KANNE, Circuit Judge.
Petitioners Jose A. Bazan-Reyes, Wincenty Z. Maciasowicz, and Arnoldo Gomez-Vela seek review of decisions by the Immigration and Naturalization Service ("INS") and the Board of Immigration Appeals ("BIA") finding them removable as a result of state drunk driving offenses. These cases were consolidated for the purposes of appeal because they all raise the same issue: are petitioners' state drunk driving convictions aggravated felonies as defined by the Immigration and Naturalization Act ("INA")? See 8 U.S.C. § 1101(43). Petitioners argue that the INS (in the case of Bazan-Reyes) and the BIA (in the case of Maciasowicz and Gomez-Vela) incorrectly determined that they were removable because driving while intoxicated is a crime of violence, and thus an aggravated felony. See id.; 18 U.S.C. § 16. Because we conclude that the INS and the BIA erred in finding that petitioners' state convictions are crimes of violence, we vacate the deportation orders of Bazan-Reyes, Maciasowicz, and Gomez-Vela and remand for proceedings consistent with this opinion.
Bazan-Reyes, Maciasowicz, and Gomez-Vela appeal from decisions of either the INS (in the case of Bazan-Reyes) or the BIA (in the case of Maciasowicz and Gomez-Vela) finding them removable. We will briefly discuss the background of each petitioner's appeal.
Bazan-Reyes, a citizen of Mexico, entered the United States without inspection in 1972. He applied for temporary resident alien status in 1988, but his application was denied because he did not submit information about his criminal record, which up to that point included four convictions for driving while intoxicated ("DWI"). Subsequently, on October 5, 1988, Bazan Reyes was paroled into the United States. Eleven years later, in April 1999, Bazan Reyes pleaded guilty to a Class D felony, Operating a Vehicle While Intoxicated, in violation of section 9-30-5-3 of the Indiana Code.
Maciasowicz, a citizen of Poland, was admitted to the United States as a lawful permanent resident in December 1993. In February 1998, he pleaded guilty to two counts of homicide by intoxicated use of a vehicle under Wisconsin Statute Section 940.09.
Gomez-Vela, a citizen of Mexico, was admitted to the United States as a lawful permanent resident in November 1971. In June 1997, Gomez-Vela was arrested for driving under the influence ("DUI"). Because he had two previous drunk driving convictions, he was charged with aggravated driving under the influence. See 625 ILL. COMP. STAT. 5/11-501(d)(1) (1997).
Petitioners Bazan-Reyes, Maciasowicz, and Gomez-Vela all filed timely petitions for review of the INS and BIA decisions finding them removable. On appeal, petitioners argue that the INS and the BIA erred in their determination that Bazan Reyes and Gomez-Vela's prior convictions for DWI and Maciasowicz's conviction for homicide by intoxicated use of a vehicle are aggravated felonies rendering them removable under 8 U.S.C. § 1227(a)(2)(A)(iii).
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. No. 104-208, 110 Stat. 3009 (1996), limits our review of orders of removal. Under 8 U.S.C. § 1252(a)(2)(C), as amended by the IIRIRA, "no court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section ... 1227(a)(2)(A)(iii)." Nevertheless, the government concedes that we retain jurisdiction in order to determine jurisdiction and may thus review the threshold issue of whether petitioners' convictions for driving while intoxicated are indeed aggravated felonies as defined by 8 U.S.C. § 1227(a)(2)(A)(iii). See Solorzano Patlan v. INS, 207 F.3d 869, 872 (7th Cir.2000); Xiong v. INS, 173 F.3d 601, 604 (7th Cir.1999). Here, the jurisdictional question and the merits collapse into one because the issue of whether petitioners' convictions were aggravated felonies also provides the basis for their challenges to removal. See Guerrero Perez v. INS, 242 F.3d 727, 729-30 (7th Cir.2001). Thus, we must decide whether the state drunk driving convictions of Bazan-Reyes, Maciasowicz, and Gomez-Vela
