Interim Decision #3373

Interim Decision #3373

In re Gonzalo PALACIOS-Pinera - Respondent

File A90 284 849 - Anchorage

Decided December 18, 1998

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

An alien who was convicted of arson in the first degree under the law of Alaska

and sentenced to 7 years’ imprisonment with 3 years suspended was convicted of a “crime of

violence” within the meaning of section 101(a)(43)(F) of the Immigration and Nationality

Act, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996), and therefore is deportable under section

237(a)(2)(A)(iii) of the Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony.

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

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serve 7 years’ imprisonment with 3 years suspended. Based on this conviction, the Immigration and Naturalization Service issued a Notice to

Appear (Form I-862), charging that the respondent was deportable under

section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(2)(A)(iii) (Supp. II 1996), as an alien convicted of an aggravated felony.

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, 8 U.S.C. § 1101(a)(43)(F) (Supp. II 1996).

Thus, he found the respondent deportable as charged and ineligible for any

relief from removal from the United States.

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

18 U.S.C. § 16 (1994). He further contends that the Immigration Judge

erred in considering the specific circumstances of his offense.

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.

Alaska Stat. § 11.46.400 (Michie 1994).

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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 18 U.S.C. § 16 as

(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 18

U.S.C. § 16(b), it must be an offense for which the nature of the crime

involves a substantial risk that physical force may be used against the

person or property of another during the commission of the offense; in

other words, the crime must have “the potential of resulting in harm.” Id.

at 809.

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V. NATURE OF THE RESPONDENT’S OFFENSE

In this case, we find that the respondent’s conviction satisfies the test

articulated at 18 U.S.C. § 16(b). However, we initially note that the

Immigration Judge considered the underlying facts of the respondent’s conviction in determining that the crime fell within the purview of 18 U.S.C. §

16(b). Therefore, we find it necessary to make an independent determination as to whether the respondent’s offense involves a substantial risk that

physical force may be used against the person or property of another during

the commission of the offense.

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 18 U.S.C. § 1356); United States v. Marzullo, 780 F. Supp.

658, 661 (W.D. Mo. 1991) (finding that arson is a crime of violence against

both person and property under 18 U.S.C. §§ 3156(a)(4)(A) and (B));

United States v. Shaker, 665 F. Supp. 698 (N.D. Ind. 1987) (finding that

arson under 18 U.S.C. § 844(i) is a crime of violence against both person

and property under 18 U.S.C. §§ 3156(a)(4)(A) and (B)); cf. United States

v. Lee, 726 F.2d 128, 131 (4th Cir.) (noting that arson was a crime of violence under 18 U.S.C. § 1952(a)(2)), cert. denied, 467 U.S. 1253 (1984).

First, we note that the intentional starting of a fire or causing an explosion

ordinarily would lead to the substantial risk of damaging property of another. Not only is there a risk to items belonging to others that are on or in the

property, i.e., such as items left in a store, there always exists the risk that

the fire will spread beyond the original intended property. Secondly, since

there is a risk that the fire or explosion will encroach upon another structure

and that structure may be occupied, arson involves a substantial risk to

another person. Moreover, there is a real risk that the people responding to

the fire, i.e., public employees who respond to emergencies, will be injured

while extinguishing the fire or investigating the fire scene.

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 18 U.S.C. § 16, and, correspondingly, is an aggravated felony under

section 101(a)(43)(F) of the Act. Matter of Alcantar, supra.

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.

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ORDER: The appeal is dismissed.

Board Member Lauri S. Filppu did not participate in the decision in this case.

DISSENTING OPINION: Lory Diana Rosenberg, Board Member

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, 8 U.S.C. § 1101(a)(43)(F) (Supp. II

1996). It is not enough that the record reflects that the respondent, who is

alleged to have been convicted of “a crime of violence,” has been convicted of an offense that we consider onerous or that might sound as though it

would be an aggravated felony. Rather, the record must reflect that the

Immigration and Naturalization Service established by clear and convincing evidence that the specific offense for which the respondent was convicted is an aggravated felony as defined in section 101(a)(43) of the

Immigration and Nationality Act, See section 237(a)(2)(A)(iii) of the Act, 8

U.S.C. § 1227(a)(2)(A)(iii) (Supp. II 1996); see also section 101(a)(43)(F)

of the Act (listing a “crime of violence” as an aggravated felony); section

240(c)(3)(A) of the Act, 8 U.S.C. 1229a(c)(3)(A) (Supp. II 1996) (specifying the burden of proof).

