Interim Decision #3220 

MATTER OF ALCANTAR 

In Deportation Proceedings 

A-72101831 

Decided by Board May 25, 1994 

(1) An offense meets the definition of a "crime of violence" under 18 U.S.C. § 16(a) 

(1988), for purposes of determining whether it is an "aggravated felony" as defined in 

section 101(a)(43) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43) 

(Supp. IV 1992), if the offense has as an element the use, attempted use, or threatened 

use of physical force against the person or property of another. 

(2) An offense meets the definition of a "crime of violence" under 18 U.S.C. § 16(b), for 

purposes of determining whether it is an "aggravated felony" under section 101(a)(43) 

of the Act, if the offense is a felony and if the "nature of the crime —as elucidated by 

the generic elements of the offense—is such that its commission would ordinarily 

present a risk that physical force would be used against the person or property of 

another" irrespective of whether the risk develops or harm actually occurs. 

(3) The respondent's conviction for involuntary manslaughter under Ill. Rev. Stat. ch. 

38, para. 9-3(a) (1992), for which he was sentenced to 10 years in prison, constituted a 

"crime of violence" under 18 U.S.C. § 16(b), and an "aggravated felony" as defined 

in section 101(a)(43) of the Act. 

CHARGE: 

Order. Act of 1952—Sec. 241(a)(1)(B) [8 U.S.C. § 1251(a)(1)(B)]—Entered without 

inspection 

Sec. 241(a)(2)(A)(iii) [8 U.S.C. § 1251 (a)(2)(A)(iii)l—Convicted of 

aggravated felony 

ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE: 

Pro se Sheila M. Entenman 

General Attorney 

BY: Dunne, Acting Chairman; Vacca and Heilman, Board Members 

In a decision rendered on September 20, 1993, the immigration 

judge found the respondent deportable under section 241(a)(1)(B) of 

the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(1)(B) (Supp. 

IV 1992), for entry without inspection, and ordered him deported to 

Mexico. The immigration judge also determined that the respondent 

was not deportable under section 241(a)(2)(A)(iii) of the Act for 

801 
Interim Decision #3220 

conviction of an "aggravated felony," and it is this determination 

which the Immigration and Naturalization Service has challenged in 

its appeal) The appeal will be sustained, and a new order of 

deportation will be entered. The Service's request for oral argument 

before this Board was withdrawn by Appellate Counsel for the Service. 

The Service's charge of deportability under section 241(a)(2)(A)(iii) 

of the Act is based on the respondent's June 18, 1992, conviction in 

the Circuit Court of Cook County, Chicago, Illinois, for involuntary 

manslaughter committed on June 25, 1991. The respondent had been 

charged with first degree murder on the grounds that he "without 

lawful justification intentionally and knowingly struck Karla Alcantar 

Lemus with his fists and killed her," but he pleaded guilty to, and was 

convicted of, involuntary manslaughter. The respondent was sentenced to 10 years in prison. The Service contends that this conviction 

is a "crime of violence," and therefore an "aggravated felony" within 

the meaning of section 101(a)(43) of the Act, 8 U.S.C. § 1101(a)(43) 

(Supp. IV 1992). 

CRIME OF VIOLENCE UNDER 18 U.S.C. § 16 

Section 101(a)(43) of the Act provides as follows: 

The term "aggravated felony" means murder, any illicit trafficking in any controlled 

substance (as defined in section 102 of the Controlled Substances Act), including any 

drug trafficking crime as defined in section 924(c)(2) of title 18, United States Code, 

or any illicit trafficking in any firearms or destructive devices as defined in section 

921 of such title, any offense described in section 1956 of title 18, United States 

Code (relating to laundering of monetary instruments), or any crime of violence (as 

defined in section 16 of title 18, United States Code, not including a purely political 

offense) for which the term of imprisonment imposed (regardless of any suspension of 

such imprisonment) is at least 5 years, or any attempt or conspiracy to commit any 

such act. Such term applies to offenses described in the previous sentence whether in 

violation of Federal or State law and also applies to offenses described in the 

previous sentence in violation of foreign law for which the term of imprisonment was 

completed within the previous IS years. 

Section 101(a)(43) of the Act (emphasis added). The inclusion of 

"crimes of violence" in the definition of an "aggravated felony" was 

accomplished by section 501 of the Immigration Act of 1990 and 

applies to offenses committed on or after November 29, 1990. See 

section 501 of the Immigration Act of 1990, Pub. L. No. 101-649, 104 

1The respondent did not request relief from deportation and, of course, is as 

deportable under one charge as under two. Nevertheless, we will address the Service's 

appeal because a finding of deportability based on conviction of an aggravated felony 

carries its own additional liabilities and, therefore, is not mere surplusage. See, e.g., 

section 212(a)(6)(B) of the Act, 8 U.S.C. § 11 82(a)(6)(B) (Supp. IV 1992) (extending 

requirement of consent to reapply after removal from United States to within 20 years of 

removal in the case of an alien convicted of an aggravated felony). 

