Jordison v. Keisler ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL GABRIEL JORDISON,  No. 04-71026
Petitioner, Agency No.
v.
 A79-371-001
PETER D. KEISLER,* Acting ORDER AND
Attorney General, AMENDED
Respondent.
 OPINION
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2006
Submission Vacated January 24, 2007
Resubmitted August 15, 2007
Pasadena, California
Filed September 4, 2007
Amended October 30, 2007
Before: Melvin Brunetti, Alex Kozinski and
Pamela Ann Rymer, Circuit Judges.
Opinion by Judge Kozinski
*Peter D. Keisler is substituted for his predecessor, Alberto R. Gon-
zales, as Acting Attorney General of the United States, pursuant to Federal
Rule of Appellate Procedure 43(c)(2).
14261
JORDISON v. KEISLER 14263
COUNSEL
Paul N. Medved, Law Offices of Paul N. Medved, Los Ange-
les, California, for the petitioner.
Peter D. Keisler, Assistant Attorney General, Civil Division;
Greg D. Mack, Senior Litigation Counsel, Office of Immigra-
tion Litigation; Wayne C. Raabe, Senior Trial Attorney, U.S.
Department of Justice, Criminal Division, Narcotics and Dan-
gerous Drugs Section, Washington, D.C., for the respondent.
ORDER
The opinion filed on September 4, 2007 is ordered
amended. The following paragraph, which appears on page
11409 of the slip opinion, is deleted:
Ordinarily we would remand so the government
could submit petitioner’s complete record of convic-
tion and the agency could apply the modified cate-
gorical approach in the first instance. See Gonzales
v. Thomas, 126 S. Ct. 1613, 1615 (2006) (per
curiam) (describing the ordinary remand rule). But
because the government has conceded that it has
already submitted everything it could obtain bearing
on Jordison’s conviction,3 a remand would be point-
less. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,
1135 (9th Cir. 2006) (en banc).
In its place, the following paragraph is inserted:
The government asks us to remand so that the
agency may apply the modified categorical
approach, but such a remand would be pointless, as
the government concedes it has already submitted
Jordison’s complete record of conviction.3 In these
14264 JORDISON v. KEISLER
circumstances, there is no need to remand; we may
decide the question ourselves. See Fernandez-Ruiz v.
Gonzales, 466 F.3d 1121, 1135 (9th Cir. 2006) (en
banc).
The text of footnote 3 is unchanged.
OPINION
KOZINSKI, Circuit Judge:
We consider whether petitioner’s conviction under Califor-
nia Penal Code § 452(c) for “recklessly set[ting] fire to . . . a
structure or forest land” is a “crime of violence” under 18
U.S.C. § 16(b).
Michael Gabriel Jordison is a Canadian citizen who came
to this country on a temporary visa and remained here after
that visa expired. Jordison pled guilty to setting a fire in viola-
tion of California Penal Code § 452(c),1 and the government
sought to deport him on the theory that this is an “aggravated
felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (aliens “convicted
of an aggravated felony” are “deportable”). The immigration
judge agreed with the government and ordered Jordison
removed to Canada. The Board of Immigration Appeals
affirmed, holding that every violation of section 452(c) is a
“crime of violence” under 18 U.S.C. § 16(b) and thus, by def-
inition, an “aggravated felony.” See 8 U.S.C. § 1101(a)(43)(F)
(defining “aggravated felony”). Because the interpretation of
“crime of violence” is a “question of law,” we have jurisdic-
tion to hear Jordison’s petition for review of the Board’s deci-
sion under 8 U.S.C. § 1252(a)(2)(D).
1
This provision prohibits “[u]nlawfully causing a fire of a structure or
forest land.” California Penal Code § 452 defines “unlawfully causing a
fire” to mean “recklessly set[ting] fire to or burn[ing] or caus[ing] to be
burned.”
JORDISON v. KEISLER 14265
[1] 18 U.S.C. § 16(b) defines “crime of violence” as an “of-
fense that . . . involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” The government argues
that setting a fire “involves a substantial risk” that other peo-
ple and their property will be harmed by the “physical force”
of the flames.
[2] But an incendiary can violate section 452(c) by “set[-
ting] fire” to his own “structure or forest land.” California law
defines “structure” and “forest land” to include any building
and any forest land. Cal. Penal Code § 450(a)-(b). Section
452(c)’s prohibition is not limited to fires that damage the
property of others, unlike other California crimes of burning,
which do require proof that someone else’s property was dam-
aged.2 Comparing section 452(c) with neighboring sections
makes it clear that the state was not required to prove that
Jordison set fire to someone else’s structure or forest land in
order to obtain a conviction.
[3] Section 16(b), by contrast, does require such proof: A
crime of violence involves risk that physical force may be
used against the person or property “of another.” Therefore,
not every violation of section 452(c) is a “crime of violence”
under 18 U.S.C. § 16(b). See United States v. Grisel, 488 F.3d
844, 850 (9th Cir. 2007) (en banc) (“Where, as here, a state
statute explicitly defines a crime more broadly than the
generic definition, no ‘legal imagination’ is required to hold
that a realistic probability exists that the state will apply its
statute to conduct that falls outside the generic definition of
2
See Cal. Penal Code § 451(d) (“For purposes of this paragraph, arson
of property does not include one burning or causing to be burned his or
her own personal property unless there is an intent to defraud or there is
injury to another person or another person’s . . . property.”); id. § 452(d)
(“For purposes of this paragraph, unlawfully causing a fire of property
does not include one burning or causing to be burned his own personal
property unless there is injury to another person or to another person’s . . .
property.”).
14266 JORDISON v. KEISLER
the crime.” (quoting Gonzales v. Duenas-Alvarez, 127 S. Ct.
815, 822 (2007) (citation omitted))).
[4] We next consider whether Jordison’s crime is a crime
of violence under the modified categorical approach. See
Chang v. INS, 307 F.3d 1185, 1189-92 (9th Cir. 2002). The
record contains the original information, charging Jordison
with arson, and a “minute order” of Jordison’s plea colloquy.
The minute order notes that the information was amended “to
change count 01 to read violation 452(c) PC-cause fire struct/
forest land instead of 451(d) PC-arson,” and that a “new and
different plea of guilty [was] entered.” There is no amended
information, no transcript of the plea colloquy, nor any other
document describing the details of the crime to which Jordi-
son pled guilty. Nothing in the record precludes the possibility
that Jordison was convicted for setting fire to his own prop-
erty.
The government asks us to remand so that the agency may
apply the modified categorical approach, but such a remand
would be pointless, as the government concedes it has already
submitted Jordison’s complete record of conviction.3 In these
circumstances, there is no need to remand; we may decide the
question ourselves. See Fernandez-Ruiz v. Gonzales, 466 F.3d
1121, 1135 (9th Cir. 2006) (en banc).
[5] We vacate the BIA’s order of removal, and we remand
so the agency can consider whether Jordison is eligible for
any form of relief from removal.
PETITION FOR REVIEW GRANTED, ORDER
VACATED and REMANDED.
3
The government’s brief states that the proceedings before the immigra-
tion judge were “suspended” so that Jordison’s “complete official records
of . . . conviction” could be “produced.” At oral argument, government
counsel professed his belief that all relevant documents are in the record.