B. Was Bazan-Reyes Properly Placed in Expedited Removal Proceedings?
Before turning to the question of whether petitioners have committed aggravated felonies, we must first address Bazan Reyes' claim that the INS lacked subject matter jurisdiction to issue a final order of removal against him because he was improperly placed into expedited removal proceedings under section 238 of the INA, 8 U.S.C. § 1228. Unlike petitioners Maciasowicz and Gomez-Vela, Bazan
Bazan-Reyes' argument that parolees may not be placed in expedited removal proceedings is based on the introductory paragraph to 8 U.S.C. § 1227(a) which provides: "Any alien ... in and admitted to the United States shall ... be removed if the alien is within one or more of the following classes of deportable aliens." Bazan Reyes argues that, since he has not been admitted to this country, he does not fall under 8 U.S.C. § 1227, and thus may not be placed in expedited proceedings. We disagree. Section 1228(b) of Title 8 of the United States Code, entitled "Removal of aliens who are not permanent residents," allows the Attorney General to utilize expedited proceedings to remove certain aliens who are not lawful permanent residents, including those who have been convicted of aggravated felonies. Nothing in that section prohibits its application to parolees, and, as the government points out, construing the statute to forbid its application to parolees would provide more favorable treatment for parolees than for lawfully admitted aliens. We cannot believe that Congress intended such a result. We find it more plausible that the reference to § 1227(a)(2)(A)(iii) simply operates to incorporate the definition of aggravated felony set out in that section to elucidate which non-lawful resident aliens may be placed in expedited proceedings. Therefore, we reject Bazan-Reyes' argument that he was improperly placed in removal proceedings and will consider whether his prior conviction-as well as the prior convictions of petitioners Maciasowicz and Gomez-Vela—was properly found to be an aggravated felony.
C. Is Driving While Intoxicated an Aggravated Felony?
1. Statutory Framework
Section 237(a)(2)(A)(iii) of the INA provides that "[a]ny alien who is convicted of an aggravated felony ... is deportable." 8 U.S.C. § 1227(a)(2)(A)(iii). Petitioners dispute neither the fact of their convictions nor their alien status. Therefore, the only remaining issue in these consolidated appeals is whether the petitioners' convictions may be deemed aggravated felonies under 8 U.S.C. § 1227(a)(2)(A)(iii). Although we review de novo the determinations by the INS and the BIA that petitioners are removable because they committed aggravated felonies, see Xiong v. INS, 173 F.3d 601, 605 (7th Cir.1999), the BIA's interpretation of the statute it administers is entitled to deference. See Guerrero-Perez, 242 F.3d 727, 730 (7th Cir.2001).
The INA provides that the term "aggravated felony" includes, inter alia, "a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year." 8 U.S.C. § 1101(a)(43)(F).
2. Categorical Approach
In order to determine whether Congress intended the term "crime of violence" as defined in 18 U.S.C. § 16 to encompass conduct prohibited under a specific state statute, we generally employ a categorical approach. See Lara Ruiz v. INS, 241 F.3d 934, 941 (7th Cir.2001). In other words, we ask only whether the generic elements of the statute under which the alien was convicted together with the indictment constitute a crime of violence. See id. In using such an approach, however, we will not categorize all conduct covered by a statute as crime of violence conduct if the statute covers both conduct that constitutes a crime of violence and conduct that does not. See Xiong v. INS, 173 F.3d 601, 605 (7th Cir.1999). We will look past the charging documents to the aliens' specific conduct if "`it [i]s otherwise impossible to determine the proper classification of the offense'" and such an inquiry would not require evidentiary hearings into disputed issues of fact. Id. (quoting United States v. Shannon, 110 F.3d 382, 384 (7th Cir.1997)); see also Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (determining that an offense constitutes burglary under the Armed Career Criminal Act, 18 U.S.C. § 924(e), if either the statutory definition or the charging papers and jury instructions actually required the jury to find all of the elements of burglary).