802 
Interim Decision #3220 

Stat. 4978, 5048 (effective Nov. 29, 1990), as corrected by section 

306(a)(1) of the Miscellaneous and Technical Immigration and 

Naturalization Amendments of 1991, Pub. L. No. 102-232, 105 Stat. 

1733, 1751 (enacted Dec. 12, 1991). 

The respondent's offense was committed on June 25, 1991, 

subsequent to the November 29, 1990, effective date for considering 

crimes of violence as aggravated felonies. See section 501(b) of the 

Immigration Act of 1990, 10-4 Stat. at 5048. There is no suggestion 

that the offense was "purely political." In addition, the respondent was 

sentenced to 10 years' imprisonment for his conviction and, therefore, 

the 5-year sentence prerequisite in section 101(a)(43) of the Act has 

been satisfied. The only issue is whether the respondent's conviction 

for involuntary manslaughter falls within the definition of "crime of 

violence" found at 18 U.S.C. § 16 (1988). 

The term "crime of violence" is defined in 18 U.S.C. § 16 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 Moray 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. 

The respondent was convicted of involuntary manslaughter under 

the following provision: 

A person who unintentionally kills an individual without lawful justification 

commits involuntary manslaughter if his acts whether lawful or unlawful which cause 

the death are such as are likely to cause death or great bodily harm to some 

individual, and he performs them recklessly, except in cases in which the cause of the 

death consists of the driving of a motor vehicle, in which case the person commits 

reckless homicide. 

Ill. Rev. Stat. ch. 38, para_ 9-3(a) (1992). Conviction under this 

provision is designated as a class 3 felony. Id. at para. 9-3(d). 

Without citing any authority, the immigration judge found that 

"intent is crucial to finding that a conviction constitutes a crime of 

violence for purposes of 18 U.S. Code Section 16." As the provision 

under which the respondent was convicted is based on unintentional 

killing, the immigration judge concluded that the respondent was not 

convicted of a crime of violence within 18 U.S.C. § 16, and, 

consequently, was not convicted of an aggravated felony under section 

101(a)(43) of the Act. 

RELATED PROVISIONS 

Although relatively new to the Immigration and Nationality Act, the 

term "crime of violence" as defined at 18 U.S.C. § 16 is used in many 

places in the United States Code and has a history of interpretation in 

the courts upon which we can draw in applying the term for purposes 

803 
Interim Decision #3220 

of section 101(a)(43) of the Act. First, 18 U.S.C. § 16 serves as the 

general definition of a "crime of violence" for title 18, see United 

States v. Aragon, 983 F.2d 1306, 1311 (4th Cir. 1993), which includes 

numerous references to the term. See 18 U.S.C. § 929(a)(1) (1988) 

(possession of restricted ammunition in commission of crime of 

violence); 18 U.S.C. § 1952(a)(2) (1988 & Supp. IV 1992) (use of 

interstate travel, commerce, or mail with intent to commit a crime of 

violence); 18 U.S.C. § 1959(a)(4) (1988) (threat, attempt, or conspiracy to commit crime of violence in aid of racketeering activity); 18 

U.S.C. § 3521(a)(1) (1988) (witness relocation and protection where 

crime of violence is directed at witness); 18 U.S.C. § 5032 (1988 & 

Supp. IV 1992) (juvenile delinquency proceedings and transfer for 

criminal prosecution); 18 U.S.C. § 5038 (1988) (preparation and use 

of juvenile records where act committed, if it had been committed by 

an adult, would be felony and crime of violence); cf. 15 U.S.C. 

§ 1245(b) (1988) (use of ballistic knife in commission of crime of 

violence); 20 U.S.C. § 1232g(b)(6) (Supp. II 1990) (release of postsecondary institution's disciplinary proceedings against alleged perpetrator of crime of violence); 25 U.S.C. § 3207(b) (Supp. IV 1992) 

(Indian child protection); 28 U.S.C. § 994(h), (i), (j) (1988) (duties of 

United States Sentencing Commission); 40 U.S.C. § 212a (Supp. IV 

1992) (arrests by Capitol Police for crimes of violence). 

In addition, separate definitions of the term "crime of violence" 

which are virtually identical to that at 18 U.S.C. § 16 are found at 18 

U.S.C. §§ 924(c)(3) and 3156(a)(4) (1988). And, 18 U.S.C. § 16 itself 

was previously used at 18 U.S.C. § 924(c) and at section 4B1.2 of the 

United States Sentencing Guidelines prior to the November 1, 1989, 

amendments to section 4B1.2. See 18 U.S.C_A_ app. 4, § 4B1.2 (West 

Supp. 1994) ("Sentencing Guidelines"). We will briefly look at each of 

these sections. 

