Rosa Pena v. Sessions , 882 F.3d 284 ( 2018 )

United States Court of Appeals
For the First Circuit
No. 17-1310
DOMINGO ANTONIO ROSA PENA,
Petitioner,
v.
JEFFERSON B. SESSIONS, III,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Lynch and Thompson, Circuit Judges.
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.
February 14, 2018
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.
I.
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
Arson1 for burning down his grocery store. When Rosa returned from
a trip abroad in September 2013 and sought admission to the United
1 For ease of reference, we use the term "Massachusetts
Arson" to refer specifically to Mass. Gen. Laws ch. 266, § 2.
There are other Massachusetts arson statutes. See, e.g., Mass.
Gen. Laws ch. 266, §§ 1, 5, 7-9. They are not at issue in this
petition.
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States, the Department of Homeland Security ("DHS") detained him2
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
2 It appears that Rosa was initially detained at that time
and was released from detention after this court granted him a
stay of removal when we allowed the government's motion to remand
to the BIA, in December 2014.
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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
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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
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from removal. This petition for review followed. The parties
agree here that the Massachusetts Arson statute is indivisible.3
II.
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. § 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:
whether the BIA erred in concluding that Massachusetts Arson is
categorically a CIMT. See 8 U.S.C. § 1252(a)(2)(D).
"Where, as here, 'the BIA has rendered a decision with
its own analysis of the question at issue, our review focuses on
the BIA's decision, not the IJ's.'" Patel v. Holder, 707 F.3d 77,
79 (1st Cir. 2013) (quoting Vásquez v. Holder, 635 F.3d 563, 565
(1st Cir. 2011)). Two standards of review apply. "We review the
BIA's legal conclusions de novo, but we afford Chevron deference
to the BIA's interpretation of the [INA], including its
determination that a particular crime qualifies as one of moral
3 In his petition, Rosa does not challenge the BIA's
finding that his crime qualifies as an aggravated felony. Nor has
the government suggested in its responsive brief that the
aggravated felony finding may render moot the CIMT determination.
We do not address any such possible issues.
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turpitude, unless that interpretation is 'arbitrary, capricious,
or clearly contrary to law.'" Coelho v. Sessions, 864 F.3d 56, 60
(1st Cir. 2017) (quoting Da Silva Neto v. Holder, 680 F.3d 25, 28
(1st Cir. 2012)). In this case, we give deference to the BIA's
construction of the term "moral turpitude," but not to its reading
of the underlying criminal statutes at issue, "as to which it has
no expertise." Id. at 61 (quoting Patel, 707 F.3d at 79).
Generally, "our review is limited to the reasoning articulated
below." Patel, 707 F.3d at 80 n.1. Neither the government nor
this court is at liberty to fill gaps and remedy material
deficiencies in the BIA's analysis. See Mejia v. Holder, 756 F.3d
64, 69 (1st Cir. 2014).
The INA does not define "moral turpitude." Absent
guidance from Congress, we have adopted the BIA's definition:
"conduct that shocks the public conscience as
being inherently base, vile, or depraved, and
contrary to the accepted rules of morality and
the duties owed between persons or to society
in general," or, in other words, "an act which
is per se morally reprehensible and
intrinsically wrong" and is "accompanied by a
vicious motive or a corrupt mind."
Da Silva Neto, 680 F.3d at 29 (quoting Maghsoudi v. INS, 181 F.3d
8, 14 (1st Cir. 1999)).
Importantly, to ascertain whether a crime categorically
involves moral turpitude, the focus must be on the "'least of th[e]
acts' criminalized" under the statute. Coelho, 864 F.3d at 61 n.1
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(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)). "'[T]he
particular circumstances of [the petitioner's] acts and
convictions' are off-limits." Da Silva Neto, 680 F.3d at 31(quoting Maghsoudi, 181 F.3d at 14).
In its post-remand opinion, the BIA concluded, relying
on Matter of S, that Massachusetts Arson is categorically a CIMT.
The BIA's opinion must be remanded because it provides inadequate
reasoning on two points. First, both the IJ and the BIA in its
pre-remand decision opined that the Massachusetts Arson statute
reaches "conduct that may not be deemed morally reprehensible,
. . . such as an owner setting fire to the contents in his
building." The BIA has not addressed the moral reprehensibility
of the least culpable conduct criminalized under the statute, an
issue which it had recognized in its first opinion. It does not
articulate what it is about the least culpable conduct covered by
the statute that is "per se morally reprehensible and intrinsically
wrong," nor does it explicate why such behavior necessarily evinces
a "vicious motive or a corrupt mind," as required for a finding of
moral turpitude. Da Silva Neto, 680 F.3d at 29.4
Second, the BIA has not adequately discussed the
specialized meaning of "malice" under the Massachusetts Arson
4 The government argues in its brief that deliberately
burning property unlawfully is intrinsically reprehensible conduct
because of its inherent dangerousness and unpredictable
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statute, or why Matter of S is dispositive in light of that term's
definition.5 Matter of S held that attempted arson under a Canadian
statute is categorically a CIMT. 3 I. & N. Dec. at 618. The BIA
asserts that that Canadian statute describes "the same basic
elements and the same level of intent" as the Massachusetts Arson
statute. But the two statutes' scienter requirements differ,6 as
the government correctly conceded at oral argument. The Canadian
statute requires acting "willfully," defined as "not merely . . .
