RAMOS

Cite as 

 (BIA 2002)                                     Interim Decision #3468




                  In re Luis Manuel RAMOS, Respondent
                               File A17 630 241 - Boston
                                  Decided April 4, 2002
                           U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) In cases arising in circuits where the federal court of appeals has not decided whether
   the offense of driving under the influence is a crime of violence under 

(b)
   (2000), an offense will be considered a crime of violence if it is committed at least
   recklessly and involves a substantial risk that the perpetrator may resort to the use of force
   to carry out the crime; otherwise, where the circuit court has ruled on the issue, the law of
   the circuit will be applied to cases arising in that jurisdiction.
(2) The offense of operating a motor vehicle while under the influence of intoxicating
   liquor in violation of chapter 90, section 24(1)(a)(1) of the Massachusetts General Laws is
   not a felony that, by its nature, involves a substantial risk that physical force against the
   person or property of another may be used in the course of committing the offense and is
   therefore not a crime of violence. Matter of Puente, Interim Decision 3412 (BIA 1999),
   and Matter of Magallanes, Interim Decision 3341 (BIA 1998), overruled.

FOR RESPONDENT: Frederick Q. Watt, Esquire, New Bedford, Massachusetts

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: John M. Furlong, Jr.
Assistant District Counsel

BEFORE: Board En Banc:     SCHMIDT, VILLAGELIU, GUENDELSBERGER,
        ROSENBERG, MILLER, BRENNAN, ESPENOZA, and, OSUNA, Board
        Members. Concurring Opinions: FILPPU, Board Member; PAULEY, Board
        Member, joined by SCIALABBA, Acting Chairman. Dissenting Opinion:
        HURWITZ, Board Member, joined by DUNNE, Vice Chairman; HOLMES,
        COLE, GRANT, MOSCATO, OHLSON, and HESS, Board Members.
ROSENBERG, Board Member:

   This case was last before us on August 8, 2001, when we granted the
respondent’s motion to reconsider and terminated removal proceedings. The
Immigration and Naturalization Service has filed a motion to reconsider under

(b) (2001), asking us to reexamine our ruling on the
respondent’s motion and to find him removable as charged. We will grant the
Service’s motion and issue a new decision. Upon reconsideration, we again
terminate the removal proceedings brought against the respondent. We also
withdraw from our decisions in Matter of Puente, Interim Decision 3412 (BIA
1999), and Matter of Magallanes, Interim Decision 3341 (BIA 1998), and

                                              336
Cite as 

 (BIA 2002)                          Interim Decision #3468



hold that the offense of driving under the influence is not a crime of violence
under 

(b) (2000). See section 101(a)(43)(F) of the Immigration
and Nationality Act, 

(a)(43)(F) (2000).
                                     I. ISSUE
   The key issue is whether operating a motor vehicle while under the
influence of intoxicating liquor, in violation of chapter 90, section 24(1)(a)(1)
of the Massachusetts General Laws, constitutes a crime of violence under

(b), i.e., a felony that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used in
the course of committing the offense.
                              II. BACKGROUND
   The respondent is a native and citizen of Portugal. He entered the United
States as a visitor for pleasure on September 28, 1968, and adjusted his
status to that of a lawful permanent resident on June 2, 1969. On March 22,
2000, he was convicted in Massachusetts of operating a motor vehicle while
under the influence of intoxicating liquor. See 

(1)(a)(1) (2000). As this was the respondent’s second conviction within
10 years for driving while intoxicated, he was subject to enhanced penalties
and received a 2-year sentence of imprisonment.
   On April 28, 2000, the Service placed the respondent in removal
proceedings and charged him with being removable under section
237(a)(2)(A)(iii) of the Act, 

(a)(2)(A)(iii) (2000), based on
his conviction for an aggravated felony. The Service argued that the
respondent’s conviction was for a crime of violence under section
101(a)(43)(F) of the Act. The Immigration Judge found the respondent
removable as charged, and the respondent appealed. On February 28, 2001,
we affirmed the Immigration Judge’s decision without opinion pursuant to
Matter of Puente, supra. See 

(a)(7) (2001).
   On March 14, 2001, the respondent moved for reconsideration of our
decision and we granted that motion. We looked to the specific terms of the
Massachusetts statute, which provides that “[w]hoever . . . operates a motor
vehicle while under the influence of intoxicating liquor . . . shall be
punished.” 

(1)(a)(1). Our examination
revealed that, as interpreted by the Massachusetts courts, the essential
element of “operating a vehicle” under the statute is “not limited to driving a
vehicle or setting it in motion, but encompasses also the intentional act of
starting the vehicle’s engine.” Commonwealth v. Eckert, 

 (Mass. 2000). Acts such as sleeping behind the wheel of a car with the
engine running or spinning the wheels of a car that cannot move might also

                                       337
Cite as 

 (BIA 2002)                         Interim Decision #3468



qualify as “operating a vehicle” under Massachusetts law. See, e.g.,
Commonwealth v. Ginnetti, 

 (Mass. 1987);
Commonwealth v. Plowman, 

 (Mass. App. Ct. 1990).
   Because we determined that the Massachusetts statute encompassed such
a broad range of offenses, we concluded that operating a vehicle while
intoxicated in violation of that statute was not, by its nature, an offense that
involved a substantial risk that force might be used in the commission of the
crime. We found the respondent’s conviction distinguishable from that in
Matter of Puente, supra, and concluded that the Service had not
demonstrated that the respondent’s offense was a crime of violence.
Accordingly, we vacated our February 28, 2001, order and terminated
proceedings against the respondent.
                III. MOTION FOR RECONSIDERATION
   A motion to reconsider is a “‘request that the Board reexamine its decision
in light of additional legal arguments, a change of law, or perhaps an argument
or aspect of the case which was overlooked.’” Matter of Cerna, 

