Togonon v. Garland

Decision Date10 January 2022
Docket NumberNo. 19-71693,19-71693
Citation23 F.4th 876
Parties Longinos Cadena TOGONON, Petitioner, v. Merrick B. GARLAND, Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Matthew N. Ball (argued), Gibson Dunn & Crutcher LLP, Denver, Colorado; Paul J. Collins, Gibson Dunn & Crutcher LLP, Palo Alto, California; Andrew T. Brown and Matt Aidan Getz, Gibson Dunn & Crutcher LLP, Los Angeles, California; for Petitioner.

Imran Zaidi (argued) and Joseph D. Hardy, Trial Attorneys; Anthony C. Payne, Assistant Director; Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: Richard A. Paez, Paul J. Watford, and Michelle T. Friedland, Circuit Judges.

WATFORD, Circuit Judge:

Petitioner Longinos Togonon, a native and citizen of the Philippines, was admitted to the United States as a lawful permanent resident in 2013. In 2015, he was convicted of arson in violation of California Penal Code § 451(b) and sentenced to three years of imprisonment. In 2018, the Department of Homeland Security initiated removal proceedings against Togonon, alleging (as relevant for our purposes) that his arson offense qualifies as an "aggravated felony." See 8 U.S.C. § 1227(a)(2)(A)(iii) ("Any alien who is convicted of an aggravated felony at any time after admission is deportable."). The Immigration and Nationality Act defines the term "aggravated felony" to include "an offense described in" 18 U.S.C. § 844(i). 8 U.S.C. § 1101(a)(43)(E)(i). The Board of Immigration Appeals (BIA) held that a conviction under California Penal Code § 451(b) is an offense described in 18 U.S.C. § 844(i) and that Togonon is therefore subject to removal from the United States. Reviewing that decision de novo , see Sandoval v. Sessions , 866 F.3d 986, 988 (9th Cir. 2017), we conclude that the BIA erred in so holding. We accordingly grant Togonon's petition for review.

To determine whether a state offense is "described in" 18 U.S.C. § 844(i), we employ the categorical approach. Under that approach, we compare the elements of the state offense with the elements of the offense proscribed by § 844(i). If the state offense "criminalizes a broader range of conduct" than its federal counterpart, United States v. Edling , 895 F.3d 1153, 1155 (9th Cir. 2018), the state offense is not a categorical match and does not qualify as an aggravated felony.

The elements of the offense proscribed by § 844(i) are readily discernible from the text of the provision. Under § 844(i), anyone who "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 punished according to law. Thus, to obtain a conviction, "the government must prove that the defendant: (1) maliciously; (2) damaged or destroyed a building, vehicle, or other real or personal property; (3) by means of fire or explosive; and (4) the building, vehicle, or personal or real property was used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce." United States v. Gullett , 75 F.3d 941, 947 (4th Cir. 1996). In conducting our analysis, we ignore the jurisdictional element (requiring a nexus to interstate or foreign commerce) and focus solely on the three substantive elements of the crime. Luna Torres v. Lynch , 578 U.S. 452, 473, 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016).

This case turns on the first element, which requires that the defendant act "maliciously." Because the statute does not define "maliciously," we presume that Congress intended to adopt the term's established common law meaning. See United States v. Jones , 681 F.2d 610, 611 (9th Cir. 1982). At common law, a defendant committed arson (the closest common law analogue of § 844(i) ) by maliciously burning the dwelling house of another. 3 Wayne R. LaFave, Substantive Criminal Law § 21.3, at 314 (3d ed. 2018). A defendant acted maliciously by intentionally burning the dwelling house of another or by doing so wantonly , meaning "intentionally doing an act (e.g., starting a fire or burning his own premises) under circumstances in which the act created a very high risk of burning the dwelling house of another, where the actor knew of that risk but nonetheless engaged in the risk-taking act." Id. § 21.3(e), at 329–30; see also Rollin M. Perkins & Ronald N. Boyce, Criminal Law 859–60 (3d ed. 1982); John Poulos, The Metamorphosis of the Law of Arson , 51 Mo. L. Rev. 295, 322 (1986).

