Sandoval-Gomez v. Holder

Attempted arson under the California Penal Code constitutes an aggravated felony under the federal explosive materials statute; and, the California Penal Code section governing attempted arson is divisible and under the modified categorical approach falls under the definition in the federal statute.

Mario Sandoval-Gomez was convicted in 2006 of attempted arson in California pursuant to the California Penal Code section 455. In 2007, an Immigration Judge ("IJ") found Sandoval-Gomez eligible for removal because attempted arson constituted a crime of violence and thus was an aggravated felony under the Immigration Nationality Act ("INA"). Sandoval-Gomez's first appeal to the Board of Immigration Appeals ("BIA") was summarily affirmed but later remanded based on an intervening decision by the Ninth Circuit holding that attempted arson was not a crime of violence. On remand, the government asserted that Sandoval-Gomez was removable not because attempted arson was a crime of violence, but rather because it was an aggravated felony under the federal explosive materials statute contained in the INA. The IJ found Sandoval-Gomez removable on the grounds that he had a conviction for possession of a controlled substance. However, the IJ also found that section 455 did not contain the federal jurisdictional elements of the explosive materials statute, making his conviction not an aggravated felony, and granted cancellation. Both parties cross-appealed to the BIA, and the BIA reversed the IJ. Sandoval-Gomez petitioned for review. On appeal, the Ninth Circuit held that "(1) California Penal Code section 455 is divisible and, applying a modified categorical approach, [Sandoval-Gomez]’s attempted arson conviction qualifies as an aggravated felony; and (2) [Sandoval-Gomez] is not saved from removal by the fact that the state statute lacks jurisdictional elements included in the corresponding federal provisions." DENIED.