PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
Jeffrey B. Rubin and Rubin Pomerleau P.C. for petitioner.
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.
Howard, Chief Judge, Lynch and Thompson, Circuit Judges.
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.
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 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 himand 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
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
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.
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.
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
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. §
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: