On Petition for Review of Order of the Board of Immigration Appeals. (Board No. A28-102-920).
The opinion of the court was delivered by: Becker, Circuit Judge.
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
Son Duc Tran petitions for review of an order of the Board of Immigration Appeals (BIA) ordering him deported as an aggravated felon. Tran pled guilty in a Pennsylvania court to the crime of "reckless burning or exploding," which the Board found was a crime of violence under 18 U.S.C. § 16(b), and therefore an aggravated felony supporting removal. Tran argues that, because this crime required only a reckless mens rea, and involved no risk that he would intentionally use force in the commission of the crime, it was not a crime of violence under § 16(b).
Our review of the language of § 16(b), and of the cases interpreting it, leaves little doubt that a crime whose mens reais "pure" recklessness is not a crime of violence for immigration purposes. Section 16(b) requires a substantial risk that physical force will be used against the person or property of another. Such a risk is not synonymous with recklessness: the substantial risk required in § 16(b) is a risk of the use of force, not a risk of injury to persons or damage to property. As the use of force requires intent, and as Tran ran no risk of intentionally using force in committing his crime, he did not commit a crime of violence under § 16(b). We will therefore grant the petition for review.
Tran is a native and citizen of Vietnam. He came to the United States as a refugee in February 1989, fleeing mortal danger in his homeland. He became a lawful permanent resident in February 1991, and earned a bachelor's degree from Western Michigan University in 1996, where he remained to pursue a Ph.D. in chemistry. His parents, sisters, and brothers-in-law all live in Michigan, and he does not appear to have any immediate family in Vietnam.
In January of 1997, Tran received a call from a friend, who had saved his life when they were fleeing persecution in Vietnam, asking for his help with an unspecified matter. The friend was in Michigan, and Tran, who also lived in Michigan, was temporarily in Boston at the time. Tran agreed to drive the friend's brother back to Michigan to help the friend. When they arrived in Michigan, the friend told Tran that he had killed another man in a fight over a woman. The Immigration Judge (IJ) describes the events that followed:
[T]he friend wanted to dispose of the body in [a] way that made it look like the person was killed in an automobile accident. The respondent [Tran] did not want to be involved and said that his only involvement would be to drive the man's brother back to Boston, if that should be necessary. They ended up going in a car and the man's brother drove the car of the victim which had the body in it and set it on fire on the way from Michigan to Boston in Erie, Pennsylvania. The respondent had already gone ahead, not knowing that this is exactly where the body was going to be disposed of and he looked back and saw the car on fire and the brother of the perpetrator running to the respondent's car. They drove on then to Boston.
A few days later, Tran returned to his family in Michigan. The police questioned him about the murder, and he confessed to his involvement. He cooperated fully with the police and testified against his friend in a Michigan murder trial. He was not prosecuted in Michigan, and seems to have been granted immunity in exchange for his testimony.
Some two years later, Tran was told that he was wanted in Pennsylvania on charges related to the destruction of the body. He went to Pennsylvania, was set free on bond, and appeared for court proceedings. In October 1999, he pled guilty to several crimes, including conspiracy to commit reckless burning, and was sentenced to 6 to 24 months imprisonment. He served six months at Waymart State Correctional Institution, and was paroled in mid-2000.
In November 2000, the Immigration and Naturalization Service (INS) issued a Notice to Appear charging Tran with removability as an aggravated felon pursuant to 8 U.S.C. § 1227(a)(2)(A)(iii). Tran contested removability and applied for withholding of removal under 8 U.S.C. § 1231(b)(3)(A). He presented letters of support from the Pennsylvania judge who convicted and sentenced him,*fn2 the superintendent of the prison where he served his sentence, and from clergy, professors, family, and friends.
The IJ found that Tran's crimes did not constitute aggravated felonies under the immigration laws, and therefore held that he was not removable. The government appealed to the Board of Immigration Appeals. The BIA reversed, finding that the IJ had misapplied the law in finding that the conspiracy to commit reckless burning was not an aggravated felony. It also denied Tran's petition for withholding of removal, finding insufficient evidence that he faced serious risks in returning to Vietnam.
Tran filed a timely petitition for review challenging the BIA's decision that he is an aggravated felon.
The government contends that Tran is removable under 8 U.S.C. § 1227(a)(2)(A)(iii), which classifies as removable "[a]ny alien who is convicted of an aggravated felony at any time after admission." The term "aggravated felony" is defined by 8 U.S.C. § 1101(a)(43); the term includes "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). The government ...