, 402 n.2 (BIA 1991) (quoting Hurwitz, Motions Practice Before the
Board of Immigration Appeals, 

, 90 (1982)), aff’d,
Cerna v. INS, 

 (11th Cir. 1992). The Service’s motion to
reconsider does not challenge our reading of Massachusetts law or our
conclusion that an act such as sleeping behind the wheel of a car with its
engine running is not a crime of violence under 

(b). The
Service argues only that additional information included in the judgment of
conviction is sufficient to establish that the respondent was, in fact, driving
under the influence of alcohol and that he was convicted of that particular
offense. See Montero-Ubri v. INS, 

 (1st Cir. 2000) (permitting
consideration of related charges, continued without a finding, which were
reflected in the official conviction documents).
   According to the Service, our rulings in Matter of Puente, supra, and
Matter of Magallanes, supra, support the conclusion that driving under the
influence, 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 Service therefore claims that we should vacate our decision
terminating the respondent’s removal proceedings and find him removable as
charged.
        IV. INTERPRETATION OF “CRIME OF VIOLENCE”
  The definition of an aggravated felony under section 101(a)(43)(F) of the
Act includes a “crime of violence (as defined in section 16 of title 18, United
States Code, but not including a purely political offense)” for which an alien

                                      338
Cite as 

 (BIA 2002)                                    Interim Decision #3468



receives a term of imprisonment of at least 1 year. In turn, 

defines a “crime of violence” 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.

   Interpretation of statutory language begins with the terms of the statute
itself, and if those terms, on their face, constitute a plain expression of
congressional intent, they must be given effect. Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 

 (1984). If
the statutory terms are ambiguous, the implementing agency must provide a
reasonable interpretation of the provision that corresponds with congressional
intent. 

 Where, as here, the language is plain, we are bound to “‘“assume
‘that the legislative purpose is expressed by the ordinary meaning of the
words used.’”’” INS v. Cardoza-Fonseca, 

 (1987)
(quoting INS v. Phinpathya, 

 (1984) (quoting American
Tobacco Co. v. Patterson, 

 (1982) (quoting Richards v.
United States, 

 (1962)))).
   Neither party claims that the respondent’s offense qualifies as a crime of
violence under 

(a). Moreover, in connection with the
Service’s motion to reconsider, neither party has questioned our prior ruling
that the respondent’s offense is a felony for purposes of § 16(b). See, e.g.,
Matter of Madrigal, 

 (BIA 1996) (declining to address
an issue that was not critical to the outcome of the case and was not raised
by either party). The Service’s motion turns on two arguments: its claim that
the respondent was convicted of driving under the influence, and its assertion
that this offense constitutes a crime of violence. The Service bases its
second argument on our interpretation of § 16(b) in Matter of Puente, supra.
                                  A. Board Precedent
   We have construed the terms of section 101(a)(43)(F) of the Act, defining
a crime of violence, in a number of decisions that guide our review in this
matter. As we first held in Matter of Alcantar, 

 (BIA
1994), the nature of a crime, as elucidated by its generic elements,
determines whether it is a crime of violence under § 16(b). See also United
States v. Winter, 

 (1st Cir. 1994) (recognizing that “[t]o
constitute a crime of violence, a felony must fit into one of several
pigeonholes”). Thus, we follow a categorical approach, under which “we
look to the statutory definition, not the underlying circumstances of the
crime.” Matter of B-, 

 (BIA 1996).


                                             339
Cite as 

 (BIA 2002)                        Interim Decision #3468



   We have held that although § 16(b) “does not require specific intent to do
violence,” an offense must have been committed at least recklessly to qualify
as a crime of violence under this provision. See Matter of Alcantar, supra,
at 813. We also have ruled consistently that in determining the nature of the
offense under § 16(b), it is the conduct required to obtain a conviction, rather
than the consequence resulting from the crime, that is relevant to our
adjudication. See Matter of Sweetser, Interim Decision 3390, at 6-8 (BIA
1999). Specifically, we have recognized that “‘the use of physical force’ is
an act committed by a criminal defendant, while the ‘risk of physical injury’
is a consequence of the defendant’s acts.” Id. at 8 (distinguishing the risk of
force from the risk of injury and citing Matter of Alcantar, supra, at 806 n.3);
see also Matter of Puente, supra, at 11 (distinguishing the use of physical
force as “an act committed by a criminal defendant” from the risk of physical
injury, which is “a consequence of a criminal defendant’s actions”).
   If the language of a statute encompasses some offenses that would
constitute a crime of violence under § 16(b) and some that would not, we may
look to the record of conviction and the other documents admissible in
proving a criminal conviction to assess the nature of the specific offense for
which the alien was convicted. Matter of Sweetser, supra; see also United
States v. 

 (stating that “if the statutory description is
inscrutable, or if it blankets both violent and non-violent crimes, a court may
peek beneath the coverlet”). In making such an inquiry, we still do not delve
into the underlying facts that may have been presented in the criminal
proceeding, but focus instead on the elements of the offense that had to be
proven to sustain a conviction. Matter of Sweetser, supra, at 6, 7.
                             B. Matter of Puente
   In Matter of Puente, supra, we concluded that driving while intoxicated
under section 49.04 of the Texas Penal Code was a crime of violence under

(b). We found that “[t]he plain meaning of the word ‘operate’
connotes an effort, or the doing of something by the operator,” and that
Ҥ 16(b) is not limited to crimes of specific intent, but includes at a minimum
reckless behavior.” Id. at 9-10 (citing Matter of Alcantar, supra, at 813).
We also restated our finding in Matter of Magallanes, supra, that “drunk
driving is an inherently reckless act.” Matter of Puente, supra, at 10.
   Although we “recognize[d] that criminal offenses that have the potential for
harm do not always carry a substantial risk that force will be used in their
commission,” we reiterated that “driving under the influence involves a
substantial risk that a driver will injure someone in an accident.” Matter of
Puente, supra, at 11 (citing Matter of Magallanes, supra). Thus, in Matter
of Puente, we went one step beyond our ruling in Matter of Alcantar and
concluded that driving under the influence, which is a strict liability offense

