2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-12-2005

Tran v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 02-3879

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Substituted pursuant to Fed. R. App. P. 43(c). *

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________________

No. 02-3879

____________________

SON DUC TRAN,

 Petitioner

v.

ALBERTO GONZALES, ATTORNEY GENERAL OF THE *

UNITED STATES,

 Respondent

 

On Petition for Review of Order of the 

Board of Immigration Appeals

(Board No. A28-102-920)

 

Argued: April 18, 2004

Before: ROTH, FUENTES, and BECKER, Circuit Judges.

(Filed: July 12, 2005)

RALF D. WIEDEMANN (ARGUED)

Klasko, Rulon, Stock & Seltzer

1800 John F. Kennedy Boulevard
2

Suite 1700

Philadelphia, PA 19103

Attorney for Petitioner

PETER D. KEISLER

Assistant Attorney General, Civil Division

DONALD E. KEENER

Deputy Director

GREG D. MACK (ARGUED)

Senior Litigation Counsel

LINDA S. WERNERY

JOHN M. McADAMS, JR.

United States Department of Justice

Office of Immigration Litigation

Ben Franklin Station

P.O. Box 878

Washington, DC 20044

Attorneys for Respondent

_____

 OPINION OF THE COURT

 

BECKER, Circuit Judge.

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 rea is

“pure” recklessness is not a crime of violence for immigration

purposes. Section 16(b) requires a substantial risk that physical
3

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.

I.

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
That judge, the Honorable Fred P. Anthony of the Court of 1

Common Pleas of Erie County, explained that, in some 29 years on the

bench, he had never before written such a letter, as he generally

supported deportation in such cases. He felt that Tran’s case was unique,

and commended Tran’s penitence for his crime and his responsible

citizenship in other respects.

4

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 mid2000.

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, the superintendent of the prison 1

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
Prior to the Real ID Act, our jurisdiction to review orders of 2

removal for aggravated felonies was limited. The statute granting us

jurisdiction to review immigration orders provides that “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).” 8 U.S.C. § 1252(a)(2)(C)

(1999). We did, however, “have jurisdiction to consider our

jurisdiction,” Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir. 2004), that

is, to decide whether the “jurisdictional facts” of § 1252(a)(2)(C) were

present, Drakes v. Zimski, 240 F.3d 246, 247 (3d Cir. 2001). If we found

that the relevant facts—i.e., that the petitioner was an alien and that he

5

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.

II.

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 contends that Tran’s

Pennsylvania crime was a crime of violence under 18 U.S.C. § 16,

and thus qualifies as an aggravated felony.

We have jurisdiction over Tran’s petition for review

pursuant to 8 U.S.C. § 1252(a)(1). The recent Real ID Act clarifies

that our jurisdiction extends to “questions of law raised upon a

petition for review,” including petitions for review of removal

orders based on aggravated felony convictions. See Real ID Act

§ 106(a)(1)(A)(iii), Pub. L. No. 109-13, 119 Stat. 231, 310 (2005),

to be codified at 8 U.S.C. § 1252(a)(2)(D). We are thus free to

consider Tran’s purely legal claim that his crime was not, in fact,

an aggravated felony under the relevant law. See Papageorgiou v.

Gonzales, No. 04-3135, — F.3d —, 2005 WL 1490454, *2 (3d Cir.

June 24, 2005).2
had committed an enumerated offense—were present, then we were

obligated to dismiss the petition for lack of jurisdiction. If, on the other

hand, we found that the underlying crime was not an aggravated felony,

we had jurisdiction over the petition. While the statutory mechanism

differed, the end result was the same: we are, and were, free to consider

a petitioner’s legal claims that his crime was not an aggravated felony,

but we are, and were, without jurisdiction to reconsider the BIA’s factual

findings. See generally Papageorgiou, 2005 WL 1490454, at *2.

