Togonon v. Garland, No. 19-71693 (9th Cir. 2022)Annotate this Case
Togonon, a citizen of the Philippines, was admitted to the U.S. as a lawful permanent resident. He was later convicted of arson (California Penal Code 451(b)). DHS initiated removal proceedings under 8 U.S.C. 1227(a)(2)(A)(iii) based on his conviction for "an aggravated felony," “an offense described in” 18 U.S.C. 844(i). The BIA upheld a removal order.
The Ninth Circuit vacated. The California statute is not a categorical match to its federal counterpart, under which a defendant acts “maliciously” if he either intentionally damages or destroys property covered by section 844(i) or acts with “willful disregard” of the likelihood that damage or injury would result from his acts; acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property. California courts have interpreted the term “maliciously” in section 451(b) more broadly. A defendant may be convicted under the California statute for engaging in an intentional act that results in the burning of an inhabited structure or property even if he was not subjectively aware of the risk that his actions would result in that harm.