                                      340
Cite as 

 (BIA 2002)                          Interim Decision #3468



under Texas law, was a crime of violence. Id. at 10; cf. Matter of Alcantar,
supra, at 813.
                  C. Circuit Court of Appeals Rulings on
                       Driving Under the Influence
   Since we issued Matter of Puente in 1999, two federal circuit courts of
appeals have deferred to our ruling in that decision. See Tapia Garcia v.
INS, 

 (10th Cir. 2001) (deferring to the Board’s interpretation
of the statute because it is reasonable); Le v. United States Attorney General,

 (11th Cir. 1999) (same). In contrast, four circuit courts that
have reviewed the statute, de novo, have agreed that the risk involved in
driving under the influence is not the risk that the driver may “use” force
against the person or property of another to carry out the crime and therefore
driving under the influence does not amount to an offense covered by § 16(b).
See United States v. Trinidad-Aquino, 

 (9th Cir. 2001); Dalton
v. Ashcroft, 

 (2d Cir. 2001); Bazan-Reyes v. INS,

 (7th Cir. 2001); United States v. Chapa-Garza, 

 (5th Cir. 2001); see also Montiel-Barraza v. INS, 

(9th Cir. 2002).
   Of these circuits, three have specifically reversed our decisions. The
fourth has mandated that its decisions interpreting provisions of section
101(a)(43) of the Act in the context of federal sentence enhancement are
applicable in immigration proceedings. See United States v. Hernandez-Avalos, 

 (5th Cir.), cert denied, 

 (2001); see also
Matter of Olivares, 

 (BIA 2001). We are unquestionably
bound to follow these rulings. See Matter of K-S-, 

 (BIA
1993); Matter of Anselmo, 

 (BIA 1989).
   In addition, the decisions of the United States Court of Appeals for the
Third Circuit strongly suggest that it would find, at the very least, that a crime
requiring only criminal negligence or no mens rea at all is not an offense that,
by its nature, involves a substantial risk that physical force may be used in
the course of committing the crime. See Francis v. Reno, 

 (3d Cir. 2001) (stating that vehicular homicide, which requires only
proof of criminal negligence, is not an offense that, by its nature, involves a
substantial risk that physical force may be used in its commission); United
States v. Parson, 

 (3d Cir. 1992) (indicating that “use of
physical force” refers to an intentional act, and that although a drunk driver
may risk causing injury, in most cases he does not intend to “use” force to
cause this harm). Therefore, the rulings of the Third Circuit suggest that it
may be inclined to follow the Second, Fifth, Seventh, and Ninth Circuits in
concluding that driving under the influence is not a crime of violence.


                                       341
Cite as 

 (BIA 2002)                         Interim Decision #3468



   The First Circuit, in which the present case arises, has indicated that the
term “violent felony” in 

(e)(2), covering offenses that present
a serious potential risk of physical injury, calls to mind “a tradition of crimes
that involve the possibility of more closely related, active violence.” United
States v. Doe, 

 (1st Cir. 1992). The court found, in dicta,
no reason to believe that Congress intended a risk-creating crime such as
drunken driving to constitute a violent felony, warranting sentence
enhancement. 

 However, the First Circuit has yet to rule squarely on
whether driving under the influence is a crime of violence under § 16(b),
covering offenses that pose a substantial risk that physical force may be used
in committing the offense. Accordingly, if we were to agree with the
Service’s contention that the judgment of conviction establishes that the
respondent was convicted of driving a motor vehicle while under the
influence of alcohol, our ruling in Matter of Puente would be controlling.
Matter of Olivares, supra.
   We do not feel, however, that we can simply apply Matter of Puente to the
respondent’s case without examining that decision in light of the development
of circuit court law since we first addressed whether driving under the
influence is a crime of violence. Under these circumstances, we need not
decide whether the respondent was actually convicted of driving under the
influence, but will turn directly to the question whether driving under the
influence is a crime of violence under § 16(b).
             V. DRIVING UNDER THE INFLUENCE AS A
                      CRIME OF VIOLENCE
   The Second, Fifth, Seventh, and Ninth Circuits disagree with our decision
in Matter of Puente, supra, that a conviction for driving under the influence,
without more, is sufficient to constitute a crime of violence as defined under

(b). Although these circuit courts have followed different
lines of reasoning to arrive at the conclusion that driving under the influence
is not a crime of violence, they agree on one point: the language of § 16(b)
specifically excludes offenses in which the accidental application of physical
force may result from the commission of the offense.
   In other words, the physical force involved must be volitional rather than
accidental, and there must be a substantial risk that such force may be used
in the course of committing the crime, i.e., to accomplish the original criminal
objective. The circuit courts adopting this common conclusion have based
their views on the meaning of the particular terms “use,” “against,” and “in the
course of committing the offense” that are found in § 16(b), as well as on
their conclusion that the mens rea involved must be either intentional or
reckless.


                                      342
Cite as 

 (BIA 2002)                                    Interim Decision #3468



                          A. “May Be Used” and “Against”
   The Second, Fifth, Seventh, and Ninth Circuits have each analyzed the
phrase “may be used” in § 16(b) and concluded that this phrase, when read
alone or in conjunction with the rest of the provision, requires volitional, and
not accidental, force. In United States v. 

, the
Fifth Circuit found that “[t]he criterion that the defendant use physical force
against the person or property of another is most reasonably read to refer to
intentional conduct, not an accidental, unintended event.” In support of its
conclusion, the court cited the definition of “use” in the American Heritage
College Dictionary. 

 It noted that its interpretation was consistent with the
reasoning articulated in United States v. 

