FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT LONGINOS CADENA TOGONON, No. 19-71693 Petitioner, Agency No. v. A062-970-937 MERRICK B. GARLAND, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 16, 2021 San Francisco, California Filed January 10, 2022 Before: Richard A. Paez, Paul J. Watford, and Michelle T. Friedland, Circuit Judges. Opinion by Judge Watford 2 TOGONON V. GARLAND SUMMARY * Immigration Granting Longinos Togonon’s petition for review of a decision of the Board of Immigration Appeals, the panel held that arson in violation of California Penal Code § 451 is not a categorical match to its federal counterpart, 18 U.S.C. § 844(i), and therefore, Togonon’s § 451(b) conviction was not an aggravated felony that rendered him removable. The BIA concluded that Togonon’s conviction was an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i), which defines the term “aggravated felony” to include “an offense described in” 18 U.S.C. § 844(i). As relevant here, § 844(i) prohibits “maliciously” damaging or destroying, by means of fire or an explosive, certain real or personal property. The case turned on § 844(i)’s requirement that the defendant act “maliciously.” Because the statute does not define that term, the panel presumed that Congress intended to adopt the term’s established common law meaning. Joining the circuits to have addressed the issue, the panel held 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. The panel also explained that acting with “willful disregard” requires that a defendant be subjectively aware of the risk that his actions will damage or destroy property and take the actions nonetheless. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. TOGONON V. GARLAND 3 Under California law, 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. Subsection (b), the provision under which Togonon was convicted, prohibits arson that “causes an inhabited structure or inhabited property to burn.” Although both the federal and state statutes require the defendant to act “maliciously,” the panel explained that California courts have interpreted that term in § 451 to criminalize a broader range of conduct than § 844(i) does. To be convicted under the federal statute, 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, must have been subjectively aware of the risk that his actions would result in that harm. By contrast, a defendant …
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals