FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO SANDOVAL-GOMEZ, AKA No. 10-73448
Milton Alvarado-Sandine,
Petitioner, Agency No.
A092-563-965
v.
ERIC H. HOLDER, JR., Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 3, 2014—Pasadena, California
Filed September 22, 2014
Before: Ronald M. Gould and N. Randy Smith, Circuit
Judges, and Morrison C. England, Chief District Judge.*
Opinion by Judge England
*
The Honorable Morrison C. England, Jr., Chief District Judge for the
U.S. District Court for the Eastern District of California, sitting by
designation.
2 SANDOVAL-GOMEZ V. HOLDER
SUMMARY**
Immigration
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).
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SANDOVAL-GOMEZ V. HOLDER 3
COUNSEL
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.
OPINION
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),
4 SANDOVAL-GOMEZ V. HOLDER
(i), the state statute contains no federal jurisdictional
requirement. We reject these arguments and deny the
petition.
I
A
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.
B
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.
SANDOVAL-GOMEZ V. HOLDER 5
C
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.”
6 SANDOVAL-GOMEZ V. HOLDER
D
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
SANDOVAL-GOMEZ V. HOLDER 7
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 Petitioner’s application for
cancellation.
E
The parties cross-appealed to the BIA. The Government
argued that the IJ had erred: (1) “in failing to sustain the
ground of removability alleging that the [Petitioner] had been
convicted of an aggravated felony explosives crime and an
aggravated felony attempted explosives crime”; and (2) “by
granting [Petitioner] cancellation of removal pursuant to 8
U.S.C. § 1229b(a) as a matter of his discretion.” The BIA
agreed, and reversed the IJ. Despite the fact that the
California statute of conviction contained no “interstate
commerce” requirement, the BIA concluded Petitioner’s
arson conviction was encompassed by the language of the
federal statute because the interstate requirement was
jurisdictional only. According to the BIA, attempted arson
8 SANDOVAL-GOMEZ V. HOLDER
thus constituted an aggravated felony for immigration
purposes, and Petitioner was removable and statutorily
ineligible for cancellation.1
In reaching this conclusion, the BIA also rejected
Petitioner’s arguments that: (1) “it was error for the
Immigration Judge to permit DHS to lodge additional
removal charges on remand”; and (2) “the DHS was barred
by res judicata from charging him with removability as an
aggravated felon.” According to the BIA, the remand order
was broad enough to permit the bringing of new charges, and
res judicata did not act as a bar because, given the remand, no
final order had been entered in the case. The instant Petition
for Review (“Petition”) followed in which Petitioner
contends: (1) that the IJ improperly permitted the
Government to lodge new charges on remand from the BIA;
and (2) that the BIA erred in concluding that his attempted
arson conviction qualified as an aggravated felony under the
federal explosives statute.
II
We review for abuse of discretion the BIA’s grant or
denial of a motion to reconsider or reopen. Barroso v.
Gonzales, 429 F.3d 1196, 1200 (9th Cir. 2005); Lainez-Ortiz
v. I.N.S., 96 F.3d 393, 395 (9th Cir. 1996). Reversal is
warranted if the BIA “acted arbitrarily, irrationally, or
contrary to law.” Lainez-Ortiz, 96 F.3d at 395.
1
Because this finding rendered Petitioner ineligible for cancellation of
removal, the BIA did not need to address the Government’s argument that
the IJ had improperly exercised its discretion to grant cancellation.
SANDOVAL-GOMEZ V. HOLDER 9
“[W]e lack jurisdiction to review an order of removal
against an alien removable for having committed an
aggravated felony.” Lopez-Jacuinde v. Holder, 600 F.3d
1215, 1217 (9th Cir. 2010); 8 U.S.C. § 1252(a)(2)(C).
