Mbea v. Gonzales ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ALEXIS MBEA, 
Petitioner,
v.
 No. 05-1204
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A91-203-997)
Argued: February 1, 2007
Decided: March 22, 2007
Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.
Petition for review denied by published opinion. Judge Wilkinson
wrote the opinion, in which Judge Williams and Judge Michael
joined.
COUNSEL
ARGUED: Emmanuel Damascus Akpan, Silver Spring, Maryland,
for Petitioner. John Darren Williams, UNITED STATES DEPART-
MENT OF JUSTICE, Office of Immigration Litigation, Washington,
D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attor-
ney General, Civil Division, Christopher C. Fuller, Senior Litigation
Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office
of Immigration Litigation, Washington, D.C., for Respondent.
2 MBEA v. GONZALES
OPINION
WILKINSON, Circuit Judge:
This case arises out of the removal proceeding of Alexis Mbea, a
citizen of Cameroon and permanent resident of the United States. The
Board of Immigration Appeals found Mbea subject to removal under
Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act
("INA") because Mbea had twice been convicted of crimes involving
moral turpitude: arson and destruction of property. See 8 U.S.C.
§ 1227(a)(2)(A)(i)(I) (2000).
Mbea contends that he is nonetheless eligible for various forms of
removal relief including cancellation of removal under INA
§ 240(A)(a), a hardship waiver under INA § 212(h)(B), and a deporta-
tion waiver under INA § 212(c). We hold that, because the malicious
burning of property in violation of D.C. Code § 22-401 (1994) is a
crime of violence, Mbea’s arson conviction is an aggravated felony
which renders him statutorily ineligible for cancellation of removal
under INA § 240(A)(a) and for a hardship waiver under INA
§ 212(h)(B). Likewise, because Congress repealed INA § 212(c) sub-
sequent to Mbea’s convictions, and because Mbea never acted in reli-
ance upon that provision, Mbea is ineligible for § 212(c) relief. The
petition for review is, therefore, denied.
I.
Alexis Mbea entered the United States in 1975 as a diplomatic offi-
cer of the Cameroon Embassy. He became a permanent resident in
1988. In 1994, however, Mbea was tried and convicted of arson and
destruction of public property in violation of §§ 22-401 and 22-403
of the District of Columbia Code. See D.C. Code Ann. § 22-401(1994) (current version at D.C. Code Ann. § 22-301 (2001)); D.C.
Code Ann. § 22-403 (1994) (current version at D.C. Code Ann. § 22-
303 (2001)). He was sentenced to not less than eighteen months and
no more than five years’ imprisonment for arson. For the destruction
of property conviction, Mbea was sentenced to three to ten years’
imprisonment. These sentences, set to run consecutively, were sus-
pended upon Mbea’s successful completion of five years’ probation.
MBEA v. GONZALES 3
In the spring of 2002, Mbea visited Cameroon. Upon returning to
the United States, he applied for admission as a returning resident.
Because of Mbea’s prior criminal convictions, however, the Immigra-
tion and Naturalization Service viewed him as an arriving alien and
commenced removal proceedings. The INS alleged that Mbea was
subject to removal under INA § 212(a)(2)(A)(i)(I) because of his con-
victions for arson and destruction of property. Mbea responded that
arson and destruction of property were not crimes involving moral
turpitude and also applied for removal relief pursuant to INA
§§ 212(c), 212(h)(B), and 240(A)(a).
At the removal hearing, the immigration judge held that Mbea’s
convictions for arson and destruction of property were crimes involv-
ing moral turpitude, and, as a result, a basis for removal under
§ 212(a)(2)(A)(i)(I). The IJ then denied Mbea’s petitions for removal
relief and ordered him removed to Cameroon.
Mbea appealed to the Board of Immigration Appeals, which
affirmed and adopted the IJ’s decision. Mbea now appeals.1
II.
Mbea concedes that he is deportable on the ground that arson is a
crime involving moral turpitude, but nonetheless contends that he is
entitled to removal relief under INA §§ 240(A)(a) and 212(h)(B).