6

In Singh v. Ashcroft, 383 F.3d 144 (3d Cir. 2004), we

canvassed our precedents to determine the deference due to the

BIA’s interpretation and application of the aggravated felony

statute. See 383 F.3d at 150-152. While there we “expressly

reserve[d] decision on whether some BIA interpretations of

§ 1101(a)(43) are entitled to deference,” id. at 152, the parties here

are in agreement that no deference is due, and that our review is de

novo. We will conduct such a de novo review, mindful that the

statute at issue here is not the Immigration and Naturalization Act,

but rather the criminal provisions of Title 18 of the United States

Code. The interpretation of criminal statutes is a task outside the

BIA’s special competence and congressional delegation, while it

is very much a part of this Court’s competence. See Francis v.

Reno, 269 F.3d 162, 168 (3d Cir. 2001).

III. 

Tran pled guilty to three crimes: hindering apprehension,

abusing a corpse, and criminal conspiracy to commit reckless

burning or exploding. 

Hindering apprehension is prohibited by 18 Pa. Cons. Stat.

§ 5105, which defines the crime to include harboring, concealing,

or aiding another person “with intent to hinder the apprehension,

prosecution, conviction or punishment of another for [a] crime.”

The INS argued before the Immigration Judge that this crime

constitutes an “offense relating to obstruction of justice,” which is

an aggravated felony under 8 U.S.C. § 1101(a)(43)(S). The IJ

rejected this argument, citing In re Espinoza, 22 I. & N. Dec. 889

(BIA 1999), for the proposition that “obstruction of justice”

offenses must interfere with ongoing judicial proceedings. The BIA

declined to address this issue on appeal, and the government does
Conspiracy to commit an aggravated felony is itself an 3

aggravated felony. 8 U.S.C. § 1101(a)(43)(U). We therefore proceed as

though Tran had been convicted of the substantive offense of reckless

burning, though in fact he pled only to conspiracy to commit that

offense.

7

not raise it here.

Similarly, Tran’s plea to abusing a corpse, in violation of 18

Pa. Cons. Stat. § 5510, is not before us. The IJ found that it was not

an aggravated felony, and the BIA did not disturb this finding on

appeal.

The only crime that is before us is Tran’s conviction for

conspiracy to commit reckless burning or exploding. Criminal

conspiracy is defined by 18 Pa. Cons. Stat. § 903, a traditional

conspiracy statute. Reckless burning or exploding is prohibited by 3

18 Pa. Cons. Stat. § 3301, a section entitled “Arson and related

offenses” and comprising several distinct crimes. The crime to

which Tran pled is defined as follows:

(d) Reckless burning or exploding.—A person

commits a felony of the third degree if he

intentionally starts a fire or causes an explosion, or

if he aids, counsels, pays or agrees to pay another to

cause a fire or explosion, whether on his own

property or on that of another, and thereby

recklessly:

(1) places an uninhabited building or unoccupied

structure of another in danger of damage or

destruction; or

(2) places any personal property of another having a

value that exceeds $5,000 or if the property is an

automobile, airplane, motorcycle, motorboat or other

motor-propelled vehicle in danger of damage or

destruction.

18 Pa. Cons. Stat. § 3301(d). 

The government contends that this definition describes a

crime of violence. For federal immigration purposes, a crime of

violence is:
In Singh, we also concluded that the formal categorical approach 4

does not bar us from considering which numbered subsection of a

criminal statute the petitioner has violated. See 383 F.3d at 162. Thus our

inquiry is whether the conduct covered by subsection

3301(d)(2)—intentionally starting a fire, on one’s own property or that

of another, and thereby recklessly placing certain personal property of

another in danger of destruction—is a crime of violence, not whether any

conduct covered by section 3301 is such a crime. See also United States

v. Remoi, 404 F.3d 789, 793 (3d Cir. 2005).

8

(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.

18 U.S.C. § 16.

The government, as it must, argues that section 3301(d)(2),

on its face, constitutes a crime of violence—not that Tran’s

conduct, as proved by extrinsic evidence, falls under § 16’s

strictures. That is because 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 petitioner’s crime.” Leocal v.

