Lara-Cazares v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCO ANTONIO LARA-CAZARES, 
Petitioner, No. 03-71568
v.
 Agency No.
A28-818-794
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 9, 2005—Pasadena, California
Filed May 23, 2005
Before: Harry Pregerson, William C. Canby, Jr., and
Robert R. Beezer, Circuit Judges.
Opinion by Judge Canby
*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,
as Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
5591
5594 LARA-CAZARES v. GONZALES
COUNSEL
Jonathan D. Montag, San Diego, California, for the petitioner.
Jennifer Paisner, Office of Immigration Litigation, United
States Department of Justice, Civil Division, Washington,
D.C., for the respondent.
OPINION
CANBY, Circuit Judge
Marco Lara-Cazares is a permanent resident of the United
States whom an Immigration Judge ordered removed from the
country on the ground that he had been convicted of a “crime
of violence” within the meaning of 18 U.S.C. § 16. His crime,
as defined by the State of California, was gross vehicular
manslaughter while intoxicated. The Board of Immigration
Appeals affirmed the removal order, and Lara-Cazares peti-
tions for review. We grant his petition and reverse because we
conclude that, under the principles announced in the recent
Supreme Court decision of Leocal v. Ashcroft, 125 S. Ct. 377
(2004), the crime of which Lara-Cazares was convicted does
not qualify as a “crime of violence.”1
I
Lara-Cazares is a native and citizen of Mexico who became
a lawful permanent resident of the United States in January,
1988. In June of 1998, the State of California convicted him
of gross vehicular manslaughter while intoxicated. CAL.
PENAL CODE § 191.5(a).2 He received a total sentence of eight
1
We note that neither the Immigration Judge nor the Board of Immigra-
tion Appeals had the benefit of Leocal at the time of their decisions.
2
Section 191.5(a) provides the following:
LARA-CAZARES v. GONZALES 5595
years in prison.3 The government initiated removal proceed-
ings, arguing that Lara-Cazares’s conviction qualified as an
aggravated felony because it was a crime of violence. See 8
U.S.C. § 1101(a)(43)(F).
The Immigration Judge, and later the Board, found that his
conviction so qualified. The Board reached this conclusion
primarily because the crime required “gross negligence,”
which satisfied the mens rea requirement of this Court for a
crime of violence within the meaning of 18 U.S.C. § 16. See,
e.g., Park v. INS, 252 F.3d 1018, 1023-25 (9th Cir. 2001)
(holding that “criminal negligence” requirement for involun-
tary manslaughter satisfies the mens rea requirement for a
crime of violence); United States v. Ceron-Sanchez, 222 F.3d
1169, 1172-73 (9th Cir. 2000) (holding that requirement of
recklessness causing injury was sufficient to qualify crime as
violent).
II
We review de novo whether a conviction under state law is
a removable offense. See, e.g., Lara-Chacon v. Ashcroft, 345
F.3d 1148, 1151 (9th Cir. 2003).
Gross vehicular manslaughter while intoxicated is the unlawful
killing of a human being without malice aforethought, in the driv-
ing of a vehicle, where the driving was in violation of Section
23140 [minors driving while intoxicated], 23152 [driving while
intoxicated], or 23153 [driving while intoxicated and causing
bodily injury] of the Vehicle Code, and the killing was either the
proximate result of the commission of an unlawful act, not
amounting to a felony, and with gross negligence, or the proxi-
mate result of the commission of a lawful act which might pro-
duce death, in an unlawful manner, and with gross negligence.
3
The record does not contain any other significant facts concerning his
offense.
5596 LARA-CAZARES v. GONZALES
III
[1] Lara-Cazares is subject to removal if he was “convicted
of an aggravated felony at any time after admission.” 8 U.S.C.
§ 1227(a)(2)(A)(iii). If Lara-Cazares is removable under this
provision, we have no jurisdiction to review his petition. See
8 U.S.C. § 1252(a)(2)(C). If he is not removable under this
provision, however, we have jurisdiction and he necessarily
prevails. Thus “the jurisdictional question and the merits col-
lapse into one.” Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.
2000).
The Immigration and Nationality Act defines an “aggra-
vated felony” to include “a crime of violence (as defined in
section 16 of Title 18 . . . ).” 8 U.S.C. § 1101(a)(43)(F).4 The
primary issue in this case is therefore whether Lara-Cazares’s
conviction qualifies under the terms of 18 U.S.C. § 16, which
provides:
[2] The term “crime of violence” means—
(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.
(Emphasis added). This “statute directs our focus to the
‘offense’ of conviction,” and its “language requires us to look
to the elements and the nature of the offense of conviction,
rather than to the particular facts relating to petitioner’s
crime.” Leocal, 125 S. Ct. at 381.
4
Section 1101(a)(43)(F) also requires that the conviction resulted in a
sentence of imprisonment of at least one year, but there is no dispute that
Lara-Cazares’s sentence surpassed that minimum.
LARA-CAZARES v. GONZALES 5597
[3] We conclude that the Supreme Court’s analysis in Leo-
cal establishes that Lara-Cazares’s conviction does not qual-
ify as a crime of violence under these provisions. In Leocal,
the Supreme Court addressed the question whether a convic-
tion under Florida law for driving under the influence of alco-
hol (DUI) and causing serious bodily qualified under § 16.
The Court unanimously held that the conviction did not qual-
ify as a crime of violence. See Leocal, 125 S. Ct. at 383-84.
An important part of the Court’s analysis addressed the com-
mon meaning of the “use” of force “against the person” of
another:
The critical aspect of § 16(a) is that a crime of vio-
lence is one involving the “use . . . of physical force
against the person or property of another.” (Empha-
sis added.) . . . “[U]se” requires active employment.
While one may, in theory, actively employ some-
thing in an accidental manner, it is much less natural
to say that a person actively employs physical force
against another person by accident. Thus, a person
would “use . . . physical force against” another per-
son when pushing him; however, we would not ordi-
narily say a person “use[s] . . . physical force
against” another by stumbling and falling into him.
When interpreting a statute, we must give words
their “ordinary or natural” meaning. The key phrase
in § 16(a) — the “use . . . of physical force against
the person or property of another” — most naturally
suggests a higher degree of intent than negligent or
merely accidental conduct. Petitioner’s DUI offense
therefore is not a crime of violence under § 16(a).
Id. at 382 (internal citations omitted). The Court also applied
the same reasoning to the broader provisions of § 16(b):
[W]e must give the language in § 16(b) an identical
construction, requiring a higher mens rea than the
merely accidental or negligent conduct involved in a
5598 LARA-CAZARES v. GONZALES
DUI offense. This is particularly true in light of
§ 16(b)’s requirement that the “substantial risk” be a
risk of using physical force against another person
“in the course of committing the offense.” In no “or-
dinary or natural” sense can it be said that a person
risks having to “use” physical force against another
person in the course of operating a vehicle while
intoxicated and causing injury.
Id. at 383. Finally, the Court emphasized that it was ulti-
mately determining the meaning of the term “crime of vio-
lence.” “The ordinary meaning of this term, combined with
§ 16’s emphasis on the use of physical force against another
person . . . suggests a category of violent, active crimes that
cannot be said naturally to include DUI offenses.” Id.
[4] We conclude that this reasoning compels a result in
favor of Lara-Cazares in the present case. The crime of which
he was convicted required Lara-Cazares to have been driving
while under the influence of alcohol, and to have killed a per-
son with gross negligence (but without malice aforethought)
in so doing. There is no requirement that he intentionally used
the vehicle to inflict injury. Under the Supreme Court’s rea-
soning in Leocal, Lara-Cazares simply cannot be regarded as
having “used” physical force “against the person . . . of anoth-
er.” 8 U.S.C. § 16. He did not actively employ force against
another in a manner to constitute a crime of violence under
§ 16.
