PUENTE

Interim Decision #3412




             In re Arturo PUENTE-Salazar, Respondent

                           File A36 582 517 - Huntsville

                            Decided September 29, 1999

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


     A conviction for the crime of driving while intoxicated under section 49.04 of the Texas
Penal Code, which is a felony as a result of an enhanced punishment, is a conviction for a
crime of violence and therefore an aggravated felony under section 101(a)(43)(F) of the
Immigration and Nationality Act, 

(a)(43)(F) (Supp. II 1996).

Todd Keller, Esquire, Huntsville, Texas, for respondent

Lisa Brodyaga, Esquire, Harlingen, Texas, for amicus curiae

Richard S. Fischer, Esquire, Nacogdoches, Texas, for amicus curiae

Barbara Hines, Esquire, Austin, Texas, for amicus curiae

Mary A. Kenney, Esquire, San Antonio, Texas, for amicus curiae

Donald W. Cassidy, Deputy District Counsel, for the Immigration and Naturalization Service

Before:   Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; SCIALABBA,
          Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU,
          COLE, MATHON, GUENDELSBERGER, JONES, and MOSCATO, Board
          Members. Concurring Opinion: GRANT, Board Member, joined by FILPPU,
          Board Member. Dissenting Opinion: ROSENBERG, Board Member.

JONES, Board Member:

    The respondent timely appeals the Immigration Judge’s decision finding him removable under section 237(a)(2)(A)(iii) of the Immigration and
Nationality Act, 

(a)(2)(A)(iii) (Supp. II 1996), as a result of
his conviction for an aggravated felony. The respondent’s request for oral
argument was granted and oral argument was held on November 3, 1998.
Several briefs were filed on behalf of the respondent. An amicus brief also
was filed in support of the respondent’s position by counsel for the
Lawyers’ Committee for Civil Rights Under Law of Texas, American

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Immigration Lawyers Association, Refugio Del Rio Grande, and the
National Immigration Project of the National Lawyers Guild. The
Immigration and Naturalization Service promptly responded to all of the
briefs submitted. We have considered all of the briefs submitted.1 The
appeal will be dismissed.


                                    I. BACKGROUND

     The respondent, a native and citizen of Mexico, entered the United
States as a lawful permanent resident on February 25, 1979. On October 31,
1997, the respondent was convicted in the 64th District Court of Hale
County, Texas, of the offense of driving while intoxicated (“DWI”) and was
sentenced to confinement for a period of 5 years. The respondent was
placed in removal proceedings by the Service on March 11, 1998. At the
merits hearing before the Immigration Judge, the respondent denied all of
the allegations on the Notice to Appear (Form I-862) and denied the charge
of removability. The Immigration Judge determined that the record of conviction presented by the Service supported the allegation regarding the
respondent’s DWI conviction and sentence to confinement of 5 years.
Further, the Immigration Judge found that, based on this evidence, the
respondent had been convicted of an aggravated felony as charged by the
Service. Finally, the Immigration Judge concluded that even though the
respondent was a lawful permanent resident, he was statutorily ineligible
for any form of relief as a result of his aggravated felony conviction. The
respondent was ordered removed from the United States to Mexico.


                                II. ISSUES PRESENTED

    Two issues are presented on appeal. The first is whether the respondent’s conviction under the Texas DWI statute is a conviction for a crime of
violence, and thus an aggravated felony. The second is whether the Board’s
precedent decision, Matter of Magallanes, Interim Decision 3341 (BIA
1998), controls with respect to a Texas DWI conviction.


                 III. RESPONDENT’S POSITION ON APPEAL

     The respondent argues that the Texas DWI statute encompasses con-

      1
       After considering the timeliness of each brief and the Service’s objection to the post-hearing brief submitted on behalf of the respondent, we find that all parties have had ample opportunity to respond to the arguments presented. We will consider all of the briefs submitted.

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duct that is less than that required for an “aggravated felony” under the
Arizona law reviewed in Matter of Magallanes, supra. He points out that
the Texas DWI statute requires only the operation, but not necessarily the
driving, of a motor vehicle. The respondent claims that the Texas law should
be treated as a divisible statute, as it is too broad to support a crime of violence in all instances. The respondent contends that because we did not
address the phrase, “or be in actual physical control of any vehicle,” that is
part of the Arizona statute considered in Matter of Magallanes, that decision should not apply to Texas DWI convictions. He alleges further that, in
Magallanes, we misread the language in Matter of Alcantar, 

 (BIA 1994), and other case law, in defining what we believe to be “substantial risk.” According to the respondent, we have equated “potential of
resulting in harm” and “serious risk of physical injury” with “substantial
risk.” He also asserts that the DWI offense under Texas law does not always
satisfy the test for a crime of violence set forth in 

(b) (1994).
     The respondent argues further that, for purposes of 

(b),
it must be established that the force that “may be used in the course of committing the offense” is accompanied by a specific intent to use such force.
He maintains that a DWI conviction under Texas law does not require specific intent and therefore does not satisfy the test set forth in § 16(b).
     Finally, the respondent argues that, under Texas law, there is a different,
additional provision that renders DWI an aggravated offense, namely, a
deadly weapon finding on a DWI conviction, where the potential for violence must be proved. See 

(17) (West 1997).
He argues that a vehicle is not per se a deadly weapon, as it was not
designed to cause death or serious bodily injury.


                 IV. SERVICE’S POSITION ON APPEAL

     The Service argues that the analysis set forth in our precedent decision
Matter of Magallanes, supra, applies to the Texas DWI statute at issue here,
which covers acts that amount to less than actual driving. According to the
Service, even though the Board did not address the fact that the respondent
in Magallanes may have been doing something less than actually driving,
the decision clearly stated that all the conduct described under the Arizona
statute constitutes a crime of violence within the meaning of the Act. The
Service also contends that, under Texas law, the punishable conduct of
“operating” a vehicle under the influence requires, at a minimum, that a
person take action that would affect the functioning of the vehicle in a manner that would enable the vehicle’s use. See Denton v. State, 

(Tex. Crim. App. 1995).
     Furthermore, the Service disagrees with the respondent’s conclusion
that because his conviction does not include an affirmative deadly weapon

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finding it is not a crime of violence. Finally, the Service supports the
Board’s conclusion in Magallanes that a DWI offense falls within the definition of a “crime of violence” found in 

(b), and that the
nature of the crime involves a substantial risk that physical force may be
used against the person or property of another during the commission of the
offense.


                      V. RESPONDENT’S CONVICTION

    On October 31, 1997, the respondent was convicted in the 64th
District Court of Hale County, Texas, of the offense of driving while
intoxicated (“DWI”) under section 49.04 of the Texas Penal Code
Annotated and was sentenced to confinement for a period of 5 years. The
respondent was sentenced under the enhanced offenses and penalties provision of section 49.09(b) of the Texas Penal Code Annotated, which renders a misdemeanor DWI offense a felony in the third degree. A DWI
offense under section 49.04 is enhanced to a third degree felony conviction only if the evidence demonstrates the elements necessary under section 49.09(b), which requires two prior convictions for operating a motor
vehicle, aircraft, or watercraft while intoxicated. These two statutory sections provide, in pertinent part, as follows:

Driving While Intoxicated
   (a) A person commits an offense if the person is intoxicated while operating a motor
  vehicle in a public place.