“Nonetheless, this Court retains jurisdiction to determine its
jurisdiction, which includes determining whether a particular
offense constitutes an offense governed by the jurisdiction-
stripping provisions.” Cazarez-Gutierrez v. Ashcroft,
382 F.3d 905, 909 (9th Cir. 2004). Accordingly, “we can
reach the question of whether [Petitioner’s] conviction
constituted an aggravated felony, a question we review de
novo.” Murillo-Prado v. Holder, 735 F.3d 1152, 1155–56
(9th Cir. 2013) (citing Ramirez-Villalpando v. Holder,
645 F.3d 1035, 1038 (9th Cir. 2011)).
III
A
According to Petitioner, as a threshold matter, the
Government was barred from relitigating the merits of his
removability on remand from the BIA because: (1) doing so
exceeded the scope of the BIA’s remand order, which
Petitioner contends was intended only to permit the parties to
address the Jordison decision; (2) the BIA did not reopen the
case to permit the filing of additional charges against
Petitioner; and (3) even if the BIA’s remand order is
construed as granting the request to reopen, such a decision
would have contravened the BIA’s own regulations,
principles of res judicata, and the law of the case. We
disagree.
There is no dispute that the BIA acted within its discretion
in granting reconsideration. Indeed, Petitioner does not even
10 SANDOVAL-GOMEZ V. HOLDER
attempt to challenge the BIA’s decision in that regard,
arguing instead that, in order to entertain any new charges,
the BIA must also have impermissibly reopened the case.
Any potential challenge to reconsideration has thus been
waived. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir.
1994).
We also reject Petitioner’s arguments that granting the
request to reopen would have contravened the BIA’s own
regulations, principles of res judicata, and the law of the case
because they turn on the flawed premise that the BIA must
instead have sua sponte reopened the case to permit the filing
of those charges. Because the case was remanded, there was
nothing to reopen in the first place, and consequently, there
could be no violation of the regulations governing such
motions. See 8 C.F.R. § 1003.2(c) (requiring, among other
things, that motions to reopen “state the new facts that will be
proven at a hearing to be held if the motion is granted” and
that “[a] motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought to be
offered is material and was not available and could not have
been discovered or presented at the former hearing”).
Given the scope of the BIA’s remand order, we conclude
that the IJ properly allowed the Government to file new
charges against Petitioner. In its order granting
reconsideration, the BIA vacated its prior order entirely and
broadly instructed the IJ to conduct “any further proceedings
the Immigration Judge deems appropriate.” Despite the BIA
order’s language indicating that the motion for
reconsideration was granted for the purpose of giving the IJ
the opportunity to rule on the applicability of the Jordison
decision, the scope of the remand order itself was quite broad,
leaving the IJ free to adjudicate new charges. See Fernandes
SANDOVAL-GOMEZ V. HOLDER 11
v. Holder, 619 F.3d 1069, 1074 (9th Cir. 2010) (“[T]he IJ’s
jurisdiction on remand from the BIA is limited only when the
BIA expressly retains jurisdiction and qualifies or limits the
scope of the remand to a specific purpose. An articulated
purpose for the remand, without any express limit on scope,
is not sufficient to limit the remand such that it forecloses
consideration of other new claims or motions that the IJ
deems appropriate or that are presented in accordance with
relevant regulations.”). Moreover, the BIA’s regulations
expressly permit the Government to bring “[a]t any time
during deportation or removal proceedings, additional or
substituted charges of deportability,” which is precisely what
the Government did here. See 8 C.F.R. § 1003.30. Having
rejected Petitioner’s procedural arguments, we now turn then
to the merits of his challenge to the removal order.
B
An analysis of the merits requires us to undertake two
separate, but related inquiries. In doing so, we conclude:
(1) California Penal Code section 455 is divisible and,
applying a modified categorical approach, Petitioner’s
attempted arson conviction qualifies as an aggravated felony;
and (2) Petitioner is not saved from removal by the fact that
the state statute lacks jurisdictional elements included in the
corresponding federal provisions.2
2
The BIA’s omission of an exhaustive analysis of the first prong here,
whether California Penal Code section 455 was divisible or whether a
modified categorical approach should be applied, is understandable given
that the BIA did not have the benefit of the Supreme Court’s decision in
Descamps v. United States, 133 S. Ct. 2276 (2013). Regardless, “whether
an offense constitutes an aggravated felony for which an alien is
removable” is a question of law, which is reviewed de novo, and which we
may properly address in the first instance here. In re Mercury Interactive
12 SANDOVAL-GOMEZ V. HOLDER
1
Aggravated felonies include “offense[s] described in . . .
section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g),
(h), or (i) of that title (relating to explosive materials
offenses).” 8 U.S.C. § 1101(a)(43)(E)(i). The first question
before us is whether, as the Government contends, California
Penal Code section 455 is a categorical match to 18 U.S.C.
