PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT
RODOLFO BEJARANO-URRUTIA,
Petitioner,
v.
ALBERTO R. GONZALES, Attorney
General,
Respondent.

No. 04-2270

On Petition for Review of an Order of

the Board of Immigration Appeals.
(A72-752-363)
Argued: May 24, 2005
Decided: July 5, 2005
Before WILKINS, Chief Judge, and NIEMEYER
and SHEDD, Circuit Judges.

Petition granted and remanded by published opinion. Chief Judge

Wilkins wrote the majority opinion, in which Judge Shedd joined.
Judge Niemeyer wrote a dissenting opinion.

COUNSEL
ARGUED: William O. Smith, Richmond, Virginia, for Petitioner.
Michelle Elizabeth Gorden, Senior Litigation Counsel, UNITED
STATES DEPARTMENT OF JUSTICE, Civil Division, Office of
Immigration Litigation, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn

BEJARANO-URRUTIA v. GONZALES

Lopez Wright, Assistant Director, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, D.C., for Respondent.

OPINION
WILKINS, Chief Judge:
Rodolfo Bejarano-Urrutia (Petitioner) petitions for review of a final
order of removal. We grant the petition and remand for further proceedings.
I.
Petitioner, a citizen and native of Mexico, legally entered the
United States in 1994. After remaining here continuously from that
time, in 1998 he became a lawful permanent resident. In 2001, Petitioner was involved in an automobile accident in which the driver of
the other vehicle was killed. As a result, he was indicted by a Chesterfield County, Virginia grand jury for aggravated involuntary manslaughter, see Va. Code Ann. 18.2-36.1 (LexisNexis 2004), and for
driving under the influence, see Va. Code Ann. 18.2-266 (LexisNexis 2004). Pursuant to a plea agreement, the Government amended
the indictment, and Petitioner pleaded guilty to simple involuntary
manslaughter in violation of Va. Code Ann. 18.2-36 (LexisNexis
2004) and to the driving under the influence charge. He was sentenced to 10 years imprisonment, with eight years suspended.
After being remanded to state custody, Petitioner was served with
a notice to appear charging him with removabillity under 8 U.S.C.A.
1227(a)(2)(A)(iii) (West 1999) for having been convicted of an
aggravated felony. Petitioner was subsequently also charged with
removability under 8 U.S.C.A. 1227(a)(2)(A)(i)(I) (West 1999) for
having been convicted of a crime involving moral turpitude within
five years of his entry into the United States.
Petitioner denied removability and moved to dismiss the removal
action. The immigration court granted the motion, and the Govern-

BEJARANO-URRUTIA v. GONZALES

ment appealed. While that appeal was pending, Petitioner completed

his prison sentence and was remanded to federal custody. Subsequently, the Board of Immigration Appeals, in a two-to-one decision,
reversed the ruling of the immigration court as to Petitioners removability under 8 U.S.C.A. 1227(a)(2)(A)(iii) (conviction of an aggravated felony) and entered a final removal order. The Board made no
ruling regarding Petitioners removability under 8 U.S.C.A.
1227(a)(2)(A)(i)(I).
II.
Petitioner argues that the Board erred in determining that his conviction for involuntary manslaughter under Va. Code Ann. 18.2-36
was for an aggravated felony. We agree.
An alien is removable under 8 U.S.C.A. 1227(a)(2)(A)(iii) if he
has been convicted of an aggravated felony after being admitted to
this country. The Government maintains that Petitioners involuntary
manslaughter offense was an aggravated felony because it was a
crime of violence. See 8 U.S.C.A. 1101(a)(43)(F) (West 1999)
(defining "aggravated felony" to include "a crime of violence . . . for
which the term of imprisonment [is] at least one year" (internal quotation marks & footnote omitted)). As is relevant here, "crime of violence" means "any . . . 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." 18 U.S.C.A. 16(b) (West 2000) (internal quotation marks
omitted). In determining whether a crime fits this definition, the court
must look to the "intrinsic nature of the crime, not to the facts of each
individual commission of the offense." United States v. Aragon, 983
F.2d 1306, 1312 (4th Cir. 1993); see Leocal v. Ashcroft, 125 S. Ct.
377, 381 (2004) (holding that the language of 16 "requires us to
look to the elements and the nature of the offense of conviction, rather
than to the particular facts relating to petitioners crime"). The crime
at issue here, a violation of Va. Code Ann. 18.2-36, requires the
killing of a person as a proximate result of the defendants reckless
disregard for human life. See Hargrove v. Commonwealth, 394 S.E.2d
729, 731 (Va. Ct. App. 1990).
The United States Supreme Court recently interpreted 16(b) in a
way that makes plain the correct result in this case:

