Mario Sandoval-Gomez v. Eric Holder, Jr. ( 2021 )

FILED
NOT FOR PUBLICATION
MAY 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO SANDOVAL-GOMEZ, AKA No. 10-73448
Milton Alvarado-Sandine,
Agency No. A092-563-965
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 3, 2014
Resubmitted May 17, 2021
Pasadena, California
Before: GOULD and N.R. SMITH, Circuit Judges, and ENGLAND,** District
Judge.
Mario Sandoval-Gomez petitions for review of the dismissal by the Board of
Immigration Appeals (“BIA”) of his appeal of the order of removal. The BIA
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Morrison C. England, Jr., Senior United States District
Judge for the Eastern District of California, sitting by designation.
found Sandoval-Gomez removable based on his conviction for attempted arson
under California Penal Code section 455 as an aggravated felony, 8 U.S.C.
§ 1227(a)(2)(A)(iii). Sandoval-Gomez challenges his removal, alleging that (1) the
immigration judge (“IJ”) improperly permitted the Government to lodge new
charges on remand from the BIA; and (2) the BIA erred in concluding that his
attempted arson conviction qualified as an aggravated felony under the federal
explosives statute, 18 U.S.C. § 844.11. The IJ properly permitted the Government to lodge new charges. The BIA’s
January 2009 remand order did not preclude the Government from pursuing new
removal charges based on Sandoval-Gomez’s attempted arson conviction. The
BIA vacated its prior order entirely and broadly instructed the IJ to conduct “any
further proceedings the [IJ] deems appropriate.” Thus, the Government was
permitted to bring additional charges.2 See Fernandes v. Holder, 619 F.3d 1069,
1074 (9th Cir. 2010) (“An articulated purpose for the remand, without any express
limit on scope, is not sufficient to limit the remand such that it forecloses
1
Sandoval-Gomez was also found removable based on a controlled
substance conviction. He did not challenge that conclusion.
2
Because there was no final order of removal, neither res judicata nor law of
the case apply. See Bravo-Pedroza v. Gonzales, 475 F.3d 1358, 1360 (9th Cir.
2007). Further, there was no violation of the BIA’s regulations, because the case
was remanded.
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consideration of other new claims or motions that the IJ deems appropriate or that
are presented in accordance with relevant regulations.”); see also 8 C.F.R.
§ 1003.30.
2. The BIA erred when it concluded that Sandoval-Gomez was removable
based on California Penal Code section 455. The Government bears the burden of
proving that Sandoval-Gomez is removable on all charges of removability. See
Cheuk Fung S-Yong v. Holder, 600 F.3d 1028, 1034 (9th Cir. 2010); see also
Pereida v. Wilkinson, 141 S. Ct. 754, 761 (2021). Sandoval-Gomez argues that
California Penal Code section 455 is not an aggravated felony, because it punishes
conduct not included in 18 U.S.C. § 844(f)(1) or § 844(i). See 8 U.S.C.
§ 1101(a)(43)(E)(i) (defining aggravated felony). We agree.
California Penal Code section 455 is divisible. See Mathis v. United States,
136 S. Ct. 2243, 2249 (2016). The felony therein can be committed in one of three
ways: (1) “willfully and maliciously attempt[ing] to set fire to or attempt[ing] to
burn . . . any structure, forest land, or property”; (2) “willfully and maliciously
. . . aid[ing], counsel[ing] or procur[ing] the burning of any structure, forest land or
property”; or (3) “willfully and maliciously . . . commit[ting] any act preliminary
thereto, or in furtherance thereof.” Cal. Penal Code § 455; see also CALJIC 14.84;
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People v. Carrasco, 77 Cal. Rptr. 3d 912, 916 (Ct. App. 2008). Only attempting to
set fire or to burn any structure or property would be an aggravated felony.
Based on the record before us, we cannot determine how Sandoval-Gomez
committed the attempted arson offense. Thus, the record is inconclusive as to
whether Sandoval-Gomez was convicted of an aggravated felony offense. See
Medina-Lara v. Holder, 771 F.3d 1106, 1113 (9th Cir. 2014) (“When a court using
the modified categorical approach to determine whether an underlying conviction
is a predicate offense relies solely on the link between the charging papers and the
abstract of judgment, that link must be clear and convincing.”). The Government
failed to meet its burden of proof. Accordingly, the BIA erred when it concluded
that Sandoval-Gomez was removable based on a conviction of an aggravated
felony.3
Although the BIA reviewed Sandoval-Gomez’s appeal as an application for
cancellation of removal, the BIA did not actually rule on his application. Instead,
the BIA concluded that Sandoval-Gomez was convicted of an aggravated felony,
and the conviction made him statutorily ineligible for cancellation of removal.
3
The additional elements under 8 U.S.C. § 844(f)(1) and § 844(i) relating to
the property (i.e., owned by the United States or used in interstate commerce) are
purely “jurisdictional” and do not apply for purposes of applying the categorical
approach. See In re Vasquez-Muniz, 23 I. & N. Dec. 207, 210–12 (BIA 2002)
(citing United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001)).
4
Accordingly, because Sandoval-Gomez is not removable based on an aggravated
felony, the issue of whether Sandoval-Gomez is eligible for cancellation of
removal remains unresolved. See Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir.
2019) (holding that we “cannot affirm the BIA on a ground upon which it did not
rely” (citation omitted)).
Thus, we remand this matter back to the BIA for further proceedings,
including to determine in the first instance whether Sandoval-Gomez is eligible for
cancellation of removal.
PETITION FOR REVIEW GRANTED, REMANDED.
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