3. Do Petitioners' Convictions Qualify as Crimes of Violence Under 18 U.S.C. § 16?
As is evident from the case at hand, the BIA has interpreted the definition of crime of violence set out in § 16 to include crimes of recklessness — such as drunk driving — that pose a substantial risk that one object will exert a force upon another. See In re Puente-Salazar, Interim Decision 3412, 1999 WL 770709 (BIA 1999); In re Magallanes-Garcia, Interim Decision 3341, 1998 WL 133301 (BIA 1998); Matter of Alcantar, 1994 WL 232083, 20 I. & N. Dec. 801, 814 (BIA 1994); see also In re Sweetser, Interim Decision 3390, 1999 WL 311950 (BIA 1999) (finding that petitioner's conviction for criminally negligent child abuse was not a crime of violence because "although a parent who negligently leaves a young child unattended near a body of water may risk serious `injury' to the child, there is no risk that `force' will be used in the commission of the offense"). According to the BIA, the term crime of violence as articulated in § 16(b) is not limited to crimes of specific intent, but also includes offenses that involve reckless (and possibly negligent) behavior. Petitioners challenge this interpretation; they argue that § 16(a) requires intentional force and that § 16(b) requires a substantial risk of intentional force. Because the offenses of which they were convicted do not normally involve intentional force or a substantial risk of intentional force, petitioners claim that they are not guilty of crimes of violence and are therefore not removable.
We have never directly addressed the issue of whether drunk driving is a crime of violence for the purposes of § 16. In United States v. Rutherford, 54 F.3d 370 (7th Cir.1995), however, we examined the related issue of whether a conviction for causing serious bodily injury while driving under the influence
Although both parties agree that our decision in Rutherford is central to the issue at hand, they vigorously dispute its proper application. Because our analysis depends in part on a comparison of the language defining the term crime of violence in § 16(b) with the language of section 4B1.2(1) of the sentencing guidelines, we set out the language of both provisions here. Crime of violence is defined by section 16 of Title 18 of the United States Code to include the following:
18 U.S.C. § 16. Section 4B1.2(1) of the sentencing guidelines provides that:
U.S.S.G. § 4B1.2(1). Initially, these two provisions were identical because the guidelines defined crime of violence by simply incorporating the definition found in § 16(b). See U.S. SENTENCING GUIDELINES MANUAL, app. C at 106-07 (1991). This changed in 1989, however, when the Sentencing Commission adopted the definition of crime of violence now found in section 4B1.2(1). See id. A side-by-side comparison of the current provisions reveals that the language of the first prongs of both definitions is nearly identical while the language of the second prong of the 4B1.2(1) is distinct from the second prong of § 16.
In Rutherford, we found that the term "use of physical force" in U.S.S.G. section 4B1.2(1)(i) implies "an intentional act rather than the mere application or exertion of force." Rutherford, 54 F.3d at 372-73. But see id. at 378 (Easterbrook, J., concurring) (arguing that section 4B1.2(1)(i) does not require intent to use force because the word "use" refers not to mens rea of the actor, but rather to the actus reus). Our finding was based on the dictionary definition as well as the common understanding of the word "use". See id. at 372. In making this determination, we noted the following:
Id. at 372-73.
We did, however, find that specific intent to use force was not required under the second prong of U.S.S.G. section 4B1.2(1). See id. at 376. Section 4B1.2(1)(ii), in addition to naming specific crimes such as burglary and arson, also provides that an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is considered a crime of violence. In rejecting defendant's argument that the Sentencing Commission intended this section to include only intentional conduct, we found that section 4B1.2(1)(ii) does not contain any indication that specific intent is required. Rutherford, 54 F.3d at 374. Instead, we found that section 4B1.2(1)(ii) encompasses reckless conduct that presents a serious risk of injury. See id. Our determination that section 4B1.2(1)(i) requires intent while section 4B1.2(1)(ii) does not was partially based on our concern that a contrary interpretation would conflate the two prongs of section 4B1.2(1), thereby making the second prong redundant. See id. ("[W]e are persuaded that the Commission intended subsections (i) and (ii) to complement rather than compete
Turning to the issue at hand, we must now decide the impact of our holding in Rutherford on the question of whether drunk driving is a crime of violence under 18 U.S.C. § 16. The application to the first prong of § 16 is clear because the language of § 16(a) is nearly identical to the language of U.S.S.G. section 4B1.2(1)(i). Therefore, our finding that the word "use" requires volitional conduct prohibits a finding that drunk driving is a crime of violence under § 16(a). The government concedes that Bazan-Reyes' and Gomez-Vela's felony DWI convictions are not crimes of violence under § 16(a), but maintains that Maciasowicz's conviction for homicide by intoxicated use of a vehicle is a crime of violence under § 16(a) because homicide by the intoxicated use of a vehicle has the use of force against a person as an element. We disagree. Although a conviction for homicide by intoxicated use of a vehicle requires that the offender actually hit someone, it does not require that he intentionally used force to achieve that result. Like Maciasowicz, the defendant in Rutherford was convicted of an offense that included causing injury to another person while under the influence of alcohol. Therefore, application of § 16(a) to Maciasowicz's conviction is foreclosed by our determination in Rutherford that section 4B1.2(1)(i) did not apply to the defendant's conviction
Notwithstanding the proper application of § 16(a), the government maintains that all three petitioners are guilty of crimes of violence under § 16(b). The government asserts that our holding in Rutherford requires a finding that drunk driving is a crime of violence under § 16(b) because the language of § 16(b) is substantially similar to the language of U.S.S.G. section 4B1.2(1)(ii) and the second prong of § 16(b) is aimed at the same type of risky or reckless behavior that is targeted by section 4B1.2(1)(ii). In support of this argument, the government also points out that the Sentencing Commission, in amending the original section 4B1.2(1), noted that the amendment was not intended to change the substance of the guideline, but only to clarify the language.