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 18 U.S.C. § 16, and if so, whether “arson in the first

degree” as defined by the Alaska statute under which the respondent was

convicted constitutes such “arson.” The determination of these issues of

first impression goes directly to the ultimate question of whether the

respondent is removable as charged.1

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.

1

The issue of whether the respondent is removable as an aggravated felon is one within

the jurisdiction of the federal courts to review a final order of removal, See section

242(a)(2)(C) of the Act, 8 U.S.C. § 1252(a)(2)(C) (Supp. II 1996) (restricting review of “any

final order of removal against an alien who is removable by reason of having committed a

criminal offense covered in section . . . 237(a)(2)(A)(iii)”); see also Magana-Pizano v. INS,

152 F.3d 1213 (9th Cir. 1998); Coronado-Durazo v. INS, 123 F.3d 1322 (9th Cir. 1997);

Valderrama-Fonseca v. INS, 116 F.3d 853 (9th Cir. 1997).

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173, 184-85 (1991) (addressing the deference due a reasoned analysis of a

particular agency interpretation); Santana-Figueroa v. INS, 644 F.2d 1354,

1356 (9th Cir. 1981) (finding affirmance improper when it frees the Board

of the obligation to articulate a reasoned basis for its decisions, eliminating

any guaranty of rationality and foreclosing meaningful review for abuse of

discretion); see also Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (requiring that the Immigration Judge, in the interest of fundamentally fair proceedings, provide a reasoned decision for denial of a motion to reopen).

Therefore, I dissent.

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, 8

U.S.C. §§ 1229(a)(1), 1229a(a)(2), (b)(4)(B) (Supp. II 1996); see also 8

C.F.R. § 240.10(a)(6) (1998) (requiring the Immigration Judge to explain

the charges in the Notice to Appear to the respondent in nontechnical language); Matter of Batista-Hernandez, 21 I&N Dec. 955 (BIA 1997)

(Rosenberg, concurring in part and dissenting in part). The Service should

have charged the respondent under the particular subsection or subsections

of the aggravated felony definition that the Service intended to rely on to

prove he was deportable, Matter of Liburd, 15 I&N Dec. 769, 770 (BIA

1976) (emphasizing that “[a]n alien is entitled to know the ground upon

which his deportation is being sought”); Matter of Siffre, 14 I&N Dec. 444

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(BIA 1973) (involving a “remained longer” charge brought during the

respondent’s authorized period of temporary stay, which presumably was

based on his alleged failure to maintain nonimmigrant status).

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)(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.

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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 8 C.F.R. § 3.41 (1995) for documents

admissible to prove a criminal conviction); see also Matter of Madrigal, 21

I&N Dec. 323 (BIA 1996) (citing Matter of Rodriguez-Cortes, 20 I&N Dec.

587 (BIA 1992), and broadening the definition of the record of conviction

to include the transcript of proceedings); Matter of Short, 20 I&N Dec. 136

(BIA 1989).

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 18 U.S.C. § 16, (Emphasis added.)

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 18 U.S.C. § 16(b), stating that the destruction of property was a

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most telling use of “destructive physical force.” As noted by the majority,

the Immigration Judge inappropriately took the facts underlying the

respondent’s conviction into account. He did not, moreover, analyze the

Alaska statute according to a generic or categorical definition of arson, Cf.

Matter of Alcantar, supra, at 812-13.

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 18

U.S.C. § 16(a) or (b), See section 101(a)(43)(F) of the Act.

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; 8 C.F.R. §§ 240.8,

240.10(c) (1998). A gross miscarriage of justice would exist were the

respondent to be removed for an offense that did not constitute the ground

of deportation charged and warrant removal, Matter of Malone, 11 I&N

Dec. 730 (BIA 1966) (involving an appeal that was filed and withdrawn);

see also Matter of Roman, 19 I&N Dec. 855 (BIA 1988) (citing Matter of

Farinas, 12 I&N Dec. 467, 472 (BIA 1967), which held that “the decision

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in respondent’s case could not have withstood judicial attack under the law

as it was then (and still is) interpreted . . . and the validity of the deportation order can and must be examined”).

