Rosa Pena v. Sessions

United States Court of Appeals For the First Circuit No. 17-1310 DOMINGO ANTONIO ROSA PENA, Petitioner, v. JEFFERSON B. SESSIONS, III, ATTORNEY GENERAL, Respondent. PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS Before Howard, Chief Judge, Lynch and Thompson, Circuit Judges. Jeffrey B. Rubin and Rubin Pomerleau P.C. for petitioner. Margot L. Carter, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, with whom Chad A. Readler, Acting Assistant Attorney General, and Terri J. Scadron, Assistant Director, Office of Immigration Litigation, were on brief, for respondent. February 14, 2018 LYNCH, Circuit Judge. This petition for review presents the question of whether the Board of Immigration Appeals' ("BIA") decision is sustainable on the reasoning it used to conclude that a violation of Mass. Gen. Laws ch. 266, § 2 ("Massachusetts Arson") is categorically a crime involving moral turpitude ("CIMT") under the Immigration and Nationality Act ("INA"), Pub. L. No. 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8 U.S.C.). The consequence of this BIA ruling is that petitioner Domingo Antonio Rosa Pena ("Rosa") is removable. We remand to the BIA due to its insufficient explanation of why the least culpable conduct prohibited under the statute is morally reprehensible, and why the statute's requirement of "malice," as construed by the Massachusetts courts, qualifies the crime as a CIMT. I. Rosa, a native and citizen of the Dominican Republic, entered the United States in 1972 as a lawful permanent resident. His wife and four children, all U.S. citizens, reside in the United States. In 2001, Rosa was convicted of the crime of Massachusetts Arson1 for burning down his grocery store. When Rosa returned from a trip abroad in September 2013 and sought admission to the United 1 For ease of reference, we use the term "Massachusetts Arson" to refer specifically to Mass. Gen. Laws ch. 266, § 2. There are other Massachusetts arson statutes. See, e.g., Mass. Gen. Laws ch. 266, §§ 1, 5, 7-9. They are not at issue in this petition. - 2 - States, the Department of Homeland Security ("DHS") detained him2 and initiated removal proceedings against him based on that conviction. DHS charged that Rosa was removable under 8 U.S.C. § 1182(a)(2)(A)(i)(I) on the basis that his conviction for Massachusetts Arson qualified as a CIMT. In a motion to terminate the removal proceedings, Rosa denied his removability and, in the alternative, requested several forms of relief: cancellation of removal under 8 U.S.C. § 1229b(a), adjustment of status with a waiver of inadmissibility under 8 U.S.C. § 1182(h), or voluntary departure. The Immigration Judge ("IJ") denied Rosa's motion on November 7, 2013. The IJ found the Massachusetts Arson statute divisible, in that it punishes not only "conduct that would fall within the generic definition of arson" but also "conduct that may not be deemed reprehensible . . . , such as an owner setting fire to some of the contents in his building." Applying a modified categorical approach, the ...

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