In re Gonzalo PALACIOS-Pinera - Respondent
File A90 284 849 - Anchorage
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided December 18, 1998
Interim Decision #3373
Mara Kimmel, Esquire, Anchorage, Alaska, for respondent
Dorothy Stefan, District Counsel, for the Immigration and Naturalization Service
Before: Board En Banc: SCHMIDT, Chairman; DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, COLE, MATHON, GUENDELSBERGER, JONES, GRANT, and SCIALABBA, Board Members, Dissenting Opinion: ROSENBERG, Board Member.
VACCA, Board Member:
In a decision dated November 19, 1997, an Immigration Judge found the respondent deportable as charged, determined that he was not eligible for relief from removal, and ordered him removed from the United States. The respondent subsequently filed this appeal. The appeal will be dismissed.
I. HEARING BELOW
The record reflects that the respondent was admitted to the United States as a lawful permanent resident on or about April 24, 1990. On July 19, 1995, the respondent was convicted of arson in the first degree in violation of section 11.46.400(a) of the Alaska Statutes. He was sentenced to
In proceedings before an Immigration Judge the respondent admitted the allegations contained in the Notice to Appear, but contested the ground of deportability. The Immigration Judge determined, after examining the circumstances underlying the conviction, that the respondent had been convicted of an aggravated felony, a crime of violence, within the meaning of section 101(a)(43)(F) of the Act,
II. APPELLATE ARGUMENTS
On appeal, the respondent contends that the Immigration Judge erred in finding that his conviction for arson in the first degree under section 11.46.400(a) of the Alaska Statutes is a “crime of violence,” as defined in
In response, the Service supports the Immigration Judge’s findings and urges this Board to adopt the Immigration Judge’s decision.
III. THE RESPONDENT’S CONVICTION
The respondent was convicted under section 11.46.400 of the Alaska Statutes, which provides:
Arson in the first degree.
(a) A person commits the crime of arson in the first degree if the person intentionally damages any property by starting a fire or causing an explosion and by that act recklessly places another person in danger of serious physical injury. For purposes of this section, “another person” includes but is not limited to fire and police service personnel or other public employees who respond to emergencies, regardless of rank, functions, or duties being performed.
(b) Arson in the first degree is a class A felony.
IV. CRIME OF VIOLENCE UNDER 18 U.S.C. § 16
Section 101(a)(43)(F) of the Act, as it applies to the respondent, defines an “aggravated felony” as “a crime of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) for which the term of imprisonment [is] at least 1 year.” The term “crime of violence” is defined in
(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
In determining whether a particular offense is a “crime of violence” under this definition, we have held that either the elements of the offense must be such that physical force is an element of the crime, or that the nature of the crime—as evidenced by the generic elements of the offense—must be such that its commission ordinarily would present a risk that physical force would be used against the person or property of another, irrespective of whether the risk develops or harm actually occurs. Matter of Alcantar, 20 I&N Dec. 801 (BIA 1994). In using the “generic” or “categorical” approach, we have stated:
[A]nalysis under 18 U.S.C. § 16(b) requires first that the offense be a felony; and, if it is, that the “nature of the crime — as elucidated by the generic elements of the offense — is such that its commission would ordinarily present a risk that physical force would be used against the person or property of another” irrespective of whether the risk develops or harm actually occurs.
Id. at 812; see also United States v. Jackson, 986 F.2d 312 (9th Cir. 1993); United States v. Sherman, 928 F.2d 324 (9th Cir.), cert. denied, 502 U.S. 842 (1991). Stated differently, “‘Offenses within the scope of section 16(b) have as a commonly shared characteristic the potential of resulting in harm.’” Matter of Alcantar, supra, at 809 (quoting United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir. 1990), cert. denied, 500 U.S. 933 (1991)).
