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Rosa Pena v. Sessions

United States Court of Appeals, First Circuit

February 14, 2018



          Jeffrey B. Rubin and Rubin Pomerleau P.C. for petitioner.

          Margot L. Carter, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, were on brief, for respondent.

          Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges.

          LYNCH, Circuit Judge.

          This petition for review presents the question of whether the Board of Immigration Appeals' ("BIA") decision is sustainable on the reasoning it used to conclude that a violation of Mass. Gen. Laws ch. 266, § 2 ("Massachusetts Arson") is categorically a crime involving moral turpitude ("CIMT") under the Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.). The consequence of this BIA ruling is that petitioner Domingo Antonio Rosa Pena ("Rosa") is removable. We remand to the BIA due to its insufficient explanation of why the least culpable conduct prohibited under the statute is morally reprehensible, and why the statute's requirement of "malice, " as construed by the Massachusetts courts, qualifies the crime as a CIMT.


         Rosa, a native and citizen of the Dominican Republic, entered the United States in 1972 as a lawful permanent resident. His wife and four children, all U.S. citizens, reside in the United States. In 2001, Rosa was convicted of the crime of Massachusetts Arson[1] for burning down his grocery store. When Rosa returned from a trip abroad in September 2013 and sought admission to the United States, the Department of Homeland Security ("DHS") detained him[2]and initiated removal proceedings against him based on that conviction. DHS charged that Rosa was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) on the basis that his conviction for Massachusetts Arson qualified as a CIMT. In a motion to terminate the removal proceedings, Rosa denied his removability and, in the alternative, requested several forms of relief: cancellation of removal under 8 U.S.C. § 1229b(a), adjustment of status with a waiver of inadmissibility under 8 U.S.C. § 1182(h), or voluntary departure.

         The Immigration Judge ("IJ") denied Rosa's motion on November 7, 2013. The IJ found the Massachusetts Arson statute divisible, in that it punishes not only "conduct that would fall within the generic definition of arson" but also "conduct that may not be deemed reprehensible . . ., such as an owner setting fire to some of the contents in his building." Applying a modified categorical approach, the IJ reviewed Rosa's record of conviction and concluded that his actual crime, "willfully and maliciously setting fire to and burning a building, " was categorically a CIMT. The IJ also found Rosa ineligible for relief from removal on the basis that he failed to prove that his conviction was not an aggravated felony.

         The BIA dismissed Rosa's appeal in an opinion dated March 21, 2014, which replicated the IJ's reasoning. The BIA agreed with the IJ that the Massachusetts Arson statute was divisible "in that it also includes conduct that may not be deemed morally reprehensible, . . . such as an owner setting fire to the contents in his buildings." The BIA also agreed that Rosa's actual crime qualified as a CIMT, rendering Rosa removable, and as an aggravated felony, rendering him ineligible for relief from removal.

         Rosa petitioned this court for review; however, the respondent filed an unopposed motion to remand for the BIA to consider what effect (if any) its intervening decision in Matter of Chairez-Castrejon, 26 I. & N. Dec. 349 (B.I.A. 2014) had on its analysis of the Massachusetts Arson statute's divisibility. This court granted the motion. On remand, the BIA examined Rosa's conviction anew in light of its most recent case law, Matter of Chairez-Castrejon, 26 I. & N. Dec. 819 (B.I.A. 2016) and Matter of Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016). That opinion, dated February 27, 2017, is the subject of this petition.

         The BIA did not address the Massachusetts Arson statute's divisibility, but rather concluded, "the conviction is categorically a crime involving moral turpitude." The BIA listed the statute's elements -- willfully and maliciously burning a building or structure or contents thereof -- and noted that under Massachusetts law, "malice" means "willfully engag[ing] in an unlawful act, " citing Commonwealth v. McLaughlin, 729 N.E.2d 252, 259 (Mass. 2000). It then found controlling its precedent in Matter of S, 3 I. & N. Dec. 617 (B.I.A. 1949), which held that a violation of a Canadian statute that prohibited "willfully attempt[ing] to set fire to" a building, structure, or certain other combustible materials was categorically a CIMT. Id. at 618. For further support, the BIA also referred to the Eleventh Circuit's non-binding but "relevant" holding in Vuksanovic v. U.S. Att'y Gen., 439 F.3d 1308 (11th Cir. 2006) that Florida second-degree arson is a CIMT because "the willful destruction of a structure by fire or by explosion without a lawful, legitimate purpose . . . evinces a certain baseness in the private and social duties a man owes to society." Id. at 1311. Finally, the BIA reiterated that Rosa's conviction, in addition to being a CIMT, was an aggravated felony that rendered him ineligible for relief from removal. This petition for review followed. The parties agree here that the Massachusetts Arson statute is indivisible.[3]


         The government first argues that we lack jurisdiction over this petition because Rosa is removable as a result of his commission of a CIMT. See 8 U.S.C. ยง 1252(a)(2)(C) ("[N]o court shall have jurisdiction to review any final order of removal against an alien who is removable by reason of having committed a criminal offense covered in section 1182(a)(2). . . ."). We reject this argument because Rosa's petition presents a legal issue: ...

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