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 18

U.S.C. § 924(c)(2) (1994) to identify the range of state convictions capable

of being characterized as drug-trafficking offenses under section

101(a)(43)(B) of the Act); Matter of Manrique, 21 I&N Dec. 58 (BIA 1995)

(adopting the federal standard as articulated by the United States Court of

Appeals for the Ninth Circuit in Garberding v. INS, 30 F.3d 1187 (9th Cir.

1994), to require a comparison of the terms of individual state laws with

those in 18 U.S.C. § 3607 when determining whether a conviction exists or

has been expunged); Matter of Ozkok, 19 I&N Dec. 546 (BIA 1988) (citing

Matter of A-F-, 8 I&N Dec. 429, 466 (BIA, A.G. 1959), and acquiescing to

the federal policy to treat narcotics offenses seriously and finding it inappropriate for an alien’s deportability for criminal activity to be dependent

upon “the vagaries of state law”); Matter of O-, 7 I&N Dec. 539 (BIA 1957)

(recognizing the need for a federal standard for a final conviction); see also

Matter of Punu, 22 I&N Dec. 224 (BIA 1998) (finding the specific definition of a conviction now articulated in section 101(a)(48)(A) of the Act to

supersede the prior federal standard for a conviction that we had developed

in Matter of Ozkok, supra).

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 18 U.S.C.

§ 924(e) when the statutory definition of the state offense substantially corresponds to the generic federal definition for burglary). The Supreme Court

in Taylor emphasized that, absent any plain indication to the contrary, federal laws are not to be construed so that their application is dependent on

state law, Taylor v. United States, supra, at 592 (stating that “‘burglary’ in §

924(e) must have some uniform definition independent of the labels

employed by the various states’ criminal codes”); United States v. Nardello,

393 U.S. 286, 293-94 (1969) (stating that it was a fallacy to presume that in

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es or give controlling effect to state classifications); see also United States

v. Sherbondy, 865 F.2d 996, 1004-05 (9th Cir. 1988).

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); ParedesUrrestarazu 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 18 U.S.C. § 16); see also Matter of

Magallanes, 21 I&N Dec. 1 (BIA 1998); Matter of Batista-Hernandez,

supra; Matter of B-, 21 I&N Dec. 287 (BIA 1996); Matter of S-S-, supra;

Matter of L-G-, supra (followed in Aguirre v. INS, supra). This approach

has been endorsed as recently as 1996 in the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104208, 110 Stat. 3009-546, in which Congress amended the Act expressly to

provide a federal definition of “conviction” and “sentence” within the Act

itself, See sections 101(a)(48)(A), (B) of the Act; Matter of Punu, supra.

The need to adopt a uniform federal standard exists here, as neither section 101(a)(43)(F), nor 18 U.S.C. § 16, to which it refers, specifies a particular federal definition of “arson,” per se, that constitutes a crime of violence, Cf. United States Sentencing Guidelines § 4B1.2(a)(2) (1998)

(“U.S.S.G.”), discussed infra2 (specifying arson as a “crime of violence”

2

I note that in 1997 the codification for the definition of a crime of violence was changed

from §§ 4B1.2(1)(i) and (ii) to §§ 4B1.2(a)(1) and (2), The text of the guidelines was not

changed, however, so the pre-1997 cases discussed later refer to the same definition that is

currently applicable.

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because it could result in serious physical injury to another).

III. APPLICATION OF A FEDERAL STANDARD TO ASSESS

ARSON INRELATION 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 18 U.S.C. § 924(e) as a “violent felony” for purposes of sentence

enhancement,3 but lacked a single accepted meaning as used by the state

courts. Id. at 579-80. The term “burglary,” which previously had been

defined by Congress in “the first version of the sentence-enhancement provision” under the Armed Career Criminal Act of 1984, Pub. L. No. 98-473,

title II, § 1803, 98 Stat. 2185 (codified at 18 U.S.C. App. § 1202(a) (Supp.