This approach does not extend, however, to consideration of the underlying facts of the conviction. Matter of Alcantar, supra, at 813. Consequently, for the respondent’s crime to fall within the purview of
V. NATURE OF THE RESPONDENT’S OFFENSE
In this case, we find that the respondent’s conviction satisfies the test articulated at
We find that the respondent’s act of arson in the first degree, by its very nature, requires a substantial risk of physical force against another person or property. See United States v. Mitchell, 23 F.3d 1 (1st Cir. 1994) (finding that conspiracy to commit arson and aiding and abetting arson are crimes of violence under
Accordingly, we find that the respondent’s conviction for arson in the first degree under Alaska law is for a “crime of violence” within the meaning of
VI. CONCLUSION
Upon our independent review of this case, we find that the respondent is deportable as an alien convicted of an aggravated felony. Furthermore, we find that the respondent is ineligible for relief from removal. Accordingly, the appeal will be dismissed.
Board Member Lauri S. Filppu did not participate in the decision in this case.
In re Gonzalo PALACIOS-Pinera - Respondent
File A90 284 849 - Anchorage
United States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided December 18, 1998
Interim Decision #3373
I respectfully dissent.
I disagree that the respondent’s conviction for “arson in the first degree” under section 11.46.400 of the Alaska Statutes is a felony that necessarily constitutes a crime of violence under section 101(a)(43)(F) of the Immigration and Nationality Act,
The principal issues before us are whether “arson” is a crime of violence as defined in section 101(a)(43)(F) of the Act, according to either subsection (a) or (b) of
Although these are issues which have been squarely raised and argued by the respondent on appeal, I do not believe that we have adequately addressed them. Furthermore, I cannot agree that the majority has satisfactorily specified the reasoning underlying its conclusion that the respondent is removable as charged, See, e.g., Rust v. Sullivan, 500 U.S. 173, 184-85 (1991)
I. PRELIMINARY PROCEDURAL AND FACTUAL CONSIDERATIONS
The respondent is a Mexican national who has resided in Alaska since 1978 and became a lawful permanent resident on May 4, 1990. He was convicted of arson in the first degree under the Alaska statute on July 19, 1995, and was charged with being subject to removal on the ground that he is deportable as an alien convicted of an aggravated felony on April 24, 1997.
A. Notice To Appear
The record contains substantive and procedural defects beginning with the Notice to Appear. First, in charging the respondent with being removable on account of having been convicted of an offense alleged to be an aggravated felony, the Service has failed to specify under which of the more than 20 subsections of section 101(a)(43) of the Act, many containing internal subdivisions, they contend the respondent is deportable and subject to removal, Cf. Matter of Ducret, 15 I&N Dec. 620 (BIA 1976) (stating that in the absence of an appropriate charge, there is no basis either to make a specific finding of deportability or to speculate as to other possible grounds of deportability, even though such grounds might exist).
The respondent is entitled to be given reasonable notice of the charges against him. See sections 239(a)(1), 240(a)(2), (b)(4)(B) of the Act,
Second, in asserting that the respondent was convicted of arson in the first degree, the Service alleged that “[f]or that offense imprisonment of five years or more may be imposed,” and went on to charge the respondent as being removable under section 237(a)(2)(A)(iii) of the Act for having been convicted of an aggravated felony. If, as it appears, the Service intended to charge the respondent with being removable on the basis of his deportability for a crime of violence, it should have alleged that the respondent actually was sentenced to a “term of imprisonment for at least one year,” which is a specific element of that particular aggravated felony ground of deportability, Section 101(a)(43)(F) of the Act.
An alien in deportation proceedings is to be afforded due process under the Constitution. See Mathews v. Diaz, 426 U.S. 67, 77 (1976); Wong Yang Sung v. McGraff, 339 U.S. 33, modified on other grounds, 339 U.S. 908 (1950); Bridges v. Wixon, 326 U.S. 135, 154 (1945) (stating that deportation “visits a great hardship on the individual and deprives him of the right to stay and live and work in this land of freedom. . . . Meticulous care must be exercised lest the procedure by which he is deprived of that liberty not meet the essential standards of fairness.”). Fortuitously, the respondent here appears to be ably assisted by counsel, and the defects in the Notice to Appear do not appear to leave either the respondent or the Immigration Judge to guess the Service’s theory of the case or to inhibit the respondent’s exercise of his statutory or due process hearing rights.
Therefore, in this instance, I do not find the respondent was prejudiced by the Service’s failure to specifically charge the respondent with a crime of violence, or by the inaccuracies in the Notice to Appear. Such a “shoddy process,” however, is generally unacceptable. See Montecino v. INS, 915 F.2d 518, 521 (9th Cir. 1990). I emphasize that meaningful notice and a fair hearing are all that stand between the respondent and removal from a country in which he has lived for 20 years; if the statute and the regulations are to mean anything, they must be observed regularly, not incidentally.