BEJARANO-URRUTIA v. GONZALES

[Section 16(b)] simply covers offenses that naturally involve

a person acting in disregard of the risk that physical force
might be used against another in committing an offense. The
reckless disregard in 16 relates not to the general conduct
or to the possibility that harm will result from a persons
conduct, but to the risk that the use of physical force against
another might be required in committing a crime. The classic example is burglary. A burglary would be covered under
16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but
because burglary, by its nature, involves a substantial risk
that the burglar will use force against a victim in completing
the crime.
Leocal, 125 S. Ct. at 383 (footnote omitted).* Indeed, the Leocal
Court went on to explain that, under this definition of "use," a violation of the Florida DUI statute there at issue was not a 16(b) crime
of violence because "[t]he risk that an accident may occur when an
individual drives while intoxicated is simply not the same thing as the
risk that the individual may use physical force against another in
committing the DUI offense." Id. at 383 n.7. For this reason, the
Court added that "[i]n no ordinary 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.
For the same reason, a violation of Va. Code Ann. 18.2-36
which here was apparently accomplished with the very conduct that
the Leocal Court explained did not involve the potential "use" of
physical forceis not a crime of violence under 16(b). Although
the crime of violating Va. Code Ann. 18.2-36 intrinsically involves
a substantial risk that the defendants actions will cause physical
harm, it does not intrinsically involve a substantial risk that force will
be applied "as a means to an end." Jobson v. Ashcroft, 326 F.3d 367,
373 (2d Cir. 2003) (employing the same analysis to hold that a New
York conviction for involuntary manslaughter was not a crime of violence under 16(b)).
*We note that Leocal had not yet been decided when the Board issued
its decision.

BEJARANO-URRUTIA v. GONZALES

The Government argues that Leocal is not controlling here because

the Leocal Court explainedin dictumthat it was not presented
"with the question whether a state or federal offense that requires
proof of the reckless use of force against a person or property of
another qualifies as a crime of violence" since "DUI statutes such as
Floridas do not require any mental state with respect to the use of
force against another person, thus reaching individuals who were negligent or less." Leocal, 125 S. Ct. at 384. The Government points out
that a violation of 18.2-36, on the other hand, does require reckless
disregard for human life. See Gallimore v. Commonwealth, 436
S.E.2d 421, 424 (Va. 1993). However, it bears repeating that a reckless disregard for human life is distinguishable from a reckless disregard for whether force will need to be used. See Leocal, 125 S. Ct.
at 383 n.7. Moreover, the conclusion of the Leocal Court that "[i]n no
ordinary 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, strongly
indicates that the result in Leocal would have been the same even had
a violation of the statute there at issue required recklessness rather
than mere negligence. Thus, we conclude that Leocal is controlling
here.
III.
In sum, because the Board erred in holding that Petitioners 18.236 conviction was for an aggravated felony, we grant the petition for
review and remand to the Board for further proceedings consistent
with this opinion.
PETITION GRANTED AND REMANDED
NIEMEYER, Circuit Judge, dissenting:
The Board of Immigration Appeals ordered Rodolfo BejaranoUrrutia removed to Mexico pursuant to 8 U.S.C. 1227(a)(2)(A)(iii)
(providing for the deportation of aliens who are "convicted of an
aggravated felony," including a "crime of violence") because
Bejarano-Urrutia had been convicted of involuntary manslaughter
under Virginia law. Bejarano-Urrutia had pleaded guilty in May 2002
to one count of involuntary manslaughter, in violation of Va. Code