Under 18 U.S.C. § 924, increased liability is authorized for various 

offenses, including any "crime of violence," which is defined, for 

purposes of § 924 as 

an offense that is a felony and— 

(A) has as an element the use, attempted use, or threatened use of physical force 

against the person or property of another, or 

(B) 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. § 924(c)(3); see also 18 U.S.C. §§ 924(c)(1) (increasing 

liability for "drug trafficking crimes" and "crimes of violence" 

committed with the use of or while carrying a firearm), (d)(3), (g)(4), 

and (h) (1988 & Supp. IV 1992). "Crime of violence" for purposes of 

18 U.S.C. § 924(c) was previously defined by reference to 18 U.S.C. 

804 
Interim Decision #3220 

§ 16. See United States v. Diaz, 778 F.2d 86 (2d Cir. 1985), cert. 

denied, 488 U.S. 818 (1988). The definition at 18 U.S.C. § 924(c)(3) 

was added in 1986 and, subsequently, courts have found the analysis 

under 18 U.S.C. § 924(c)(3) and 18 U.S.0 § 16 to be the same. See 

United States v. Clark, 773 F. Supp. 1533 (M.D. Ga. 1991) (applying 

analysis of 18 U.S.C. § 16 to § 924(c)(3)). 

"Crime of violence" is defined at 18 U.S.C. § 3156(aX4) for 

purposes of the Bail Reform Act as follows: 

[TJhe term "crime of violence" means— 

(A) an offense that has as an element of the offense 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. 

See also 18 U.S.C. §§ 3142 (1988 & Supp. IV 1992) (indicating effect 

of "crime of violence" in determining pretrial detention), 3143 (1988 

& Supp. IV 1992) (concerning detention pending sentence or appeal). 

As with 18 U.S.C. §§ 16 and 924(c)(3), courts have equated 1R U.S.C. 

§§ 16 and 3156(a)(4). See, e.g., United States v. Sloan, 820 F. Supp. 

1133 (S.D. Ind. 1993); United States v. Marzullo, 780 F. Supp. 658, 

661 (W.D. Mo. 1991) ("[I]t is reasonable to conclude that Congress, in 

choosing to use the same language in enacting 18 U.S.C. § 16 and 18 

U.S.C. § 3156 and choosing to enact them as part of the same bill on 

the same day, intended that both sections would mean the same 

thing."); cf. United States v. Patin, 962 F.2d 263 (2d Cir.) (finding 

analysis of "crime of violence" at 18 U.S.C. § 3156(a)(4) "dispositive" 

of analysis under 18 U.S.C. § 924(c)(3)), cert. denied, 113 S. Ct. 354 

(1992). 

Prior to the November 1, 1989, amendments to section 4B1.2 of the 

Sentencing Guidelines and its application notes, the term "crime of 

violence" was defined by incorporating the definition at 18 U.S.C. 

§ 16, just as is currently done in section 101(a)(43) of the Immigration 

and Nationality Act. United States v. Wilson, 951 F.2d 586, 587-88 & 

n.2 (4th Cir. 1991), cert. denied, 504 U.S. 951, (1992).2 

2Use of the term "crime of violence" under the Sentencing Guidelines arises perhaps 

most commonly in section 4B1.1 which provides sentence enhancements for any 

defendant who qualifies as a "career offender." Under this provision, a defendant is a 

career offender if 

(1) the defendant was at least eighteen years old at the time of the instant offense, 

(2) the instant offense of conviction is a felony that is either a crime of violence or a 

controlled substance offense, and (3) the defendant has at least two prior felony 

convictions of either a crime of violence or a controlled substance offense. 

Sentencing Guidelines, § 4B1.1 (emphasis added). The term also operates for purposes 

805 
Interim Decision #3220 

The 1989 amendments dropped reference to 18 U.S.C. § 16, eliminated from coverage offenses that involve force only against property, 

enumerated certain offenses as qualifying as crimes of violence, and 

dropped the words "by its nature" in the second part of the definition. 

See id. As such, with respect to cases interpreting section 4B1.2 prior 

to the November 1989 amendments, the same "crime of violence" 

definition that was being interpreted in those cases is the one 

applicable here, with the caveat that the application notes to section 

4B1.2 play an additional role in the interpretation of section 4B1.2 as 

is discussed, infra, at pages 15-18. 3 

of sections 2E1.2, 2K1.3, 2K2.1, 21.1.2, 3D1.1, 4A1.1, 4A1.2, 4B1.4, and 7B1.1 of the 

Sentencing Guidelines. 