B. Evidence and Arguments Presented by the Parties
The Service filed a number of exhibits in the proceedings below, consisting primarily of copies of the respondent’s criminal records. For purposes of our review in the instant appeal, the relevant documents include one entitled “Judgement and Order of Commitment/Probation.” I note that this document appears to be properly certified as a true and correct copy by the clerk of the Alaskan Superior Court, as required by section 240(c)(3)(B) of the Act to prove a conviction. The record contains an “Indictment” that also is duly certified, which essentially tracks the language of the statute. Id.
The record also contains an “Information,” detailing some of the underlying facts pertaining to the respondent’s offense. However, this document is little more than a summary of two investigative reports containing the district attorney’s sworn statement that “the following Information is based on my partial review of Anchorage Fire Department report number 94-4882 and . . . 94-115125.” We ordinarily do not consider such investigative reports in determining whether the respondent is deportable as charged. See Matter of Teixiera, 21 I&N Dec. 316 (BIA 1996) (holding that a police report is not part of a “record of conviction,” nor does it fit any of the regulatory descriptions found at
Moreover, I agree with the majority that the “underlying facts” are not appropriately considered in determining whether a conviction is a “crime of violence.” Matter of Alcantar, 20 I&N Dec. 801, 812 (BIA 1994). As discussed below, even were we to consider the contents of the “information,” the respondent’s conviction for setting fire to his own couch and possessions in an apparent suicide attempt is not necessarily a conviction that involves a substantial risk that the offender may use physical force against the person or property of another “in the course of committing the offense” as required under
The respondent, through counsel, submitted a trial brief in support of his motion to terminate proceedings. Subsequently, the respondent filed a Notice of Appeal, followed by an appellate brief, asserting specifically that the Immigration Judge’s decision that the crime of arson in the first degree involves physical force and constitutes a crime of violence is erroneous. He argues squarely that the Immigration Judge erred in looking to the facts underlying his conviction, rather than considering the crime of arson in the first degree, as defined under the Alaska statute, in relation to a generic definition of arson. He asserts further that first degree arson under the Alaska statute does not require proof of the use of physical force to sustain a conviction, nor by its nature is it a crime of violence as defined in the Act. The Service did not file a reply brief in support of its original allegations and charges, or the finding of the Immigration Judge that the crime of arson in the first degree under the Alaska statute constitutes an aggravated felony.
C. Immigration Judge Decision
The Immigration Judge found the respondent removable as charged. As reasoning for his decision, he opined that the respondent took too narrow a view of
II. STANDARDS UNDER THE CONTROLLING REMOVAL STATUTE
At the outset, I find that the evidence is not at all clear and convincing that, as a matter of fact and law, the respondent was convicted of a crime of violence or any other offense that would constitute an aggravated felony under the statute. See sections 101(a)(43), 237(a)(2)(A)(iii), 240(c)(3)(A) of the Act; Matter of Batista-Hernandez, supra; see also Matter of S-S-, 21 I&N Dec. 121 (BIA 1997). This does not mean that the respondent was not convicted, that he may not be removable on another ground, or that the criminal conduct underlying his conviction is not egregious. It means that he is not removable as charged by the Service in the Notice to Appear, and that the record presented does not support our sustaining the conclusion of the Immigration Judge that he is so removable.