    (b) Except as provided by Subsection (c) and Section 49.09, an offense under this
  section is a Class B misdemeanor, with a minimum term of confinement of 72 hours.

    (c) If it is shown on the trial of an offense under this section that at the time of the
  offense the person operating the motor vehicle had an open container of alcohol in the
  person’s immediate possession, the offense is a Class B misdemeanor, with a minimum term of confinement of six days.

 (West 1997).

Enhanced Offenses and Penalties
    If it is shown on the trial of an offense under Section 49.04, 49.05, or 49.06 that the
  person has previously been convicted two times of an offense relating to the operating
  of a motor vehicle while intoxicated, an offense of operating an aircraft while intoxicated, or an offense of operating a watercraft while intoxicated, the offense is a felony
  of the third degree.

(b) (West 1997).

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    Section 12.34 of the Texas Penal Code Annotated defines the term of
imprisonment for an individual adjudged guilty of a third degree felony.
The provision states as follows:

Third Degree Felony Punishment
     (a) An individual adjudged guilty of a felony of the third degree shall be punished by
   imprisonment in the institutional division for any term of not more than 10 years or
   less than 2 years.
     b) In addition to imprisonment, an individual adjudged guilty of a felony of the third
   degree may be punished by a fine not to exceed $10,000.

 (West 1997).


                                      VI. ANALYSIS

     We note at the outset that the definition of an aggravated felony, as set
forth at section 101(a)(43) of the Act, 

(a)(43) (1994 &
Supp. II 1996), has been the subject of numerous amendments since its
introduction in 1988. The definition was most recently amended by section
321 of the Illegal Immigration Reform and Immigrant Responsibility Act of
1996, Division C of 

 Stat. 3009-546, 3009-628
(“IIRIRA”), which provides that the “amendments made by this section
shall apply to actions taken on or after the date of the enactment of this Act,
regardless of when the conviction occurred.” Inasmuch as our consideration of this appeal constitutes an “action,” the current definition applies. See
Matter of Batista-Hernandez, 

 (BIA 1997).

             A. Crimes of Violence As Defined in 

     Section 101(a)(43)(F) of the Act includes in the definition of an aggravated felony “a crime of violence (as defined in section 16 of title 18,
United States Code, but not including a purely political offense) for which
the term of imprisonment [is] at least 1 year.” See Matter of S-S-, 

 (BIA 1997).

The term “crime of violence” is defined at 

 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 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.

    The respondent and the Service agree that the Texas DWI statute, sec-
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tion 49.04 of the Texas Penal Code Annotated, does not include as an element the use, attempted use, or threatened use of physical force against the
person or property of another. Therefore, 

(a) is inapplicable
to this case. The remaining issue is whether the conviction satisfies the test
articulated at 

(b).

                        B. Application of 

(b)

      In determining whether an offense is a crime of violence under 

(b), we apply the “generic” or “categorical” approach. In other
words, analysis under this section 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 be 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 the harm actually occurs. See
Matter of Palacios, 

 (BIA 1998); Matter of Alcantar,
supra, at 812 (citing United States v. Marzullo, 

, 662-63
n.8 (W.D. Mo. 1991)); see also United States v. Jackson, 

 (9th
Cir. 1993); United States v. Sherman, 

 (9th Cir.), cert. denied,

 (1991). We need only consider the fact that the respondent
was convicted and the inherent nature of his offense in determining whether
a crime satisfies the test articulated at 

(b). See United States
v. Velazquez-Overa, 

 (5th Cir. 1996), cert. denied, 

 (1997). Applying the categorical approach in the instant case, we
find that a felony conviction under section 49.04 of the Texas Penal Code
Annotated is a conviction for a crime of violence as defined under 

(b).2
      We must determine whether “operating a motor vehicle while intoxicated” as defined by Texas case law is a crime of violence under 

(b) when the respondent has been convicted of a felony. The test is


      2
        We note that the term “crime of violence” has also been defined by the United States
Sentencing Guidelines at U.S.S.G. §§ 4B1.2(1)(i) and (ii). See 18 U.S.C.A. ch. 4, §§
4B1.2(1)(i), (ii) (West 1996). In United States v. Rutherford, 

 (7th Cir.), cert.
denied, 

 (1995), the court concluded that the offense of causing serious bodily
injury when driving while intoxicated does not have as an element the “use, attempted use, or
threatened use of physical force.” When making this statement, the court in Rutherford was
interpreting U.S.S.G. § 4B1.2(1)(i). The sentencing guidelines at § 4B1.2(1)(i) are very similar to the definition of a crime of violence under 

(a). The parties have agreed
that the Texas DWI statute does not fit the definition of a crime of violence under 

(a). In Rutherford, the court further analyzed the case under U.S.S.G. § 4B1.2(1)(ii),
which requires “conduct that presents a serious potential risk of physical injury,” and consequently differs from 

(b), which requires that a “substantial risk that physical
force . . . be used in the course of committing the offense.” The court did not analyze the case
under the standard defined in 

(b).

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whether the offense, by its nature, involves a substantial risk that physical
force may be used.
     The respondent does not contest that he was convicted under Texas law
of being intoxicated while operating a motor vehicle in a public place. He
also does not contest that he was sentenced under the enhancement paragraph of section 49.09(b) of the Texas Penal Code Annotated and therefore
was convicted of a felony. The question presented by the respondent is
whether merely operating a vehicle while intoxicated (which need not
entail driving it) creates a substantial risk of physical force under Texas law.
The respondent’s focus is on the words “substantial risk” rather than on
reading those words in conjunction with the nature of the action and
whether it may result in the use of physical force.
     We conclude that, under Texas law, the nature of the crime of operating
a motor vehicle while intoxicated may create a substantial risk that physical force will be applied. The plain meaning of the word “operate” connotes
an effort, or the doing of something by the operator. Texas case law defines
the action of operating a motor vehicle while intoxicated as the exertion of
personal effort to cause the vehicle to function, i.e., the defendant must take
action to affect functioning of a vehicle in a manner that enables the vehicle’s use. See Denton v. State, supra; Barton v. State, 

 (Tex.
App. 1994). This general definition under Texas law regarding driving
while intoxicated appears to conform to the analysis set forth in Matter of
Alcantar, supra, wherein we cited case law that interprets the term “substantial risk.”
     We do not agree with the respondent’s argument that, for purposes of

(b), it must be established that the force that “may be used in
the course of committing the offense” must be accompanied by a specific
intent to use such force.3 We have previously held that § 16(b) is not limited to crimes of specific intent, but includes at a minimum reckless behavior. See Matter of Alcantar, supra, at 813. Furthermore, we held in Matter
of Magallanes, supra, that drunk driving is an inherently reckless act.
     The respondent’s argument fails to acknowledge the significant contextual distinction between the term “use” in § 16(a) and the phrase “may be
used” in § 16(b). The focus in § 16(a) is on the statutory elements of the
offense, whereas the focus in § 16(b) is on the nature of the crime. The
imposition of a specific intent requirement is not a reasonable inference in
the context of § 16(b). We conclude that 

(b) does not require
intentional conduct, i.e., the specific intent to use force.


