Sandoval-Gomez v. Holder, Jr., No. 10-73448 (9th Cir. 2014)
Annotate this CasePetitioner sought review of the BIA's order of removal. The court concluded that, given the scope of the BIA's remand order, the IJ properly allowed the government to file new charges against petitioner. On the merits, the court concluded that petitioner's prior conviction under California Penal Code section 455 is divisible, and applying the modified categorical approach, his attempted arson conviction qualifies as an aggravated felony. The court also concluded that petitioner is not saved from removal by the fact that the state statute lacks jurisdictional elements included in the corresponding federal provisions. The court declined to follow the Third Circuit's contrary interpretation in Bautista v. Attorney General of the United States.
Court Description: Immigration. The panel denied Mario Sandoval-Gomez’s petition for review of the Board of Immigration Appeals’ decision, following remand, that his conviction for attempted arson, in violation of California Penal Code § 455, constituted an aggravated felony as an offense described in the federal explosive materials statute, 18 U.S.C. § 844(f), (i). The panel held that given the scope of the BIA’s remand order, the Immigration Judge properly allowed the government to file new charges against Sandoval-Gomez. On the merits, the panel held that CPC § 455 is divisible, and that Sandoval-Gomez’s conviction is an aggravated felony under the modified categorical approach. The panel held that the additional federal element found in 18 U.S.C. § 844(i) but not in CPC § 455 is a purely jurisdictional element which must be disregarded in determining whether the state law qualifies as an aggravated felony under federal law. The panel noted that the Third Circuit reached a contrary conclusion in Bautista v. Attorney General of the United States, 744 F.3d 54 (3d Cir. 2014).
The court issued a subsequent related opinion or order on October 24, 2014.
The court issued a subsequent related opinion or order on May 17, 2021.
The court issued a subsequent related opinion or order on June 3, 2021.
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