A. Burden of Proof
In a removal proceeding involving a charge of deportability against an alien who has been admitted to the United States, the burden of proof is on the Service to demonstrate by clear and convincing evidence that the respondent is deportable as charged and removable from the United States. See section 240(c)(3)(A) of the Act. Although the record contains evidence that the respondent was convicted of “arson in the first degree,” it does not contain clear and convincing evidence that arson in the first degree under the Alaska statute constitutes a crime of violence as defined under
Without clear and convincing evidence that the respondent is deportable as charged, the record lacks the reasonable, substantial and probative evidence (required to support a “decision on deportability [that is] valid”) necessary to support the finding of the Immigration Judge that he is removable. See section 240(c)(3)(A) of the Act;
B. Adjudication According to a Federal Standard
The Board has held consistently that interpreting the deportation grounds of the Act according to a uniform federal standard is an appropriate and fair method of reading and applying the statute. We have looked both within and outside the Act for authority and guidance in construing state convictions under an appropriate federal standard. See, e.g., Matter of L-G-, 21 I&N Dec. 89 (BIA 1995) (analyzing the term “any felony” in
As stated in Matter of Alcantar, supra, assessing an offense according to a categorical or generic definition to determine whether or not there has been a conviction for a particular type of crime is consistent with the approach taken by the Supreme Court of the United States in Taylor v. United States, 495 U.S. 575 (1990) (holding that a state conviction for burglary only constitutes a “violent felony” offense for purposes of
This is consistent with the longstanding judicial recognition that federal law must control in the enforcement of our immigration laws, reaffirmed most recently by the First, Second, Fourth, Fifth, Ninth and Eleventh Circuits. See, e.g., Aguirre v. INS, 79 F.3d 315 (2d Cir. 1996); Wilson v. INS, 43 F.3d 211 (5th Cir.), cert. denied, 516 U.S. 811 (1995); Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994); Yanez-Popp v. INS, 998 F.2d 231 (4th Cir. 1993) (following the general proposition in Dickerson v. New Banner Institute, 460 U.S. 103 (1983), that the determination whether a conviction exists for purposes of federal gun control laws is a question of federal, not state law, despite the fact that the predicate offense and its punishment are defined by state law); Molina v. INS, 981 F.2d 14 (1st Cir. 1992); Chong v. INS, 890 F.2d 284 (11th Cir. 1989); see also Rehman v. INS, 544 F.2d 71 (2d Cir. 1976) (noting that deportation laws would not be undermined by recognition of state policy similar to federal leniency policies); Aguilera-Enriquez v. INS, 516 F.2d 565 (6th Cir. 1975) (emphasizing federal standard for finality of conviction), cert. denied, 423 U.S. 1050 (1976); Will v. INS, 447 F.2d 529 (7th Cir. 1971) (same).
The specific principle that a federal standard should be employed in defining what constitutes an aggravated felony conviction under the many subsections of section 101(a)(43) of the Act and related provisions has been followed by both the Board and the federal courts. See, e.g., Matter of Alcantar, supra, at 812 (invoking the Supreme Court decision in Taylor v. United States, supra, to adopt a categorical approach to determining what constitutes a crime of violence under
The need to adopt a uniform federal standard exists here, as neither section 101(a)(43)(F), nor
III. APPLICATION OF A FEDERAL STANDARD TO ASSESS ARSON IN RELATION TO A “CRIME OF VIOLENCE” UNDER SECTION 101(A)(43)(F)
In Taylor v. United States, supra, the Supreme Court addressed the need for a federal definition of the crime of “burglary,” which was designated under
Under Taylor v. United States, supra, it should be clear that we may not presume that every conviction under a state arson statute, no matter how defined, constitutes a crime of violence. We must, therefore, arrive at a federal definition of arson that recognizes the generic or categorical elements of the crime. While it is possible that we could construe the respondent’s conviction under
The linear approach that I propose utilizes a three-step analysis. The first step is to evaluate the offense involved—in this case, “arson”—and to settle on what constitutes “arson” categorically for purposes of a uniform federal definition. The next step is to determine whether “arson,” as we have defined it categorically, is a crime of violence. That is whether it necessi-
The final step is to assess the state statute under which the respondent was convicted to ascertain whether or not his conviction constitutes “arson,” as defined according to the uniform federal standard for the crime of arson. If the statute under which the respondent was convicted encompasses some conduct that can be said to constitute arson, but some conduct that would not constitute arson according to a uniform federal standard, the record of conviction must reflect that the conduct for which the respondent was convicted was a crime of violence. This means that the record of conviction must reflect that the crime for which the respondent was convicted involved physical force as an element of the offense or that there was a substantial risk such force may be used in the commission of the offense.