3 Section 4B1.2(1) of the Sentencing Guidelines now reads as follows: 

The term "crime of violence" means any offense under federal or state law 

punishable by imprisonment for a term exceeding one year that — 

(i) has as an element the use, attempted use, or threatened use of physical force 

against the person of another, or 

(ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or 

otherwise involves conduct that presents a serious potential risk of physical injury 

to another. 

This amended definition was derived from the definition of the term "violent felony" at 

18 U.S.C. § 924(e)(2)(B): 

Mhe term "violent felony" means any crime punishable by imprisonment for a 

term exceeding one year, or any act of juvenile delinquency involving the use or 

carrying of a firearm, knife, or destructive device that would be punishable by 

imprisonment for such term if committed by an adult, that- 

(i) has as an element the use, attempted use, or threatened use of physical force 

against the person of another; or 

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise 

involves conduct that presents a serious potential risk of physical injury to another 

.... 18 U.S.C. § 924(e)(2)(B) (1988 & Supp. IV 1992). Thus, while these two 

definitions retain classes similar to the definition at 18 U.S.0 § 16, see United 

States v. Wilson, supra, at 588 n.2, and are useful in interpreting § 16, they do 

differ, and the extent of any permissible analogy between § 16 and the current 

definitions of a "crime of violence" at section 4B1.2(1) of the Sentencing 

Guidelines, or of "violent felony" at 18 U.S.C. § 924(e)(2)(B), must be careful to 

reflect these differences. See generally Infra, pages 12-15 (appropriateness of 

consideration of facts underlying conviction under part two of the varying 

definitions); United States v. Wilson, supra, at 588 n.2 (noting that definition of 

"crime of violence" at section 4B1.2(1) of the Sentencing Guidelines, as amended in 

1989, and definition of "violent felony" at 18 U.S.C. § 924(e)(2)(B) do not 

encompass offenses that involve force only against property); United States v. Sloan, 

supra, at 1139 & n.8 (noting that 18 U.S.0 §§ 16 and 3156(a)(4) include both 

felonies and misdemeanors under part one of their definitions, but that section 

4B1.2(1) of the Sentencing Guidelines, as amended in 1989, and 18 U.S.C. 

§ 924(e)(2)(B) include only felonies under part one; also, equating definitions of 

"crime of violence" found at 18 U.S.C. §§ 16 and 3156(a)(4) and distinguishing 

them from the amended (post-November 1, 1989) definition of "crime of violence" 

806 
Interim Decision #3220 

Consequently, our analysis of the term "crime of violence" is 

preceded by a history of interpretation of the same term for other 

purposes in the United States Code. 4As such, in some cases the 

question whether a conviction under a particular statutory provision is 

a "crime of violence" will have been answered using the same term in 

another context and may be persuasive or even binding on us. 5 

 Furthermore, we note that the term "aggravated felony" has relevance 

beyond immigration law and therefore consideration of the specific 

question of whether the term "crime of violence" constitutes an 

"aggravated felony" will also be found outside immigration proceedat section 4B1.2(1) of the Sentencing Guidelines and from the definition of "violent 

felony" at 18 U.S.C. § 924(e)). 

4 1t should be noted that two additional but very different definitions of "crime of 

violence" have also originated in the United States Code. One appears at 28 U.S.C. 

§ 2901(c) (1988) with respect to rehabilitation of narcotics addicts, and a second 

appeared at 18 U.S.C. § 4251(b) (1988), which also concerned narcotics addicts. The 

provision at 18 U.S.C. § 4251(b) was repealed effective November 1, 1987, but 

remained applicable for 5 years to individuals wno committed an Off lbC or act of 

juvenile delinquency prior to November I, 1987. Pub. L. No. 98-473, tit. 11, § 218(a)(6), 

98 Stat. 2027, 2031 (1984). 

5See, e.g., United States v. Reyes-Castro, 13 F.3d 377 (10th Cir. 1993) (stating that 

rape and attempted sexual abuse of a child constitute crimes of violence under 18 U.S.C. 

§ 16(b) for purposes of determining "aggravated felony"); United States v. Aragon, supra 

(finding attempt to rescue or assist a prisoner to escape to be a crime of violence under 

18 U.S.C. § 16(b) for purposes of 18 U.S.C. § 1952); United States v. Patino, supra 

(stating that kidnapping is a crime of violence under 18 U.S.C. § 924(c)(3)(A); 

conspiracy to commit kidnapping qualifies as a crime of violence under 18 U.S.0 

§ 924(c)(3)(B)); United States v. Wilson, supra (robbery held to be a crime of violence 

under 18 U.S.C. § 16(a) as incorporated at section 4131.2 of the Sentencing Guidelines 

prior to the November 1989 amendments); Untied States v. Gonzalez-Lopez, 911 F.2d 

542 (11th Cir_ 1990), cert. denied, 500 U.S. 933 (1991) robbery held to be a crime of 

violence under 18 U.S.C. § 16(a) and under § 16(b) for purposes of section 4B1.2 of the 