BEJARANO-URRUTIA v. GONZALES

Ann. 18.2-36, and to one count of driving under the influence, in

violation of Va. Code Ann. 18.2-266. He was sentenced to 11 years
imprisonment with 9 years suspended. Because the involuntary manslaughter charge of which Bejarano-Urrutia was convicted is a crime
of violence and therefore an "aggravated felony," I would affirm the
decision of the Board.
The majority concludes, employing the categorical approach to
determine whether Bejarano-Urrutia was convicted of an "aggravated
felony," that involuntary manslaughter under Virginia law is not an
aggravated felony because it is not necessarily a crime of violence. It
relies on the Supreme Courts recent decision in Leocal v. Ashcroft,
125 S. Ct. 377 (2004), and observes that while a violation of Virginia
Code 18.2-36 may "intrinsically involve[ ] a substantial risk that the
defendants actions will cause physical harm, it does not intrinsically
involve a substantial risk that force will be applied as a means to an
end." Ante at 4 (citation omitted). The majority thus concludes that
Leocals holding that a Florida DUI statute was not intrinsically a
crime of violence compels the conclusion that Bejarano-Urrutias
conviction for involuntary manslaughter under Virginia law also was
not a conviction of a crime of violence.
I respectfully submit, however, that Leocal does not control this
case because the Florida statute that was involved in Leocal is materially different from the Virginia statute involved here. In Leocal, the
Supreme Court considered whether violation of a Florida DUI statute
categorically constituted an "aggravated felony" that is, a "crime
of violence," 8 U.S.C. 1101(a)(43)(F), which is defined to involve
"the use of physical force against [a] person," 18 U.S.C. 16(a)
for purposes of deporting an alien under 8 U.S.C. 1227(a)(2)(A)(iii).
Observing that the Florida statute did not have "a mens rea component" and required only "a showing of negligence in the operation of
a vehicle," Leocal, 125 S. Ct. at 380, the Court concluded that the
Florida statute was not a crime of violence, id. at 382-83. As the
Court repeatedly noted, "[t]he Florida statute, while it require[d] proof
of causation of injury, [did] not require proof of any particular mental
state." Id. at 381. A crime of violence, on the other hand, requires "a
higher degree of intent than negligent or merely accidental conduct."
Id. at 382. Making the limit of its holding crystal clear, the Supreme
Court stated:

BEJARANO-URRUTIA v. GONZALES

This case does not present us with the question whether

a state or federal offense that requires proof of the reckless
use of force against a person or property of another qualifies
as a crime of violence under 18 U.S.C. 16.
Id. at 384.
Thus, the question before us is whether the Virginia involuntary
manslaughter law, under which Bejarano-Urrutia was convicted, is a
"crime of violence," as defined by 18 U.S.C. 16, or a statute like the
Florida statute in Leocal that criminalized "negligent or merely accidental conduct." See Leocal, 125 S. Ct. at 382.
We begin with the statutory definitions. The Immigration and Naturalization Act (the "INA" or "Act") provides that "[a]ny alien who
is convicted of an aggravated felony at any time after admission is
deportable." 8 U.S.C. 1227(a)(2)(A)(iii). The Act defines an "aggravated felony" as a "crime of violence (as defined in section 16 of Title
18) . . . for which the term of imprisonment [is] at least one year." Id.
1101(a)(43)(F) (footnote omitted). Section 16(a) of Title 18 defines
a "crime of violence" as "an offense that has as an element the use
. . . of physical force against the person or property of another." Thus
an aggravated felony includes a crime of violence, which must have,
as an element, the use of physical force against the person or property
of another. When the predicate offense for removability under the
INA is supplied by state law, we of course look to that States law to
determine whether it has "as an element the use . . . of physical force
against the person or property of another."
I agree with the majority that, when looking to state law, we must
use a "categorical" approach, under which we look to the generic
nature of the offense of conviction rather than the specific conduct of
the offender. The categorical approach is dictated by Congress
choice to define the condition of deportation in terms of "convict[ions]," 8 U.S.C. 1227(a)(2)(A)(iii), rather than "conduct." See Taylor v. United States, 495 U.S. 575, 600-01 (1990). Because Congress
has employed similar language in several statutory provisions, the categorical approach applies in a variety of contexts. See, e.g., Shepard
v. United States, 125 S. Ct. 1254, 1258 (2005) (Armed Career Criminal Act); Leocal, 125 S. Ct. at 381 (INA); Taylor, 495 U.S. at 600-01