A. Step One: Federal Definition of the Crime of Arson
There are four principal sources from which we can draw a uniform federal definition of arson for purposes
At common law, “arson” was “the malicious burning of the house of another.” Black’s Law Dictionary 111 (6th ed. 1990) (emphasis added) (explaining that this definition has been broadened by state statutes and criminal codes, and referring to the Model Penal Code as an example of the current definition of arson.)4 Section 220.1 of the Model Penal Code provides that a person is guilty of arson if he starts a fire or causes an explosion “with the purpose of: (a) destroying a building or occupied structure of another; or (b) destroying or damaging any property, whether his own or another’s, to collect insurance for such loss.” (Emphasis added.)
In addition,
Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both . . . .
Whoever, within the special maritime and territorial jurisdiction of the United States, willfully and maliciously sets fire to or burns, or attempts to set fire to or burn any building, structure or vessel, any machinery or building materials or supplies, military or naval stores, munitions of war, or any structural aids or appliances for navigation or shipping, shall be fined under this title or imprisoned not more than five years, or both.
(Emphasis added.)
A comparison of the elements of these definitions reveals that the common law definition referred to conduct that entailed a willful and malicious intent and a burning, directed at the house of another. The Model Penal Code covers starting a fire or causing an explosion for the purpose of destroying a building or occupied structure of another, and also covers such damage to any property when collection of insurance is the motive. Section 844(i) maintains the common law requirement of malicious intent, and covers damage or destruction by fire or explosives to any real or personal property used in interstate or foreign commerce. Section 81 also maintains the willful and malicious intent requirement originating in the common law definition, and covers setting fire to or burning certain enumerated property such as buildings, structures, vessels, machinery, building materials, munitions, or navigation or shipping aids or appliances.
In determining a federal definition of “arson” for purposes of section 101(a)(43)(F) of the Act, I believe it prudent for us to follow the course set by the Supreme Court in Taylor v. United States, supra, at 598-99. Upon consideration of the common law and statutory definitions, I conclude that a uniform federal definition of arson for purposes of construing such an offense under the terms of
Third, the common law definition and the definition under the expanded Model Penal Code definition limit the property in question to that of
B. Step Two: Arson As a Crime of Violence According to a Federal Standard
It is important to understand that once it settled upon a uniform definition of burglary in Taylor, the Supreme Court did not need to determine whether burglary was a crime of violence by analyzing its elements in relation to the Armed Career Criminal Act, because the ACCA specifically lists “burglary” as a violent felony, See
By contrast, a crime of violence as defined under
1. Evolution of the Crime of Violence Concept: 18 U.S.C. § 16 and U.S.S.G. § 4B1.2 Compared
The phrase “crime of violence” was first introduced as a term of art by the Sentencing Reform Act of 1984,
Although
Shortly thereafter, the statutory definition of “crime of violence” used under the sentencing guidelines, was revised to include certain specific offenses, including arson, that were considered to be crimes of violence in relation to the risk of serious physical injury to another. Similarly, the Supreme Court noted in addressing
In determining whether an offense is a crime of violence as defined under
This is consistent with the approach followed by the Ninth Circuit in which this cases arises. In United States v. Innie, supra, at 849, the Ninth Circuit recognized:
“The amendment [away from the terms of 18 U.S.C. § 16] shifted the emphasis from an analysis of the ‘nature’ of the crime charged to an analysis of the elements of the crime charged or whether the actual charged ‘conduct’ of the defendant presented a serious risk of physical injury to another.”
Id. at 849 (emphasis added) (quoting United States v. Sahakian, 965 F.2d 740, 742 (9th Cir. 1992)). The court further stated:
Under the 1989 Guidelines, we must apply the “so-called ‘categorical approach’” to determine whether Innie’s predicate conviction as an accessory after the fact to murder for hire was a crime of violence, See Becker, 919 F.2d at 570. In doing so, we “do not look to the specific conduct which occasioned [Innie’s] conviction, but only to the statutory definition of the crime.”6
Id. (quoting United States v. Becker, 919 F.2d 568, 570 (9th Cir. 1990)).
2. Physical Force and Physical Injury Distinguished in Practice
The ultimate question in determining whether generic arson constitutes a crime of violence is whether physical force is an essential element of the generic arson offense, or whether there is a substantial risk it will be used in the course of committing such an offense. The majority provides no reasoning why arson, by its nature, involves a risk that physical force may be used against the person or property of another in the course of committing the crime, other than to say that there is always a “risk to items” on the property, and a risk that the fire may spread or that firefighters or others responding to the fire will be injured.