§ 844(f)(1) or 844(i). The federal provisions provide:
Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of
fire or an explosive, any building, vehicle, or
other personal or real property in whole or in
part owned or possessed by, or leased to, the
United States, or any department or agency
thereof, or any institution or organization
receiving Federal financial assistance, shall be
imprisoned for not less than 5 years and not
more than 20 years, fined under this title, or
both.
18 U.S.C. § 844(f)(1).
Whoever maliciously damages or destroys, or
attempts to damage or destroy, by means of
fire or an explosive, any building, vehicle, or
other real or personal property used in
interstate or foreign commerce or in any
Corp. Sec. Litig., 618 F.3d 988, 992 (9th Cir. 2010) (questions of law may
be addressed for the first time on appeal); Cazarez-Gutierrez v. Ashcroft,
382 F.3d 905, 909 (9th Cir. 2004) (whether a state conviction qualifies as
an aggravated felony is a question of law).
SANDOVAL-GOMEZ V. HOLDER 13
activity affecting interstate or foreign
commerce shall be imprisoned for not less
than 5 years and not more than 20 years, fined
under this title, or both; and if personal injury
results to any person, including any public
safety officer performing duties as a direct or
proximate result of conduct prohibited by this
subsection, shall be imprisoned for not less
than 7 years and not more than 40 years, fined
under this title, or both; and if death results to
any person, including any public safety officer
performing duties as a direct or proximate
result of conduct prohibited by this
subsection, shall also be subject to
imprisonment for any term of years, or to the
death penalty or to life imprisonment.
18 U.S.C. § 844(i).
At the time of Petitioner’s conviction, California Penal
Code section 455 (2006)3 mandated:
Any person who willfully and maliciously
attempts to set fire to or attempts to burn or to
aid, counsel or procure the burning of any
structure, forest land or property, or who
commits any act preliminary thereto, or in
furtherance thereof, is punishable by
3
In 2011, subsection letters “(a)” and “(b)” were added to the beginning
of the existing paragraphs of California Penal Code section 455. These
were the only changes made, however, and the language of the statute
remained the same.
14 SANDOVAL-GOMEZ V. HOLDER
imprisonment in the state prison for 16
months, two or three years.
The placing or distributing of any flammable,
explosive or combustible material or
substance, or any device in or about any
structure, forest land or property in an
arrangement or preparation with intent to
eventually willfully and maliciously set fire to
or burn same, or to procure the setting fire to
or burning of the same shall, for the purposes
of this act constitute an attempt to burn such
structure, forest land or property.
We employ a “categorical approach” to determine
whether a conviction qualifies as an aggravated felony. See
Taylor v. United States, 495 U.S. 575 (1990). If the “full
range of conduct” covered by state law falls within the
confines of the federal offense, Petitioner’s state conviction
is “categorically a removable offense” and our inquiry ends.
See Coronado v. Holder, ___ F.3d ____, 2014 WL 3537027,
at *3 (9th Cir. July 18, 2014) (quoting Alanis-Alvarado v.
Holder, 558 F.3d 833, 836 (9th Cir. 2009)). If it is possible
for a person to be convicted under state law without also
being convicted under federal law, then a modified
categorical approach may, under certain circumstances, be
appropriate.
As indicated in note 2 above, at the time the BIA issued
its decision in this case, it did not have the benefit of the
Supreme Court’s recent decision in Descamps v. United
States, 133 S. Ct. 2276 (2013). The Court in Descamps made
clear that the modified categorical approach “helps effectuate
the categorical analysis when a divisible statute, listing
SANDOVAL-GOMEZ V. HOLDER 15
potential offense elements in the alternative, renders opaque
which element played a part in the defendant’s conviction.”
Id. at 2283. Under the modified approach, courts are
permitted “as a tool for implementing the categorical
approach, to examine a limited class of documents to
determine which of a statute’s alternative elements formed
the basis of the [Petitioner’s] prior conviction.” Id. at 2284.
The modified approach “merely enables a court to ascertain
the specific element that a defendant was convicted of
violating when a statute contains multiple, alternative
elements.” Coronado, 2014 WL 3537027, at *4.
“Divisibility is therefore an ‘elements-based’ inquiry and not
a ‘facts-based’ one.” Id.