We are not convinced by the government's argument that the two provisions should be interpreted in the same way simply because the Sentencing Commission, in amending section 4B1.2(1), specifically noted that the amendment was not intended to change the substance of the guideline, but only to clarify its meaning. See U.S. SENTENCING GUIDELINES MANUAL app. C at 106-07 (1991). Our task at hand is to interpret § 16(b), not the guideline; therefore the evolution of the guideline does not control our discussion. Moreover, while it is true that, in amending U.S.S.G. section 4B1.2(1), the Commission stated its desire to clarify the definition of 18 U.S.C. § 16(b) rather than change its substance, see id., the relevant inquiry is not whether the amendment was intended to change the guideline, but whether it actually did. On that point, we agree with the conclusion of United States v. Parson, 955 F.2d 858 (3d Cir.1992), that the 1989 amendment to section 4B1.2(1) changed, and in fact expanded, the coverage of section 4B1.2(1)(ii). See id. at 866. "Whatever the amendment's purpose, what it did was scrap the earlier cross-reference to 18 U.S.C. § 16 and replace it with a significantly different definition based on 18 U.S.C. § 924(e)." Id., at n. 10. (citing
The government urges us to follow the Tenth and Eleventh Circuits and find that drunk driving is a crime of violence. By arguing that § 16(b) covers all felonies that involve a substantial risk of one object exerting force upon another, the government asks us to interpret the language of § 16(b) as if it were equivalent to the language of U.S.S.G. section 4B1.2(1)(ii). If we were to oblige, almost any felony offense that involves a substantial risk of physical harm — accidental or otherwise — would be a crime of violence under § 16(b) because physical harm is nearly always the result of some type of physical force. Such an interpretation would include many offenses that are not generally thought of as violent crimes. For example, a felony conviction for involuntary manslaughter that was the result of speeding would become a crime of violence. While it is, of course, possible that Congress intended s§ 16(b) to reach conduct that is normally not considered violent (as the Sentencing Commission did in crafting section 4B1.2(1)(ii)), we will not make such a finding unless this interpretation is supported by the plain language of the statute.
Contrary to the government's assertion that the language of U.S.S.G. section 4B1.2(1)(ii) and § 16(b) are substantially similar, a side-by-side comparison reveals significant differences between the language of the two provisions. While this fact alone does not mandate that the two provisions be interpreted differently, it certainly requires us to carefully scrutinize the language of the two statutes before finding that the two provisions should be interpreted in the same manner. In United States v. Chapa-Garza, 243 F.3d 921 (5th Cir.2001), the Fifth Circuit rejected the government's contention that § 16(b) should be interpreted in the same manner as section 4B1.2(1)(ii) and concluded that felony DWI is not a crime of violence under § 16(b). Id. at 927. The court found that the two provisions should not be interpreted to mean the same thing because the language of section 4B1.2 (1)(b) is substantially broader than that of § 16(b):
Parson, 955 F.2d at 866.
