FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCO ANTONIO LARA-CAZARES, 

Petitioner, No. 03-71568 v.  Agency No.

A28-818-794

ALBERTO R. GONZALES,* Attorney General, OPINION Respondent.  On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted February 9, 2005—Pasadena, California

Filed May 23, 2005

Before: Harry Pregerson, William C. Canby, Jr., and Robert R. Beezer, Circuit Judges.

Opinion by Judge Canby

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft, as Attorney General of the United States, pursuant to Fed. R. App. P. 43(c)(2).

5591 5594 LARA-CAZARES v. GONZALES

COUNSEL

Jonathan D. Montag, San Diego, California, for the petitioner.

Jennifer Paisner, Office of Immigration Litigation, United States Department of Justice, Civil Division, Washington, D.C., for the respondent.

OPINION

CANBY, Circuit Judge

Marco Lara-Cazares is a permanent resident of the United States whom an Immigration Judge ordered removed from the country on the ground that he had been convicted of a “crime of violence” within the meaning of 18 U.S.C. § 16. His crime, as defined by the State of California, was gross vehicular manslaughter while intoxicated. The Board of Immigration Appeals affirmed the removal order, and Lara-Cazares peti- tions for review. We grant his petition and reverse because we conclude that, under the principles announced in the recent Supreme Court decision of Leocal v. Ashcroft, 125 S. Ct. 377 (2004), the crime of which Lara-Cazares was convicted does not qualify as a “crime of violence.”1

I

Lara-Cazares is a native and citizen of Mexico who became a lawful permanent resident of the United States in January, 1988. In June of 1998, the State of California convicted him of gross vehicular manslaughter while intoxicated. CAL. PENAL CODE § 191.5(a).2 He received a total sentence of eight 1 We note that neither the Immigration Judge nor the Board of Immigra- tion Appeals had the benefit of Leocal at the time of their decisions. 2 Section 191.5(a) provides the following: LARA-CAZARES v. GONZALES 5595 years in prison.3 The government initiated removal proceed- ings, arguing that Lara-Cazares’s conviction qualified as an aggravated felony because it was a crime of violence. See 8 U.S.C. § 1101(a)(43)(F).

The Immigration Judge, and later the Board, found that his conviction so qualified. The Board reached this conclusion primarily because the crime required “gross negligence,” which satisfied the mens rea requirement of this Court for a crime of violence within the meaning of 18 U.S.C. § 16. See, e.g., Park v. INS, 252 F.3d 1018, 1023-25 (9th Cir. 2001) (holding that “criminal negligence” requirement for involun- tary manslaughter satisfies the mens rea requirement for a crime of violence); United States v. Ceron-Sanchez, 222 F.3d 1169, 1172-73 (9th Cir. 2000) (holding that requirement of recklessness causing injury was sufficient to qualify crime as violent).

II

We review de novo whether a conviction under state law is a removable offense. See, e.g., Lara-Chacon v. Ashcroft, 345 F.3d 1148, 1151 (9th Cir. 2003).

Gross vehicular manslaughter while intoxicated is the unlawful killing of a human being without malice aforethought, in the driv- ing of a vehicle, where the driving was in violation of Section 23140 [minors driving while intoxicated], 23152 [driving while intoxicated], or 23153 [driving while intoxicated and causing bodily injury] of the Vehicle Code, and the killing was either the proximate result of the commission of an unlawful act, not amounting to a felony, and with gross negligence, or the proxi- mate result of the commission of a lawful act which might pro- duce death, in an unlawful manner, and with gross negligence. 3 The record does not contain any other significant facts concerning his offense. 5596 LARA-CAZARES v. GONZALES

III

[1] Lara-Cazares is subject to removal if he was “convicted of an aggravated felony at any time after admission.” 8 U.S.C. § 1227(a)(2)(A)(iii). If Lara-Cazares is removable under this provision, we have no jurisdiction to review his petition. See 8 U.S.C. § 1252(a)(2)(C). If he is not removable under this provision, however, we have jurisdiction and he necessarily prevails. Thus “the jurisdictional question and the merits col- lapse into one.” Ye v. INS, 214 F.3d 1128, 1131 (9th Cir. 2000).

The Immigration and Nationality Act defines an “aggra- vated felony” to include “a crime of violence (as defined in section 16 of Title 18 . . . ).” 8 U.S.C. § 1101(a)(43)(F).4 The primary issue in this case is therefore whether Lara-Cazares’s conviction qualifies under the terms of 18 U.S.C. § 16, which provides:

[2] The term “crime of violence” means—

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

(Emphasis added). This “statute directs our focus to the ‘offense’ of conviction,” and its “language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner’s crime.” Leocal, 125 S. Ct. at 381. 4 Section 1101(a)(43)(F) also requires that the conviction resulted in a sentence of imprisonment of at least one year, but there is no dispute that Lara-Cazares’s sentence surpassed that minimum. LARA-CAZARES v. GONZALES 5597 [3] We conclude that the Supreme Court’s analysis in Leo- cal establishes that Lara-Cazares’s conviction does not qual- ify as a crime of violence under these provisions. In Leocal, the Supreme Court addressed the question whether a convic- tion under Florida law for driving under the influence of alco- hol (DUI) and causing serious bodily qualified under § 16. The Court unanimously held that the conviction did not qual- ify as a crime of violence. See Leocal, 125 S. Ct. at 383-84. An important part of the Court’s analysis addressed the com- mon meaning of the “use” of force “against the person” of another:

The critical aspect of § 16(a) is that a crime of vio- lence is one involving the “use . . . of physical force against the person or property of another.” (Empha- sis added.) . . . “[U]se” requires active employment. While one may, in theory, actively employ some- thing in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would “use . . . physical force against” another per- son when pushing him; however, we would not ordi- narily say a person “use[s] . . . physical force against” another by stumbling and falling into him. When interpreting a statute, we must give words their “ordinary or natural” meaning. The key phrase in § 16(a) — the “use . . . of physical force against the person or property of another” — most naturally suggests a higher degree of intent than negligent or merely accidental conduct. Petitioner’s DUI offense therefore is not a crime of violence under § 16(a).