The felony complaint shows that Petitioner’s attempted
arson conviction was based on what is now section 455(a), or
section 455’s first provision. We initially note that both
§ 844(f)(1) and (i) include an “extra” element—“an
explosive”—not found in the relevant subsection of 455.
Based on this “extra” element, a person could be convicted
under § 844(f)(1) or (i), but not be convicted under section
455. However, anyone convicted of at least one subset of
section 455(a) (i.e., one convicted of “willfully and
maliciously attempt[ing] to set fire to . . . any structure, forest
land or property”) could be convicted under either provision
of § 844 if the jurisdictional elements were met under the
latter provisions.4 Thus, it seems that § 455 would satisfy the
elements of the generic crime. See Descamps, 133 S. Ct. at
2283.
4
A more thorough discussion of the effect of the federal jurisdictional
elements follows in the next section.
16 SANDOVAL-GOMEZ V. HOLDER
However, section 455 is divisible not only based on the
now sections (a) and (b), but it is also divisible within itself.
A violation of section 455(a) can be committed in several
ways. One could willfully and maliciously: (1) attempt to set
fire to or attempt to burn any structure, forest land, or
property; (2) aid, counsel or procure the burning of any
structure, forest land or property; or (3) commit any act
preliminary thereto, or in furtherance thereof. See People v.
Carrasco, 77 Cal. Rptr. 3d 912, 916 (Cal. Ct. App. 2008).
This reading is supported by the applicable jury
instruction:
In order to prove this crime, each of the
following elements must be proved:
[1 A person attempted to [set fire to] [or]
[burn] any structure, forest land, or property;]
[1 A person aided, counselled, or procured the
burning of any structure, forest land, or
property;]
[1 A person committed an act preliminary to
or in furtherance of the setting fire to or
burning of any structure, forest land, or
property;]
2 That person acted willfully and maliciously;
and
3 That person had the specific intent to set fire
to, or burn a structure, forest land, or property
[of another].
SANDOVAL-GOMEZ V. HOLDER 17
CALJIC 14.84. This statute is thus divisible because it
“contain[s] multiple, alternative elements of functionally
separate crimes.” Rendon v. Holder, ___ F.3d ____, 2014
WL 4115930, at *3 (9th Cir. Aug. 22, 2014).
We must next determine whether all three of the ways to
commit an offense under section 455 are a categorical match
to § 844(f)(1) or § 844(i). Based on a comparison of the
statutes, we conclude they are not. The second and third
ways to commit the crime are not categorical matches, as
their language—“aided, counselled, or procured” or
“committed an act preliminary to or in furtherance”—does
not exist in § 844(f)(1) or (i). However, one provision of
section 455—“[a]ny person who willfully and maliciously
attempts to set fire to or attempts to burn . . . any structure,
forest land or property”—is a categorical match. Thus, a
modified approach must be taken to determine whether
Petitioner pled guilty to this provision.
The complaint to which Petitioner pled guilty includes all
three divisible crimes but uses “and” rather than “or” to join
them. Moreover, the abstract of judgment does not limit
Petitioner’s plea of guilty to one indivisible crime, but rather
shows that Petitioner pled guilty to the alleged single count
listed. Therefore, applying the modified approach, we
conclude that Petitioner pled guilty to “willfully and
maliciously attempt[ing] to set fire to or attempt[ing] to burn
. . . any structure, forest land or property.” As a result, the
BIA did not err in concluding that Petitioner committed an
aggravated felony.
18 SANDOVAL-GOMEZ V. HOLDER
2
Aggravated felonies are enumerated in section 101(a)(43)
of the INA, and include offenses “described in” 18 U.S.C.
§ 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). “[T]he term
[aggravated felony] applies to an offense described in [section
101(a)(43)] whether in violation of Federal or State law and
applies to such an offense in violation of the law of a foreign
country for which the term of imprisonment was completed
within the previous 15 years.” Id. § 1101(a)(43).
The only remaining aspect of Petitioner’s argument, and
the part on which the parties focus, is that other federal
elements prevent California Penal Code section 455 from
being a categorical match. Specifically, the elements are:
“any building, vehicle, or other personal or real property in
whole or in part owned or possessed by, or leased to, the
United States, or any department or agency thereof, or any
institution or organization receiving Federal financial
assistance,” § 844(f)(1), and “any building, vehicle, or other
real or personal property used in interstate or foreign
commerce or in any activity affecting interstate or foreign
commerce,” § 844(i). Because we conclude Petitioner’s
attempted arson conviction constitutes an aggravated felony
under § 844(i), we need not address Petitioner’s challenge to
§ 844(f)(1).
