see also United States v. 

                                   812
                                                  Interim Decision #3220

at 379 ("substantial risk that physical force may be used .... It does
not matter whether physical force is actually used."); United States v.

 ("crime that 'by its nature' creates a substantial
risk of the possible use of physical force"); United States v. 

 ("generic category of offenses which typically present the
risk of injury to a person or property irrespective of whether the risk
develops or harm actually occurs"); United States v. 

United States v. Cruz, 805 F.Z d 1464 (11th Cir. 1986), cert. denied, 

 (1987), cert. denied sub nom. United States v. Thomas, 

 (1987). While the categorical approach to 

(b)
might occasionally include consideration of the charging papers or jury
instructions in order to identify the "offense," an issue we need not
address here, it does not extend to consideration of the underlying
facts of the conviction. CI Taylor v. United States, supra, at 602;
United States v. 

 at 1535 n.4.
                          APPLICATION
   The respondent's offense under paragraph 9-3(a) of the Illinois law
satisfies the first element of L 

(b) in that it is a felony.
Rev. Stat. ch. 38, para. 9-3(d) (1992); 

 (1988)
(defining felony under federal criminal law as any offense where the
maximum term of imprisonment authorized exceeds 1 year).
   Like 

{c)(3), which was at issue in Springfield, 

(b) does not re quire specific intent to do violence. It
includes at a minimum reckless behavior which, "by its nature,"
involves a substantial risk of physical force against the person or
property of another. United States v. 

 at 863 n. 1.
   Similar to involuntary manslaughter under the federal statute at
issue in Springfield, the Illinois provision necessarily involves the
death of another person, is Highly likely to be the result of violence,
and carries with it, within the sense intended in 

(b), the
substantial risk of physical force against another person. United States
v. 

 cf. United States v. Lykes, 

, 1146
n.1 (7th Cir. 1993) (presuming that state law conviction for involuntary manslaughter was crime of violence); United States v. Leeper, 

 (8th Cir. 1992) (fm_ding manslaughter to be crime of violence
under sections 481.1 and 4B1.2(1) of the amended Sentencing
Guidelines); United States v. O'Neal, 

 (9th Cir. 1991)
(following Springfield in determining that California conviction for
vehicular manslaughter constituted violent felony), abrogated on other
grounds by United States v. Sahakian, 

 (9th Cir. 1992).
   Accordingly, we find that the respondent's conviction for involuntary manslaughter under Illinois law is a crime of violence within the
meaning of 

, and, correspondingly, an aggravated
                                   813
Interim Decision #3220

felony under section 101(a)(43) of the Act. The charge of deportability
based on the respondent's conviction for an aggravated felony is
sustained.
   ORDER:         The appeal of the Immigration and Naturalization
Service is sustained.
   FURTHER ORDER:              The respondent shall be deported from
the United States to Mexico pursuant to sections 241(a)(2)(B) and
241(a)(2)(A)(iii) of the Immigration and Nationality Act.




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