III 1985)) (“ACCA”), was not defined in subsequent enactments. Taylor v.

United States, supra, at 581-82. The Court declined to conclude that every

conviction under a state burglary statute, no matter how defined, constituted a “burglary” offense. Id. at 580.

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 18 U.S.C. § 16 without first settling on a uniform definition for arson, we still would need to determine whether the state offense

for which the respondent has been convicted—first degree arson—constitutes a crime of violence. Any precedential value in terms of providing

guidance with regard to how a conviction for “arson” is to be treated in relation to section 101(a)(43)(F) of the Act is linked, not to our construction of

the Alaska statute alone, but to the framework we develop for defining arson

generically.

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 necessi3

Section 924(e) is found in the Firearms Owners’ Protection Act, Pub. L. No. 99-308, §

104, 100 Stat. 449, 458 (1986), amended by Anti-Drug Abuse Act of 1986, Pub. L. No. 99-570,

subtitle I, § 1402, 100 Stat. 3207, 3207-39 (“Career Criminals Amendment Act of 1986”). The

original version of the statute provided that any convicted felon found guilty of possession of a

firearm, who had three prior convictions “for robbery or burglary,” was to receive a mandatory

minimum sentence of imprisonment for 15 years, Taylor v. United States, supra, at 581.

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tates the use of physical force against the person or property of another as

an essential element of the crime, or whether, due to the inherent nature of

the offense as defined, “arson” entails a substantial risk that the offender

might use physical force against the person or property of another “in the

course of committing the offense,” as required under 18 U.S.C. § 16.

(Emphasis added.)

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 18 U.S.C. § 16. These include the

common law meaning; the Model Penal Code definition. which is consistent with common usage; and two federal statutory sections, 18 U.S.C. § 81

and 18 U.S.C. § 844(i).

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, 18 U.S.C. § 844(i) provides in pertinent part:

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 . . . .

4

In ordinary usage, “arson” is defined as “the crime of maliciously setting fire to the

property of another or burning one’s own property for an improper purpose, as to collect

insurance.” See Webster’s II New College Dictionary 63 (1995).

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(Emphasis added.) 18 U.S.C. § 81, “Arson within special maritime and territorial jurisdiction,” reads in pertinent part:

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 18 U.S.C. § 16 is best seen as a hybrid of the

common law definition and §§ 81 and 844(i). First, there must be a willful

and malicious intent, an element shared by all versions of the definition.

See, e.g., United States v. Doe, 136 F.3d 631, 634 (9th Cir. 1998) (referring

to § 81 as the “federal arson statute,” and emphasizing that “[i]n the absence

of any indication to the contrary, we must assume that when Congress

adopted the common law definition of the crime of arson—the willful and

malicious burning of a building—it intended to adopt the meaning that

common law gave that phrase” (citing Moskal v. United States, 498 U.S.

103, 116-17 (1990))). Second, the property covered by the common law

definition has been expanded to include the real property and other specified property such as dwellings, occupied buildings, vessels, machinery,

and munitions; all personal property is covered under § 844(i) only when

that property can be shown to be used in interstate commerce.

Third, the common law definition and the definition under the expanded Model Penal Code definition limit the property in question to that of

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“another.” Although the reach of neither § 81 nor § 844(i) is limited to the

property of another, an assessment of the crime of “arson” for purposes of

18 U.S.C. § 16 imposes the limitation that the property must be that of

“another.” Thus, I believe a workable operating definition includes convictions that involve the willful and malicious destruction of the statutorily

specified property of another by fire to be “arson.”

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 28 U.S.C. § 924(e). Similarly, most

recent federal circuit court opinions that have addressed offenses alleged to

be “crimes of violence” have done so under the current version of § 4B1.2

of the United States Sentencing Guidelines, which specifically names certain offenses—including burglary of a dwelling, arson, or extortion, use of

explosives or those that “otherwise involve[] conduct that presents a serious

potential risk of physical injury to another”—as crimes of violence, See

U.S.S.G. § 4B1.2(a)(2) (1998).

