PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 10-3926 _____________ VICTOR JAIR AGUILAR, Petitioner, v. ATTORNEY GENERAL OF THE UNITED STATES, Respondent. _______________ On Petition for Review of an Order of the United States Department of Justice Board of Immigration Appeals (BIA 1:A046-981-570) Immigration Judge: Honorable Walter A. Durling _______________ Argued September 13, 2011 Before: RENDELL, JORDAN and BARRY, Circuit Judges. (Filed November 29, 2011) _______________ Wayne P. Sachs [ARGUED] 1518 Walnut Street – Ste. 702 Philadelphia, PA 19102 Counsel for Petitioner Eric H. Holder, Jr. Thomas W. Hussey Rebecca H. Phillips [ARGUED] Ann C. Varnon United States Department of Justice Office of Immigration Lit., Civ. Div. P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent _______________ OPINION OF THE COURT _______________ 2 JORDAN, Circuit Judge. Victor Aguilar petitions for review of a decision of the Board of Immigration Appeals (“BIA”) ordering that he be removed because he was convicted of “sexual assault” under 18 PA. CONS. STAT. § 3124.1 (“§ 3124.1”), which the BIA determined was a crime of violence under 18 U.S.C. § 16(b) (“§ 16(b)”), and therefore an aggravated felony under 8 U.S.C. § 1101(a)(43)(F). Aguilar asserts that crimes involving a minimum mens rea of recklessness cannot be crimes of violence under § 16(b). Accordingly, he argues that, because the minimum mens rea necessary for conviction under § 3124.1 is recklessness, the BIA erred in finding that his conviction constituted a crime of violence under § 16(b). Contrary to Aguilar‟s assertion, however, our precedent does not foreclose the possibility that a reckless crime can be a crime of violence under § 16(b). Because sexual assault, as defined by § 3124.1, raises a substantial risk that the perpetrator will intentionally use force in furtherance of the offense, we agree with the BIA that it constitutes a crime of violence under § 16(b). We will therefore deny Aguilar‟s petition. I. Background In 2000, Aguilar, a native and citizen of Honduras, was admitted to the United States as a lawful permanent resident. Four years later, in the Court of Common Pleas of Berks County, Pennsylvania, he was found guilty of both sexual assault, a second degree felony, under § 3124.1,1 and 1 Section 3124.1 makes it an offense to “engage[] in 3 indecent assault, a second degree misdemeanor, under 18 PA. CONS. STAT. § 3126(a)(2). He was sentenced to a term of imprisonment of forty-six months to eight years, followed by two years of probation. In that same proceeding, the jury found Aguilar not guilty of rape under 18 PA. CONS. STAT. § 3121(a)(1).2 Based on those felony and misdemeanor convictions, the Department of Homeland Security (“DHS”) issued Aguilar a Notice to Appear, charging him as removable under INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii), because he had been convicted of a crime of violence under § 16(b) and hence an aggravated felony as defined by 8 U.S.C. § 1101(a)(43)(F).3 sexual intercourse or deviate sexual intercourse with a complainant without the complainant‟s consent.” 18 PA. CONS. STAT. § 3124.1. 2 Pursuant to 18 PA. CONS. STAT. § 3121(a)(1), “[a] person commits a felony of … first degree [rape] when the person engages in sexual intercourse with a complainant … by forcible compulsion.” 3 The definition of “aggravated felony” includes “a crime of violence (as defined in [§ 16], 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 Notice to Appear also charged Aguilar as removable under 8 U.S.C. § 1227(a)(2)(A)(i), for having been convicted of a crime involving moral turpitude within five years of his admission, for which a sentence of at least one year or longer may be imposed. However, neither the Immigration Judge nor the BIA addressed that charge because both found that Aguilar‟s sexual assault conviction under § 3124.1 provided a ground for his removal under 8 U.S.C. § 1227(a)(2)(A)(iii). Thus, 4 Section 16(b) defines a “crime of violence” as “any other offense [not described in § 16(a)4] 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(b). In an “Interlocutory Ruling on Aggravated Felony,” the Immigration Judge (“IJ”) “sustain[ed] the aggravated felony ground of removal under [8 U.S.C. § 1227(a)(2)(A)(iii)].” (AR at 86.) The IJ held that, since “[t]he confrontation inherent in engaging in non-consensual sexual or deviant intercourse” creates a substantial risk that physical force may be used in the course of committing the offense, sexual assault under § 3124.1 is a crime of violence under § 16(b). (Id.) The IJ reasoned that, although § 3124.1 “cover[s] those occasions where a victim is compelled to engage in sexual intercourse or deviant sexual intercourse without consent even where no force was applied,” (AR at 85), § 16(b) can nevertheless cover offenses under § 3124.1 because § 16(b) only requires “a substantial risk that physical force may be used against the person in the course of committing the offense,” (AR at 86). Aguilar appealed to the BIA. Like the IJ, the BIA reasoned that “even if the intercourse required by [§ 3124.1] although Aguilar‟s convictions may well qualify as crimes involving moral turpitude, that issue is not before us. 4 Section 16(a) defines a “crime of violence” as “an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). 5 is accomplished without physical force or physical resistance, the offense of penetrating another person without [that person‟s] consent necessarily disregards the substantial risk of physical force being used to actually overcome the victim‟s lack of consent.” (AR at 4.) Thus, the BIA dismissed the appeal. Aguilar has timely petitioned us for review. II. Jurisdiction and Standard of Review Pursuant to 8 U.S.C. § 1252(a), we have jurisdiction to consider “„questions of law raised upon a petition for review,‟ including petitions for review of removal orders based on aggravated felony convictions.”5 Tran v. Gonzales, 414 F.3d 464, 467 (3d Cir. 2005) (quoting 8 U.S.C. § 1252(a)(2)(D)). Since the interpretation of criminal provisions “is a task outside the BIA‟s special competence and congressional delegation … [and] very much a part of this Court‟s competence,” our review is de novo. See id. (noting that de novo review is appropriate in the context of interpreting the criminal provisions of Title 18 of the United States Code). 5 The IJ had jurisdiction over Aguilar‟s original removal proceeding pursuant to 8 U.S.C. § 1229a, and the BIA, in turn, had jurisdiction to consider Aguilar‟s appeal pursuant to 8 C.F.R. § 1003.1(b)(3). 6 III. Discussion A. The Categorical Approach This case requires us to interpret the meaning and application of the type of aggravated felony defined by statute as a “crime of violence.” See Singh v. Ashcroft, 383 F.3d 144, 150 (3d Cir. 2004) (noting that whether a petitioner has been convicted of an aggravated felony “turns on a question of statutory interpretation”). First, we must ascertain the definition of a “crime of violence” under the enumerating statute, 8 U.S.C. § 1101(a)(43)(F), which incorporates § 16(b) by reference, and second, we must compare that federal definition to the statute of conviction, namely sexual assault under § 3124.1. Restrepo v. Att’y Gen. of the U.S., 617 F.3d 787, 791 (3d Cir. 2010). Case law refers to this kind of analysis as the “categorical approach” to determining whether a state law conviction constitutes an aggravated felony under federal law. Taylor v. United States, 495 U.S. 575, 601 (1990). Applying the categorical approach, “we look to the elements of the statutory state offense, not to the specific facts [of the case], reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.” Denis v. Att’y Gen. of the U.S., 633 F.3d 201, 206 (3d Cir. 2011) (citations and internal quotation marks omitted).6 6 The categorical approach will not always suffice. “Where … a statute criminalizes different kinds of conduct, some of which would constitute [aggravated felonies] while others would not,” we turn to a modified categorical approach, under which we “may look beyond the statutory elements to determine the particular part of the statute under 7 B. Crime of Violence The question before us is whether sexual assault under § 3124.1, which has a minimum mens rea of recklessness,7 is a crime of violence under § 16(b). Aguilar argues that it is not, because he reads our precedent as barring any crime that can be committed recklessly from qualifying as a § 16(b) crime. The government argues that, notwithstanding the possibility that § 3124.1 may be violated recklessly, “sexual assault,” as defined by that statute, is a crime of violence under § 16(b) because it creates a substantial risk that force may be used. The preliminary issue, then, is whether, under which the defendant was actually convicted.” Denis, 633 F.3d at 206 (citation omitted). Here, however, the categorical approach is sufficient because, as is set forth in detail herein, § 3124.1 criminalizes only behavior that qualifies as an aggravated felony. Thus, we will confine our review to the fact of conviction and the statutory definition of the offense. Oyebanji v. Gonzales, 418 F.3d 260, 262 (3d Cir. 2005) (citing Taylor, 495 U.S. at 602). 