Ashcroft, — U.S. —, 125 S. Ct. 377, 381 (2004). We have referred

to this requirement as the “formal categorical approach” of Taylor

v. United States, 495 U.S. 575 (1990). See Singh, 383 F.3d at 147.4

IV.

Our question, then, is simply whether the Pennsylvania

crime of reckless burning or exploding is categorically a crime of

violence under 18 U.S.C. § 16.

A.

Neither party now contends that reckless burning falls under

§ 16(a), which requires the “use” of “physical force” against the

person or property of another. The reckless burning statute

criminalizes the act of intentionally starting a fire with a reckless
The Parson panel was ultimately concerned with the 5

interpretation of what is now United States Sentencing Guidelines

§ 4B1.2(a), but it first dealt with the preliminary question whether that

9

mens rea regarding damage to the property of another. 18 Pa. Cons.

Stat. § 3301(d)(2). The first element of the crime, intentionally

starting a fire on one’s own property or that of another, does not in

itself necessitate the use of physical force against the property of

another. 

One might make the argument that recklessly damaging (or

risking damage to) the property of another, the second element of

section 3301, constitutes using force against the property of

another, and thus qualifies as a crime of violence under § 16(a). In

Leocal, supra, the Supreme Court reserved judgment on this

question, deciding only that “[t]he 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.” 125 S. Ct. at 382. This

language leaves open the door for an argument that reckless

conduct qualifies as the “use of force.” But neither the BIA’s

decision nor the government’s argument before us raised this

contention—both relied instead on § 16(b)—and we consider it

waived.

That said, we must nonetheless address the issue because its

resolution is essential to our discussion of § 16(b). Our own Court

has stated unequivocally that the “use of physical force” under

§ 16(a) requires specific intent; recklessness will not suffice. “Use

of physical force is an intentional act, and therefore the first prong

of [§ 16] requires specific intent to use force.” United States v.

Parson, 955 F.2d 858, 866 (3d Cir. 1992). The BIA held, and the

government now argues, that Parson is not controlling here

because its holding concerned the United States Sentencing

Guidelines and not § 16. We acknowledge that other courts have

referred to our discussion of § 16 in Parson as “dicta,” see United

States v. Gonzalez-Lopez, 335 F.3d 793, 797 (8th Cir. 2003); Park

v. INS, 252 F.3d 1018, 1023 (9th Cir. 2001). Indeed, our own Court

may have implied as much in Francis v. Reno, 269 F.3d 162, 173-

74 (3d Cir. 2001). 

As we explain in the margin, we are not convinced that

Parson’s interpretation of § 16 is dictum. At all events, we need

5
Guidelines section was a permissible expansion of the statutory

definition of a “crime of violence” in § 16. See 955 F.2d at 866-67. Our

interpretation of § 16 was a prerequisite to our final conclusion that

Guidelines § 4B1.2(a) was valid; thus, that interpretation would seem to

be part of the holding rather than dictum.

Francis did indeed decline to draw conclusions about § 16(b)

from our discussion of § 4B1.2(a) in Parson, noting that the language of

the two provisions differs, and that the Sentencing Guidelines are

concerned with conduct rather than with the categorical approach

required under § 16(b). While our discussion of the Sentencing

Guidelines in Parson is irrelevant here, our discussion of § 16(b) was

necessary to our holding in Parson and is quite relevant in this case. The

fact that Parson interpreted § 16 in the Sentencing Guidelines context,

while we now interpret it in the immigration context, does not prevent

our interpretation of § 16 in that case from binding us now.

10

not decide that question, because we are satisfied that Parson’s

requirement of specific intent under § 16(a) is correct and that “use

of physical force is an intentional act.” Parson, 955 F.2d at 866. 

The verb “use” means “[t]o make use of; to convert to one’s

service; to employ; to avail oneself of; to utilize; to carry out a

purpose or action by means of; to put into action or service,

especially to attain an end.” Black’s Law Dictionary 1541 (6th ed.