Sentencing Guidelines prior to the November 1989 amendments; residential burglary 

also found to be a crime of violence under 18 U.S.C. § 16(b)); United States V. CrUZ, 882 

F.2d 922 (5th Cir. 1989) (finding that burglary of a habitation under Texas Penal Code 

§ 30.02 qualified, without reference to whether violence actually occurred, as a crime of 

violence under section 4B1.2 of the Sentencing Guidelines prior to the November 1989 

amendments); United States v. Diaz, supra (finding that narcotics offenses do not 

constitute crimes of violence under 18 U.S.C. § 16 for purposes of 18 U.S.C. § 924(c)); 

United States v. Marzullo, supra (arson is a crime of violence against both person and 

property under 18 U.S.0 §§ 3156(a)(4)(A) and (B)); United States v. Clark, supra 

(concluding tbat—in contrast to extortion induced by wrongful use of actual or 

threatened force, violence, or fear—crime of extortion under color of official right as 

defined in 18 U.S.C. §§ 1951(a) and (b)(2) is not a crime of violence under 18 U.S.C. 

§ 924(c)(3)); United States v. Saunders, 743 F. Supp. 444 (E.D. Va. 1990) (finding that 

rape, armed robbery, felonious assault, and unlawful wounding are crimes of violence 

under 18 U.S.C. § 16 for purposes of section 481.2 of the Sentencing Guidelines prior 

to the November 1989 amendments), of d, 943 F.2d 388 (4th Cir. 1991), cert. denied, 

uS_ , 112 S_ Ct. 1199 (1992). 

on-, 
Interim Decision #3220 

ings. See, e.g., United States v. Frias-Trujillo, 9 F.3d 875 (10th Cir. 

1993) (defendant's crime constituted a "crime of violence" and 

therefore an "aggravated felony," thereby warranting 16 level increase 

under section 2L1.2(b)(2) of the Sentencing Guidelines); United States 

v. Rodriguez, 979 F.2d 138 (8th Cir. 1992) (same). 

UNITED STATES V. SPRINGFIELD 

With this context in mind, we find that an issue similar to the one 

before us was addressed by the United States Court of Appeals for the 

Ninth Circuit in United States v. Springfield, 829 F.2d 860 (9th Cir. 

1987). In Springfield, the court was required to decide whether a 

federal conviction for involuntary manslaughter constituted a "crime 

of violence" under 18 U.S.C. § 924(c)(3), which, as noted above, 

defines the term "crime of violence" by the same elements as it is 

defined at 18 U.S.C. § 16. 

Contrary to the opinion of the immigration judge in the present case 

that specific intent was required to find a crime of violence, the court 

in Springfield noted the following; 

The legislative history indicates that Congress did not intend to limit "crimes of 

violence" to crimes of specific intent: "Since no culpability level is prescribed in this 

section. the applicable state of mind that must be shown is, at a minimum, 'reckless,' 

i.e., that the defendant was conscious of but disregarded the substantial risk that the 

circumstances existed." 

United States v. Springfield, supra, at 863 n.1 (citing S. Rep. No. 307, 

97th Cong., 1st Sess. 890-91 (1982)). 

The involuntary manslaughter provision at issue in Springfield was 

defined as "the unlawful killing of a human being without malice . 

[i]n the commission of an unlawful act not amounting to a felony, or in 

the commission in an unlawful manner, or without due caution or 

circumspection, of a lawful act which might produce death." 18 U.S.C. 

§ 1112 (1988); see United States v. Springfield, supra, at 862. As to the 

first part of the definition of a "crime of violence" under 18 U.S.C. 

§ 924(c)(3), the court in Springfield found that "[t]he 'use, attempted 

use, or threatened use of physical force' is not an element in the crime 

of involuntary manslaughter." United States v. Springfield, supra, at 

862. The court then explained that the second part of the definition of 

"crime of violence" at § 924(c)(3) "covers crimes such as robbery that 

do not have as an element the use of physical force but 'by their nature' 

create a situation in which it is likely that the criminal may resort to 

physical force to accomplish the criminal end." Id. at 863 (citing S. 

Rep. No. 225, 98th Cong., 2d Sass. 307, reprinted in 1984 

U.S.C.C.A.N. 3182, 3486-87). As to this second part of the definition, 

the court found that li]nvoluntary manslaughter does, in the sense 

intended in the statute, carry with it the 'risk' of physical force." Id. 

808 
Interim Decision #3220 

The court rejected the defendant's contention that the definition of a 

"crime of violence" was limited to crimes that are anticipated and 

intended, and it concluded that "involuntary manslaughter, which 'by 

its nature' involves the death of another person, is highly likely to be 

the result of violence. It thus comes within the intent, if not the precise 

wording, of section 924(c)(3)." Id The court summed up with the 

following statement: "Our analysis of involuntary manslaughter in 

terms of the likelihood of the occurrence of violence reconciles the 

words of the statute and the legislative intent to include non-intent 

crimes." Id. at 863 n.1. 