, in which the
Third Circuit found that the “use of physical force” is an intentional act and
noted that drunk drivers do not intend to “use” force to harm others. United
States v. 

.
   The Seventh Circuit also cited Parson and found that § 16(b) requires
intentional rather than accidental force. See Bazan-Reyes v. INS, supra, at
607. The court noted that it had considered the meaning of the word “use” in
the context of its construction of the United States Sentencing Guidelines in
United States v. Rutherford, 

 (7th Cir. 1995), and determined that
the phrase “use of physical force” implies “‘an intentional act rather than the
mere application or exertion of force.’” Bazan-Reyes v. INS, supra, at 608
(quoting United States v. 

). 1 In Rutherford, the
court explained:
    Force is exerted in many instances where it is not employed for any particular purpose. For
    example, earthquakes and avalanches involve the exertion of a tremendous amount of
    force. . . . Referring to a randomly occurring avalanche as a “use” of force would torture
    the English language. . . . A drunk driver who injures a pedestrian would not describe the
    incident by saying he “used” his car to hurt someone. In ordinary English, the word “use”
    implies intentional availment. No availment of force in order to achieve an end is present
    in a drunk driving accident.

United States v. 

 (footnote omitted).
   The Second Circuit concurred, finding that the word “use” indicates that
§ 16(b) “‘refers only to those offenses in which there is a substantial likelihood
that the perpetrator will intentionally employ physical force . . . not [to] an
accidental, unintended event.’” Dalton v. Ashcroft, supra, at 208 (quoting
United States v. 

) (emphasis added). The court
stated that the language of § 16(b) “fails to capture the nature of the risk
1
   In Bazan-Reyes v. INS, supra, the Seventh Circuit found that its reference in Rutherford to
a statutory provision that was analogous to § 16(a) applied equally to § 16(b). Id. at 608.
Accordingly, the court ruled that the language of § 16(b) simply did not support a finding that
a risk that one object will apply force to another is enough to constitute a crime of violence.
Id.

                                             343
Cite as 

 (BIA 2002)                           Interim Decision #3468



inherent in drunk driving,” noting that the risk in drunk driving is the risk of an
ensuing accident, not the risk that the driver will use physical force in the
course of driving the vehicle. Dalton v. Ashcroft, supra, at 206. The court
stated that physical force could not reasonably be interpreted as a foot on the
accelerator or a hand on the steering wheel, or all driving would, by definition,
involve the use of force. Id. Moreover, the court dismissed the Government’s
argument that a defendant would be using physical force if he or she had an
accident. The court stated that an accident “may properly be said to involve
force,” but “one cannot be said to use force in an accident as one might use
force to pry open a heavy, jammed door.” Id.
   Finally, the Ninth Circuit stated that “in ordinary, contemporary, and
common parlance, the ‘use’ of something requires a volitional act.” United
States v. 

 at 1145 (citing Black’s Law Dictionary 1541
(6th ed. 1990)). The court also noted that § 16(b)’s requirement that the
physical force be used against the person or property of another indicated that
“there must be a volitional feature with regard to the impact or collision, and
not simply with regard to the use of the physical force itself.” Id. The court
indicated that “it does not make sense to say that [a] person is volitionally
using physical force against someone or something when he neither intended
to hit the person or thing nor consciously disregarded the risk that he might do
so.” Id.; see also Montiel-Barraza v. INS, supra, at 1180 (“If driving under
the influence with injury to another does not amount to an aggravated felony,
then logically a violation of the lesser offense cannot qualify as an aggravated
felony.”).
               B. “In the Course of Committing the Offense”
   The circuit courts also agree, either implicitly or explicitly, that the phrase
“in the course of committing the offense” in § 16(b) indicates that the
provision relates to the potential acts an offender might undertake to carry out
the principal offense rather than the potential consequences that might result
from a crime. See also Matter of Sweetser, supra. Pointing to its ruling in
United States v. Velazquez-Overa, 

 (5th Cir. 1996), the Fifth
Circuit stated that “the physical force described in section 16(b) is that ‘used
in the course of committing the offense’, not that force that could result from
the offense having been committed.” United States v. 

.
   The Second and Seventh Circuits have followed the Fifth Circuit’s ruling
in this regard. In doing so, the Seventh Circuit found specifically that
“[a]lthough we agree with the BIA that the nature of the crime is the ‘core
concept of § 16(b),’ the words ‘by its nature’ do not change the meaning of the
words ‘may be used in the course of committing the offense.’” Bazan-Reyes
v. INS, supra, at 611; see also Dalton v. Ashcroft, supra, at 206 (stating that

                                       344
Cite as 

 (BIA 2002)                         Interim Decision #3468



the risk involved in drunk driving is the risk of an ensuing accident, “it is not
the risk that the driver will ‘use physical force’ in the course of driving the
vehicle”). The Ninth Circuit did not address this issue, but its finding that a
driver does not volitionally use force against the person or property of another
simply by driving the car implies that it agrees with this reading of § 16(b).
See United States v. 

.
           C. Level of Intent Required: At Least Recklessness
   In finding that a crime must involve volitional rather than accidental force
before it may qualify as a crime of violence under § 16(b), the Fifth, Seventh,
and Ninth Circuits all addressed the level of intent required to place a crime
in this category. On the one hand, the Fifth and Seventh Circuits have implied
that a mens rea of pure recklessness may not be enough; an individual must
instead act with “recklessness plus” or “recklessness as regards the
substantial likelihood that the offender will intentionally employ force against
the person or property of another in order to effectuate commission of the
offense.” United States v. 

 (emphasis
added); see also Bazan-Reyes v. INS, supra, at 611. The Seventh Circuit has
concluded that drunk driving convictions are not crimes of violence under
§ 16(b) “[b]ecause ‘[i]ntentional force . . . is virtually never employed to
commit’ any of the [drunk driving] offenses for which petitioners were
convicted.” Bazan-Reyes v. INS, supra, at 612 (quoting United States v.