1990). The Oxford English Dictionary defines the verb to mean, in

its most common usages, “[t]o make use of (some immaterial

thing) as a means or instrument; to employ for a certain end or

purpose,” “[t]o employ or make use of (an article, etc.), esp. for a

profitable end or purpose; to utilize, turn to account,” or “[t]o work,

employ, or manage (an implement, instrument, etc.); to manipulate,

operate, or handle, esp. to some useful or desired end.” Oxford

English Dictionary 3574 (compact ed. 1971) (s.v. “use, v.,”

definitions 7a, 8a, 9a). These definitions show an obvious

commonality: the “use” of force means more than the mere

occurrence of force; it requires the intentional employment of that

force, generally to obtain some end.

The plain language of the statute therefore compels the

conclusion that the “use” of force requires specific intent to employ

force, and not mere recklessness as to causing harm. In United

States v. Trinidad-Aquino, 259 F.3d 1140, 1145 & n.2 (9th Cir.

2001), the Ninth Circuit cited similar definitions of the word “use”

to conclude that the word “contain[s] a volitional requirement.” It
In United States v. Nason, 269 F.3d 10 (1st Cir. 2001), the First 6

Circuit considered the import of an analogous provision, 18 U.S.C.

§ 922(g)(8)(C)(ii), which also implicated the “use of physical force.”

Nason had been convicted of assault under Maine law, defined as

“intentionally, knowingly, or recklessly caus[ing] bodily injury or

offensive physical contact to another.” Me. Rev. Stat. Ann. tit. 17-A,

§ 207(1) (emphasis added). The First Circuit declared that this

legislation “unambiguously involves the use of physical force.” Nason,

269 F.3d at 20. While that Court’s ruminations are less than pellucid, we

conjecture that it reached its determination based not on a linguistic

dissection of the statute but on a Maine Supreme Court opinion glossing

it to require “use of unlawful force against another causing bodily

injury.” Id. (quoting State v. Griffin, 459 A.2d 1086, 1091 (Me. 1983)).

At all events, to the extent that the First Circuit’s conclusion is

coterminous with the Ninth Circuit’s decision that recklessness can

suffice for the use of force, we (again) disagree.

This conclusion is buttressed by the fact that § 16(a) covers not 7

merely the use of physical force, but also the attempted orthreatened use

of such force. As we recently stated, in discussing a New York commonlaw attempt crime, “the concept of an attempted recklessness crime is

nonsensical.” Knapik v. Ashcroft, 384 F.3d 84, 91 (3d Cir. 2004). If one

can attempt to use force, it stands to reason that the use of force requires

something more than mere recklessness.

11

thus excluded the possibility of negligent use of force, but

nonetheless held that recklessness—that is, “conscious disregard of

a risk of a harm that the defendant is aware of,” id. at

1146—satisfies this volitional requirement. We respectfully 6

disagree. As the Supreme Court said in Leocal, “‘use’ requires

active employment.” 125 S. Ct. at 382 (emphasis added). The

active employment of force, generally to achieve some end,

corresponds closely to the concept of intent, not recklessness.

Intent means a “[a] state of mind in which a person seeks to

accomplish a given result through a course of action.” Black’s Law

Dictionary 810 (6th ed. 1990). The idea of purposeful action, of

actively employing a means to achieve an end, is an essential

component of both “use” and “intent,” and is absent from the

concept of “recklessness.” We therefore hold that the “use of

force” in § 16(a) requires specific intent to use force.7
The government cites dicta in Francis v. Reno, 269 F.3d 162 (3d 8

Cir. 2001), to support the proposition that recklessness may suffice for

a § 16(b) crime. In Francis we held that a Pennsylvania conviction for

vehicular homicide, a misdemeanor requiring a mens rea of criminal

negligence, did not constitute a crime of violence under § 16(b). We

noted there that, although the Pennsylvania courts had specifically held

that Francis’s crime required only negligence, the BIA had found that he

12

B.