     3
      We note that the United States Court of Appeals for the Third Circuit, in United States
v. Parson, 

 (3d Cir. 1992), suggested in dicta that drunk driving may not be
a crime of violence because any “use of force” resulting therefrom would not be intentional.
We are not persuaded by the court’s analysis in Parson.


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     We find that, by its nature, operating a motor vehicle in a public place
while under the influence involves a substantial risk that physical force
against the person or property of another may be used in the commission of
the offense and that such a crime, when a felony under Texas law, constitutes an aggravated felony.

                    C. Application of Prior Precedent

     The respondent argues that in Matter of Magallanes, supra, we used the
wrong definition of a “crime of violence.” He argues that in Magallanes the
Board analyzed the offense in terms of risk of physical injury to another,
rather than risk of use of force.
     The respondent contends that although driving while intoxicated presents a “serious potential risk of physical injury to another,” this is not the
appropriate standard under the Act. Rather, the question is whether DWI
involves a substantial risk that physical force may be used, as stated in 

(b).
     In Matter of Magallanes, we held that the potential for harm is determinative in finding a criminal offense a crime of violence under 

(b). At first blush, the difference in phrasing appears trivial because
most physical injury or harm results from the use of physical force.
However, “the use of physical force” is an act committed by a criminal
defendant, whereas the “risk of physical injury” is a consequence of a criminal defendant’s actions.
     Importantly, neither the reasoning nor the conclusion of Matter of
Magallanes has been altered by our holding in this case. We do, however,
clarify our previous decision. See Matter of Sweetser, 

(BIA 1999). Criminal offenses that carry a substantial risk that force will
be used also share the potential to result in harm. See United States v.
Gonzalez-Lopez, 

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

 (1991); Matter of Magallanes, supra. Nevertheless, we recognize that
criminal offenses that have the potential for harm do not always carry a substantial risk that force will be used in their commission. Absent a causal link
between the harm and the force, a criminal offense cannot be identified as
a crime of violence under 

(b).
     Our decision in Matter of Magallanes established that driving under the
influence involves a substantial risk that a driver will injure someone in an
accident. The risk of injury is directly related to a substantial risk that the
driver, while operating his motor vehicle, will use physical force to cause
the injury. As in the present case, the focus in Magallanes was on the conduct required for a conviction rather than on the consequences of the
respondent’s crime. See Matter of Magallanes, supra (applying the 

(b) test to the conduct required for a conviction under sections
28-692(a)(1) or 28-697(a)(1) of the Arizona Revised Statutes Annotated).

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Therefore, despite the “risk of harm” language, Matter of Magallanes
turned upon the substantial risk of “physical force” being used against people or property. See Matter of Sweetser, supra.
     We find that the reasoning in Matter of Magallanes applies also to a
Texas DWI felony conviction. The conduct required for a felony conviction
under the Texas statute meets the definition of a crime of violence. We find
further that the generic elements of the offense are such that its commission
would ordinarily present a risk that physical force will be used against the
person or property of another.

              D. Deadly Weapon Finding Under Texas Law

     The respondent argues that without the additional factor of a deadly
weapon finding, or some other facial indication that a violent crime was
committed, a court cannot conclude that a simple DWI conviction is a crime
of violence. The respondent further argues that, under Texas law, there is a
different, additional provision required to make DWI an aggravated
offense—namely, a deadly weapon finding on a DWI conviction, where the
potential for violence must be proved. See 

(17).
The respondent asserts that a vehicle is not per se a deadly weapon under
Texas law unless it is intentionally used as a deadly weapon.
     We agree with the Service’s position that neither section 101(a)(43)(F)
of the Act nor 

(b) requires a deadly weapon finding. The term
“aggravated” in relation to crimes in Texas covers offenses in which parole
eligibility is affected. When operating a vehicle is an element of the offense,
the act of simply operating the vehicle cannot also be used to support an
affirmative deadly weapon finding. To “use” an “instrumentality”—be it a
gun, a board, or an automobile—to support an affirmative deadly weapon
finding, there must be some collateral use of the “instrumentality” that
facilitates an associated crime. A DWI offense under section 49.04 of the
Texas Penal Code Annotated is enhanced to a third degree felony conviction
only if the evidence establishes the elements necessary under section
49.09(b) of the Texas Penal Code Annotated. A deadly weapon finding is
not required.


                            VII. CONCLUSION

    Upon consideration, we find no error in the Immigration Judge’s determination that a crime of DWI under section 49.04 of the Texas Penal Code
Annotated, which is a felony because the punishment has been enhanced
under section 49.09(b), is an aggravated felony, i.e., a crime of violence
within the meaning of section 101(a)(43)(F) of the Act. We find that the
respondent was properly ordered removed from the United States as

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charged. Furthermore, the record contains no evidence that the respondent
has asserted eligibility for relief from removability, and no application for
relief has been made. Accordingly, the appeal will be dismissed.
         ORDER: The appeal is dismissed.
Board Member Neil P. Miller did not participate in the decision in this case.

CONCURRING OPINION: Edward R. Grant, Board Member, in which
Lauri S. Filppu, Board Member, joined

     I respectfully concur.
     The Board has been asked in this matter to reconsider and overrule our
precedent decision in Matter of Magallanes, 

 (BIA 1998).
The decision of the majority ably clarifies Magallanes in light of our intervening decision in Matter of Sweetser, 

 (BIA 1999),
which held that for purposes of determining that an offense is a “crime of
violence” under 

(b) (1994), it is insufficient to demonstrate
that the offense poses a substantial risk of physical injury (in that case, the
drowning death of a child). Rather, the “substantial risk” must be that force
will be employed in causing any such injury. Matter of Sweetser, supra. The
majority concludes, affirming but clarifying Magallanes, that the “substantial risk” present in the case of a felony driving while intoxicated (“DWI”)
offense in Texas is not merely the consequence that physical injury may
result, but the risk that a specific act, i.e., the use of force, will occur.
     While I agree with this conclusion and join the majority’s decision, I
write separately to address at greater length an issue addressed in brief by
the majority: whether, for purposes of 

(b), the “use of force”
that may result in the course of committing the underlying1 offense must
itself be the result of a specific intent to use such force.
     It is important to address this issue for three reasons. First, the parties
and amici have addressed it at length, and it is the cornerstone of arguments
in this and numerous other cases before the Board urging us to reconsider
Magallanes. Second, the arguments on behalf of the respondent urge the
Board to reconsider not only Magallanes but also Matter of Alcantar, 

 (BIA 1994), in which we held that 

(b) is not
limited to crimes of specific intent. 

. The seminal nature of our
decision in Alcantar suggests that we should state why we do not find alternative readings of § 16(b) to be persuasive. Finally, two federal circuit
courts of appeals have suggested that drunk driving may not be a crime of


      1
        I also note that under the Texas statutes at issue a DWI offense is a felony (and thus
classifiable under 

(b)) only if the defendant has twice previously been convicted of a similar offense.