).
   The Ninth Circuit, on the other hand, has concluded that a mens rea of
recklessness is sufficient to constitute a crime of violence. See United States
v. 

. The Second Circuit has not specifically
articulated an intent requirement, but in recognizing that “[t]here are many
crimes that involve a substantial risk of injury but do not involve the use of
force,” the court recognized that “[c]rimes of gross negligence or reckless
endangerment, such as leaving an infant alone near a pool, involve a risk of
injury without the use of force.” Dalton v. Ashcroft, supra, at 207.
   The common thread in all of these rulings is that, according to the statutory
language, something more than negligence is required before an offense may
qualify as a crime of violence under § 16(b). In other words, a crime must be
committed at least recklessly before it can be found to involve a substantial
risk that the perpetrator will resort to force to complete it.
           VI. REEXAMINATION OF MATTER OF PUENTE
   A majority of the federal circuit courts that have addressed whether driving
under the influence is a crime of violence, and therefore an aggravated felony
under section 101(a)(43)(F) of the Act, have, either explicitly or implicitly,
disagreed with our reasoning in Matter of Puente, supra. Consistent with our
                                       345
Cite as 

 (BIA 2002)                          Interim Decision #3468



decision in Matter of Alcantar, supra, at 812, these courts have looked to the
elements of the offense necessary to obtain a conviction and focused on the
risk that the perpetrator may resort to physical force in committing the
offense. They have not given any weight to the “inherent risk” that an
accident may occur. Cf. Matter of Puente, supra, at 10.
   The offenses at issue in each circuit, like the Texas offense at issue in
Matter of Puente, were either strict liability crimes or crimes that required
only proof of negligence for conviction. The courts found that, at a minimum,
an offense must be committed at least recklessly to meet the “volitional
force” requirement contained in the word “use.” In addition, these courts
declined to differentiate between the terms “use” and “may be used.” Cf. id.
at 10 (criticizing the respondent’s argument for “fail[ing] to acknowledge the
significant contextual distinction between the term ‘use’ in § 16(a) and the
phrase ‘may be used’ in § 16(b)”). These courts have also concluded that the
risk that an accident that may occur as the result of driving under the
influence does not establish that, by its nature, the crime of driving under the
influence involves a substantial risk that force may be used in the course of
committing the offense. Cf. id. Accordingly, none of the offenses were found
to qualify as crimes of violence under § 16(b).
   These circuit court decisions are compatible with the majority of the
decisions in which we have interpreted the term “crime of violence.” For
example, requiring that an offense be committed at least recklessly before it
can be deemed a crime of violence under § 16(b) echoes our ruling in Matter
of Alcantar, supra, in which we determined that a mens rea of at least
recklessness was required. In Alcantar, we also recognized that the risk of
force related to acts the offender might undertake in carrying out the principal
offense. Id. at 808 (finding that the covered crimes were ones that “‘“ by
their nature” create a situation in which it is likely that the criminal may resort
to physical force to accomplish the criminal end.’” (quoting United States v.
Springfield, 

 (9th Cir. 1987)). Thus, we suggested that
§ 16(b) required active violence, rather than accidental force.
   In addition, requiring that an individual affirmatively use force to carry out
a crime is consistent with our ruling in Matter of Sweetser, supra, in which
we held that negligent homicide was not a crime of violence. The focus on
action rather than inaction in these circuit courts’ driving under the influence
decisions underscores that it is the conduct that may be used to perpetrate the
offense, rather than the risk of injury or consequences flowing from the crime,
that is crucial in determining the nature of the offense. See Matter of
Sweetser, supra, at 6, 8.
   Given these considerations and our strong interest in ensuring that aliens
receive uniform treatment nationwide, we withdraw from our rulings in Matter
of Puente, supra, and Matter of Magallanes, supra. We will follow the law
of the circuit in those circuits that have addressed the question whether

                                       346
Cite as 

 (BIA 2002)                          Interim Decision #3468



driving under the influence is a crime of violence. See Matter of Anselmo,
supra. In those circuits that have not yet ruled on the issue, we will require
that the elements of the offense reflect that there is a substantial risk that the
perpetrator may resort to the use of force to carry out the crime before the
offense is deemed to qualify as a crime of violence under § 16(b). Moreover,
we will require that an offense be committed at least recklessly to meet this
requirement.
              VII. APPLICATION TO THE RESPONDENT
   In this case, the respondent was convicted of operating a motor vehicle
while under the influence of intoxicating liquors in violation of chapter 90,
section 24(1)(a)(1) of the Massachusetts General Laws. We have assumed,
for the purpose of this motion, that he was convicted of actually driving under
the influence rather than of engaging in any other act that might qualify as
“operating” under Massachusetts law.
   We find that the respondent’s offense of driving under the influence in
violation of Massachusetts law is not a crime that, by its nature, involves a
substantial risk that the perpetrator may use force against the person or
property of another to carry out the particular offense. Simply put, the risk
that the respondent may have an accident is not the same as the risk
contemplated by § 16(b). The crime is accomplished when the perpetrator
unlawfully drives while under the influence.
   First, even if there is a risk that an accident might occur, a conviction for
this offense does not require a showing that the respondent intentionally, or
even volitionally, used force against another in the course of driving under the
influence. See Commonwealth v. Wallace, 

 (Mass. App. Ct.
1982) (discussing the mental element of chapter 90, section 24(1)(a)(1) of the
Massachusetts General Laws and finding that, to be convicted under this
statute, an alien must have known, or had reason to know, of the possible
effects of a drug or alcohol on his driving abilities). Second, there is no basis
to conclude that the respondent might have to cause such an accident in order
to carry out his crime. Accordingly, the respondent’s offense cannot
constitute a crime of violence under § 16(b) of the Act, and it does not
qualify as an aggravated felony under section 101(a)(43)(F) of the Act.
   We therefore conclude that the Service has failed to establish that the
respondent is removable as an aggravated felon under section
237(a)(2)(A)(iii) of the Act, and we again terminate the proceedings against
the respondent.
ORDER: The motion to reconsider submitted by the Immigration and
Naturalization Service is granted, and the August 8, 2001, decision of the
Board is vacated.