We conclude that this additional federal element is purely
“jurisdictional” and must be disregarded for our instant
purposes. Indeed, in the context of state felon-in-possession
convictions, both this Court and the BIA have previously
determined that purely jurisdictional elements should be
disregarded in determining whether those state laws
categorically qualified as aggravated felonies under federal
SANDOVAL-GOMEZ V. HOLDER 19
law. First, in United States v. Castillo-Rivera, 244 F.3d 1020,
1021 (9th Cir. 2001), we held that enhancement of a criminal
sentence for removal subsequent to deportation for an
aggravated felony was proper when the defendant had
previously been convicted under a state felon-in-possession
statute. We concluded that violations of California’s
possession statute categorically qualified as aggravated
felonies under the corresponding provision of federal law,
18 U.S.C. § 922(g)(1), despite the lack of any jurisdictional
element under state law. Id. Interpreting the same basic
provisions of federal law relevant here, we reasoned:
The wording of 8 U.S.C. § 1101(a)(43) makes
evident that Congress clearly intended state
crimes to serve as predicate offenses for the
purpose of defining what constitutes an
aggravated felony. Section 1101(a)(43)
explicitly states that “[t]he term applies to an
offense described in this paragraph whether in
violation of Federal or State law.” 8 U.S.C.
§ 1101(a)(43). Moreover, § 1101(a)(43)(E)
defines aggravated felony as “an offense
described in” several federal statutory
provisions, including § 922(g)(1). Id. As we
have previously noted, Congress “as a
practical matter . . . had to use some looser
standard such as ‘described in’ rather than the
more precise standard of ‘defined in,’ if it
wanted more than a negligble number of state
offenses to count as aggravated felonies.”
[United States v.] Sandoval-Barajas, 206 F.3d
[853,] 855 [(9th Cir. 2000)].
20 SANDOVAL-GOMEZ V. HOLDER
Interpreting the jurisdictional element of
§ 922(g) to be necessary in order for a state
firearms conviction to constitute an
aggravated felony under § 1101(a)(43)(E)(ii)
would reduce the number of state firearms
offenses that qualify to no more than a
negligible number. Rarely, if ever, would a
state firearms conviction specify whether a
commerce nexus exists. If we were to
construe the jurisdictional nexus of the federal
felon in possession provision to be a
necessary element for a state crime to qualify
as an aggravated felony, we would undermine
the language of the aggravated felony statute
and the evident intent of Congress.
Id. at 1023–24 (footnote omitted). We also reasoned that the
inclusion of foreign offenses in the aggravated felony statute
further supported the conclusion that federal jurisdictional
elements should not be considered for categorical purposes.
Id. at 1023 n.4. Otherwise, “[a]lthough a foreign commerce
nexus would be a possibility, there is still no reason to believe
that anything other than a negligible number of foreign
offenses would qualify because it is the Commerce Clause of
the U.S. Constitution that lends such an element any legal
significance.” Id. (internal citations omitted).
Subsequently, in In re Vasquez-Muniz, 23 I. & N. Dec.
207 (2002), the BIA applied Castillo-Rivera directly in the
immigration context. The Vasquez-Muniz panel also
reasoned that great weight should attach to the penultimate
sentence of section 101(a)(43). Id. at 210. According to the
panel, use of the phrase “described in” indicated that the
penultimate sentence provided a guide to Congress’s intent
SANDOVAL-GOMEZ V. HOLDER 21
that “the crimes specified are aggravated felonies regardless
of whether they fall within the jurisdiction of the federal
government, a state, or, in certain cases, a foreign country.”
Id. “The language clearly reflects a concern over substantive
offenses rather than any concern about the jurisdiction in
which they are prosecuted.” Id. The BIA concluded that “to
give this language meaning, it must render irrelevant any
purely jurisdictional element appearing in the crimes
enumerated.” Id. at 210–11.