By contrast, a crime of violence as defined under 18 U.S.C. § 16, continues to require a showing of the use or risk of the use of physical force

against the person or property of another in the course of committing the

offense, and is distinct from a crime of violence as that phrase now is

defined in the sentence enhancement context, United States v. Innie, 7 F.3d

840 (9th Cir. 1993) cert. denied, 511 U.S. 1042 (1994); see Matter of

Alcantar, supra, at 806 n.3. It is critical that we do not confuse the designation of arson as an offense involving a serious risk of physical injury in

sentencing enhancement cases, with the requirement that the use or risk of

physical force must be demonstrated for an offense to be considered a crime

of violence under 18 U.S.C. § 16.

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, Pub. L. No. 98-473, title II, § 217(a),

98 Stat. 1987, 2017 (1984), which also created the United States Sentencing

Commission, 28 U.S.C. §§ 991-998; see also United States v. Parson, 955

F.2d 858, 864-65 (3d Cir. 1992); cf. Taylor v. United States, supra, at 58183, 587 (discussing the evolution of the term “violent felony”). In authorizing a body with a mandate to promulgate guidelines and policy statements

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concerning sentencing of criminal offenders, Congress mandated that the

guidelines the commission developed should impose a sentence to a term of

imprisonment at or near the maximum term authorized for categories of

defendants over 18 years of age who have been convicted of a felony that is

a crime of violence, or an offense relating to specified controlled substance

violations, 18 U.S.C. § 994(h) (1988).

Although 28 U.S.C. § 994 did not include a definition of a “crime of

violence,” Congress defined the term in a separate section of the

Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, title II, §

1001(a), 98 Stat. 1837, 2136, codifying it as 18 U.S.C. § 16, as we know it

today, United States v. Parson, supra, at 864.5 In legal usage, “violence” is

defined as follows: “Unjust or unwarranted exercise of force, usually the

accompaniment of vehemence, outrage, or fury. Physical force unlawfully

exercised; abuse of force; that force which is employed against common

right, against the laws, and against public liberty. The exertion of any physical force so as to injure, damage or abuse.” Black’s Law Dictionary 1570

(6th ed. 1990) (citations omitted), Notably, Congress did not specify any

particular crimes as constituting crimes of violence.

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 18 U.S.C. § 924(e)(2)(B)(ii), that “[t]he

legislative history also indicates that Congress singled out burglary . . .

because of its inherent potential for harm to persons.” Taylor v. United

States, supra, at 588, However, these later designations are not dispositive

of our consideration of offenses for purposes of 18 U.S.C. § 16(b), which

was not amended.

In determining whether an offense is a crime of violence as defined

under 18 U.S.C. § 16, the Board has adopted the “generic” or “categorical”

approach, Matter of Alcantar, supra; 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); United States v. Springfield, 829 F.2d

860 (9th Cir. 1987). We focus, not on inclusion of a specific offense by

name in a statutory section, but on the inherent nature of the crime as

defined in relation to the use or risk of force. See United States v. Anderson,

989 F.2d 310, 312 (9th Cir. 1993) (“To determine whether a crime is burglary, arson, or extortion, we must not look to whether it bears one of these

5

The Senate Report accompanying the legislation states that the term “crime of violence”

is “commonly used throughout the bill” and “accordingly the Committee has chosen to define

it for general application in title 18.” S. Rep. No. 98-225, at 307 (1983), reprinted in 1984

U.S.C.C.A.N. 3182, 3486, cited in United States v. Parson, supra, at 864.

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labels under state law . . . or whether it involves a risk of violence . . . [but

to] the ‘generic’ definitions of burglary, arson, or extortion.”).

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.

6

The Ninth Circuit noted that “[t]o help define what constitutes a ‘category’ of criminal

conduct for purposes of the [former version of the] Guidelines, this circuit has looked to cases

interpreting the nearly identical language of the Armed Career Criminal Act, 18 U.S.C. § 924,

Becker, 919 F.2d at 570, Subsection (i) of the Armed Career Criminal Act, 18 U.S.C. §

924(e)(2)(B), is identical to subsection (a) of 18 U.S.C. § 16.” United States v. Innie, supra,

at 849 n.6.

