SANDOVAL GOMEZ v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-06-03No. No. 10-73448

Summary · law.co

Holding. The petition for review was denied in part and granted in part, and the matter was remanded to the BIA. The immigration judge properly allowed new charges, but the BIA erred in concluding that Sandoval-Gomez's attempted arson conviction qualified as an aggravated felony because the record did not clearly establish how the offense was committed, and the Government failed to meet its burden of proof.

Mario Sandoval-Gomez sought review of his removal order based on a conviction for attempted arson under California law, which the Board of Immigration Appeals determined qualified as an aggravated felony. Sandoval-Gomez challenged both the immigration judge's decision to permit new removal charges on remand and the BIA's conclusion that his conviction constituted an aggravated felony under federal law. The court found that the immigration judge properly allowed the Government to pursue additional charges following the BIA's remand, which contained no express limitations on scope. However, the court concluded that the BIA erred in determining removability based on the attempted arson conviction because California's arson statute is divisible—it can be committed in multiple ways—and the record did not clearly establish which method Sandoval-Gomez used. Since only one method of committing the offense would constitute a federal aggravated felony, and the Government failed to meet its burden of proving which method applied, the court could not sustain the removal determination. The court also noted that the BIA had not actually addressed Sandoval-Gomez's separate application for cancellation of removal, having simply ruled him ineligible based on the aggravated felony finding.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether new removal charges could be brought on remand absent express limitations
Whether attempted arson under California Penal Code § 455 qualifies as an aggravated felony under 18 U.S.C. § 844
Application of the categorical approach to a divisible statute
Whether cancellation of removal eligibility requires remand for determination

Procedural posture

Sandoval-Gomez petitioned for review of the BIA's dismissal of his appeal of a removal order issued by the immigration judge.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

ORDER

Respondents Motion to Amend the Judgment is GRANTED. The prior memorandum disposition filed on May 17, 2021, is hereby amended concurrent with the filing of the amended disposition today.

AMENDED MEMORANDUM **

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 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.

1. The IJ properly permitted the Government to lodge new charges. The BIAs January 2009 remand order did not preclude the Government from pursuing new removal charges based on Sandoval-Gomezs 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.

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 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, ––– U.S. ––––, 141 S. Ct. 754, 761, 209 L.Ed.2d 47 (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, ––– U.S. ––––, 136 S. Ct. 2243, 2249, 195 L.Ed.2d 604 (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; People v. Carrasco, 163 Cal.App.4th 978, 77 Cal. Rptr. 3d 912, 916 (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.

Although the BIA reviewed Sandoval-Gomezs 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. 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. The parties shall bear their own costs on appeal.

PETITION FOR REVIEW DENIED in part, GRANTED in part, and REMANDED.

FOOTNOTES

. Sandoval-Gomez was also found removable based on a controlled substance conviction. He did not challenge that conclusion.

. 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 BIAs regulations, because the case was remanded.

. 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)).