In addition, the BIA reasoned that its conclusion was
bolstered by the fact that “owing to the nature of federal and
state jurisdictional requirements, it would be very rare for a
state to include federal jurisdictional language within its
criminal statutes.” Id. at 211. “Consequently, if state crimes
must include a federal jurisdictional element in order to be
classified as aggravated felonies, then virtually no state
crimes would ever be included in section 101(a)(43)(E),
despite the statute’s language to the contrary.” Id. The panel
concluded that “the Act, in its overall design, in the language
of the aggravated felony provision itself, and in the very
specific reference noted above, clearly contemplates that
subparagraph (E) of the aggravated felony provision
encompasses state crimes.” Id.
Similarly, the Vasquez-Muniz panel reasoned that foreign
statutes as well “are extremely unlikely to contain
jurisdictional elements similar to those appearing in our
federal statutes.” Id. at 211–12. Indeed, as the panel stated,
a decision to the contrary would mean that a number of grave
federal offenses “clearly ‘described in’ the subparagraphs of
section 101(a)(43) of the Act would be found to have no
foreign counterpart and would not be classified as aggravated
felonies despite the statutory direction to so classify them.”
22 SANDOVAL-GOMEZ V. HOLDER
Id. at 212. According to the BIA, this result “would
contravene the explicit statutory directive Congress has
provided in the penultimate sentence of section 101(a)(43): to
identify the specified crimes as aggravated felonies whether
in violation of federal or state law, or the law of a foreign
country.” Id. “It would be unreasonable to assume that
Congress intended to exclude certain specified crimes from
the definition of an aggravated felony simply because they
lack a jurisdictional element that would be meaningless to the
enacting foreign or state jurisdiction.” Id.5
The Eighth Circuit has extended the same analysis beyond
the felon-in-possession context to conclude that a state
racketeering statute qualified as an aggravated felony despite
the state law’s lack of an interstate or foreign commerce
element set forth in the corresponding federal law. Spacek v.
Holder, 688 F.3d 536, 538–39 (8th Cir. 2012). In Spacek,
that court considered whether the state law was an aggravated
felony under 8 U.S.C. § 1101(a)(43)(J), which included
offenses “described in section 1962 of Title 18 (relating to
racketeer influenced corrupt organizations).” Id. at 538.
Section 1962, in turn, provides:
5
Other circuit courts have since weighed in, approving of and following
the analysis set forth in Castillo and Vasquez-Muniz. See Negrete-
Rodriguez v. Mukasey, 518 F.3d 497, 504–05 (7th Cir. 2008) (holding that
the BIA “did not err in determining that [a petitioner’s] . . . Illinois
conviction for possession of a firearm by a felon constituted an
‘aggravated felony’ and therefore made [the petitioner] statutorily
ineligible for cancellation of removal” despite the state law’s lack of a
federal jurisdictional element); Nieto Hernandez v. Holder, 592 F.3d 681,
684 (5th Cir. 2009) (holding that “state felon-in-possession offenses . . .
need not have an interstate commerce element in order for the offense to
be an offense ‘described in’ 18 U.S.C. § 922(g)(1)”).
SANDOVAL-GOMEZ V. HOLDER 23
It shall be unlawful for any person who has
received any income derived, directly or
indirectly, from a pattern of racketeering
activity . . . to use or invest, directly or
indirectly, any part of such income, or the
proceeds of such income, in acquisition of any
interest in, or the establishment or operation
of, any enterprise which is engaged in, or the
activities of which affect, interstate or foreign
commerce.
As here, the state statute analyzed by the Eighth Circuit
in Spacek lacked an interstate or foreign commerce element.
Spacek, 688 F.3d at 538. Significantly, the Spacek court
expressly agreed with the reasoning of this circuit’s Castillo-
Rivera decision, the BIA’s Vasquez-Muniz decision, and the
decisions of the Fifth and the Seventh Circuits in Nieto
Hernandez and Negrete-Rodriguez, respectively. Id. It then
opined:
“The requirement of an interstate nexus arises
from constitutional limitations on
congressional power intrastate activities under
the Commerce Clause. Its inclusion in
criminal and civil statutes is most often solely
for the purpose of conferring federal
jurisdiction rather than of defining substantive
elements of an offense.” United States v.
Bryant, 766 F.2d 370, 375 (8th Cir. 1985).
Section 1101(a)(43)(J) requires only “an
offense described in section 1962 of title 18”
(emphasis added), while Congress used the
more restrictive construction “as defined in”
elsewhere in the statute, see 8 U.S.C.
