Cabrera-arucha v. Holder , 378 F. App'x 662 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 05 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FERNANDO ENRIQUE CABRERA- No. 07-73354
ARUCHA, a.k.a. Fernando Cabrera a.k.a.
Fernando Enrique Cabrera a.k.a. Fernando Agency No. A043-276-889
Enrique Arucha a.k.a. Fernando Hernandez
Arocha,
MEMORANDUM *
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 5, 2009
Pasadena, California
Before: W. FLETCHER, CLIFTON, and M. SMITH, Circuit Judges.
Petitioner Fernando Enrique Cabrera-Arucha, a native and citizen of El
Salvador, appeals the BIA’s ruling upholding the IJ’s decision that he is removable
under INA § 237(a)(2)(A)(iii) for being an alien convicted of an aggravated felony.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cabrera-Arucha argues that the BIA erred in concluding that his underlying
offense of conviction, arson under California Penal Code § 451(d), was an
aggravated felony subjecting him to removal. As the facts and procedural history
are familiar to the parties, we do not recite them here except as necessary to
explain our disposition. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and
we deny the petition.
1. Categorical Analysis
First, the BIA erred in holding that California Penal Code § 451(d) is
categorically an aggravated felony. Cabrera-Arucha was found removable
pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Under that
provision, an alien who was convicted of an “aggravated felony,” which is defined
as, among other things, “a crime of violence . . . for which the term of
imprisonment [is] at least one year,” id. § 1101(a)(43)(F), is removable. Id. §
1227(a)(2)(A)(iii). A “crime of violence” is defined as “any . . . 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.” 18 U.S.C. § 16(b).
The California statute under which Cabrera-Arucha was convicted is broader
than the definition of a “crime of violence” under 18 U.S.C. § 16. A defendant can
2
violate § 451(d) by “burning or causing to be burned his or her own personal
property” provided there is “an intent to defraud.” Cal. Pen. Code § 451(d);
People v. Jameson, 223 Cal. Rptr. 108, 109 (Cal. Ct. App. 1986). Therefore, a
defendant found guilty under § 451(d) has not necessarily committed an offense
that “involves a substantial risk [of] physical force against the person or property
of another.” 18 U.S.C. § 16(b); cf. Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th
Cir. 2007) (conviction for Cal. Penal Code § 452(c) did not qualify as a crime of
violence because the state was not required to prove petitioner set fire to someone
else’s property to obtain a conviction). Cabrera-Arucha’s offense of conviction
was not categorically an aggravated felony.
2. Modified Categorical Analysis
However, Cabrera-Arucha’s offense under California Penal Code § 451(d)
did constitute an aggravated felony using the modified categorical analysis. Under
that approach, we may consider a charging document in combination with an
abstract of judgment, provided that the documents specifically demonstrate that the
petitioner pled guilty to the elements of the generic crime. See
Ramirez-Villalpando v. Holder, — F.3d —, 2010 WL 1407959, at *4 (9th Cir.
Apr. 9, 2010).
3
Count one of the information charges that Cabrera-Arucha “did willfully,
unlawfully, and maliciously set fire to and burn and cause to be burned the
property of another, to wit, ALFRED CAMARA.” The abstract of judgment
similarly states that Cabrera-Arucha was convicted of “ARSON; PROPERTY” and
lists “ALFRED CAMARA” as the “VICTIM.” Therefore, the offense to which
Cabrera-Arucha pled guilty was an “offense . . . 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” and thus was a crime of violence
under 18 U.S.C. § 16(b). Because Cabrera-Arucha was sentenced to 16 months, it
was a crime “for which the term of imprisonment [is] at least one year,” 8 U.S.C. §
1101(a)(43)(F), and the BIA did not err in determining that Cabrera-Arucha was
convicted of an aggravated felony.
Because the BIA did not err in concluding that Cabrera-Arucha committed
an aggravated felony making him subject to removal, we deny his petition.
PETITION DENIED.
4