We will follow the reasoning in Springfield. As noted, 18 U.S.C. 

§ 924(c)(3), at issue in Springfield, defines a "crime of violence" by 

the same elements as it is defined at 18 U.S.C. § 16, and the analysis 

under each section has been held to be analogous. See United States v. 

Clark, supra, at 1535. Like the federal provision in Springfield, 

involuntary manslaughter under paragraph 9-3(a) of the Illinois law 

does not have as an element the "use, attempted use, or threatened use 

of physical force" as required under 18 U.S.C. § 16(a). See, e.g., 

United States v. Wilson, supra, at 589 (stating that first part of the 

definition of a crime of violence examines elements of criminal statute 

or provision and forbids any factual inquiry); United States v. Aragon, 

supra, at 1311-12 (same). Thus, if the respondent's offense is to qualify 

as a crime of violence it must do so under the second part of the 

definition, part (b) of § 16. 

THE CATEGORICAL APPROACH 

The approach used in Springfield under the second part of the 

definition of a "crime of violence," which is sometimes referred to by 

courts as the "catchall" provision, is a generic or categorical approach. 

That is, the catchall provision of the definition of a "crime of 

violence" at issue in Springfield and, by analogy, at issue here, focuses 

on the offense's inherent potential for risk of physical force as opposed 

to the actual harm caused. As expressed in United States v. GonzalezLopez, 911 F.2d 542 (11th Cir. 1990), cert. denied, 500 U.S. 933, 

(1991): 

Section 16(b) contemplates a generic category of offenses which typically present the 

risk of injury to a person or property irrespective of whether the risk develops or 

harm actually occurs. Offenses within the scope of section 16(b) have as a commonly 

shared characteristic the potential of resulting in harm. Once the court determines 

that the defendant has been convicted of a crime that usually involves a risk of harm, 

the inquiry ends; it does not matter whether that risk has matured into actual harm. 

Id. at 547 (interpreting 18 U.S.C. § 16(b) for purposes of section 4B1.2 

of the Sentencing Guidelines prior to the November 1989 amendments). 

809 
Interim Decision #3220 

There is a history of dispute in cases interpreting the various 

definitions of a "crime of violence" concerning whether the inquiry 

under part two of the definition can or should go beyond the 

"categorical" or "generic" form of the crime to the "particularized" 

consideration of underlying facts of the conviction. However, as the 

following discussion addresses, this dispute originates mainly from the 

commentary to Sentencing Guidelines and from interpretations of 

the November 1, 1989, amended "crime of violence" definition in the 

Sentencing Guidelines. We find the particularized approach to be 

inapposite to the definition at 18 U.S.C. § 16. 

Prior to November 1, 1989, when the term "crime of violence" was 

still defined for purposes of the Sentencing Guidelines at section 4B1.2 

by simple incorporation of the definition at 18 U.S.C. § 16, the 

commentary to section 4B 1.2 read in part as follows: 

Other offenses are covered only if the conduct for which the defendant was specifically 

convicted meets the above definition. For example, conviction for an escape 

accomplished by force or threat of injury would be covered; conviction for an escape 

by stealth would not be covered. Conviction for burglary of a dwelling would be 

covered; conviction for burglary of other structures would not be covered. 

Sentencing Guidelines, § 4B1.2, application note 1 (1988). Some 

courts read this language as allowing inquiry to reach beyond the 

elements of the crime to the specific conduct or underlying facts of the 

conviction. See, e.g., United States v. Goodman, 914 F.2d 696 (5th Cir. 

1990) (defendant's admission that he was returning to the scene of a 

scuffle armed with a rifle was considered in finding that possession of 

a firearm by a convicted felon was crime of violence), abrogated by 

United States v. Fitzhugh, 954 F.2d 253 (5th Cir. 1992), cert. denied, 

114 S. Ct. 259 (1993); United States v. McNeal, 900 F.2d 119, 123 (7th 

Cir. 1990) (evidence that gun had been fired considered in finding that 

felon in possession of firearm is crime of violence); United States v. 

Williams, 892 F.2d 296, 304 (3d Cir. 1989) (finding that possession of 

gun while firing it is crime of violence, but mere possession is not), 

cert. denied, 496 U.S. 939 (1990). However, in addition to the fact that 

it no longer exists in the above-quoted form, this application note had 

no direct application to the interpretation of 18 U.S.C. § 16 for 

purposes other than the Sentencing Guidelines and, as such, would not 

apply to 18 U.S.C. § 16 for purposes of section 101(a)(43) of the Act. 