24 SANDOVAL-GOMEZ V. HOLDER
§ 1101(a)(43)(B), (C), (F) (emphasis added).
See Nieto Hernandez, 592 F.3d at 685–86.
Additionally, the penultimate sentence of
§ 1101(a)(43) states that the term aggravated
felony “applies to an offense described in this
paragraph whether in violation of Federal or
State law,” while few if any state criminal
provisions include a § 1962. See id. Our
presumption that interstate commerce nexuses
are jurisdictional and not substantive elements
of federal criminal statutes, see Bryant,
766 F.2d at 375, the “described in” language, and our
interpretive duty to give effect to the “State law” verbiage in
the penultimate sentence all militate against [the petitioner’s]
reading of § 1101(a)(43)(J) to require a state racketeering
offense to have an interstate or foreign commerce element to
qualify as an aggravated felony. Id. at 538–39. The Spacek
court thus held “that [the petitioner’s] racketeering conviction
was an aggravated felony and that he was therefore ineligible
for cancellation of removal under § 1229b(a).” Id. at 539.
We see no principled distinction between Castillo-Rivera
and the cases that have relied on it and the one before us.
Accordingly, the same analysis employed by the courts in
those cases is equally applicable to a categorical comparison
of California Penal Code section 455 and 18 U.S.C. § 844(i),
and, for those same reasons set forth above, Petitioner’s
arguments to the contrary are rejected.
We note that this brings us in conflict with one of our
sister circuits. In February of this year, a majority of a three-
judge Third Circuit panel reached a conclusion contrary to
ours. See Bautista v. Attorney General of the United States,
SANDOVAL-GOMEZ V. HOLDER 25
744 F.3d 54 (3d Cir. 2014). The majority in that case
explicitly rejected the BIA’s conclusion that a New York
arson statute qualified as an aggravated felony, reasoning that
the state statute “lack[ed] the jurisdictional element of
§ 844(i), which the Supreme Court has found to be a critical
and substantive element of that arson offense.” Id. at 56. In
so holding, the majority implicitly rejected the analysis
employed by this circuit and the Fifth, Seventh, and Eighth
Circuits and concluded that “[i]n some circumstances, the
jurisdictional element may be the most meaningful and
differentiating element, since it is what distinguishes generic
arson from the arson described by § 844(i), thereby evincing
Congress’s intent in selecting § 844(i) rather than generic
arson.” Id. at 64. Ultimately, relying on the Supreme Court’s
decision in Jones v. United States, 529 U.S. 848 (2000), the
Bautista majority determined that the jurisdictional hook in
§ 844(i) is also substantive and thus could not be ignored for
purposes of the categorical approach. Id. at 66.
We disagree. First, the Supreme Court in Jones
considered the jurisdictional scope of a federal criminal
statute, not whether the jurisdictional hook should be
considered for collateral immigration purposes. Second, the
Third Circuit’s Bautista decision is irreconcilable with this
Court’s determination that Congress intended the term
“describe” to be more broad than the term “define.” Finally,
the Bautista decision is in conflict with Congress’s intent to
provide that foreign as well as state offenses may qualify as
aggravated felonies.
At the outset, we find the Bautista majority’s reliance on
Jones misplaced. The Supreme Court in Jones held that
arson of an “owner-occupied residence not used for any
commercial purpose [did] not qualify as property ‘used in’
26 SANDOVAL-GOMEZ V. HOLDER
commerce or commerce-affecting activity.”6 Jones, 529 U.S.
at 850–51. However, the Court “focused on interpreting the
jurisdictional component of § 844(i) in order to curb
Congress’ power vis a vis the states and maintain the
constitutionality of the federal arson statute.” Bautista,
744 F.3d at 71 (Ambro, J., dissenting). “Jones ruled that the
‘interstate commerce’ language of § 844(i) was substantive
for the purposes of federal jurisdiction, and interpreted that
language narrowly in order to prevent ‘[every] building in the
land [from falling within] the federal statute’s domain.’” Id.
at 71–72 (quoting Jones, 529 U.S. at 849). Judge Ambro’s
dissent thus properly concludes that Jones “does not support
the majority’s position that the jurisdictional component of
§ 844(i) is a substantive element of the underlying crime.”