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violence because any “use of force” resulting therefrom would not be
accompanied by specific intent. See United States v. Rutherford, 

 (7th Cir.), cert. denied, 

 (1995); United States v.
Parson, 

 (3d Cir. 1992). Although this case addresses
only the Texas DWI statute, our analysis of § 16(b) will have precedential
effect nationwide, including within the jurisdictions of the United States
Courts of Appeals for the Third and Seventh Circuits. Under these circumstances, we should clearly state why § 16(b) does not require the
Government to establish that the “physical force . . . [that] may be used in
the course of committing the offense” is accompanied by a specific intent
to use such force. 

(b).
     The respondent’s argument hinges on the word “used” in § 16(b), stating that it must be construed to require a specific intent to use force.
According to the respondent, in holding that a crime of recklessness could
be a crime of violence, Magallanes implicitly determined that the term
“used” did not require intentional conduct, that is, the specific intent to use
force. The respondent argues that in so finding, the Board failed to apply the
plain meaning to this term. This argument, however, takes the word “used”
out of context, fails to give full meaning to the entirety of § 16(b), and
ignores the contrast between this provision and the alternative definition of
“crime of violence” in 

(a).
     The core concept of § 16(b) is of an offense that, “by its very nature,”
poses a substantial risk that physical force will be used. Thus, it is the
“nature” or “character” of the offense that determines whether it is a crime
of violence, and not the mens rea of the offender. Both this Board and the
courts have employed a generic or “categorical” approach in determining
whether an offense is a crime of violence under § 16(b). See United States
v. Velazquez-Overa, 

 (5th Cir. 1996), cert. denied, 

 (1997); United States v. Springfield, 

 (9th Cir. 1987);
Matter of Magallanes, supra; Matter of Alcantar, supra. Imposing a
requirement that the risk of use of force must be a risk that is accompanied
by “specific intent” shifts the focus away from the generic nature or character of the offense, and would require speculation into whether any particular use of force that is “risked” in committing the offense is the type of
force that would require specific intent.
     The respondent’s reliance on United States v. 

 is misplaced. Although it is true that the Seventh Circuit found that the phrase
“use of force” implied specific intent, the court was construing this phrase
in the context of a provision virtually identical to 

(a), not §
16(b). United States v. 

 (interpreting U.S.S.G. §
4B1.2(1)(i)). The respondent’s argument fails to acknowledge the significant contextual distinction between the phrase “use of force” in § 16(a), and
the phrase “force . . . may be used” in § 16(b). Under § 16(a), as under
clause (i) of U.S.S.G. § 4B1.2(1), the offense must have, as an element, the

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use, attempted use, or threatened use of physical force. Thus, the focus in §
16(a) is on the statutory elements of the offense and whether those elements
specifically include the use (or attempt or threat) of force. In the context of
§ 16(a), a requirement of specific intent to use force is a reasonable implication because force must be an element of the crime, not merely something
that is a possible consequence or risk. The context of § 16(b), which focuses on the nature of the crime, not its elements, is quite different. The imposition of a specific intent requirement is not a reasonable inference from this
provision, but rather, a redrafting of it.
     The Third Circuit’s dicta in United States v. Parson, supra2, goes further than any other authority in finding a “specific intent” requirement in the
language of § 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. United States v. 

 (emphasis added). The problem with this analysis is that the “risk”
described in § 16(b) is not that a separate, specific intent crime will be committed, but merely that force “will be used.” Indeed, the concept of “risk”
seems quite divorced from that of “specific intent.” Inquiry into whether
one’s actions create a risk that one will use force is concrete and specific;
assessing whether one’s actions may create a risk that one will form a specific intent to use force is vague and speculative. There should be no
requirement of such an assessment in the absence of statutory language
incorporating specific intent as an element of culpability.
     It is clear from the jurisprudence that interprets § 16(b) that the risk of
the use of force is determined, not from the potential mens rea of the offender, but from the nature of the conduct he has set in motion. United States v.

 (holding that indecency with a child
involving sexual contact is a crime of violence under § 16(b) and stating,
“[E]ither a crime is violent ‘by its nature’ or it is not. It cannot be a crime
of violence ‘by its nature’ in some cases, but not others, depending on the
circumstances.”); United States v. Rodriguez-Guzman, 

 (5th
Cir. 1995) (involving burglary of a vehicle or commercial property); United
States v. Gonzalez-Lopez, 

 (11th Cir. 1990) (involving
burglary of a dwelling and stating, “[T]he reasoning [is] clear: whenever an



      2
        The Third Circuit’s discussion of § 16(b) is dicta because the issue in Parson, as it was
in Rutherford, was how to interpret the second prong (clause (ii)) of the definition of a “crime
of violence” in the sentencing guidelines in U.S.S.G. § 4B1.2(1)(ii). See 18 U.S.C.A. ch. 4,
§ 4B1.2(1)(ii) (West 1996). In contrast to § 16(b), clause (ii) of the sentencing guidelines definition does not require a substantial risk that force may be used, but rather, refers to conduct
“that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(1)(ii)
(emphasis added). As we held in Matter of Sweetser, supra, risk of physical injury alone is
insufficient to classify an offense as a crime of violence under § 16(b).

                                             1017
Interim Decision #3412


intruder enters a dwelling, a person may be present inside, in which case the
alarm to both the intruder and the resident may result in the use of physical
force.”), cert. denied, 

 (1991); see also United States v.

 at 863 n.1 (finding involuntary manslaughter a crime of
violence under 

(c)(3) and stating, “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.’”).
     The respondent’s arguments, therefore, run counter to the weight of
judicial authority interpreting § 16(b) and comparable provisions. There is
no warrant for us to reconsider the underlying premise of Matter of
Alcantar, supra, that specific intent is not an element that must be proved to
find that an offense is a crime of violence under 

(b).

DISSENTING OPINION: Lory Diana Rosenberg, Board Member

     I respectfully dissent.
     Drunk driving is a highly charged issue in our country today and,
accordingly, triggers very significant practical and emotional concerns.
Certainly, no one is in favor of it. However, that is not the issue before us.
Before us is the question whether drunk driving is something more than a
serious societal problem that is the legitimate subject of strict civil and
criminal enforcement in every state in the union. That question is: Does a
felony conviction for drunk driving amount to a “crime of violence,” which
is an aggravated felony conviction that subjects the offender, who might be
a long time lawful resident but not a citizen of the United States, to removal
from this country?
     To answer this question, we must look to the statute that classifies a
“crime of violence” among a listing of offenses that are defined as constituting aggravated felony convictions. See section 101(a)(43) of the
Immigration and Nationality Act, 

(a)(43) (1994 & Supp. II
1996). In that section of the statute, Congress expressly defined a “crime
of violence” according to its definition in another federal statute, 

 (1994). See section 101(a)(43)(F) of the Act. This provision does not
cover every conviction for an offense that might form a basis for removal of
a noncitizen; nor does it include every conviction for an offense that is classified as an aggravated felony. While there may be some overlap with other
offenses included in the aggravated felony definition, an appropriate construction of the phrase “crime of violence” under section 101(a)(43)(F) of
the Act must be limited to the terms of 

.
     When we first examined this question in Matter of Magallanes, 

                                                       Interim Decision #3412


Dec. 1 (BIA 1998), I acceded to what I now recognize as a misinterpretation of the law, joining both the reasoning and the result in that decision. In
further analyzing sections (a) and (b) of 

, I conclude that the
offense of drunk driving, or “driving under the influence,” is not necessarily a crime of violence.
     In my view, the majority has failed to follow an appropriately conservative approach in assessing whether a felony conviction for driving under
the influence is properly designated a crime of violence, but has embraced
an interpretation of the definition that is overbroad in relation to the plain
statutory language referenced in section 101(a)(43)(F) of the Act. What is
more, the majority decision appears to ignore or miss the point of our holding in Matter of Sweetser, 

 (BIA 1999), that a conviction
under a divisible state statute may not constitute a crime of violence as
defined under 

(b). Consequently, for the reasons discussed
below, I dissent.