                                       347
Cite as 

 (BIA 2002)                                    Interim Decision #3468



FURTHER ORDER: The removal proceedings against the respondent are
terminated.

CONCURRING OPINION: Lauri Steven Filppu, Board Member
    I respectfully concur.
    In Matter of Puente, Interim Decision 3412 (BIA 1999), and Matter of
Magallanes, Interim Decision 3341 (BIA 1998), we faced the question
whether a felony offense for driving under the influence of alcohol constituted
a crime of violence under 

(b) (2000) at a time when there was
little case law from the federal courts of appeals on the issue and no
controlling precedent directly on point. Since then, several courts of appeals
have explicitly rejected our reading of 

(b), two circuits have
deferred to us, but no circuit has independently agreed with and adopted our
interpretation as its own understanding of the statute.
    In view of this more recent case law, the majority’s current interpretation
of 

(b) reflects a very reasonable reading of this criminal law
provision. But I also understand the reasonableness of the view we initially
adopted in Puente and Magallanes to be reflected in the various rulings that
give deference to our prior interpretation, as well as in the circuit court
dissents that are consistent with that prior reading. See United States v.
Trinidad-Aquino, 

 (9th Cir. 2001) (Kozinski, J.,
dissenting); Dalton v. Ashcroft, 

 (2d Cir. 2001) (Walker,
C.J., dissenting); Tapia Garcia v. INS, 

 (10th Cir. 2001)
(deferring to the Board’s prior interpretation); Le v. United States Attorney
General, 

 (11th Cir. 1999) (same). Despite what appears to
be the inconclusive state of the law, I agree with the majority that we should
not continue to apply Puente and Magallanes in circuits that have not
specifically spoken on this issue.1
    The meaning of the crime of violence provision in 

 is a
question of federal criminal law. At its core, it does not become a question
of civil immigration law merely because the statute incorporates it by
reference in the “aggravated felony” definition in section 101(a)(43)(F) of the
Immigration and Nationality Act, 

(a)(43)(F) (2000). Because
it is a question of federal criminal law, we owe deference to the construction
given the statute by the federal circuit courts of appeals. Those courts do not
owe deference to our reading of 

. See Adams Fruit Co. v.
Barrett, 

 (1990) (explaining that deference does not extend to an
agency’s interpretation of a judicially enforceable portion of a statute);
Crandon v. United States, 

 (1990) (Scalia, J., concurring
1
  I would continue to follow our prior rulings in the United States Courts of Appeals for the
Tenth and Eleventh Circuits because, as the dissenting opinion notes, there are indications that
these circuits agreed with our rulings, in addition to deferring to them.

                                             348
Cite as 

 (BIA 2002)                                  Interim Decision #3468



in judgment) (stating that deference does not apply to the interpretation of a
criminal statute administered by the courts).
   When resolving an ambiguity in the meaning of a federal criminal statute,
we should look first to the law of the circuit in which the case arises. If that
fails to provide an answer, an examination of the law of other circuits should
follow. We ought further to apply the interpretation in any consistent body
of case law we find, absent strong reasons to believe that interpretation is
wrong. We may, of course, be forced to offer our own interpretation of
federal criminal law at times, but our reading of a criminal statute does not
carry any extra weight merely because we faced the question before the
courts of appeals faced it. Importantly, we should withdraw from our own
reading of criminal law in the face of a consistent rejection of that reading by
the courts of appeals, just as we would follow a consistent judicial
interpretation that already exists when we first confront a question of federal
criminal law that has arisen many times before in the criminal context, but
perhaps not in our own context.
   The principal concern I have with the majority’s ruling is that it once again
can be seen to announce the Board’s reading of criminal law for Immigration
Judges and the parties to follow in removal cases, if there is no controlling
law in the particular circuit in which the case arises. We tread on thin ice,
however, when we attempt to offer yet another definitive reading of criminal
law, particularly given the various rationales offered by the courts of appeals
on the meaning of a “crime of violence” in this precise context.
   As sensible as the majority’s reading currently appears, we would do better
to refer the parties and the Immigration Judges to circuit court law as their
starting point in cases such as this. Although the rationales of the courts vary,
those courts which clearly announce their own interpretations of the statute
have all agreed that a driving while intoxicated crime such as the respondent’s
is not a crime of violence. I concur in the result reached by the majority
because these courts of appeals have rejected our interpretation and no court
has independently determined that the criminal law actually means what we
declared it to be in Puente and Magallanes.
CONCURRING OPINION: Roger A. Pauley, Board Member, in which
Lori L. Scialabba, Acting Chairman, joined
   I respectfully concur and write to emphasize my understanding of the
limited nature of the holding in this case.
   Although a determination that an offense is a “crime of violence” under

(b) (2000) necessitates a finding that the crime involves a
volitional, rather than negligent, act, as the majority opinion amply explains,1
1
    As the majority opinion finally gets around to noting, in its penultimate paragraph, the
                                                                             (continued...)