These provisions permit the Attorney General to cancel or waive
removal in certain circumstances, but they are cabined by a number
of requirements, most pertinently that aliens convicted of aggravated
felonies are not eligible. More specifically, INA § 240(A)(a) allows
the Attorney General to cancel removal for certain long-term perma-
nent residents — but only if the alien "has not been convicted of any
1
This court has jurisdiction to review Mbea’s appeal pursuant to 8
U.S.C. § 1252(a)(2)(C) (2000). Although that section generally bars judi-
cial review of final removal orders when those orders are entered on the
ground that the alien committed an aggravated felony or a crime involv-
ing moral turpitude, it permits review where, as here, a petition for
appeal raises "constitutional claims or questions of law." Id.§ 1252(a)(2)(D) (Supp. V 2005).
4 MBEA v. GONZALES
aggravated felony." 8 U.S.C. § 1229b(a) (2000).2 Section 212(h)(B)
similarly authorizes the Attorney General to waive removal proceed-
ings where "the alien’s denial of admission would result in extreme
hardship" to a family member who is either a United States citizen or
a lawful permanent resident. 8 U.S.C. § 1182(h)(B) (2000).3 But no
such waiver may issue if, since the date of the alien’s initial admis-
sion, "the alien has been convicted of an aggravated felony." Id.§ 1182(h).
In sum, Mbea’s eligibility for both cancellation of removal under
§ 240(A)(a), and a hardship waiver under § 212(h)(B), turns on
whether arson as defined by D.C. Code § 22-401 is an "aggravated
felony." This court reviews legal issues, including the question of
whether arson is an "aggravated felony," de novo. Blanco de Bel-
bruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).
A.
Section 101(a)(43)(F) of the INA defines "aggravated felony" as a
"crime of violence" for which the term of imprisonment is at least one
year. 8 U.S.C. § 1101(a)(43)(F) (2000). In turn, "crime of violence"
is defined as (1) "any offense that has as an element the use,
attempted use, or threatened use of physical force against the person
or property of another," 18 U.S.C. § 16(a) (2000); or (2) "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," id. § 16(b).
2
8 U.S.C. § 1229b(a) provides that the Attorney General may cancel
removal if an alien: "(1) has been an alien lawfully admitted for perma-
nent residence for not less than 5 years, (2) has resided in the United
States continuously for 7 years after having been admitted in any status,
and (3) has not been convicted of any aggravated felony."
3
8 U.S.C. § 1182(h)(B) provides that the Attorney General may, in his
discretion, waive removal "in the case of . . . an alien lawfully admitted
for permanent residence if it is established to the satisfaction of the
Attorney General that the alien’s denial of admission would result in
extreme hardship to the United States citizen or lawfully resident spouse,
parent, son, or daughter of such alien."
MBEA v. GONZALES 5
The question of whether a conviction falls within the ambit of 18
U.S.C. § 16 is a categorical one. Leocal v. Ashcroft, 543 U.S. 1, 7
(2004); see also Taylor v. United States, 495 U.S. 575, 600 (1990);
United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). We must
therefore consider the nature of the offense as defined by statute, not
the conduct at issue in any particular case. Leocal, 543 U.S. at 7;
United States v. Galo, 239 F.3d 572, 581-82 (3d Cir. 2001); see also
Taylor, 495 U.S. at 600.
B.
There can be no doubt that arson, as defined by D.C. Code § 22-
401, is a "crime of violence." The D.C. arson statute punishes with
one to ten years’ imprisonment those who:
maliciously burn or attempt to burn any dwelling, or house,
barn, or stable adjoining thereto, or any store, barn, or out-
house, or any shop, office, stable, store, warehouse, or any
other building, or any steamboat, vessel, canal boat, or other
watercraft, or any railroad car, the property, in whole or in
part, of another person, or any church, meetinghouse,
schoolhouse, or any of the public buildings in the District,
belonging to the United States or the District of Columbia.
D.C. Code Ann. § 22-401 (1994) (current version at D.C. Code Ann.
§ 22-301 (2000)).
Mbea argues that his conviction for the above D.C. Code offense
is not an "aggravated felony" as that term is defined in 18 U.S.C.