                  I. FEDERAL STATUTORY LANGUAGE

     In enacting a federal statute that authorizes the removal of certain
noncitizens who have been convicted of specific crimes in the United
States, Congress designated the particular types of offenses that result in
inadmissibility or deportability and subject the offender to removal. See,
e.g., sections 212(a) of the Act, 

(a) (1994 & Supp. II 1996);
section 237(a) of the Act, 

(a) (Supp. II 1996). We are bound
to rely on the plain language of each subsection of the immigration statute
to afford it the specific meaning that Congress intended. See K Mart Corp.
v. Cartier, Inc., 

 (1988) (requiring an examination of “the
particular statutory language at issue, as well as the language and design of
the statute as a whole”); Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 

 (1984). In addition, “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous
in isolation is often clarified by the remainder of the statutory scheme—
because the same terminology is used elsewhere in a context that makes its
meaning clear, . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.”
United Savings Ass’n of Texas v. Timbers of Inwood Forest Assocs., 

 (1988).
     The phrase “crime of violence” was first introduced as a term of art by
the Comprehensive Crime Control Act of 1984,1 which included the


    1
     

 Stat. 1976 (1984).


                                         1019
Interim Decision #3412


Sentencing Reform Act of 19842 and created the United States Sentencing
Commission. See 

 (1994 & Supp. II 1996); Mistretta
v. United States, 

 (1989); see also Taylor v. United States,

 (1990) (discussing the evolution of the term
“violent felony” under the Armed Career Criminal Act); United States v.
Parson, 

 (3d Cir. 1992) (analyzing the evolution of the
standard in relation to the 1989 amendments to the United States
Sentencing Guidelines). At that time, Congress defined the term “crime of
violence” in a separate section of the Comprehensive Crime Control Act of
1984,3 codifying it as 

.
     Our determination whether the respondent’s conviction constitutes a
crime of violence depends on whether the statute under which the conviction occurred necessarily involves conduct covered by either 

(a) or § 16(b). For a particular offense to constitute a “crime of violence”
under 

(a), the actual use, attempted use or threatened use of
physical force must be a necessary element of the crime as defined by the
statute under which the conviction was obtained.4 Matter of Alcantar, 

 (BIA 1994). In addition, § 16(a) requires that the force
involved is force that is exerted against the person or property of another.
     For a particular offense to constitute a “crime of violence” under 

(b), the offense must be a felony and the crime—as evidenced
by the generic elements of the offense as defined in the criminal statute—
must “by its nature” involve a “substantial risk that physical force against
the person or property of another may be used in the course of committing
the offense.” Id.; see also Matter of Alcantar, supra, at 812. In determining
the nature of the crime, it is not the potential consequence of the offense that
is relevant, but the existence of a substantial risk that the perpetrator might
resort to the use of physical force to accomplish the crime.5 Matter of
Sweetser, supra. If the nature of the crime is such that there is a substantial
risk that force may be used in the course of committing the offense, such
force must be directed at either the person or property of another person.
     The majority concedes that the respondent’s conviction does not come
within the terms of subsection (a) of 

, but concludes that the


     2
        Title II, ch. 2, § 217(a), 98 Stat. at 2017.
     3
        Title II, ch. 10, § 1001(a), 98 Stat. at 2136.
      4
        An element of a criminal offense, also referred to as an essential element, is one that is
a “constituent part[ ] of a crime which must be proved by the prosecution to sustain a conviction.” Black’s Law Dictionary 520 (6th ed. 1990); see also United States v. Sherbondy,

 (9th Cir. 1988).
      5
        Although in Matter of Alcantar, supra, the Board referred to certain sentencing guidelines cases that required a finding of a “serious risk of injury” rather than a finding that there
was a “substantial risk that physical force would be used in the course of the commission of
the crime,” the blurring of this distinction is inappropriate. See Matter of Sweetser, supra.


                                             1020
                                                                  Interim Decision #3412


respondent’s conviction satisfies the terms of subsection (b). I disagree and
suggest that an examination of the actual statutory language does not support the majority’s conclusions.

         A. Terms of 

(b): “Substantial Risk . . . [of]
                       Physical Force,” Not Injury

     The language used in the first subsections of both 

(a) and
the current version of section 4B1.2(a)(1) of the United States Sentencing
Guidelines (“U.S.S.G.”), applicable to career offenders, is virtually identical to the extent that it limits a “crime of violence” to an offense in which
the crime “has as an element the use . . . of physical force.” See 18 U.S.C.A.
ch. 4, § 4B1.2(a)(1) (West 1996). By contrast, subsection (b) of 

 requires a showing that there is a “substantial risk that physical force .
. . may be used in the course of committing the offense,” whereas the current version of subsection (2) of U.S.S.G. § 4B1.2(a) refers to an offense
which “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.” See U.S.S.G. § 4B1.2(a)(2) (emphasis added).6
Accordingly, under the definition that we are bound to apply to the respondent’s conviction, it is the substantial risk that physical force may be used,
and not the risk of serious physical injury, that is the controlling factor in
determining whether an offense is a crime of violence. See Matter of
Sweetser, supra; see also Matter of Alcantar, supra, at 806 n.3 (cautioning
that any permissible analogy between § 16 and the current definitions of a
“crime of violence” at § 4B1.2(1) of the U.S.S.G., or of “violent felony” at 

(e)(2)(B), must be careful to reflect these differences).
     Nevertheless, in Matter of Magallanes, supra, the Board held that a
respondent, who was convicted under the Arizona statute of aggravated
driving while under the influence and sentenced to more than 1 year in
prison, was convicted of a crime of violence within the meaning of section
101(a)(43)(F) of the Act. Our opinion in that case reveals that we overemphasized the character of the offense in relation to the possibility that injury
might occur. Essentially, we overlooked the statutory requirement that the
nature of the crime be one in which there was a substantial risk that physical force may be used in the course of committing the offense. See Matter
of Sweetser, supra. Thus, although we properly recited the statutory definition of a “crime of violence” and conceded that the use of physical force
against the person or property of another was not an essential element of the


      6
        Effective November 1997, without any change to the terminology articulated in 1989,
the subsections of U.S.S.G. § 4B1.2 that previously had been designated as (1)(i) and (ii) were
redesignated and codified as (a)(1) and (2), respectively.