The November 1, 1989, amendments to section 4B1.2 of the 

Sentencing Guidelines and to its commentary substituted a definition 

of a "crime of violence" which dropped the words "by its nature" from 

the text, see supra note 3, but continued them in the commentary. In 

addition, the commentary clarified its reference to "conduct" by 

including "conduct set forth in the count of which the defendant was 

convicted [which] involved use of explosives or, by its nature, 

810 
Interim Decision #3220 

presented a serious potential risk of physical injury to another." 

Sentencing Guidelines, § 4B1 .2, application note 2 (1990) (emphasis 

added). The 1991 amendments to the commentary further refined the 

reference to "conduct" by adding the words "expressly charged" to 

application note 2 to state that "the conduct set forth (i.e., expressly 

charged) in the count ... presented a serious risk of physical injury." 

Sentencing Guidelines, § 4B 1.2, application note 2 (1992). 

Even with the 1989 and 1991 amendments, controversy over 

whether particularized conduct may be considered in determining a 

"crime of violence" under the Sentencing Guidelines has continued. 

Compare United States v. Willson, supra, at 589-90 & n.6 (finding 

categorical approach appropriate under both parts of the amended 

"crime of violence" definition at section 4B1.2(1) of the Sentencing 

Guidelines, but recognizing that some circuits have permitted particularized inquiry under the second part of the definition) with United 

States v. Fitzhugh, supra (finding that 1989 and 1991 amendments to 

section 4B1.2 clarify that sentencing court, in determining "crime of 

violence" based on risk of physical injury, may consider conduct 

expressly charged in the count of which the defendant was convicted, 

but not any other conduct that might be associated with the offense) 

and United States v. Chapple, 942 F.2d 439 (7th Cir. 1991) (decided 

prior to 1991 amendment, citing commentary as authority to consider 

underlying facts; policy questioned in dissent) and United States v. 

Wright, 957 F.2d 520 (8th Cir.) (subsequent to 1991 amendment 

continuing to allow examination of the facts underlying a conviction 

when deciding whether an offense involves conduct that presents a 

serious risk of physical injury under part two• of the amended 

definition at section 4131.2(1)), cert. denied, 113 S. Ct. 167 (1992). See 

generally United States v. Sm ith, 10 F.3d 724, 731-32 (10th Cir. 1993) 

(noting continuing disagreement among courts in analyzing catchall 

clause of section 4B1.2(1)). 

We find inapposite those cases interpreting the amended definition 

of a "crime of violence" in the Sentencing Guidelines to include 

consideration of the particular conduct underlying the conviction. The 

language of 18 U.S.C. § 16 directs us to examine the "nature" of the 

offense, and the language under section 4B1.2(1) of the Sentencing 

Guidelines and its comment ary, which drives the inquiry under part 

two of the defmition from the general to the specific, from the nature 

of the crime to the specific conduct of the offense, is not controlling. 

United States v. Aragon, supra, at 1312 (finding categorical approach 

required under 18 U.S.C. § L6(b); noting that commentary to Sentencing Guidelines led to dispute among courts over whether factual 

analysis of the actual conduct was permitted under catchall provision, 

and distinguishing that dispute from the analysis of 18 § 16 on 

811 
Interim Decision #3220 

its own terms); United States v. Marzullo, supra, at 662-63 n.8 (analysis 

of conduct under Sentencing Guidelines defmition of "crime of 

violence" deemed inapposite to definition of "crime of violence" at 18 

§ 3156, which parallels that at 18 U.S.C. § 16). 

Moreover, in facing a choice between the particularized and the 

categorical approach for purposes of the definition of a "violent 

felony" at 18 U.S.C. § 924(e)(2)(B), from which the amended defmition at section 4B1.2(1) of the Sentencing Guidelines was derived, the 

United States Supreme Court clearly chose the categorical approach 

and forbade any inquiry into the particular facts underlying the 

conviction. Taylor v. United States, 495 U.S. 575, 602 (1990) ("We 

think the only plausible interpretation of § 924(e)(2)(B)(ii) is that, like 

the zest of the enhancement statute, it generally requires the trial court 

to look only to the fact of conviction and the statutory definition of the 

prior offense. This categorical approach, however, may permit the 

sentencing court to go beyond the mere fact of conviction in a narrow 

range of cases where a jury was actually required to find all the 

elements of generic burglary."); see also United States v. Reyes-Castro, 

13 F.3d 377, 378 (10th Cir. 1993) (citing Taylor in adopting the 

categorical approach to 18 U.S.C. § 16(b) in determining if crime is 

"aggravated felony" for deportation purposes); United States v. 