Id. at 382 (internal citations omitted). The Court also applied the same reasoning to the broader provisions of § 16(b):

[W]e must give the language in § 16(b) an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a 5598 LARA-CAZARES v. GONZALES DUI offense. This is particularly true in light of § 16(b)’s requirement that the “substantial risk” be a risk of using physical force against another person “in the course of committing the offense.” In no “or- dinary or natural” sense can it be said that a person risks having to “use” physical force against another person in the course of operating a vehicle while intoxicated and causing injury.

Id. at 383. Finally, the Court emphasized that it was ulti- mately determining the meaning of the term “crime of vio- lence.” “The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person . . . suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses.” Id.

[4] We conclude that this reasoning compels a result in favor of Lara-Cazares in the present case. The crime of which he was convicted required Lara-Cazares to have been driving while under the influence of alcohol, and to have killed a per- son with gross negligence (but without malice aforethought) in so doing. There is no requirement that he intentionally used the vehicle to inflict injury. Under the Supreme Court’s rea- soning in Leocal, Lara-Cazares simply cannot be regarded as having “used” physical force “against the person . . . of anoth- er.” 8 U.S.C. § 16. He did not actively employ force against another in a manner to constitute a crime of violence under § 16.

We cannot accept the government’s contention that Leocal does not apply because it dealt only with a requirement of simple negligence, while the California statute violated by Lara-Cazares required gross negligence. See CAL. PENAL CODE § 191.5(a). The government points to our earlier decision in United States v. Trinidad-Aquino, 259 F.3d 1140, 1145 (9th Cir. 2001), in which we distinguished between mere negli- gence and recklessness for purposes of § 16, and argues that Leocal adds nothing to our analysis in Trinidad-Aquino and LARA-CAZARES v. GONZALES 5599 does not extend to gross negligence. We are unable to read Leocal in such limited fashion. Gross negligence is still negli- gence, however flagrant, and does not constitute the kind of active employment of force against another that Leocal requires for a crime of violence.5 Gross negligence and drunken driving causing death are the categorical elements of the crime of which Lara-Cazares was convicted, and these elements do not change whether the crime is characterized as “DUI causing injury” or “gross vehicular manslaughter while intoxicated.” The death remains accidental.6 “Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the ‘violent’ crimes Congress sought to distinguish for heightened punishment and other crimes.” Leocal, 125 S. Ct. at 383.

[5] Two additional aspects of Leocal reinforce our conclu- sion that a drunken driving crime, even accompanied by gross negligence, is not a crime of violence for purposes of § 16. First, as the Supreme Court pointed out, the definition of “vio- lent crime” set out in § 16 applies in both civil and criminal contexts. See id. at 384 n.8. Accordingly, any potential ambiguity in § 16 must be resolved in favor of Lara-Cazares under the rule of lenity. See id.

[6] Second, Congress within months of incorporating § 16 into the immigration law enacted 8 U.S.C. § 1101(h), which provides: 5 Thus a jury may find gross negligence under § 191.5(a) from “the level of the defendant’s intoxication, the manner of driving, or other relevant aspects of the defendant’s conduct resulting in the fatal accident.” People v. Bennett, 819 P.2d 849, 854 (Cal. 1992) (modified opinion). These fac- tors are not necessarily directed at an intent in “use” of “force against another person.” 6 It is true that Leocal stated that it was not presented with a statute requiring proof of “the reckless use of force against a person or property of another.” 125 S. Ct. at 384. We do not read this statement as negating Leocal’s analysis that the terms “use” and “against a person” do not encompass negligence in drunken driving. 5600 LARA-CAZARES v. GONZALES For purposes of section 1182(a)(2)(E) of this title, the term “serious criminal offense” means—

(1) any felony;

(2) any crime of violence, as defined in section 16 of Title 18; or

(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves per- sonal injury to another.

As the Supreme Court pointed out in Leocal, it would deprive clause (3) of this statute of most of its meaning if DUI offenses causing injury to another were, ipso facto, crimes of violence covered by clause (2). See Leocal, 125 S. Ct. at 384 & n.9. It seems abundantly clear that Congress, while consid- ering a drunken (or reckless) driving offense that causes injury to another to be a “serious criminal offense,” it did not consider it to be a “crime of violence.” As the Supreme Court said in concluding its opinion in Leocal:

Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate penalties. But this fact does not warrant our shoehorning it into statutory sections where it does not fit.

Id. at 384.

[7] We conclude, therefore, that Leocal precludes removal of Lara-Cazares for having committed a crime of violence. To the extent that our decision in Park v. INS, 252 F.3d 1018 (9th Cir. 2001), and cases there cited support a contrary result, we conclude that they are no longer good law in light of Leocal. LARA-CAZARES v. GONZALES 5601 IV

[8] Because the crime for which Lara-Cazares was ordered removed was not a crime of violence, Lara-Cazares is not removable by reason of having committed an aggravated fel- ony. See 8 U.S.C. §§ 1101(a)(43)(F), 1227(a)(2)(A)(iii). We accordingly are not deprived of jurisdiction over this case, see 8 U.S.C. § 1252(a)(2)(C), and Lara-Cazares prevails. We grant the petition for review and reverse the order of the Board of Immigration Appeals.

PETITION FOR REVIEW GRANTED; REVERSED.