These explanations are little more than conclusions why someone else’s property might be harmed, and why other persons might be injured. They do not explain how arson necessarily entails the use of physical force against the person or property of another, or how the nature of the offense inherently entails a substantial risk such force may be used against the person or property of another.
At first blush, the difference in phrasing appears trivial because most physical injury comes from the use of physical force. But the distinction is significant, Use of physical force is an intentional act, and therefore the first prong of both definitions requires specific intent to use force. As to the second prong . . . a defendant’s commission of a crime that, by its nature, is likely to require force similarly suggests a willingness to risk having to commit a crime of specific intent. For example, a burglar of a dwelling risks having to use force if the occupants are home and hear the burglar. . . ,
In contrast, under the second prong . . . criminals whose actions merely risk causing physical injury may have a lower mens rea of “pure” recklessness . . . . For example, a parent who leaves a young child unattended near a pool may risk serious injury to the child . . . . In this case, the crime of reckless endangering necessarily involves a serious risk of physical injury to another person, but not necessarily an intent to use force against other persons.
United States v. Parson, supra, at 866.
(a) Use of Physical Force in Relation to Arson
To provide a satisfactory explanation why arson is crime of violence under
“Force” is defined as follows: “Power, violence, compulsion, or constraint exerted upon or against a person or thing. . . . strength directed to an end. Commonly the word occurs in such connections as to show that unlawful or wrongful action is meant . . . .” Black’s Law Dictionary 644 (6th ed. 1990) (citation omitted), “Physical force” is “[f]orce applied to the body;
Does the intentional striking of a match, or spreading of an explosive or combustible material, constitute “physical force”? If so, why is physical force not an element of the offense of arson? In that case, arson could readily be classified under
In other words, maliciously striking a match to burn my law degree after placing it in my fully paid-for hibachi grill, arguably may involve physical force as an element of the offense, but if it is not directed at the property of another, it would not qualify as a crime of violence under
Or, is it the fire itself—undeniably a “force” of nature, although not necessarily the product of willful intent—that, started as a means of damaging or destroying property, is the physical force? Certainly, the fact of a burning is an essential element of the offense of arson under any definition. Again, if that is the case, arson as generically defined could be classified under § 16(a), so long as the fire or the burning was employed against the types of property referred to in an accepted federal definition of arson, and it was against the person or property of another.
(b) “Substantial risk . . . in the course of committing the offense”
Assuming I burn my law degree, is there a substantial risk that either striking the match or the fire, as a physical force, will be used against the person or property of another in the course of my burning my own property? And if so, used by whom?
I have difficulty seeing how, if my setting fire to my own property constitutes arson, there remains a substantial risk that force will be used against my neighbor’s property in the course of (my) committing the offense. The
Unlike the language of § 4B1.2 of the sentencing guidelines pertaining to the risk of serious injury to another,
Suppose there is a city or state ordinance making it unlawful to burn trash other than at the city dump? Is there a substantial risk that the property of another might be harmed or some person might be injured if I burn the trash in my backyard, or at the curb in front of my home? Perhaps, It is possible the neighbor children will suffer burns when they try to jump in or through the smoldering pile. Assuming the risk of harm or injury is substantial, is this possible consequence of my actions the same as a substantial risk that physical force may be used in the commission of the crime? No. Cf. United States v. Becker, supra, at 571 n.5 (finding that in every case of first degree burglary there is a substantial risk that force will be used against the person or property of a lawful occupant of the dwelling).
