Ninth Circuit Finds CA Arson Conviction is not an Aggravated Felony

The Ninth Circuit has determined that a California arson conviction is overbroad and indivisible compared to the arson aggravated felony ground because the mens rea is broader in the California law than the federal law. “[T]o be convicted under § 844(i), a defendant need not have intended to damage or destroy property covered by the statute. But he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, he must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under California Penal Code § 451(b) for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm.”

The full text of Togonon v. Garland can be found here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/10/19-71693.pdf

First Circuit Remands for BIA to Reexamine if MA Arson Conviction is a CIMT

The First Circuit has remanded a case to the Board of Immigration Appeals (BIA) to reconsider its finding that a Massachusetts arson conviction is categorically a crime involving moral turpitude.  The court noted that the statute includes burning one's own property.  The court also noted that Massachusetts law does not require evil intent nor a corrupt mindset for an arson conviction.

The full text of Rosa Pena v. Sessions can be found here: 

http://media.ca1.uscourts.gov/pdf.opinions/17-1310P-01A.pdf

Fourth Circuit Finds that Maryland's First Degree Arson Statute is an Aggravated Felony

In Espinal-Andrades v. Holder, the Fourth Circuit addressed whether a conviction for first-degree arson in Maryland qualifies as an arson aggravated felony.  Espinal-Andrades argued that her state conviction was not a categorical match to the federal generic definition of arson because it was missing the jurisidictional requirement that the destroyed property be "used in interstate or
foreign commerce."  The Fourth Circuit deferred to the contrary Board of Immigration Appeals' decisions in Matter of Bautista and Matter of Vasquez-Muniz, and found that this jurisdictional element is not required in a state conviction.  Thus, Maryland's first-degree arson statute categorically matches the federal generic definition of an arson aggravated felony.

The full text of the decision can be found here: http://www.ca4.uscourts.gov/Opinions/Published/132418.P.pdf 

Sixth Circuit Addresses Ohio Arson and Domestic Violence Convictions

In a federal criminal case, the Sixth Circuit addressed whether an Ohio state conviction for arson matched the federal generic definition of arson and whether an Ohio state conviction for domestic violence qualified as a crime of violence under federal sentencing laws.  The court determined that Ohio's arson statute (criminalizing knowingly causing or creating a substantial risk of physical harm to property without the victim’s consent by means of fire or explosion) was a categorical match to the federal generic definition of arson, which requires "the intentional or malicious burning of any property."  The court rejected the petitioner's argument that the statute must include an element of a risk of harm to people.  Though this determination was made in the context of a federal sentencing case, it has implications for immigration law, which defines aggravated felonies to include offenses involving explosive materials.

Ohio's domestic violence statute criminalizes knowingly causing, or attempting to cause, physical harm to a family or household member.  Physical harm, in turn, is defined as any injury, illness, or other physiological mpairment, regardless of its gravity or duration.  The court determined that this met the definition of a crime of violence under the federal sentencing law because it has as an element the use, attempted use, or threatened use of physical force against another.  Given the similarities between the definition of a crime of violence under federal sentencing law and immigration law, this analysis certainly has implications for immigration court proceedings as well.

The full decision in US v. Gatson can be found here: http://www.ca6.uscourts.gov/opinions.pdf/15a0007p-06.pdf