                                            1021
Interim Decision #3412


offense of driving under the influence, we concluded that the respondent
was convicted of a crime of violence because the offense of which he was
convicted “is the type of crime that involves a substantial risk of harm to
persons and property.” Matter of Magallanes, supra, at 6 (emphasis added).
     Plainly, according to the applicable statutory language, the substantial
risk involved if an offense is to be classified under § 16(b) is not the risk of
serious harm to persons and property. This is not the standard imposed by

(b); the standard is the substantial risk that physical force
may be used in the course of committing the offense. Consequently, no matter how long and hard the majority attempts to rationalize what we really
meant in Magallanes, or to contend that injury usually flows from the use
of force, our opinion in Magallanes was simply wrong. Cf. Matter of
Sweetser, supra, at 8-9; see also Matter of Puente, 

, at 11
(BIA 1999).

         B. Terms of 

(b): “Substantial Risk . . . [of]
                             Physical Force”

    In legal usage, “violence” is defined as
   [u]njust or unwarranted exercise of force, usually with the accompaniment of vehemence, outrage or fury . . . . Physical force unlawfully exercised; abuse of force; that
   force which is employed against common right, against the laws, and against public
   liberty . . . . The exertion of any physical force so as to injure, damage or abuse.

Black’s Law Dictionary 1570-71 (6th ed. 1990). “Force” is defined as
“[p]ower, violence, compulsion, or constraint exerted upon or against a person or thing. . . . [S]trength directed to an end. Commonly the word occurs
in such connections as to show that unlawful or wrongful action is meant.”

. “Physical force” is “[f]orce applied to the body; actual violence.”

.
     The United States Court of Appeals for the Fifth Circuit has rejected the
suggestion that the term “force,” as used in 

(b), means simple movement and has construed the term as limited to violent or destructive force. United States v. Rodriguez-Guzman, 

, 20 n.8 (5th Cir.
1995). An offender who sits in an automobile in a public place, or turns on
the heater or auxiliary functions, or allows his or her car to be used by
another who is under the influence can be convicted in Texas for driving
under the influence. See, e.g., Reddie v. State, 

 (Tex.
App. 1987) (requiring only that the accused “perform a function, or operation, or produce an effect”); Venable v. State, 

 (Tex. Crim.
App. 1965) (upholding conviction where evidence established that the
defendant allowed his car to be driven by a person whom he knew to be
intoxicated).
     These types of activities—sitting in one’s car, using auxiliary functions,

                                           1022
                                                                Interim Decision #3412


or lending one’s car to another—cannot be said to involve a substantial risk
that the offender will resort to violent or destructive physical force in the
course of committing the crime. United States v. 

 (requiring a “strong probability” that such force may be used by the
offender). Yet, such conduct indisputably may support a conviction under
Texas law on the basis that such conduct constitutes “operating” a vehicle
while under the influence. Remarkably, according to the majority opinion,
a Texas conviction based on merely operating, but not driving, a vehicle
while intoxicated is sufficient to constitute a crime of violence under section 101(a)(43)(F) of the Act.

              C. Terms of 

(b): “Substantial Risk . . .
                     Physical Force May Be Used”

     In construing the term “use” in the context of the “use, attempted use,
or threatened use of physical force” language in 

(a), the
Seventh Circuit has defined “use” as “‘[t]he act of employing a thing for
any (esp. a profitable) purpose.’ The Oxford English Dictionary, 2d ed. vol.
XIX at 350 (Clarendon Press 1989).” United States v. Rutherford, 

 (7th Cir.), cert. denied, 

 (1995). The Seventh Circuit
found that “[i]n ordinary English, the word ‘use’ implies intentional availment.” Id. at 372-73 (citing Webster’s Ninth New Collegiate Dictionary).
     Similarly, the Supreme Court has held that the term “use” must connote
more than mere possession of a firearm by a person who commits a drug
offense. Bailey v. United States, 

 (1995). Recognizing that the
term “use” was capable of a broad interpretation covering treatment of a
firearm as an item of value as well as in its more traditional posture as a
weapon, the Court concluded that to establish “use” for the purposes of 

(c)(1) the language, context, and history of the statute indicate
that the Government must show active employment of the firearm. Bailey v.
United States, supra, at 158. Likewise, in Smith v. United States, 

 (1993), the Court recognized that
  Webster’s defines “to use” as “[t]o convert to one’s service” or “to employ.” Webster’s
  New International Dictionary 2806 (2d ed. 1950) Black’s Law Dictionary contains a
  similar definition: “[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.” Black’s Law
  Dictionary 1541 (6th ed. 1990).

 at 228-29 (citing Astor v. Merritt, 

 (1884)); see also
Brandenburg v. Ohio, 

 (1969) (construing the
phrase “use of force” to address action taken by some person or persons to
accomplish a particular end in relation to the constitutional guarantees of
free speech and free press).
     In the context of 

(b), the term “use” refers to the conduct

                                          1023
Interim Decision #3412


of the offender and connotes the likelihood of specific action on the offender’s part—the potential that “physical force . . . may be used in the course
of committing the offense.” The “offense” is the crime the offender has set
out to commit and it is he or she who may have to use physical force to
commit it, even though physical force is not a necessary element of the
offense. Thus, the substantial risk sanctioned by the statutory section is the
risk that the offender may resort to force. For example, in discussing the risk
of violence associated with burglary, the Supreme Court stated plainly in
Taylor v. United States, supra:
   The fact that an offender enters a building to commit a crime often creates the possibility of a violent confrontation between the offender and an occupant . . . . And the
   offender’s own awareness of this possibility may mean that he is prepared to use violence if necessary to carry out his plans or to escape.

Id. at 588 (emphasis added).
      Consequently, “[u]se of physical force is an intentional act, and therefore . . . requires specific intent to use force.” United States v. 

 (comparing criminals whose acts involve the use of force with
“criminals whose actions merely risk causing physical injury . . . [under] a
lower mens rea of ‘pure’ recklessness”). “[A] drunk driving accident is not
the result of plan, direction, or purpose but of recklessness at worst and misfortune at best.” United States v. 

. In Parson, the
Third Circuit emphasized, “Certainly, [

] excluded reckless
driving, child endangerment, and like crimes.” United States v. 

 (emphasis added). Therefore, to find the respondent liable
under 

(b), we must point to the offender’s active availment
of a course of action undertaken with the awareness that his conduct may
result in the need to use force to carry out his criminal objective. See Bailey
v. United States, supra, at 144 (requiring “action and implementation”).7
     Notwithstanding the suggestion of the concurring Board member to the
contrary, the analysis in the Rutherford and Parson decisions, above, not
only is reasonable but appears to be consistent with the Fifth Circuit’s interpretation of circumstances similar to those presently before us. That is, the
“use” of force must be intentional, i.e., it must be engaged in with the intent
to accomplish the underlying criminal objective. See United States v.



     7
      The opinion of the concurring Board Member, citing Matter of Alcantar, supra, and
United States v. Springfield, 

 (9th Cir. 1987), overlooks the fact that these cases
appear to have relied, erroneously, on supposed legislative history to substantiate their holdings. In fact, the paragraph that was quoted in Springfield, which was adopted in Matter of
Alcantar, supra, seems to have been taken out of context, and to refer only to a firearms
offense, not to the state of mind required to establish a crime of violence. See S. Rep. No. 97-
307, at 890-91 (1982) (discussing section 1823 of the proposed bill, S. 1630).