We are in agreement with the Third and Fifth Circuits that the phrase "may be used in the course of committing the offense" counsels against interpreting § 16(b) to be equivalent to section 4B1.2(1)(ii). Our determination in Rutherford that the word "use" implies intentional availment requires that the words "may be used" in § 16(b) also contain an intent requirement. Thus, the physical force that "may be used in the course of committing the offense" must be accompanied by intent to use that force. Additionally, the fact that the petitioners did employ intentional force at some point, in opening the car door or pressing the accelerator for example, does not constitute the use of physical force as required by the statute. In Solorzano-Patlan v. INS, 207 F.3d 869 (7th Cir.2000), we found that the term "physical force" in 18 U.S.C. § 16(b) refers to actual violent force. See id. at 875. In finding that the statute at issue encompassed both conduct that involved the use of physical force and conduct that did not, we noted that "the force necessary to trigger [18 U.S.C. § 16(b)] is more than merely opening a car door. We are of the opinion that the force necessary to constitute a crime of violence, must actually be violent." Id. at 875 n. 10; see also Sareang Ye v. INS, 214 F.3d 1128, 1134 (9th Cir.2000) (holding that vehicle burglary is not a crime of violence under § 16(b) because "entry into a locked vehicle is not essentially `violent in nature'" because a person can commit vehicle burglary in numerous ways short of using violent physical force); United States v. Rodriguez-Guzman, 56 F.3d 18, 20 n. 8 (5th Cir.1995) (finding that the word "force" in § 16(b) refers to destructive or violent force). Finally, the fact that the statute requires the physical force to be used "in the course of committing the offense" also supports the conclusion that the force that "may be used" refers to intentional force. Chapa-Garza, 243 F.3d at 927.
The combination of the phrases "physical force," "may be used," and "in the course of committing the offense" in § 16(b) (and their corresponding absence from section 4B1.2 (1)(ii)) is a material difference between the two definitions-one that requires § 16(b) to be interpreted to exclude felony DWI from the definition of crime of violence. Notwithstanding the BIA's finding in Puente, Interim Decision 3412, 1999 WL 770709 (BIA 1999), that an approach that attempts to determine the meaning of each individual phrase takes the words "may be used" out of context, we hold that the language of § 16(b) simply does not support a finding that a risk that one object will apply force to another is enough to constitute a crime of violence under the statute. Although 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." Id. Therefore, we agree with the Fifth Circuit that § 16(b) only applies "when the nature of an offense is such that there is a substantial likelihood that the perpetrator will intentionally employ physical force against another's person or property in the commission thereof." Chapa-Garza, 243 F.3d at 925.
Having found that § 16(b) is limited to crimes in which the offender is reckless with respect to the risk that intentional physical force will be used in the course of committing the offense, we turn our attention to the ultimate question of whether petitioners' prior convictions qualify as crimes of violence under this interpretation. As we noted above, we apply a categorical approach in order to determine whether a conviction under a specific statute is a crime of violence. We look only to the generic elements of the statute, and determine if those elements, by their nature, give rise to a substantial risk that intentional physical force will be used in the course of perpetrating the offense. Because "[i]ntentional force ... is virtually never employed to commit" any of the offenses for which petitioners were convicted, Chapa-Garza v. INS, 243 F.3d at 927, we find that petitioners convictions are not crimes of violence under § 16(b).
Our decision today does not minimize the seriousness of crimes involving drunk driving. There is no question that drunk driving "exacts a high societal toll in the forms of death, injury and property damage." Magallanes, Interim Decision 3341, 1998 WL 133301 (BIA 1998). This fact does not, however, change our observation in Rutherford, that "a drunk driving accident is not the result of plan, direction, or purpose, but of recklessness at worst and misfortune at best." 54 F.3d at 372. Based on the foregoing reasons, we VACATE the deportation order of petitioners Bazan-Reyes, Maciasowicz, and Gomez-Vela, and REMAND for proceedings consistent with this opinion.
IND.CODE § 9-30-5-3 (1998).
Section 1 provides:
IND.CODE § 9-30-5-1 (1998).
WIS.STAT. § 940.09 (1996).
(A) the person committed a violation of this Section, or a similar provision of a law of another state or a local ordinance when the cause of action is the same as or substantially similar to this Section, for the third subsequent time....
ILL. COMP. STAT. Ch. 625, § 5/511-501(d)(1) (1997).