Id. at 72. As the dissent noted, “the holding in Jones related
to the scope of the Federal criminal statute, not the collateral
consequences in an immigration case.”7 Id. (quoting In re
Robert Bautista, 25 I. & N. Dec. 616, at *5 (Oct. 13, 2011)).
6
We pause here to note that, were we to accept Petitioner’s argument,
it would necessarily follow that state statutes criminalizing arson with
respect to commercial property would be deemed aggravated felonies,
while those state laws directed at residential property would not. We
cannot accept the proposition that states passing criminal statutes, or
Congress in drafting the INA, intended to impose harsher immigration
consequences for the destruction of commercial property than it did for
residential property. We find it absurd, indeed, that one would be
removable for attempting to burn a store or factory, but would not be
removable for attempting to burn a citizen’s home.
7
Indeed, the penultimate sentence of section 101(a)(43) “can reasonably
be read to suggest that Congress intended state crimes that are not
punishable under any particular federal statute still to have collateral
immigration consequences under the INA.” Id.
SANDOVAL-GOMEZ V. HOLDER 27
In any event, the Bautista majority’s reasoning turns on
an interpretation of “describe” and “define” that is contrary
to the construction given those terms in this circuit. This
circuit (as well as the Fifth, Seventh, and Eighth) has
explicitly determined that “Congress as a practical matter . . .
had to use some looser standard such as ‘described in[,]’
rather than the more precise standard of ‘defined in,’ if it
wanted more than a negligible number of state offenses to
count as aggravated felonies.” Castillo-Rivera, 244 F.3d at
1023 (emphasis added) (internal citations and quotations
omitted). The Third Circuit, to the contrary, suggests that the
phrase “described in” should be construed more narrowly, to
mean that Congress intended only those state laws that would
actually be punishable under federal law to be included by
that terminology. Since the Third Circuit’s analysis turns in
large part on its contrary view of “described in,” its decision
has little force here. Indeed, the dissent in that case makes an
argument that is more consistent with this court’s
jurisprudence, stating that “the phrase ‘described in’ refers
broadly to the type of offense. An offense ‘described’ in
§ 844(i) includes any offense that involves the substantive
elements of arson—the destruction, by means of fire or an
explosive, of a building, vehicle, or other real or personal
property.” Bautista, 744 F.3d at 71 (Ambro, J., dissenting).8
8
We find additional support for our position in an even more recent
Second Circuit case. The Second Circuit was confronted with the same
question of whether the New York laws at issue in Bautista qualified as
aggravated felonies despite the lack of jurisdictional elements in the state
provisions. Torres v. Holder, ___ F.3d ____, 2014 WL 4085865, *1 (2d
Cir. Aug. 20, 2014). Comparing Castillo-Rivera, 244 F.3d 1020, and its
progeny to the Third Circuit’s decision in Bautista, 744 F.3d 54, the
Second Circuit ultimately concluded that the INA was ambiguous, and it
deferred to what it considered the BIA’s reasonable interpretation as set
forth in the agency decision that was rejected in Bautista. Id., at *6 (citing
28 SANDOVAL-GOMEZ V. HOLDER
Finally, the Third Circuit’s interpretation would result in
virtually no state or foreign laws purportedly “described in”
the enumerated federal statutes from categorically qualifying
as aggravated offenses. As Judge Ambro notes, the
majority’s “reading is in tension with the final phrase of
§ 101(a)(43), which provides that an offense in violation of
foreign law may also be an aggravated felony under the
INA.” Id. at 73. “Congress surely did not envision that
foreign laws would include references to interstate
commerce.” Id. Yet, that is precisely what the Bautista
majority appears to presume in holding that the jurisdictional
hook is substantive for collateral immigration purposes as
well. That court’s interpretation is contrary to both
Congress’s expressed intent to qualify state and foreign
convictions as aggravated felonies and this circuit’s
construction of the relevant statutes. We thus decline to
follow it.
IV
The Petition for Review is DENIED.
Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
456 U.S. 837, (1984)). Despite finding the federal law ambiguous,
however, the Second Circuit nonetheless observed that it was inclined to
disagree, as do we, with the Third Circuit’s construction of “described in”
and “defined in,” and it too opined that use of the phrase “described in”
seemed to indicate that a state statute “need not reproduce the federal
jurisdictional element to have immigration consequences.” Id., at *4.