BEJARANO-URRUTIA v. GONZALES

(Armed Career Criminal Act); United States v. Pierce, 278 F.3d 282,
286 (4th Cir. 2002) (United States Sentencing Guidelines); United
States v. Aragon, 983 F.2d 1306, 1312-13 (4th Cir. 1993) (Travel
Act). Regardless of whether the statute that relies on the predicate of
a prior "conviction" is a Travel Act provision, part of the INA, a sentencing provision, or some other statute, this approach focuses on the
"elements and the nature of the offense of conviction, rather than
. . . the particular facts relating to the petitioners crime." Leocal, 125
S. Ct. at 381.
In addition to being a faithful interpretation of the statutory language, the categorical approach has the practical advantage of avoiding prolonged and duplicative litigation by forbidding inquiry into
facts previously presented and tried. As we explained previously,
such an inquiry "would become a series of minitrials for each prior
offense, which would be both costly and unreliable." Pierce, 278 F.3d
at 286; see also Taylor, 495 U.S. at 601 ("[T]he practical difficulties
and potential unfairness of a factual approach are daunting").
To discern the intrinsic nature of the Virginia involuntary manslaughter statute involved here, we look to the elements that constitute
the offense and must be proved to obtain a conviction. First, the prosecutor must prove that the defendant engaged in
acts of commission or omission of a wanton or wilful
nature, showing a reckless or indifferent disregard of the
rights of others, under circumstances reasonably calculated
to produce injury, or which make it not improbable that
injury will be occasioned, and the offender knows, or is
charged with the knowledge of, the probable result of his
acts.
Gallimore v. Commonwealth, 436 S.E.2d 421, 424 (Va. 1993) (quoting Bell v. Commonwealth, 195 S.E. 675, 681 (Va. 1938)) (internal
quotation marks omitted). Second, the defendants conduct must have
proximately caused the death of another. Id. The crime of involuntary
manslaughter in Virginia thus encompasses both active commissions
and passive omissions. See Bell, 195 S.E. at 681; Kelly v. Commonwealth, 592 S.E.2d 353, 357-58 (Va. Ct. App. 2004) (affirming conviction for involuntary manslaughter based on the defendants

BEJARANO-URRUTIA v. GONZALES

omission i.e. his failure to ensure that his daughter had been
removed from her car seat in a closed van).
To qualify as a crime of violence under 18 U.S.C. 16, Virginias
statute must involve (1) the use against the person or property of
another (2) of physical force. Addressing the first element, the Leocal
Court held that the "use of" physical force "against the person or
property of another," see 18 U.S.C. 16(a), requires "a higher degree
of intent than negligent or merely accidental conduct," Leocal, 125 S.
Ct. at 382. Leocals holding left open the question of whether a mental state of recklessness suffices under 18 U.S.C. 16. Under the Leocal Courts logic, however, it is clear that a crime requiring a mens
rea of recklessness can be a "crime of violence." That is, the Court
explained that to "use [something] against the person . . . of another"
is to "actively employ[ ] [something] against another person." Id.
(emphasis omitted) (internal quotations marks and citations omitted).
Unlike a person who accidentally injures another person, a person
who acts recklessly in bringing about harm to another is aware of the
nature of his conduct and thus can be said to be "actively employ[ing]" the physical force that results in injury "against another." See
id.; see also United States v. Trinidad-Aquino, 259 F.3d 1140, 1146
(9th Cir. 2001) ("[T]he crime need not be committed purposefully or
knowingly, but it must be committed at least recklessly"); In re
Alcantar, 20 I. & N. Dec. 801, 813 (BIA 1994) ("18 U.S.C. 16(b)
does not require specific intent to do violence. It includes at a minimum reckless behavior . . .").
In short, because Virginias involuntary manslaughter statute
requires a mens rea of recklessness, see Craig v. Commonwealth, 538
S.E.2d 355, 360 (Va. Ct. App. 2000), it satisfies 18 U.S.C. 16s
requirement that it involve the use of physical force against the person or property of another.
Once it is established that Bejarano-Urrutia was convicted of a
crime with the requisite mens rea to involve a "use" of force "against"
the person of another, it becomes necessary to address whether the
offense of involuntary manslaughter under Virginia law involves the
use of "physical force." The answer to that question depends on
whether the offender caused the death of another through an act of
commission or an act of omission. An act of commission that results