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Moreover, while the provisions that govern the application of the sentencing guidelines include designations of offenses that are considered to be

“crimes of violence,” it is important to recognize the difference in terminology. The sentencing guidelines now refer to the risk of physical injury,

while 18 U.S.C. § 16 continues to refer to the use of physical force. The

legal distinctions between physical force and the risk of harm or injury are

significant. As the Third Circuit noted in United States v. Parson,

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 18 U.S.C. § 16, however, there must be a showing either that the use

of “physical force”—and not merely the risk of injury or harm—is essential

to the accomplishment of the crime, or that there is a substantial risk it will

be used in the course of committing the “arson” crime. As the Ninth Circuit

correctly concluded, there is a difference between the nature of the offense

and the conduct of the perpetrator, United States v. Sahakian, supra, at 742.7

Physical force and injury or harm are not the same.

“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;

7

The Ninth Circuit recognizes that under the current version of the Guidelines, “[i]n

determining whether an offense ‘involves conduct that presents a serious potential risk of

physical injury to another,’ U.S.S.G. § 4B1.2(1)(ii), courts may consider the statutory definition of the crime and . . . the conduct ‘expressly charged [ ] in the count of which the defendant was convicted.’ U.S.S.G. § 4B1.2, comment (n.2).” United States v. Young, 990 F.2d

469, 472 (9th Cir.), cert. denied, 510 U.S. 901 (1993).

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actual violence.” Id. at 1147. By contrast, an “injury” is defined as “any

wrong or damage done to another either in his person, rights, reputation or

property; the invasion of any legally protected interest of another.” Id. at

785, As indicated above, “violence” includes an unjust or unwarranted use

of force, exerted unlawfully with vehemence, outrage, or fury to injure,

damage, or abuse. Id. at 1570. It therefore appears to incorporate the active

concept of “force” rather than the passive concept of “injury.”

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 18 U.S.C. § 16(a), so long as the match striking, or

gasoline spreading was against the person or property of another.

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 18

U.S.C. § 16. In addition, even if it were someone else’s law degree, and my

conduct was sufficient to establish that element of arson according to a federal definition, my malicious burning must be against the types of property

that reasonably could be said to be encompassed in a federal definition.

These types of property would include real or personal property, such as a

law degree, only if the statute under which I was convicted necessarily

required a showing that such an item was used in interstate commerce, or in

the alternative, that it was classifiable among the types of property referenced in 18 U.S.C. § 81.

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

committingthe 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

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offense is accomplished when I start the fire that burns my property, and

the same is true if I burn the property of another. I already have committed

the offense by starting the fire. What, exactly, is going to occur “in the

course of committing the offense” that constitutes the use of physical force

against the person or property of another?

Unlike the language of § 4B1.2 of the sentencing guidelines pertaining

to the risk of serious injury to another, 18 U.S.C. § 16(b) does not describe

the consequences caused by the perpetrator. The language of 18 U.S.C. §

16(b) suggests that the force used in the “course of committing the offense”

is going to be used by the offender. “Committing” is an active verb in the

gerund form that describes what the perpetrator does, Congress’ inclusion

of the phrase “substantial risk” adds to this reading by suggesting that it is

I who is likely to do something beyond what is necessary to commit the

offense, in order to carry out the offense. This reading is substantiated by

the Ninth Circuit’s phraseology in United States v. Springfield, supra, in

which the court states that the second prong of the crime of violence definition covers offenses such as robbery, that “‘by their nature’ create a situation in which it is likely that the criminal may resort to physical force to

accomplish the criminal end.” Id. at 863.

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 18 U.S.C. § 16(b), because it could not be

shown that in every case there was a substantial risk that force would be

used. United States v. Innie, supra, at 850.

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

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a crime of violence, but states that “[a]ny such argument [to the contrary]

would have been plainly unavailing.” Id. at 2 n.3, One of those cases, United

States v. Marzullo, 780 F. Supp. 658, 662-65 (W.D. Mo. 1991), construes

the crime of arson as set forth in 18 U.S.C. § 844(i) and concludes that “[i]t

seems beyond question that the application of fire or explosives to a building . . . is tantamount to applying physical force against the property.”

United States v. Marzullo, supra, at 663. This appears to be a case addressing force as an essential element of arson, and, as such, is limited to the

property of another. Moreover, no reasons why this is so are provided, and

the decision only proceeds to refer, not to fire or explosives as constituting

a “physical force,” but to the types of harm to persons and property that

might ensue.