We cannot accept the government’s contention that Leocal
does not apply because it dealt only with a requirement of
simple negligence, while the California statute violated by
Lara-Cazares required gross negligence. See CAL. PENAL CODE
§ 191.5(a). The government points to our earlier decision in
United States v. Trinidad-Aquino, 259 F.3d 1140, 1145 (9th
Cir. 2001), in which we distinguished between mere negli-
gence and recklessness for purposes of § 16, and argues that
Leocal adds nothing to our analysis in Trinidad-Aquino and
LARA-CAZARES v. GONZALES 5599
does not extend to gross negligence. We are unable to read
Leocal in such limited fashion. Gross negligence is still negli-
gence, however flagrant, and does not constitute the kind of
active employment of force against another that Leocal
requires for a crime of violence.5 Gross negligence and
drunken driving causing death are the categorical elements of
the crime of which Lara-Cazares was convicted, and these
elements do not change whether the crime is characterized as
“DUI causing injury” or “gross vehicular manslaughter while
intoxicated.” The death remains accidental.6 “Interpreting
§ 16 to encompass accidental or negligent conduct would blur
the distinction between the ‘violent’ crimes Congress sought
to distinguish for heightened punishment and other crimes.”
Leocal, 125 S. Ct. at 383.
[5] Two additional aspects of Leocal reinforce our conclu-
sion that a drunken driving crime, even accompanied by gross
negligence, is not a crime of violence for purposes of § 16.
First, as the Supreme Court pointed out, the definition of “vio-
lent crime” set out in § 16 applies in both civil and criminal
contexts. See id. at 384 n.8. Accordingly, any potential
ambiguity in § 16 must be resolved in favor of Lara-Cazares
under the rule of lenity. See id.
[6] Second, Congress within months of incorporating § 16
into the immigration law enacted 8 U.S.C. § 1101(h), which
provides:
5
Thus a jury may find gross negligence under § 191.5(a) from “the level
of the defendant’s intoxication, the manner of driving, or other relevant
aspects of the defendant’s conduct resulting in the fatal accident.” People
v. Bennett, 819 P.2d 849, 854 (Cal. 1992) (modified opinion). These fac-
tors are not necessarily directed at an intent in “use” of “force against
another person.”
6
It is true that Leocal stated that it was not presented with a statute
requiring proof of “the reckless use of force against a person or property
of another.” 125 S. Ct. at 384. We do not read this statement as negating
Leocal’s analysis that the terms “use” and “against a person” do not
encompass negligence in drunken driving.
5600 LARA-CAZARES v. GONZALES
For purposes of section 1182(a)(2)(E) of this title,
the term “serious criminal offense” means—
(1) any felony;
(2) any crime of violence, as defined in section 16 of
Title 18; or
(3) any crime of reckless driving or of driving while
intoxicated or under the influence of alcohol or of
prohibited substances if such crime involves per-
sonal injury to another.
As the Supreme Court pointed out in Leocal, it would deprive
clause (3) of this statute of most of its meaning if DUI
offenses causing injury to another were, ipso facto, crimes of
violence covered by clause (2). See Leocal, 125 S. Ct. at 384
& n.9. It seems abundantly clear that Congress, while consid-
ering a drunken (or reckless) driving offense that causes
injury to another to be a “serious criminal offense,” it did not
consider it to be a “crime of violence.” As the Supreme Court
said in concluding its opinion in Leocal:
Drunk driving is a nationwide problem, as evidenced
by the efforts of legislatures to prohibit such conduct
and impose appropriate penalties. But this fact does
not warrant our shoehorning it into statutory sections
where it does not fit.
Id. at 384.
[7] We conclude, therefore, that Leocal precludes removal
of Lara-Cazares for having committed a crime of violence. To
the extent that our decision in Park v. INS, 252 F.3d 1018 (9th
Cir. 2001), and cases there cited support a contrary result, we
conclude that they are no longer good law in light of Leocal.
LARA-CAZARES v. GONZALES 5601
IV
[8] Because the crime for which Lara-Cazares was ordered
removed was not a crime of violence, Lara-Cazares is not
removable by reason of having committed an aggravated fel-
ony. See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). We
accordingly are not deprived of jurisdiction over this case, see
8 U.S.C. § 1252(a)(2)(C), and Lara-Cazares prevails. We
grant the petition for review and reverse the order of the
Board of Immigration Appeals.
PETITION FOR REVIEW GRANTED; REVERSED.