Reading Springfield and Becker together, I do not see how my burning personal property, which is accomplished when I start the fire and may be a crime (as it is in Alaska) if my actions endanger another person, involves a “substantial risk that physical force may be used against the person or property of another in the course of committing the crime.” Similarly, the Ninth Circuit concluded that the accessory offense cannot be considered a crime of violence as defined in
3. Lack of Specific Controlling Authority
The majority invokes two cases cited by the First Circuit in Mitchell v. INS, 23 F.3d 1 (1st Cir. 1994), which itself contains no analysis of arson as
In the other case, a district court in United States v. Shaker, 665 F. Supp. 698, 702 n.4 (N.D. Ind. 1987), adopted a magistrate’s order construing a violation under
By contrast, in United States v. Damon, 127 F.3d 139 (1st Cir. 1997), the First Circuit revisited its decision in Mitchell v. INS, supra, which had been affirmed in theory in the circuit’s 1992 decision in United States v. Harris, 964 F.2d 1234 (1st Cir. 1992), and concluded that “[i]n light of Taylor and changing definitions from the Sentencing Commission, we think the district court was precluded from looking so deeply into the nature of the predicate offense. That the court thought it permissible to do so . . . as we now clarify, was wrong.” United States v. Damon, supra, at 144 (emphasis added.) Damon involved a case in which the defendant “had attempted to ‘sell his house to the insurance company’ (as this activity is commonly described) by burning it.” Id. (footnote omitted). Although the record contained this evidence, the court limited its review to the subsection of the state statute under which it believed that the defendant had been convicted and concluded that the offense was not a crime of violence.
My problem with the concept of finding that a substantial risk to the person or property of another exists in the course of committing arson is that it seems to me that either arson involves the use of force against another as an essential element of the arson offense, or it does not. Unlike certain other offenses such as burglary, in which the risk of force is not attached to the act of burglarizing, but can be anticipated if homeowners confront the burglar in their home, or the burglar carries a weapon, generic arson is accomplished, at a minimum, when the fire is set. Therefore, if I am intent on burning down my neighbor’s house, and my striking a match, spreading the gasoline, or the fact of the fire itself constitutes the physical force used
Thus, I conclude that the consequential damage or harm or injury that might occur as the result of my burning my own property is not attributable to the substantial risk that I will use physical force against the person or property of another to accomplish the crime, Cf.
IV. STEP THREE: ARSON IN THE FIRST DEGREE UNDER THE ALASKA STATUTE ASSESSED IN RELATION TO THE FEDERAL STANDARD
According to respondent’s counsel, and to my own reading of the Alaska state provisions (on their face and as interpreted in the context of jury instructions), a conviction under the Alaska statute for arson in the first degree requires evidence of 1) the intent to damage property by fire or explosion, and 2) recklessness, resulting in the risk of serious physical injury to another person. The Alaska Court of Appeals explained that the definition of first degree arson was amended by the Alaska legislature to reflect the view that the prohibition against arson is mainly to protect the safety of persons, rather than property. Mossberg v. State, 733 P.2d 273, 275 (Alaska Ct. App. 1987).8 This means that if I set either my own or someone else’s garbage can on fire, and that act endangers others, or as the statute puts it, results in the risk of serious physical injury to another, I will be convicted in Alaska.
Under these circumstances, the use of physical force by the respondent
Put another way: The Alaska statute allows a conviction for conduct that does not constitute “arson” under a federal standard, because the conduct punished under Alaska law is not limited to the types of property designated in
Inasmuch as it is undisputed that the terms of
Technically, these are not my arguments to make. They are not the arguments of the respondent to make, either, although the respondent has made them. They are the Service’s arguments to make, as the Service bears the burden of proof.
I make them in the complete void presented by the failure of the Service to advance any legal position supported by authorities of any kind, Moreover, if the party bearing the burden of proof is not going to advance any authority, I question why my colleagues in the majority are so willing to jump in, ignore the respondent’s appellate position, and draw a conclusion with such minimal reasoning.
Having examined the record in this case, I do not believe that merely by submitting evidence of the respondent’s conviction—assuming the respondent received adequate notice of the specific aggravated felony grounds underlying the removal charges against him—the Service has met its burden of proving by clear and convincing evidence that the respondent has been convicted of a crime of violence. Cf. section 240(c)(3)(A) of the Act (assigning the burden of proof to the Service); section 240(c)(3)(B) of the Act (indicating documents or records that constitute proof of a conviction). I cannot agree that simply citing one or two district court cases, or an out-of-circuit case that refers to these district court cases, is an adequate basis on which to found a decision by the Board that is required to be reasoned, Cf. section 240(c)(3)(A) of the Act. Fortunately, this respondent has access to the federal circuit court for review of his legal arguments, de novo. See Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997); Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997); see also Magana-Pizano v. INS, 152 F.3d 1213 (9th Cir. 1998).