                                            1024
                                                                    Interim Decision #3412


Velazquez-Overa, 

 (5th Cir. 1996) (finding “a significant
likelihood that physical force may be used to perpetrate the crime”), cert.
denied, 

 (1997). Moreover, the force itself must be more than
mere movement; it must involve the use of force in order to accomplish an
objective, such as carrying out the principal offense. United States v.

 at 21 n.8 (emphasizing that “[t]he clear import
of defining a ‘crime of violence’ is that ‘force’ . . . is synonymous with
destructive or violent force”).
     Accordingly, I believe it must be conceded that the phrase in § 16(b),
“physical force . . . may be used” means the probability of a deliberate
action being taken by the offender, and does not refer to an unexplained,
accidental, spontaneous or serendipitous occurrence of force. In the context
of § 16(b), “use” of force means a destructive or violent action taken by a
perpetrator who is violating the law.

           D. Terms of 

(b): “Substantial Risk . . .
                in the Course of Committing the Offense”

     The risk that physical force may be used must not only be substantial,
it must be probable that such force would be used in the course of committing the offense. These limitations have been addressed by the courts in
related contexts. In addressing a “violent felony” under the Armed Career
Criminal Act of 1984, 

 Stat. 2185, the Supreme Court
recognized the necessary relationship between the nature of the underlying
offense and the perpetrator’s commission of a second crime to carry out the
first. Taylor v. United States, supra. The Supreme Court concluded that
  the most likely explanation . . . is that Congress thought that . . . burglary, arson, extortion, and the use of explosives—so often presented a risk of injury to persons, or were
  so often committed by career criminals, that they should be included in the enhancement statute even though, considered solely in terms of their statutory elements, they
  do not necessarily involve the use or threat of force against a person.

Id. at 597 (emphasis added). Thus, the Court emphasized that the nature of
the underlying offense was the predicate for the risk that violence would
occur.
     Contrary to the assertion of the concurring Board Member in discussing United States v. 

 this interpretation of “force may
be used” is not limited to the use of attempted, actual, or threatened physical force when it is an element of the offense. The coupling of the phrase
“substantial risk” with the phrase “may be used” in § 16(b) does not change
the definition of “use”; it merely modifies the chance or likelihood of the
“use” occurring in the course of the crime being committed.
     Although the concurring Board Member characterizes the Third
Circuit’s opinion in United States v. Parson as “go[ing] further than any

                                             1025
Interim Decision #3412


other authority” in finding a specific intent requirement in relation to the
need to use force to accomplish the crime, I beg to differ. The Supreme
Court’s opinion in Taylor v. United States quite clearly contemplated an
offender’s awareness of the character of his offense and the need to “use
violence if necessary to carry out his plans or to escape.” Taylor v. United
States, supra, at 588.
     Interestingly, it is United States v. Springfield, 

 (9th Cir.
1987), cited by the concurring Board Member to support a contrary
proposition, which makes crystal clear that we are not simply concerned
with any consequences that could result from the offender’s crime, but
with a potential action by the offender undertaken to carry out the offense.
As explained by the court, “The wording of section 924(c)(3)(B) 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.” 

 (emphasis added).8
     I have difficulty seeing how, if “operating a vehicle” in Texas encompasses any action taken that involves its functioning, there remains a substantial risk that the respondent will engage in drunk driving or some other
use of physical force simply because he is operating the vehicle. See Matter
of Palacios, 

 (BIA 1998) (Rosenberg, dissenting). The
offense of driving under the influence is accomplished when the respondent, whether in his driveway or by the side of the road, changes the tire,
turns on the heater, or even lends the car to a friend. What conduct on the
part of the offender in the course of these functions involves a substantial
risk that he will engage in the use of physical force?
     As discussed below, the breadth of activity that supports a conviction
under Texas law simply does not necessarily include the “substantial risk
that physical force may be used” in connection wih the conduct that supports a conviction for drunk driving. Similarly, in United States v. Doe, 

 (1st Cir. 1992), the First Circuit reasoned that a broader reading of the statute “would also bring within the statute’s scope a host of other
crimes that do not seem to belong there . . . [because] one would have to
focus upon the risk of direct future harm that present conduct poses.” The
court concluded, “Rather, we must read the definition in light of the term to
be defined, ‘violent felony,’ which calls to mind a tradition of crimes that
involve the possibility of more closely related, active violence.” 

.
     Consequently, in my view, the edict of the Supreme Court in Fong Haw
Tan v. Phelan, 

 (1948), is no less applicable and no less binding



     8
       In fact, the sentence quoted in Springfield, read in its entirety, sets forth a state of mind
requirement unrelated to a crime of violence. See supra note 7.


                                              1026
                                                                Interim Decision #3412


today than it was when first pronounced 50 years ago:
  We resolve the doubts in favor of that [more narrow] construction because deportation
  is a drastic measure and at times the equivalent of banishment or exile. Delgadillo v.
  Carmichael, 

, 

. It is the forfeiture for misconduct of a residence in this country. Such a forfeiture is a penalty. To construe this statutory provision less generously to the alien might find support in logic. But since the stakes are
  considerable for the individual, we will not assume that Congress meant to trench on
  his freedom beyond that which is required by the narrowest of several possible meanings of the words used.

Id. at 10 (emphasis added).


 II. INTERPRETATION OF AMBIGUOUS OR DIVISIBLE STATUTES

     I have not unintentionally left the descriptive phrase “by its nature” to
the end of the analysis. As used in describing an offense classifiable under
§ 16(b), the phrase refers to the type of offense of which the respondent has
been convicted. In assessing whether a particular conviction is for a crime
of violence, we consider only the inherent nature of the offense described
in the criminal statute under which the respondent was convicted in relation
to the applicable statutory terms in § 16(b). See Matter of Alcantar, supra,
at 812 (citing Taylor v. United States, supra, at 602, and following a “categorical approach” that limits the trial court to review only the fact of the
conviction and the statutory definition of the prior offense); see also United
States v. 

 (holding that “the phrase ‘by its
nature’ compels a categorical approach to determining whether an offense
is a crime of violence under Section 16(b)” and repudiating “an earlier suggestion that sentencing courts may sometimes need to examine the underlying facts of defendants’ prior convictions”). As stated in VelasquezOvera, “The reason is clear: either a crime is violent ‘by its nature’ or it is
not. It cannot be a crime of violence ‘by its nature’ in some cases, but not
others, depending on the circumstances.” 