7 Section 3124.1 does not have an explicit mens rea requirement. When a statute is silent as to the level of mens rea required to establish a material element of an offense, Pennsylvania law provides that “such element is established if a person acts intentionally, knowingly or recklessly with respect thereto.” 18 PA. CONS. STAT. § 302(c). Regarding the mens rea required to convict Aguilar of sexual assault, the trial judge instructed the jury that they must find “that the defendant acted knowingly or at least recklessly regarding [the complainant‟s] nonconsent.” (AR at 180.) 8 our precedent, the fact that a crime can be committed with a mens rea of recklessness necessarily disqualifies it from being a crime of violence under § 16(b). We conclude that reckless crimes can be crimes of violence under § 16(b) because, under the terms of the statute and applicable case law, the focus must be on the risk of the intentional use of force, not merely on mens rea, as Aguilar urges. However, as the relevant precedents are nuanced and deserving of discussion, we will review them first and apply the proper test to the crime at issue, before turning to cases examining similar crimes, which have consistently been held to be crimes of violence. 1. Recklessly Committed Crimes can be Crimes of Violence under § 16(b) As already noted, § 16(b) provides that a crime of violence is “any other offense [not described in § 16(a)8] that is a felony and that, by its nature, involves a substantial risk 8 As the government concedes, § 16(a) is not at issue in this case because § 3124.1 does not require a showing of force and thus does not fall within § 16(a). As pointed out earlier, § 16(a) defines a crime of violence as those offenses that have “as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). Section 16(b), however, was crafted to include crimes that, by their nature, involve a substantial risk that physical force may be used in the course of committing the offense. See 18 U.S.C. § 16(b). Thus, § 16(b) is broader than § 16(a), Leocal v. Ashcroft, 543 U.S. 1, 11 (2004), because it does not require that force be an element of the crime, see 18 U.S.C. § 16(b). 9 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(b). Mens rea is not featured in that definition, but both the Supreme Court and our court have considered mens rea when determining what constitutes a crime of violence under § 16(b). Under those precedents, crimes involving a mens rea of negligence or of a variant of recklessness that we have called “pure” recklessness have been held not to be crimes of violence under § 16(b) because, by their nature, they do not raise a substantial risk that physical force may be used. E.g., Tran, 414 F.3d at 465; see Leocal v. Ashcroft, 543 U.S. 1, 11 (2004). Those precedents, however, do not foreclose all crimes with a mens rea of recklessness from qualifying as crimes of violence. Although the mental state necessary to satisfy the substantive elements of a crime may have a bearing on the “substantial risk” inquiry required by § 16(b), a reckless mens rea does not necessarily dictate that a crime falls outside of § 16(b). Case law instead follows the plain language of § 16(b) and focuses on whether the crime, by its nature, raises a substantial risk that force may be used. Thus, a crime that can be committed recklessly may still qualify as a crime of violence under § 16(b) if that crime, by its nature, raises such a risk. In Leocal v. Ashcroft, the Supreme Court held that a Florida DUI offense9 is not a crime of violence under § 16(b) because “[i]n no „ordinary or natural‟ sense can it be said that 9 The DUI statute in Leocal “ma[de] it a third degree felony for a person to operate a vehicle while under the influence and, „by reason of such operation, caus[e] … [s]erious bodily injury to another.‟” 543 U.S. at 7 (quoting FLA. STAT. § 316.193(3)(c)(2)). 10