In re Palacios-Pinera
| Decision Date | 18 December 1998 |
| Docket Number | Interim Decision # 3373 |
| Parties | In re Gonzalo PALACIOS-Pinera - Respondent File A90 284 849 - Anchorage |
| Court | U.S. DOJ Board of Immigration Appeals |
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.
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 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.
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.
The respondent was convicted under section 11.46.400 of the Alaska Statutes, which provides:
Arson in the first degree.
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.
Alaska Stat. § 11.46.400 (Michie 1994).
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. Sherman, 928 F.2d 324 (9th Cir.), cert. denied, 502 U.S. 842 (1991); United States v. Jackson, 986 F.2d 312 (1993). 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.
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) (); United States v. Marzullo, 780 F. Supp. 658, 661 (W.D. Mo. 1991) (); United States v. Shaker, 665 F. Supp. 698 (N.D. Ind. 1987) (); cf. United States v. Lee, 726 F.2d 128, 131 (4th Cir.) (), 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.
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.
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 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 ...
To continue reading
Request your trial