; accord Matter of
Sweetser, supra; see also United States v. Guadardo, 

 (5th Cir.
1994); Matter of Alcantar, supra.
     The majority contends, erroneously, that this means that we do not consider the elements of the offense. See Matter of Puente, supra, at 10; cf.
Matter of Sweetser, supra. However, in determining the nature of the
offense for purposes of § 16(b), we do assess the elements of the offense as
defined by the statute under which the respondent was convicted. Id. The
assessment of the “crime as defined” neither encompasses a popular understanding of the offense nor covers an interpretation that we might “feel
sure” that Congress meant to include by referring generically to a particular category of offenses, but requires a strict reading of the elements in the

                                          1027
Interim Decision #3412


criminal statute. See Matter of Garcia, 

 (BIA 1966).
      If the offense, as defined, does not necessarily constitute a crime of
violence under either subsection (a) or (b) of § 16 in every instance that
could support a conviction, then the statute is considered to be divisible or
ambiguous. See Matter of Sweetser, supra, at 6-7 (involving divisibility
analysis applied to aggravated felony convictions); Matter of Alcantar,
supra, at 812; see also Taylor v. United States, supra; Hamdan v. INS, 

 (5th Cir. 1996). Specifically, in Sweetser, the Board held unanimously that for purposes of determining whether an offense is a crime of
violence as defined in 

(b), it is the criminal conduct required
for conviction, rather than the consequence of the crime, that determines if
an offense 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 Matter of Pichardo, 

 (BIA
1996) (addressing convictions alleged to involve firearms). In making this
determination, we look to the elements of the offense for which the respondent was convicted, as reflected in the record of conviction. See section
240(c)(3)(B) of the Act, 8 U.S.C. § 1229a(c)(3)(B) (Supp. II 1996); 

 (1999); see also Matter of Rodriguez-Cortes, 

(BIA 1992) (including an “information” as part of the “record of conviction”); Matter of Short, 

 (BIA 1989) (citing Matter
of Esfandiary, 

 (BIA 1979)) (defining the “record of
conviction” as including the indictment, plea, verdict, and sentence).
     In the case before us, as in Matter of Sweetser, the statute under which
the respondent was convicted also is divisible. The statute on which the
respondent’s conviction is based covers both operating and driving a vehicle, and the record of conviction does not specify whether the respondent’s
conviction was based on the conduct of “operating” or “driving.” As discussed above, the “substantial risk” or probability “that force will be used
in committing the offense” requires that the conviction be based on some
action on the part of the perpetrator that could result in the use of destructive force or violence to accomplish the criminal end. I can find no evidence
of this in the record before us.
     Although the Service insists that “operating” a motor vehicle while
intoxicated, in violation of the Texas statute, relates to “putting the car in
motion,” one can “operate” a vehicle in Texas without causing it to move
and without being in actual physical control of the vehicle. Indeed, “operating” includes, but is not limited to, “driving.” Denton v. State, 

 (Tex. Crim. App. 1995) (en banc). The offense of “operating”
requires no more than that “‘the defendant performed an act to affect the
functioning of the vehicle.’” Barton v. State, 

 (Tex.
App. 1994) (quoting Reddie v. State, 

 (Tex. App.
1987)). As discussed above, changing a flat tire or turning on the heater
affects the functioning of a vehicle, and could sustain a conviction, even if the

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defendant was not in actual control of the vehicle or driving it in any way.
     The record does not specify the basis for the respondent’s conviction,
other than that he operated the vehicle in a public place. As clarified in Barton
v. State, supra, “the plain meaning of the word [operate] requires [only]
‘effort, the doing of something by the operator.’” Id. at 459 (quoting Reddie
v. State, supra, at 926). The difficulty with the majority’s analysis is that it
leads to a conclusion that there is a substantial risk that physical force will be
used by one who changes a flat tire while intoxicated or simply starts up the
heater, or even lends his or her vehicle to another. However, there is no rational basis on which to conclude that there is a substantial risk of force involved
in the respondent’s having “operated” his vehicle in this way.
     Neither the majority nor the concurring Board Member appears to
understand the principle of divisibility as applied to an aggravated felony
conviction alleged to constitute a crime of violence under § 16(b). The
phrases “by its nature” and “substantial risk” do not obviate the divisibility
analysis. “In cases such as this, where the statute encompasses a wide range
of behaviors that may or may not result in immigration consequences . . .
the categorical approach allows a court to go beyond the mere fact of conviction.” Matter of Sweetser, supra, at 7. Thus, if a statute encompasses
courses of conduct that both do and do not involve a substantial risk that
physical force may be used in committing the offense, we must ascertain the
particular conduct for which the respondent was convicted. See Hamdan v.
INS, supra, at 187 (stating that “as a general rule, if a statute encompasses
both acts that do and do not involve moral turpitude,” a finding of moral
turpitude cannot be sustained).
     In the absence of specific information in the record of conviction, we
examine the elements of the statute, which, at its minimum, would support
the respondent’s conviction. Matter of Sweetser, supra; see also Hamdan v.
INS, supra, at 189 (citing United States ex rel. Guarino v. Uhl, 

(2d Cir. 1939), specifying the general rule that, absent specific evidence to
the contrary in the record of conviction, the statute must be read at the minimum criminal conduct necessary to sustain a conviction). It is here that we
determine the offense that constituted the basis for the conviction and make
our judgment whether the crime of which the respondent was convicted “by
its nature” involves a substantial risk that physical force may be used. We
do not abandon our traditional analysis because the words “by its nature” or
“substantial risk” appear in 

. Instead, we apply our divisibility analysis to each set of facts in a statute under which the respondent
might have been convicted. In other words, we apply the definition of
“crime of violence” to the particular elements—or part of the criminal
statute—on which the respondent’s conviction is based.
     In Matter of Sweetser, supra, we did not judge the respondent’s offense
by reviewing the statute as a whole and determining that, while some convictions might be attributable to negligence, others might be attributable to

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conduct involving a substantial risk of the use of physical force. We judged
Sweetser’s offense by looking to the section of the statute under which he
was convicted and applying our analysis of what constitutes a crime of violence to that section.
     Although, in Sweetser, there was affirmative evidence that the respondent had been convicted of a course of negligent conduct that by its nature
did not encompass a substantial risk of the use of physical force, it is not
incumbent upon a respondent to provide such evidence. It is the Service’s
burden to establish that the respondent was convicted as charged in the
Notice to Appear. See section 240(c)(3)(A) of the Act; 

(1999). No such evidence appears in this record. See Matter of Pichardo,
supra; Matter of Teixiera, 

 (BIA 1996).
     To summarize, in the absence of such evidence in the record, we evaluate the nature of the crime at its minimum—that is, we determine its nature
according to the narrowest course of conduct that will sustain a conviction
under the statute, and then determine whether such a conviction would constitute the immigration violation charged. Matter of Sweetser, supra, at 6-8.
Applying this test to the divisible Texas statute, which covers both “operating” and “driving,” I cannot conclude that, by its nature, there is a substantial risk that physical force may be used against persons or property by an
individual who “operates” his vehicle while “under the influence.”


                            IV. CONCLUSION

     To conclude that a conviction for driving under the influence is a crime
of violence under § 16(b), the respondent’s conviction for driving under the
influence under the Texas statute must, by its nature, present a substantial
risk that physical force will be used against the person of property of another in the course of committing the offense. The “categorical” approach
taken by the Supreme Court in Taylor v. United States, supra, and followed
by the Board in Matter of Alcantar, supra, and Matter of Sweetser, supra,
relies upon an examination of the record before us to determine whether it
reveals that the offense of which the respondent was convicted satisfies the
terms of 

(b). On the record before us, I cannot agree that the
respondent’s conviction satisfies that standard. Consequently, I do not find
that the charge of removability, due to an aggravated felony conviction for
a crime of violence, has been sustained and supports an order of removal.
Consequently, I would dismiss the charge and terminate the proceedings.




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