voluntarily" but "purposely with an evil intention, or, in other
words, . . . deliberately, intentionally, and corruptly, and
without any justifiable excuse." Id. at 618 (quoting R. v. Duggan,
4 W.L.R. 481, 490 (1906)). The Massachusetts Arson statute
requires acting "willfully and maliciously." For that statute's
consequences: fire can spread to non-targeted property, and, in
cases where a burning building is occupied, there is a risk of
deadly harm to occupants as well as to firefighters. This argument
may be potent, but the BIA did not make it. The BIA's CIMT
determination must be upheld, if at all, on the basis articulated
in the decision itself. See Mejia, 756 F.3d at 69.
5 The other case cited by the BIA, Vuksanovic, does not
bind the BIA in this circuit. Moreover, we note that the Eleventh
Circuit reached its conclusion -- that arson "evinces a certain
baseness," Vuksanovic, 439 F.3d at 1311 -- under Florida law,
without engaging in the type of analysis that the Massachusetts
statute at issue here requires.
6 The Canadian arson statute also differs from its
Massachusetts counterpart in that, rather than prohibit burning
any property, it specifically targets setting fire to combustible
substances that one would expect to cause widespread damage.
Matter of S, 3 I. & N. Dec. at 617-18.
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purposes, the Massachusetts Supreme Judicial Court has construed
"willful" to mean intentional as opposed to accidental, without
requiring evil intent, ill will, or malevolence, see Commonwealth
v. Dung Van Tran, 972 N.E.2d 1, 15-16 (Mass. 2012), and it has
construed "malice" to require no more than "[t]he wilful doing of
an unlawful act without excuse." Id. at 15 (quoting McLaughlin,
729 N.E.2d at 259 n.6); see also Commonwealth v. Lamothe, 179
N.E.2d 245, 246 (Mass. 1961) ("The malice which is a necessary
element in the crime of arson . . . need not take the form of
malevolence or ill will, but it is sufficient if one deliberately
and without justification or excuse sets out to burn the dwelling
house of another.").
That the Massachusetts Arson statute requires neither
"evil intent" nor a "corrupt" mindset7 may be significant for the
CIMT determination. In Da Silva Neto, this court upheld the BIA's
conclusion that Massachusetts "malicious destruction of property"
is a CIMT, emphasizing that the statute required "an act 'by design
hostile to the owner . . . of the property,' meaning . . . motivated
by 'cruelty, hostility, or revenge' toward an individual, not just
an inanimate object." 680 F.3d at 32 (quoting Commonwealth v.
Morris M., 876 N.E.2d 462, 466 (Mass. App. Ct. 2007)). Da Silva
7 The government conceded at oral argument that the
Massachusetts Arson statute, unlike its counterpart in Matter of
S, does not require the perpetrator to act with a "corrupt mind."
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Neto acknowledged the Ninth Circuit's holding in Rodriguez-Herrera
v. INS, 52 F.3d 238 (9th Cir. 1995) that Washington second-degree
malicious mischief -- "knowingly and maliciously . . . [c]aus[ing]
physical damage to the property of another" -- is not a CIMT. Id.
at 239-40 (quoting Wash. Rev. Code Ann. § 9A.48.080(1)(a)). But
Da Silva Neto distinguished Rodriguez-Herrera on the basis that
malice under the malicious mischief statute "could . . . 'be
inferred if the act [was] merely wrongfully done without just cause
or excuse,'" whereas malice under the malicious destruction of
property statute entailed, "[i]n addition to the intent to inflict
injury to property, . . . a state of mind infused with cruelty,
hostility or revenge." Id. at 30 n.8 (quoting Commonwealth v.
Redmond, 757 N.E.2d 249, 252 (Mass. App. Ct. 2001)). Da Silva
Neto's reasoning suggests that, absent "fraud" or a "risk of
physical harm to another person," ill will is at least relevant,
and may perhaps be critical, to a finding of moral turpitude. Id.
at 32. For these reasons, we remand this case to the BIA.
III.
We grant the petition for review, vacate the BIA's
February 27, 2017 opinion, and remand for further proceedings
consistent with our opinion.
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