Every circuit to address the issue has borrowed the common law meaning of "maliciously" when defining the mens rea element of § 844(i). We join these courts in holding that a defendant acts "maliciously" if he either intentionally damages or destroys property covered by § 844(i) or acts "with willful disregard of the likelihood that damage or injury would result from his or her acts." Gullett , 75 F.3d at 948 ; accord United States v. Grady , 746 F.3d 846, 848–49 (7th Cir. 2014) ; United States v. Wiktor , 146 F.3d 815, 818 (10th Cir. 1998) (per curiam); United States v. Corona , 108 F.3d 565, 571 (5th Cir. 1997) ; see also McFadden v. United States , 814 F.2d 144, 146 (3d Cir. 1987) (interpreting the same mens rea requirement in 18 U.S.C. § 844(f) ). To act with "willful disregard," the defendant must be subjectively aware of the risk that his actions will damage or destroy property and take the actions nonetheless. See Corona , 108 F.3d at 571 ; Gullett , 75 F.3d at 948.

We can turn now to the elements of arson under California Penal Code § 451(b). California defines arson generally as follows: "A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels, or procures the burning of, any structure, forest land, or property." Cal. Penal Code § 451. Succeeding subsections specify different punishments for the offense, depending on factors such as the type of property burned. Subsection (b), the provision under which Togonon was convicted, prohibits arson that "causes an inhabited structure or inhabited property to burn."

In comparing the elements of arson under California Penal Code § 451(b) with the elements of 18 U.S.C. § 844(i), we can begin and end our analysis with the mens rea element. Although both statutes require the defendant to act "maliciously," California courts have interpreted that term in California Penal Code § 451 to criminalize a broader range of conduct than § 844(i) does.

The case most relevant for our analysis is the California Supreme Court's decision in In re V.V. , 51 Cal.4th 1020, 125 Cal.Rptr.3d 421, 252 P.3d 979 (2011). There, two teenagers ignited a firecracker and threw it onto a brush-covered hillside, starting a fire that burned five acres of forest land. Id. , 125 Cal.Rptr.3d 421, 252 P.3d at 980–81. The evidence established that the defendants intentionally ignited the firecracker and threw it onto the hillside, but they had not intended to burn forest land. Id ., 125 Cal.Rptr.3d 421, 252 P.3d at 985. The California Supreme Court upheld their juvenile adjudications under California Penal Code § 451. The court concluded that malice under § 451 requires only "a general intent to willfully commit the act of setting on fire under such circumstances that the direct, natural, and highly probable consequences would be the burning of the relevant structure or property." Id ., 125 Cal.Rptr.3d 421, 252 P.3d at 984. The defendants in V.V. did not need to "know or be subjectively aware that the fire [on the forest property] would be the probable consequence of their acts." Id ., 125 Cal.Rptr.3d 421, 252 P.3d at 985 (emphasis added). Instead, they could be convicted so long as they were aware of facts that "would lead a reasonable person to realize that the direct, natural, and highly probable consequence of igniting and throwing a firecracker into dry brush would be the burning of the hillside." Id.

The government disagrees with this reading of V.V. , arguing that the defendants in that case were subjectively aware of the risk that their actions would cause the burning of forest land. We acknowledge the presence of language in the opinion to support that view. See id. ("Although V.V. and J.H. did not intend to set the hillside on fire, they knew that their intentional acts created a fire hazard."); id ., 125 Cal.Rptr.3d 421, 252 P.3d at 985 n.4 (discussing how a third minor alerted the defendants to the risk of injuring someone with the firecracker). But the California Supreme Court nevertheless made clear, in the passage quoted earlier, that subjective awareness of the risk that forest land would be burned was not required for conviction. Id ., 125 Cal.Rptr.3d 421, 252 P.3d at 985. And California appellate courts have interpreted V.V. in precisely that manner, upholding convictions under California Penal Code § 451 without requiring proof that the defendant was subjectively aware of the risk of burning forest land or other property. See, e.g., Mason v. Superior Court , 242 Cal.App.4th 773, 195 Cal. Rptr. 3d 527, 538 (2015).

Given the way California courts have interpreted the mens rea requirement of California Penal Code § 451, we conclude that Togonon's conviction under § 451(b) does not categorically match the offense proscribed by 18 U.S.C. § 844(i). As discussed above, to be convicted under § 844(i), a defendant need not have intended to damage or destroy property covered by the statute. But he must at least have engaged in an intentional act that resulted in damage to or destruction of such property, and in doing so, he must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant may be convicted under California Penal Code § 451(b) for engaging in an intentional act that results in...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT