Crime of violence aggravated felony requires substantial risk of intentionally using physical force

Filed 07/12/05, No. 02-3879
Tran v. Atty Gen USA
Agency
(precedential decision)

To analyze whether a conviction is an aggravated felony, you must compare the entire range of the crime according to the relevant portion of the statute and determine whether the entire range would be encompassed in the definition of the particular aggravated felony category.

The aggravated felony of using physical force requires a state statute that includes the specific intent to use physical force, not mere recklessness. Therefore, a Pennsylvania statute that did not require an intention to use physical force could not qualify as an aggravated felony.

The statute required the intentional setting of a fire, but only a recklessness for causing harm.. The IJ ruled it was not an aggravated felony. For some reason the BIA reversed and ruled it was an aggravated felony. The Third Circuit ruled that the BIA was wrong and held it was not an aggravated felony.

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.