10

BEJARANO-URRUTIA v. GONZALES

in the death of another will always involve some sort of physical

force. A "commission" is the "act of committing, performing, or
doing." Websters Third New International Dictionary 457 (Philip
Babcock Gove et al. ed., 1993). "Force" is defined as "[p]ower, violence, or pressure directed against a person or thing." Blacks Law
Dictionary 656 (7th ed. 1999). The modifier "physical" narrows the
definition to a particular kind of force, that is, "[f]orce consisting in
a physical act." Id. And, "physical" means "material" or "relating to
the body." Websters Third New International Dictionary, supra, at
1706. To cause the death of another through an "act . . . of doing" necessarily requires the actor to put into motion some sort of "force" or
"pressure" that eventually reaches the "body" of the victim. Thus, it
involves "physical force."
An omission, on the other hand, seldom, if ever, will involve physical force since, by definition, an omission is a failure to act. See
Blacks Law Dictionary, supra, at 1116 (defining "omission" as "[a]
failure to do something"). Because Virginias definition of involuntary manslaughter encompasses both commissions and omissions, the
fact that Bejarano-Urrutia was convicted of involuntary manslaughter
does not, without more knowledge, enable us to determine whether he
was convicted of a crime of violence that is, a crime involving
physical force.
In such circumstances where the statute at issue is divisible and
"encompasses some acts that are grounds for removal and others that
are not" a court may look beyond the fact of conviction to the
record of conviction to determine the nature of the offense. In re
Vargas-Sarmiento, 23 I. & N. Dec. 651, 654 (BIA 2004); see also
Bazan-Reyes v. INS, 256 F.3d 600, 606 (7th Cir. 2001); In re
Sweetser, 22 I. & N. Dec. 709, 714-15 (BIA 1999); cf. Taylor, 495
U.S. at 602; United States v. Kirksey, 138 F.3d 120, 124 (4th Cir.
1998) (interpreting a similar provision under the Sentencing Guidelines to allow examination of the facts stated in the charging document where the "definition of the prior crime of conviction is
ambiguous"). The record of conviction includes "the charging document, a plea agreement, a verdict or judgment of conviction, a record
of the sentence, or a plea colloquy transcript." Dickson v. Ashcroft,
346 F.3d 44, 53 (2d Cir. 2003) (relying on the list of documents that
constitute proof of a conviction provided by 8 U.S.C.

BEJARANO-URRUTIA v. GONZALES

11

1229a(c)(3)(B)); see also Shepard, 125 S. Ct. at 1263; VargasSarmiento, 23 I. & N. Dec. at 654. Thus, the Supreme Court has noted
that when a court subjects a statute to the categorical analysis under
the Armed Career Criminal Act ("ACCA") and the statute proves
ambiguous, the court may look to the indictment and jury instructions
to understand the nature of the predicate offense:
For example, in a State whose burglary statutes include
entry of an automobile [which would not qualify as a predicate under the ACCA] as well as a building [which would
qualify as a predicate under the ACCA], if the indictment or
information and jury instructions show that the defendant
was charged only with a burglary of a building, and that the
jury necessarily had to find an entry of a building to convict,
then the Government should be allowed to use the conviction for enhancement.
Taylor, 495 U.S. at 602; see also Shepard, 125 S. Ct. at 1259 (applying Taylors reasoning to guilty pleas).
When we apply this canon of the categorical analysis to the Virginia involuntary manslaughter statute which can be violated with
conduct that either involves the use of physical force or is passive and
need not involve the use of physical force we look to the record
of conviction to determine whether the defendant was convicted of a
crime of violence involving the use of physical force. In doing so in
this case, we need look no further than the charging document on
which Bejarano-Urrutia was convicted. The indictment to which he
pleaded guilty charged:
Bejarano[-]Urrutia, on or about July 28, 2001, . . . did
unlawfully and feloniously kill and slay Sybil Renee
McDaniel by negligence so gross, wanton and culpable as
to show a reckless disregard of human life . . . .
(Emphasis added).
If the indictment used the word "kill" alone, it might have left open
the possibility that Bejarano-Urrutia caused the death of McDaniel

12

BEJARANO-URRUTIA v. GONZALES

through an omission. By charging him with "slay[ing]" McDaniel,

however, the indictment eliminated that possibility because to "slay"
means "to deprive of life by force" or "put . . . to death violently."
Websters Third New International Dictionary, supra, at 2140
(emphases added). Thus, Bejarano-Urrutia was convicted of a crime
involving physical force. This conclusion is fortified also by
Bejarano-Urrutias guilty plea contained in the same plea agreement to driving under the influence, in violation of Virginia Code
18.2-266, which raises the inference that McDaniels death was
caused by a drunk driving incident and therefore by physical force.
Because the established categorical approach reveals that the involuntary manslaughter crime of which Bejarano-Urrutia was charged
and convicted was a crime of violence that constitutes aggravated felony under 8 U.S.C. 1101(a)(43)(F), I would affirm the decision of
the Board concluding that Bejarano-Urrutia is removable under 8
U.S.C. 1227(a)(2)(A)(iii).