                                            349
Cite as 

 (BIA 2002)                                Interim Decision #3468



it also requires a determination that the act involves a risk that physical force
will be used in the offense (more precisely, the “substantial risk that physical
force against the person or property of another may be used in the course of
committing the offense”).
    I agree with the federal courts of appeals that have focused on the type of
“physical force” contemplated by the statute that, consistent with the title of
the statutory provision in question and the terminology of the phrase being
defined (i.e., “crime of violence”), the type of physical force involved must
be violent or destructive in nature. See, e.g., Dalton v. Ashcroft, 

 (2d Cir. 2001); Bazan-Reyes v. INS, 

 (7th Cir.
2001); United States v. Ceron-Sanchez, 

 (9th Cir.
2000). 2 Some volitional uses of a vehicle, e.g., unlawfully stopping a vehicle
to rest on a highway while under the influence of alcohol or drugs, do not
involve the kind of physical force necessary to meet the “crime of violence”
definition.
    However, other volitional uses of a vehicle may qualify. A person may
unleash destructive or violent force through a nonviolent act, such as pulling
the trigger of a loaded firearm or pressing a button that electronically sets off
a bomb or releases a torrent of water. A vehicle may also be used in this
manner, as by recklessly, knowingly, or deliberately releasing the brake or
stepping on the gas. Thus, I do not wish that my joining in the majority
opinion should be construed as expressing or implying a belief that volitional
misuse of a vehicle, while the actor is intoxicated or otherwise, can never be
a crime of violence. Indeed, it is only because the statute in this case reaches
negligent misuse that the respondent’s (assumed) act of driving the vehicle
while under the influence of alcohol escapes the “crime of violence”
definition. See Francis v. Reno, 

 (3d Cir. 2001).
    Moreover, even if I believed that Matter of Puente, Interim Decision 3412
(BIA 1999), was properly decided, the fact that, as the majority opinion points
out, at least four courts of appeals have rejected its reasoning, whereas none
has endorsed it other than by according it “Chevron” deference, would cause
me at this juncture to bow to the weight of federal appellate court authority
in the interest of uniform application of the immigration laws. The four
circuits that have rejected Matter of Puente, supra—the Second, Fifth,
1
    (...continued)
Massachusetts statute at issue in this case has been authoritatively construed by the
Massachusetts Supreme Judicial Court as requiring no more than a negligent state of mind.
Hence, and crucially, the respondent cannot satisfy the volitional element of the “crime of
violence” definition.
2
   The Ceron-Sanchez decision construed 

(a), but as both branches of the
“crime of violence” definition employ the identical phrase, “physical force,” it would be a
strange jurisprudence to find that Congress intended a different meaning for the same words
in the two branches.

                                           350
Cite as 

 (BIA 2002)                         Interim Decision #3468



Seventh, and Ninth—collectively account for a large percentage, perhaps a
majority, of the cases that come before Immigration Judges and the Board.
Accordingly, for the Board to persist in defending a precedent decision in the
remaining circuits (two more of which, as the majority opinion also shows,
have issued decisions that appear to indicate that they, too, would likely not
uphold the reasoning or result in Matter of Puente) would only have the effect
of continuing and exacerbating an uneven application of the immigration laws
relating to the recurring issue whether driving under the influence, pursuant
to a statute that punishes such conduct when committed negligently,
constitutes a crime of violence.
   Although I do not believe that the Board should withdraw from precedent
decisions it considers to be well reasoned simply because one or more courts
of appeals announces its disagreement, here the number of adverse appellate
court rulings, and the fact that the scoreboard is so lopsidedly arrayed against
the Puente precedent, counsels strongly in favor of the Board’s abandoning
Puente and adopting the prevailing appellate court view. If Congress wishes
to overturn this outcome and to include negligent DUI felony offenses within
the “crime of violence” definition, it is of course free to do so.
DISSENTING OPINION: Gerald S. Hurwitz, Board Member, in which
Mary Maguire Dunne, Vice Chairman; David B. Holmes, Patricia A. Cole,
Edward R. Grant, Anthony C. Moscato, Kevin A. Ohlson, and Frederick
D. Hess, Board Members, joined
   I respectfully dissent. I believe that our ruling in Matter of Puente, Interim
Decision 3412 (BIA 1999), is correct. Moreover, I do not believe that the
federal courts have adopted a uniform approach to the question whether
driving under the influence is a crime of violence under 

(b)
(2000). I therefore would continue to apply Matter of Puente to cases like
the respondent’s where there is no controlling circuit court precedent.
   We first addressed the question whether driving under the influence
qualifies as a crime of violence in Matter of Magallanes, Interim Decision
3341 (BIA 1998). In that case, we discussed the risks inherent in drunk
driving, and we found that aggravated driving under the influence in violation
of Arizona law “is the type of crime that involves a substantial risk of harm
to persons and property.” Matter of Magallanes, supra, at 6. We also found
that drunk driving is an inherently reckless act. Id. We therefore concluded
that driving under the influence was a crime of violence under § 16(b).
   In Matter of Sweetser, Interim Decision 3390 (BIA 1999), we clarified our
ruling in Matter of Magallanes, supra. We noted that, although we had used
the phrase “risk of harm” in determining that driving under the influence was
a crime of violence under § 16(b), our ruling in Matter of Magallanes had
turned on the conduct required for conviction rather than on the risk of injury.

                                      351
Cite as 

 (BIA 2002)                        Interim Decision #3468



We explained that driving under the influence does involve a substantial risk
that a driver will injure another in an accident, but we noted that this risk is
directly related to the risk that physical force may be used. We stressed that
this link between the use of force and the risk of harm is required before a
crime may qualify as a crime of violence under § 16(b). See Matter of
Sweetser, supra, at 9.
   In Matter of Puente, supra, we again addressed the question whether
driving under the influence qualifies as a crime of violence under § 16(b), and
we expanded upon our rulings in Matter of Magallanes and Matter of
Sweetser. The Texas statute at issue in Matter of Puente punished a slightly
wider range of conduct than the statute at issue in Matter of Magallanes,
supra. Nevertheless, we found that operating a motor vehicle in a public
place while under the influence, as defined in Texas law, involved a
substantial risk that physical force against the person or property of another
might be used in the course of committing the offense. Matter of Puente,
supra, at 10-11.
   The respondent in Matter of Puente argued that his crime did not fall
within § 16(b) because that provision required a specific intent to use force.
We disagreed, explaining that we had addressed this question in Matter of
Alcantar, 