Once we conclude that the “use of physical force” in § 16(a)

requires specific intent, our interpretation of § 16(b) is determined

by the language of the statute and by our precedents. Section 16(b)

covers any felony “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.” Given the definition

of use of physical force reached above, we can only conclude that

§ 16(b) crimes are those raising a substantial risk that the actor will

intentionally use force in the furtherance of the offense.

Parson is explicit on this point:

Use of physical force is an intentional act, and

therefore [§ 16(a)] requires specific intent to use

force. As to [§ 16(b)], a defendant’s commission of

a crime that, by its nature, is likely to require force

similarly suggests a willingness to risk having to

commit a crime of specific intent. For example, a

burglar of a dwelling risks having to use force if the

occupants are home and hear the burglar. In such a

case, the burglar has a mens rea legally nearly as bad

as a specific intent to use force, for he or she

recklessly risks having to commit a specific intent

crime.

955 F.2d at 866. In Parson, we went on to contrast the requirement

of § 16(b), in which the actor runs a risk of intentionally using

force, with the lower mens rea that we characterized as “‘pure’

recklessness.” Id. We noted that crimes like reckless endangering

and drunk driving, though they involve a serious risk of injuring

others, do not involve any risk of intentional harm or use of force.

Id.

8
acted recklessly. 269 F.3d at 173. This, we held, was error: the BIA

should have applied the categorical approach, and considered only

Francis’s crime of conviction (negligence) rather than its own view of

his underlying conduct (recklessness). We stated that “recklessness was

not charged, and [Francis] was not convicted of an offense requiring that

mens rea.” Id. 

We do not take this language to decide that recklessness would

suffice for a § 16(b) crime; indeed, given the precedent of Parson, the

Francis panel was foreclosed from so deciding. Instead, this language

from Francis indicates only that the BIA erred in failing to follow the

categorical approach, and that the proper question was whether Francis’s

negligence constituted a crime of violence under § 16(b). Of course, we

held, it did not. Id. at 174-75.

13

Our conclusion in Parson gains support from the Supreme

Court’s recent decision in Leocal. The Court discussed § 16(b) in

terms that echo our discussion in Parson:

[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 person’s

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.

125 S. Ct. at 382-383 (footnote omitted). In a footnote, the Court

was even more explicit that “[t]he ‘substantial risk’ in § 16(b)

relates to the use of force, not to the possible effect of a person’s

conduct,” and drew the same distinction that we did in Parson

between the risk of use of force in § 16(b) and the distinct risk of

injury in United States Sentencing Guidelines § 4B1.2(a)(2).
14

Leocal, 125 S. Ct. at 383 n.7; see also Parson, 955 F.2d at 866.

Three other Courts of Appeals have followed the approach

of Parson, which we reaffirm today. See Jobson v. Ashcroft, 326

F.3d 367, 372-73 (2d Cir. 2003); United States v. Chapa-Garza,

243 F.3d 921, 925-27 (5th Cir. 2001); Bazan-Reyes v. INS, 256

F.3d 600, 610-11 (7th Cir. 2001). Four others have not required

specific intent to qualify as a § 16(b) crime of violence. See Omar

v. INS, 298 F.3d 710, 715-16 (8th Cir. 2002); Park, 252 F.3d at

1023-24; Tapia Garcia v. INS, 237 F.3d 1216, 1222 (10th Cir.

2001); Le v. United States Attorney General, 196 F.3d 1352, 1354

(11th Cir. 1999). The approaches of the Eighth, Tenth, and

Eleventh Circuits did not require even a reckless mens rea to meet

the § 16(b) standard, and thus have been abrogated, at least to that

extent, by Leocal. Compare Leocal, 125 S. Ct. at 382-83, with

Omar, 298 F.3d at 715-16, Tapia Garcia, 237 F.3d at 1222, and

Le, 196 F.3d at 1354. The Ninth Circuit’s approach relies on its

holding that the “use of force” requirement of § 16(a) may be

satisfied by a reckless mens rea, see Park, 252 F.3d at 1024; we

have rejected this conclusion both in Parson, 955 F.2d at 866, and

at greater length in Part IV.A, supra. 