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 18 U.S.C. § 844(i), in which a death occurred, as

falling under either 18 U.S.C. § 16(a) or (b). Neither of these cases is controlling in the instant case, which arises in the Ninth Circuit, and none really analyzed arson in relation to the specific elements articulated by

Congress in 18 U.S.C. § 16.

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

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against that property, there certainly is a substantial risk I will use such

force because such force is an essential element of the offense I am committing, Cf. 18 U.S.C. § 16(a). I cannot find there to be a substantial risk

that I would use some additional physical force of a different kind, as a surprised burglar might use, if my intent was to damage either my neighbor’s

property or my own property by fire.

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. 18 U.S.C. § 16(b).

Assuming starting the fire or the burning itself is physical force, physical

force is being used when I set my property ablaze. This is markedly different from the burglary and other offenses that have been interpreted as inherently carrying a substantial risk that physical force will be used in the

course of committing the underlying offense.

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

The former version of arson found in the Alaska Penal Code included in its definition

of first degree arson “all acts of arson committed in ‘a dwelling house, whether occupied,

unoccupied or vacant, or a kitchen, shop, barn, stable or other outhouse that is a part of a

dwelling, or belongs to or adjoins a dwelling. . . .’” Mossberg v. State, supra, at 275 (quoting

former Alaska Statutes 11.20.010). The Court of Appeals explained that the statute was

amended to reflect the fact that first degree arson was meant to punish behavior that put the

safety of persons at risk, Id.

8

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against another does not appear to be a necessary element of the offense of

intentionally damaging property by “starting a fire” or “causing an explosion,” cf. 18 U.S.C. § 16(a), and the majority does not contend that is a necessary element of the offense as defined. As discussed above, the federal

definition of “arson” is narrower in certain respects than the Alaska “arson”

statute, under which the respondent could be convicted of setting fire to any

type of property with the intent to damage it, so long as there is a risk of

serious harm to another person. Similarly, the federal definition of a crime

of violence is more narrow than arson under the Alaska statute, as the intent

to damage property, and the “force” used to carry out that intent, can be

directed at one’s own property.

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 18 U.S.C. § 81 and requires no proof that the property is used in

interstate commerce, as would be required under 18 U.S.C. § 844(i).

Furthermore, a conviction for “arson” is not limited to burning the property of another, as the common law and Model Penal Code definition require,

and as 18 U.S.C. § 16(a) would require. Thus, assuming it might otherwise

constitute “arson” according to a federal standard, a conviction for arson

under the Alaska statute does not constitute a crime of violence, because 1)

there is no requirement that physical force must be used to commit the

offense, and 2) even if the fire is a “physical force,” the statute does not

require that it be used against property (as defined in § 81, or in § 844(i)),

or against the person or property of another. Cf. Taylor v. United States,

supra.

Inasmuch as it is undisputed that the terms of 18 U.S.C. § 16(a) do not

apply, the only basis on which the respondent would be deportable under

section 101(a)(43)(F) of the Act is under § 16(b), which requires us to find

that first degree arson under the Alaska statute necessarily entails a “substantial risk that physical force may be used against the person or property

of another in the course of committing the offense.” Given the nature of

arson as defined in the Alaska statute, I see no basis on which to conclude

that there is a substantial risk that physical force may be used “in the course

of committing the offense.” Although the statute requires that intentionally

damaging property by starting a fire recklessly places another person in

danger of serious physical injury, that consequence does not require the use

of physical force, and the property that is or may be damaged is undifferentiated. In other words, if I intentionally burn my law degree, or the trash,

and the children next door come too close to the fire and get burned, my

starting the fire recklessly may have placed them in danger of serious physical injury. It does not entail a substantial risk I will use either the fire or any

other type of physical force against those children or anyone else in the

course of burning my personal items.

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Interim Decision #3373

V. CONCLUSION

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); ValderamaFonseca v. INS, 116 F.3d 853 (9th Cir. 1997); see also Magana-Pizano v.

INS, 152 F.3d 1213 (9th Cir. 1998).

457