§ 16(a). He contends that D.C. Code § 22-401 "does not include any
element requiring the ‘use of force,’ nor is the (willful) ‘use of force’
particularly likely; and therefore any conviction under D.C. Code
Section 22-401 cannot be considered an ‘aggravated felony.’" Mbea
claims in essence that because D.C. Code § 22-401 does not include
the term "force" it cannot be a crime of violence under 18 U.S.C.
§ 16(a) or render Mbea ineligible for removal relief under INA
§§ 240(A)(a) and 212(h)(B).
We disagree. Not every statute defining a violent criminal offense
6 MBEA v. GONZALES
uses the term "force" in so many words. The D.C. Code provision
prohibiting first degree murder, for example, does not use the word
"force" or "violence," but it is clear that the statute defines an "aggra-
vated felony." See D.C. Code Ann. § 22-2101 (2001).4 To adopt peti-
tioner’s view therefore would strip the congressional enactment of 18
U.S.C. § 16(a) of any substance or meaning.
It is plain that the malicious setting of fire to homes, public build-
ings, and churches "has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another." See 18 U.S.C. § 16(a). Fire is itself a physical force. Indeed,
the Oxford English Dictionary defines "physical force" as, inter alia,
"an influence acting within the physical world, a force of nature." See
Oxford English Dictionary (2003). Fire is nothing if not a "force of
nature" that exerts an influence "within the physical world." For fire
not only has the power to provide warmth and light, but also the
power to destroy. When that destructive force is maliciously set in
motion by human hand for the purpose of burning a home, church,
meetinghouse, or other similar structure, a "physical force" is used
"against the . . . property of another" as required by 18 U.S.C. § 16(a).
See, e.g., Leocal, 543 U.S. at 9 ("The critical aspect of § 16(a) is that
a crime of violence is one involving the ‘use . . . of physical force
against the person or property of another.’") (quoting 18 U.S.C.
§ 16(a)).
While fire may, of course, pose a danger to people, that is not a
necessary condition for the finding of an "aggravated felony" under
the statute. Rather, 18 U.S.C. § 16(a) defines as a "crime of violence"
the use of physical force against either persons or property.
We thus hold that the malicious burning of homes, dwellings, and
other property proscribed by D.C. Code § 22-401 is a "crime of vio-
lence" as defined by 18 U.S.C. § 16(a). See, e.g., United States v.
Mitchell, 23 F.3d 1, 2 n.3 (1st Cir. 1994) (per curiam) (holding that
federal arson as set forth in 18 U.S.C. § 844(i) is a "crime of violence"
4
The D.C. first degree murder statute provides, in part, "Whoever . . .
kills another purposely, either of deliberate and premeditated malice or
by means of poison . . . is guilty of murder in the first degree." D.C.
Code Ann. § 22-2101.
MBEA v. GONZALES 7
under 18 U.S.C. § 3156(a)(4)); United States v. Marzullo, 780 F.
Supp. 658, 662 & n.7 (W.D. Mo. 1991) (same); United States v. Sha-
ker, 665 F. Supp. 698, 702 n.4 (N.D. Ind. 1987) (same). As a result,
Mbea’s arson conviction is an "aggravated felony" under Section
101(a)(43)(F) of the INA. Because Congress has plainly provided that
aliens convicted of aggravated felonies have no recourse under either
INA § 240(A)(a) or INA § 212(h)(B), Mbea’s applications for such
relief fail.
III.
Mbea next argues that — even if arson is a "crime of violence" and
thus an "aggravated felony" — he is nevertheless eligible for INA
§ 212(c) relief. Mbea is correct that, at the time of his 1994 convic-
tions, Section 212(c) permitted the Attorney General to grant a discre-
tionary deportation waiver to lawful permanent residents of at least
seven years. See 8 U.S.C. § 1182(c) (1994). The Attorney General’s
authority to waive removal was not barred by an aggravated felony
conviction so long as the resident alien had not served a prison sen-
tence of five or more years. Id. But Congress changed all of this when
it passed the Illegal Immigration Reform and Immigrant Responsibil-
ity Act ("IIRIRA") in 1996. Section 304(b) of that statute repealed
INA § 212(c) in its entirety and replaced it with cancellation of
removal under INA § 240(A).5 See Pub. L. 104-208, Div. C, Title III,
§ 304(b), Sept. 30, 1996, 110 Stat. 3009-597. Mbea claims, however,
that courts may not apply the IIRIRA’s repeal of INA § 212(c) to his
pre-IIRIRA conviction because such an application would be imper-
missibly retroactive.