 (BIA 1994), and had concluded that Ҥ 16(b) is
not limited to crimes of specific intent, but includes at a minimum reckless
behavior.” Matter of Puente, supra, at 10. We also noted that driving under
the influence is an inherently reckless act. Id. (citing Matter of Magallanes,
supra). And we found that imposing a specific intent requirement was not
reasonable given the language of the statute. We pointed out that § 16(a)
employed the term “use” whereas § 16(b) contained the phrase “may be
used.” We found that this distinction was significant and counseled against
reading a specific intent requirement into § 16(b). Matter of Puente, supra.
   Since we issued our ruling in Matter of Puente, two federal circuit courts
have agreed that driving under the influence is a crime of violence. In Le v.
United States Attorney General, 

 (11th Cir. 1999), the
United States Court of Appeals for the Eleventh Circuit found that driving
under the influence with serious bodily injury, in violation of section
316.193(3) of the Florida Statutes, was a crime of violence under 

(a) because the use of physical force was an element of the crime. And
in Tapia Garcia v. INS, 

 (10th Cir. 2001), the Tenth
Circuit upheld our ruling that driving under the influence of alcohol or drugs
in violation of Idaho law was a crime of violence under § 16(b).
   The Tenth Circuit applied a deferential standard of review in evaluating
our ruling, but it also inserted some of its own reasoning to support its
conclusion that our interpretation of § 16(b) was reasonable. See id. at
1222-23. The court cited case law which described the risks involved in
drunk driving and stated that “the well-documented danger inherent in drunk

                                      352
Cite as 

 (BIA 2002)                         Interim Decision #3468



driving supports the conclusion that a DUI offense may also constitute a
crime of violence under § 16(b) because the generic elements of the offense
present ‘a substantial risk that physical force . . . may be used.’” Id. at 1223.
These statements suggest that the court not only deferred to our view but also
agreed with our approach.
   Four other circuits have addressed the drunk driving issue and have
disagreed with our ruling in Matter of Puente, supra. See United States v.
Trinidad-Aquino, 

 (9th Cir. 2001); Dalton v. Ashcroft,

 (2d Cir. 2001); Bazan-Reyes v. INS, 

 (7th Cir.
2001); United States v. Chapa-Garza, 

 (5th Cir. 2001); see also
Montiel-Barraza v. INS, 

 (9th Cir. 2002). The rulings of these
circuits, however, are not identical. Each circuit has approached the issue
slightly differently, and the circuits do not agree on the type of force required
under § 16(b). The Fifth and Seventh Circuits have found that § 16(b) refers
only to those offenses in which there is a substantial likelihood that the
perpetrator will intentionally employ physical force against the person or
property of another. See United States v. 

;
Bazan-Reyes v. INS, supra, at 611. The Ninth Circuit, on the other hand, has
found that intentional conduct is not required. See United States v. Trinidad-

. And the Second Circuit has not directly addressed
the intent requirement. The Second Circuit instead has stated that the risk
inherent in drunk driving is not the risk that the driver will “use physical
force” in the course of driving the vehicle. See Dalton v. Ashcroft, supra, at
206-07.
   These rulings do not offer either a uniform reading of § 16(b) or a
consistent approach to the question whether driving under the influence is a
crime of violence. Moreover, two of the decisions contain strong dissents.
See Dalton v. Ashcroft, supra, at 209 (Walker, C.J., dissenting); United
States v. 

 (Kozinski, J., dissenting). Chief
Judge John M. Walker of the Second Circuit dissented from his colleagues
because he found that, even if the word “use” in § 16(b) involves intentional
availment, “driving inevitably involves intentional use of force: the driver
necessarily intends to use mechanized force to propel the vehicle to its
destination.” Dalton v. Ashcroft, supra, at 209. Chief Judge Walker went on
to state that all driving involves some risk that physical force my be used
against the person or property of another, but driving under the influence
makes that risk substantial. Id.
   Judge Kozinski of the Ninth Circuit also found that driving under the
influence fell within the confines of § 16(b). He agreed with the
Trinidad-Aquino majority that recklessly disregarding a known risk is a
sufficient mental state to form the basis of an aggravated felony under
§ 16(b), but he noted that the majority ignored the reckless conduct involved
in driving under the influence, namely, drinking and driving. Judge Kozinski

                                      353
Cite as 

 (BIA 2002)                         Interim Decision #3468



found that this conduct qualified as a crime of violence under Ninth Circuit
precedent, and he therefore disagreed with the majority’s conclusion. United
States v. 

.
   In addition, Judge Rhesa Hawkins Barksdale of the Fifth Circuit dissented
from her circuit’s denial of a petition to rehear United States v. Chapa-

 en banc. See United States v. Chapa-Garza, 

(5th Cir. 2001) (Barksdale, J., dissenting). In her dissent, she indicated that
she disagreed with the ruling in United States v. Chapa-Garza, 

,
and stated that the gravity of the drunk driving issue demanded further
review. United States v. Chapa-Garza, 

 (Barksdale, J.,
dissenting).
   These dissents show that, even within the circuits that have disagreed with
Matter of Puente, there is support for the Board’s ruling. Moreover, they
highlight the lack of uniformity in the circuit court findings. The circuit
courts have approached the drunk driving issue from a variety of perspectives
and have not offered a clear and uniform interpretation of § 16(b). Given this
lack of unanimity, I do not believe it is appropriate to withdraw from our
ruling in Matter of Puente, supra. I would therefore continue to apply Matter
of Puente to cases like the respondent’s that arise within the circuits that have
not ruled on the issue or have not differed with our interpretation.




                                      354