Argued and Submitted, Pasadena, California: June 3,
[Copyrighted Material Omitted]
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A092-563-965.
The panel denied Mario Sandoval-Gomez's petition for review of the Board of Immigration Appeals' decision, following remand, that his conviction for attempted arson, in violation of California Penal Code § 455, constituted an aggravated felony as an offense described in the federal explosive materials statute, 18 U.S.C. § 844(f), (i).
The panel held that given the scope of the BIA's remand order, the Immigration Judge properly allowed the government to file new charges against Sandoval-Gomez. On the merits, the panel held that CPC § 455 is divisible, and that Sandoval-Gomez's conviction is an aggravated felony under the modified categorical approach. The panel held that the additional federal element found in 18 U.S.C. § 844(i) but not in CPC § 455 is a purely jurisdictional element which must be disregarded in determining whether the state law qualifies as an aggravated felony under federal law. The panel noted that the Third Circuit reached a contrary conclusion in Bautista v. Attorney General of the United States, 744 F.3d 54 (3d Cir. 2014).
Zoheb P. Noorani (argued), Sabrina H. Strong, and Carlos M. Lazatin, O'Melveny & Myers LLP, Los Angeles, California, for Petitioner.
M. Jocelyn Lopez Wright (argued), United States Department of Justice, Civil Division/Office of Immigration Litigation; Tony West, Assistant Attorney General, Civil Division; Leslie McKay, Assistant Director, Office of Immigration Litigation, for Respondent.
Before: Ronald M. Gould and N. Randy Smith, Circuit Judges, and Morrison C. England, Chief District Judge.[*] Opinion by Judge England.
ENGLAND, Chief District Judge:
Petitioner Mario Sandoval-Gomez petitions for review of the Board of Immigration Appeals' (" BIA" ) decision ordering him removed to Mexico. According to Petitioner, the BIA remanded his case to the Immigration Judge (" IJ" ) for the limited purpose of reconsidering the effect on his case of an intervening decision, Jordison v. Gonzales, 501 F.3d 1134 (9th Cir. 2007). Petitioner therefore first contends that, on remand, the Government was precluded from arguing that his attempted arson conviction under California Penal Code section 455 was an aggravated felony under the Immigration and Nationality Act (" INA" or " the Act" ), 8 U.S.C. § 1101(a)(43)(E)(i), as an offense described in the federal explosive materials statute, 18 U.S.C. § 844(f), (i). Petitioner further argues that the BIA erred as a matter of law in concluding that his state conviction categorically qualified as an aggravated felony because Petitioner's conviction had nothing to do with explosives and because, unlike § 844(f), (i), the state statute contains no federal jurisdictional requirement. We reject these arguments and deny the petition.
In September 2006, Petitioner was convicted of attempted arson in violation of California Penal Code section 455. He also had several other convictions, dating back to the early 1990s, for receiving stolen property, possession of controlled substances, and violating a protective order.
The Government first initiated removal proceedings against Petitioner based on his attempted arson conviction on April 19, 2007. The following month, the IJ determined that Petitioner was removable under 8 U.S.C. § 1227(a)(2)(A)(iii) because the attempted arson conviction constituted a " crime of violence," thus making it an aggravated felony and rendering Petitioner removable and ineligible for cancellation of removal.
Petitioner appealed to the BIA arguing that the Ninth Circuit's intervening decision in Jordison made clear that his attempted arson conviction did not constitute a crime of violence. The Government nonetheless moved for summary affirmance, arguing that Jordison had no effect on the IJ's ruling. In January 2008, the BIA summarily affirmed the IJ's decision. Petitioner subsequently filed a petition for review in this court.
In his opening brief in Case No. 09-70476, Petitioner argued, as he had before the BIA, that his conviction did not qualify as a crime of violence. Before the Government filed its answering brief, however, it moved the BIA to sua sponte reconsider its summary affirmance of the IJ's decision
because the BIA had failed previously to consider the impact of Jordison. The Government thus asked that the BIA: " 1) reconsider and reopen the case 2) accept [a new] Form I-261, Additional Charges of Deportability/Inadmissibility and 3) remand to the IJ to address the original charge of removability in light of Jordison and to address the additional charge in the I-261."
In January 2009, the BIA granted the Government's motion. According to the BIA, reconsideration was warranted because " DHS ha[d] identified a potential error of law or fact," and, although the Government had not raised the issue previously, " the issue [was] of such gravity that it merit[ed] reconsideration." The BIA " remand[ed] the case to the Immigration Judge to permit him to consider this case in the first instance" and ordered that " [t]he Board's decision dated January 22, 2008, [was] vacated and proceedings [were] remanded for any further proceedings the Immigration Judge deem[ed] appropriate and for a new decision." This court then dismissed the pending petition for lack of jurisdiction " because the BIA remanded the case for further proceedings and a new decision and there [was] no longer a final order of removal."
On March 3, 2009, in the second round of proceedings before the IJ, the Government submitted two new I-261s alleging that Petitioner was removable on several grounds not previously raised. More specifically, the Government alleged, among other things, that Petitioner was removable under section 237(a)(2)(B)(i) of the INA as an alien who had been convicted of a controlled substance offense. The Government further argued for removal pursuant to section 237(a)(2)(A)(iii) because, under 8 U.S.C. § 1101(a)(43)(E)(i), Petitioner's attempted arson conviction was an offense described in 18 U.S.C. § 844 (relating to explosive materials offenses) and was thus an aggravated felony. The Government conceded that, contrary to its prior position in the earlier proceedings, Petitioner was not removable on the basis that his attempted arson conviction was a crime of violence.
As a threshold matter, the IJ observed that the BIA's " remand order made this to be a pretty open hearing, to be heard as the Court deemed appropriate for the issuance of a new decision." The IJ noted that " this [was] not a new action. It [was] not subject to res judicata or collateral estoppel, based upon the controlling precedent." Indeed, the IJ " [was] satisfied that [the Government] followed the procedures that [were] mandated to be able to get back . . . and charge the [Petitioner] with allegations that were not originally filed in the Notice to Appear."
The IJ again found Petitioner removable, this time based on Petitioner's controlled substance conviction. However, the IJ rejected the Government's theory that Petitioner was alternatively removable and ineligible for cancellation on the basis that his attempted arson conviction was an aggravated felony.
The IJ further determined, although Petitioner was removable, he remained eligible for cancellation of removal under 8 U.S.C. § 1229b(a), which provides for discretionary cancellation if, among other things, an alien has not been convicted of an aggravated felony. See 8 U.S.C. § 1229b. The IJ reasoned that Petitioner's attempted arson conviction did not categorically qualify as an aggravated felony under the federal explosive materials statute. More specifically, the IJ determined that Petitioner's state law conviction could not qualify as an aggravated felony because the state statute, California Penal Code section 455,
did not contain the jurisdictional elements set forth in the relevant federal provisions, 18 U.S.C. § 844(f), (i). The IJ then exercised his discretion and granted ...