Case Information
*3 ALITO, Circuit Judge:
Larry Ololade Oyebanji appeals from the District Court’s order denying his petition for a writ of habeas corpus. Oyebanji challenges a decision of the Board of Immigration Appeals (“BIA”) holding that his conviction for vehicular homicide under New Jersey law was a “crime of violence” as defined by 18 U.S.C. § 16 and was thus a ground for removal. In light of the Supreme Court’s recent decision in Leocal v. Ashcroft, 125 S.Ct. 377 (2004), we conclude that we must reverse the decision of the District Court, which was issued before Leocal was handed down. I.
Oyebanji is a citizen of Nigeria and has been a lawful permanent resident of the United States since 1997. A lawful permanent resident is subject to removal if he or she commits an “aggravated felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii). Aggravated felonies include any offense that is punishable by at *4 least one year of imprisonment and that is “a crime of violence” as defined in 18 U.S.C. § 16 (and is not a “purely political” offense). 8 U.S.C. § 1101(a)(43)(F).
In February 1998, Oyebanji was arrested in East Orange, New Jersey, after causing a car accident that killed another person. Oyebanji pled guilty to vehicular homicide, in violation of N.J. S TAT . A NN . § 2C:11-5(b)(1), driving under the influence of an intoxicating drug (“DUI”), in violation of N.J. S TAT . A NN . § 39:4- 50, and reckless driving, in violation of N.J. S TAT . A NN . § 39:4-96. The New Jersey state court sentenced Oyebanji to six years’ imprisonment.
In June 2000, an Immigration Judge (“IJ”) held that Oyebanji’s conviction for vehicular homicide was an “aggravated felony” under the Immigration and Nationality Act (INA), 8 U.S.C. §1101(a)(43)(F), because it was a felony for which the term of imprisonment is at least one year and a crime of violence as defined in 18 U.S.C. § 16(b). The IJ also found that Oyebanji was [2]
ineligible for any form of relief from removal and therefore ordered that he be removed to Nigeria. The BIA affirmed the IJ’s decision and dismissed Oyebanji’s appeal.
Oyebanji filed a petition for a writ of habeas corpus in the United States District Court for the District of New Jersey, seeking relief from the order of removal. The District Court denied Oyebanji’s petition because it found that his offense was a crime of violence. Oyebanji then took the appeal that is now before us.
After hearing oral argument, we held this appeal c.a.v. because the Supreme Court had granted certiorari in Leocal, a case addressing a similar issue. Following the Supreme Court’s decision in that case, we invited the parties to file supplemental briefs addressing its application to the case at hand.
II.
Where the underlying facts of a habeas petition are
undisputed, we exercise plenary review over a district court’s
decision. See Sierra v. Romaine,
III.
Section 16 defines a crime of violence as follows: (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 *6 used in the course of committing the offense.
18 U.S.C. § 16.
In Leocal, the Supreme Court held that a criminal DUI
offense that either lacks a mens rea component or requires only a
showing of negligence in the operation of a vehicle is not a crime
of violence under Section 16. The Court noted, however, that
Leocal did not present “the question whether a state or federal
offense that requires proof of the reckless use of force against a
person or property of another qualifies as a crime of violence under
18 U.S.C. § 16.” Leocal,
*7 the Leocal Court did not reach.
IV.
Although Leocal did not decide the question presented here,
the Leocal opinion suggests that Oyebanji’s crime was not a crime
of violence as the Supreme Court understands that term. The
cornerstone of the Leocal Court’s reasoning was that the concept
of the use of physical force against the person or property of
another “requires active employment” and “naturally suggests a
higher degree of intent than negligent or merely accidental
conduct.” Leocal,
The Court’s reliance on the ordinary meaning of the term
“violent” crime and the Court’s repeated reference to “accidental”
conduct as falling outside the reach of 18 U.S.C. § 16 have
implications for the present case. The quintessential violent crimes
– murder, assault, battery, rape, etc. – involve the intentional use of
*8
actual or threatened force against another’s person, and the term
“accidental” is most often used to describe events that did not
“occur[] as a result of anyone’s purposeful act.” Black’s Law
Dictionary 16 (8th ed. 1999). Oyebanji’s crime, although plainly
regarded by New Jersey as involving a substantial degree of moral
culpability, did not involve the intentional use of force but instead
required only recklessness. Particularly because the issue of the
application of 18 U.S.C. § 16 to crimes of recklessness was on the
Court’s mind, see
Another feature of Leocal points in the same direction.
After concluding that a crime of violence as defined in Section 16
must consist of more than negligence, the Supreme Court stated
that its construction of Section 16 was “reinforced” by the way
another federal statute uses Section 16. See Leocal,
(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 personal injury to another.
*9
8 U.S.C. § 1101(h). The Supreme Court reasoned that the separate
listing of “any crime of violence” and “any” injury-causing DUI
crime “bolster[ed]” its conclusion that the term crime of violence
does not embrace DUI crimes, because interpreting the term “crime
of violence” to include DUI crimes would render 101(h)(3)
“practically devoid of significance.” Leocal,
We recognize that there are plausible grounds for
distinguishing Leocal and that reasonable arguments can be made
in support of the proposition that Oyebanji’s offense of conviction
should be viewed as a crime of violence. But as a lower federal
court, we are advised to follow the Supreme Court’s “considered
dicta.” See McCoy v. Mass. Inst. of Tech.,
Finally, we note that in a case concerning the Pennsylania
crime of reckless burning or exploding, this Court “conclude[d]
*10
that § 16 (b) crimes are those raising a substantial risk that the actor
will intentionally use force in the furtherance of the offense.” Tran
v. Gonzales, —F.3d —, No. 02-3879,
V.
For the reasons set out above, we reverse the decision of the District Court.
Notes
[2] Oyebanji does not contest that vehicular homicide under N.J. S TAT . A NN . § 2C:11-5(b)(1) is a felony for which the term of imprisonment is at least one year.
[3] Following enactment of the Real ID Act of 2005, Pub. L.
109-13, 119 Stat. 231, all habeas petitions brought by aliens
challenging removal that were pending before the district courts
were converted to petitions for review and transferred to the
appropriate courts of appeals. We held in Bonhometre v. Gonzales,
- - - F.3d - - -, No. 04-2037,
[4] N.J. S TAT . A NN . § 2C:2-2(3) defines “recklessly” as follows: (3) Recklessly. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation. “Recklessness,” “with recklessness” or equivalent terms have the same meaning.
[5] See Bejarano-Urrutia v. Gonzales, — F.3d —, No. 04- 2270, 2005 WL 1554805, at *2 (4th Cir. July 5, 2005) (“[T]he conclusion of the Leocal Court that ‘[i]n no ‘ordinary 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,’ [125 S. Ct.] at 383, strongly indicates that the result in Leocal would have been the same even had a violation of the statute there at issue required recklessness rather than mere negligence.”).