We thus conclude, following Parson and Leocal, that a

crime of violence under § 16(b) must involve a substantial risk that

the actor will intentionally use physical force in committing his

crime.

C.

It remains for us to decide whether Tran’s crime of

conviction, on its face, involves such a risk of intentionally using

force in the commission of the crime. We hold that it does not.

Tran intentionally started a fire, but of course starting a fire

is not in itself a crime, much less a crime of violence. The second,

dispositive element of his crime is the reckless endangering of the

property of another. This element, on its face, involves a substantial

risk of causing injury to the property of another. But it does not

involve a substantial risk of using force against the property of

another. The substantial risk involved in the Pennsylvania statute

is the risk that the fire started by the offender will spread and

damage the property of another. This risk cannot be said to involve

the intentional use of force, as required by Parson. The statute does

not contemplate a risk that the reckless-burning offender will step
15

in and commit an intentional act of violence; instead, the only risk

is that his initial reckless act will cause further damage.

Tran’s counsel cites several examples of actions that might

qualify as reckless burning or exploding under Pennsylvania law.

“A person setting fire to a pile of leaves in his or her yard, placed

close to a neighbor’s car” would qualify, as would one who “set[s]

off firecrackers or sparklers near a gas station.” Such reckless

actions are likely to cause harm in many cases, and Pennsylvania

certainly has an interest in punishing them. But they are not the

kind of “violent, active crimes,” Leocal, 125 S. Ct. at 383, that

qualify as crimes of violence under § 16. Needless to say, the facts

of this case are very different from these hypotheticals. But we

reiterate that we are limited to deciding whether Tran’s crime of

conviction is a crime of violence on its face, not whether his

conduct was in fact violent. See Leocal, 125 S. Ct. at 381.

The government, like the BIA, relies on the BIA precedent

of In re Palacios, 22 I. & N. Dec. 434 (BIA 1998), which held that

first-degree arson under Alaska law constituted a crime of violence

under § 16(b). The Alaska statute criminalized intentional damage

to property by fire that recklessly places another person in danger

of serious physical injury. See 22 I. & N. Dec. at 435. The BIA

held that “arson in the first degree, by its very nature, requires a

substantial risk of physical force against another person or

property.” Id. at 437. But its analysis was limited to its conclusion

that 

the intentional starting of a fire or causing an

explosion ordinarily would lead to the substantial

risk of damaging property of another. Not only is

there a risk to items belonging to others that are on

or in the property, i.e., such as items left in a store,

there always exists the risk that the fire will spread

beyond the original intended property.

Id.

Thus the BIA did not conduct the inquiry, mandated by

Parson and Leocal, into whether the Alaska arson statute

necessarily involved a substantial risk of using force. Instead, it

merely assumed that a substantial risk of damaging property

satisfied the requirements of § 16(b). In our Circuit, that
16

assumption was foreclosed by Parson; it has now been foreclosed

nationally by Leocal. While we express no opinion on whether the

Alaska arson statute in Palacios defines a crime of violence under

§ 16, we think it clear that the analysis of Palacios must now be

considered to have been in error, and that it does not control this

case. Morever, even were its analysis correct, Palacios is clearly

distinguishable: the Alaska statute in Palacios required

intentionally causing damage to property, and thus contained a

specific intent element lacking in the Pennsylvania statute here.

Thus, Tran’s crime—the Pennsylvania offense of reckless

burning or exploding—involved neither the use of force nor a

substantial risk that he might use force. He therefore did not

commit a crime of violence under § 16. Accordingly, we will grant

the petition for review and remand to the BIA for further

proceedings consistent with this opinion.