Wilson, supra, at 589-90 (referring to Taylor in adopting the categorical approach to part two of the amended Sentencing 'Guidelines' 

definition of "crime of violence"); United States v. Becker, 919 F.2d 

568, 570 (9th Cir. 1990) (citing Taylor in adopting the categorical 

approach to 18 U.S.C. § 16(b) for purposes of section 4B1.2 of the 

Sentencing Guidelines prior to the November 1989 amendments), cert. 

denied, 499 U.S. 911 (1991); United States v. Clark, supra, at 1535 & 

n.4 (finding the Taylor test for "violent felony" to be "analogous" to 

determination of "crime of violence" under 18 U.S.C. §§ 16 and 

924(c)(3)); cf. United States v. Headspeth, 852 F.2d 753 (4th Cir. 1988) 

(applying law of lenity to limit the catchall clause of definition of 

"violent felony" to offenses which pose by their very nature a serious 

potential risk of injury, even though definition does not contain the 

by its nature" language of 18 U.S.C. § 16(b)), abrogated on other 

grounds by Taylor v. United States, supra. 

Therefore, we apply the generic or categorical approach to 18 U.S.C. 

§ 16(b). That is, analysis under 18 U.S.C. § 16(b) requires first that 

the offense be a felony; and, if it is, that the "nature of the crime—as 

elucidated by the generic elements of the offense—is such that its 

commission would ordinarily present a risk that physical force would 

be used against the person or property of another" irrespective of 

whether the risk develops or harm actually occurs. United States v. 

Marzullo, supra, at 662; see also United States v. Reyes-Castro, supra, 

812 
Interim Decision #3220 

at 379 ("substantial risk that physical force may be used .... It does 

not matter whether physical force is actually used."); United States v. 

Aragon, supra, at 1313 ("crime that 'by its nature' creates a substantial 

risk of the possible use of physical force"); United States v. Gonzalez, 

supra, at 547 ("generic category of offenses which typically present the 

risk of injury to a person or property irrespective of whether the risk 

develops or harm actually occurs"); United States v. Springfield, supra, 

United States v. Cruz, 805 F.Z d 1464 (11th Cir. 1986), cert. denied, 481 

U.S. 1006 (1987), cert. denied sub nom. United States v. Thomas, 482 

U.S. 930 (1987). While the categorical approach to 18 U.S.C. § 16(b) 

might occasionally include consideration of the charging papers or jury 

instructions in order to identify the "offense," an issue we need not 

address here, it does not extend to consideration of the underlying 

facts of the conviction. CI Taylor v. United States, supra, at 602; 

United States v. Clark, supra, at 1535 n.4. 

APPLICATION 

The respondent's offense under paragraph 9-3(a) of the Illinois law 

satisfies the first element of L 8 U.S.C. § 16(b) in that it is a felony. 

Rev. Stat. ch. 38, para. 9-3(d) (1992); 18 U.S.C. § 3559 (1988) 

(defining felony under federal criminal law as any offense where the 

maximum term of imprisonment authorized exceeds 1 year). 

Like 18 U.S.C. § 924{c)(3), which was at issue in Springfield, 18 

U.S.C. § 16(b) does not re quire specific intent to do violence. It 

includes at a minimum reckless behavior which, "by its nature," 

involves a substantial risk of physical force against the person or 

property of another. United States v. Springfield, supra, at 863 n. 1. 

Similar to involuntary manslaughter under the federal statute at 

issue in Springfield, the Illinois provision necessarily involves the 

death of another person, is Highly likely to be the result of violence, 

and carries with it, within the sense intended in 18 U.S.C. § 16(b), the 

substantial risk of physical force against another person. United States 

v. Springfield, supra; cf. United States v. Lykes, 999 F.2d 1144, 1146 

n.1 (7th Cir. 1993) (presuming that state law conviction for involuntary manslaughter was crime of violence); United States v. Leeper, 964 

F.2d 751 (8th Cir. 1992) (fm_ding manslaughter to be crime of violence 

under sections 481.1 and 4B1.2(1) of the amended Sentencing 

Guidelines); United States v. O'Neal, 937 F.2d 1369 (9th Cir. 1991) 

(following Springfield in determining that California conviction for 

vehicular manslaughter constituted violent felony), abrogated on other 

grounds by United States v. Sahakian, 965 F.2d 740 (9th Cir. 1992). 

Accordingly, we find that the respondent's conviction for involuntary manslaughter under Illinois law is a crime of violence within the 

meaning of 18 U.S.C. § 16, and, correspondingly, an aggravated 

813 
Interim Decision #3220 

felony under section 101(a)(43) of the Act. The charge of deportability 

based on the respondent's conviction for an aggravated felony is 

sustained. 

ORDER: The appeal of the Immigration and Naturalization 

Service is sustained. 

FURTHER ORDER: The respondent shall be deported from 

the United States to Mexico pursuant to sections 241(a)(2)(B) and 

241(a)(2)(A)(iii) of the Immigration and Nationality Act. 

814