A.
In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court
addressed the retroactive application of IIRIRA § 304(b). The Court
began by finding that Congress had not clearly indicated that the
repeal of INA § 212(c) was to be retrospective. St. Cyr, 533 U.S. at
320. The Court thus considered whether application of IIRIRA
5
As noted, supra, Mbea is not eligible for § 240(A)(a)’s cancellation
of removal because that provision does not apply to deportable aliens
"convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(3).
8 MBEA v. GONZALES
§ 304(b) to St. Cyr, an alien who had "entered into plea agreements
with the expectation that [he] would be eligible for [§ 212(c)] relief"
would produce an impermissible retroactive effect. Id. at 321. The
Court concluded that because St. Cyr and aliens like him had "almost
certainly relied upon [the significant] likelihood [of receiving
§ 212(c) relief] in deciding whether to forgo their right to a trial, the
elimination of any possibility of § 212(c) relief by IIRIRA has an
obvious and severe retroactive effect." Id. at 325. Thus, under the
Supreme Court’s decision in St. Cyr, INA § 212(c) relief "remains
available for aliens . . . whose convictions were obtained through plea
agreements and who . . . would have been eligible for § 212(c) relief
at the time of their plea under the law then in effect." Id. at 326.
B.
In this case, we consider whether applying the IIRIRA’s repeal of
INA § 212(c) to Mbea, an alien who claims to have gone to trial in
reliance upon such relief, produces an impermissible retroactive
effect. This is not a question of first impression. To the contrary, this
court decided precisely this issue in Chambers v. Reno, 307 F.3d 284(4th Cir. 2002). Like Mbea, the petitioner in Chambers never entered
a guilty plea "with the expectation that [he] would be eligible for
§ 212(c) relief," instead choosing to go to trial. See id. at 289-91.
Chambers nonetheless argued that, like the alien who pled guilty in
St. Cyr, he too possessed "reliance interests that would cause the
application of IIRIRA § 304(b) in his case to operate retroactively."
Id. at 290.
This court disagreed. We held that IIRIRA’s repeal of § 212(c) did
not produce an impermissibly retroactive effect as applied to an alien
convicted after trial. Id. at 293. The court explained that while an
alien who pleads guilty does so "in the context of a quid pro quo rela-
tionship" in which he benefits from the guarantee of a reduced sen-
tence — one "that would ensure continued eligibility for [§ 212(c)]
discretionary relief" — an alien who goes to trial does not strike a
quid-pro-quo bargain or receive any similar assurance. Id. at 290-91.
To the contrary, an individual who goes to trial in a case where the
allowable statutory penalty exceeds that permitted by § 212(c) "actu-
ally ensure[s] that his eligibility for discretionary relief w[ill] remain
uncertain." Id. at 291.
MBEA v. GONZALES 9
Mbea’s contention that the application of IIRIRA § 304(b) to his
pre-IIRIRA convictions has an impermissibly retroactive effect fails
under this Court’s holding in Chambers. The cases are on all fours.
Like Chambers, Mbea rolled the dice and went to trial in a case where
the maximum penalty for the alleged offense exceeded that permitted
by § 212(c). See id. Like Chambers, he did not "abandon his constitu-
tional right to a trial and plead guilty to a deportable offense in reli-
ance on prior law." See id. at 290. Like Chambers, he ensured by
going to trial "that his eligibility for discretionary relief would remain
uncertain." See id. at 291. And, like Chambers, Mbea’s decision to go
to trial did not have an immediate adverse impact on his immigration
status. See id. Finally, it is of no moment that Mbea ended up with
a prison sentence below the five-year eligibility threshold for § 212(c)
relief. As this court stated in Chambers, that fact "does not change the
fact that [Mbea] proceeded to trial fully aware of the risk that he
would be convicted and sentenced to a prison term that would dis-
qualify him under INA § 212(c)." See id. at 291.
IV.
For the foregoing reasons, we deny Mbea’s petition for review.
PETITION FOR REVIEW DENIED