          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.



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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 IJ reviewed Rosa's record of conviction

and concluded that his actual crime, "willfully and maliciously

setting fire to and burning a building," was categorically a CIMT.

The IJ also found Rosa ineligible for relief from removal on the




      2   It appears that Rosa was initially detained at that time
and was released from detention after this court granted him a
stay of removal when we allowed the government's motion to remand
to the BIA, in December 2014.


                                       - 3 -
basis that he failed to prove that his conviction was not an

aggravated felony.

          The BIA dismissed Rosa's appeal in an opinion dated March

21, 2014, which replicated the IJ's reasoning.       The BIA agreed

with the IJ that the Massachusetts Arson statute was divisible "in

that it also includes conduct that may not be deemed morally

reprehensible, . . . such as an owner setting fire to the contents

in his buildings."    The BIA also agreed that Rosa's actual crime

qualified as a CIMT, rendering Rosa removable, and as an aggravated

felony, rendering him ineligible for relief from removal.

          Rosa petitioned this court for review; however, the

respondent filed an unopposed motion to remand for the BIA to

consider what effect (if any) its intervening decision in Matter

of Chairez-Castrejon, 26 I. & N. Dec. 349 (B.I.A. 2014) had on its

analysis of the Massachusetts Arson statute's divisibility.       This

court granted the motion.       On remand, the BIA examined Rosa's

conviction anew in light of its most recent case law, Matter of

Chairez-Castrejon, 26 I. & N. Dec. 819 (B.I.A. 2016) and Matter of

Silva-Trevino, 26 I. & N. Dec. 826 (B.I.A. 2016).     That opinion,

dated February 27, 2017, is the subject of this petition.

     The BIA did not address the Massachusetts Arson statute's

divisibility,   but    rather    concluded,   "the   conviction     is

categorically a crime involving moral turpitude."    The BIA listed

the statute's elements -- willfully and maliciously burning a


                                - 4 -
building or structure or contents thereof -- and noted that under

Massachusetts law, "malice" means "willfully engag[ing] in an

unlawful act," citing Commonwealth v. McLaughlin, 729 N.E.2d 252,

259 (Mass. 2000).       It then found controlling its precedent in

Matter of S, 3 I. & N. Dec. 617 (B.I.A. 1949), which held that a

violation   of    a   Canadian    statute      that   prohibited   "willfully

attempt[ing] to set fire to" a building, structure, or certain

other combustible materials was categorically a CIMT.              Id. at 618.

For   further    support,   the   BIA   also    referred   to   the   Eleventh

Circuit's non-binding but "relevant" holding in Vuksanovic v. U.S.

Att'y Gen., 439 F.3d 1308 (11th Cir. 2006) that Florida second-

degree arson is a CIMT because "the willful destruction of a

structure by fire or by explosion without a lawful, legitimate

purpose . . . evinces a certain baseness in the private and social

duties a man owes to society."          Id. at 1311.       Finally, the BIA

reiterated that Rosa's conviction, in addition to being a CIMT,

was an aggravated felony that rendered him ineligible for relief




                                    - 5 -
from removal.      This petition for review followed.      The parties

agree here that the Massachusetts Arson statute is indivisible.3

                                    II.

           The government first argues that we lack jurisdiction

over this petition because Rosa is removable as a result of his

commission of a CIMT.     See 8 U.S.C. § 1252(a)(2)(C) ("[N]o court

shall have jurisdiction to review any final order of removal

against an alien who is removable by reason of having committed a

criminal offense covered in section 1182(a)(2). . . ."). We reject

this argument because Rosa's petition presents a legal issue:

whether the BIA erred in concluding that Massachusetts Arson is

categorically a CIMT.    See 8 U.S.C. § 1252(a)(2)(D).

           "Where, as here, 'the BIA has rendered a decision with

its own analysis of the question at issue, our review focuses on

the BIA's decision, not the IJ's.'"       Patel v. Holder, 707 F.3d 77,

79 (1st Cir. 2013) (quoting Vásquez v. Holder, 635 F.3d 563, 565

(1st Cir. 2011)).    Two standards of review apply.      "We review the

BIA's legal conclusions de novo, but we afford Chevron deference

to   the   BIA's   interpretation    of   the   [INA],   including   its

determination that a particular crime qualifies as one of moral




     3    In his petition, Rosa does not challenge the BIA's
finding that his crime qualifies as an aggravated felony. Nor has
the government suggested in its responsive brief that the
aggravated felony finding may render moot the CIMT determination.
We do not address any such possible issues.


                                - 6 -
turpitude, unless that interpretation is 'arbitrary, capricious,

or clearly contrary to law.'"       Coelho v. Sessions, 864 F.3d 56, 60

(1st Cir. 2017) (quoting Da Silva Neto v. Holder, 680 F.3d 25, 28

(1st Cir. 2012)).        In this case, we give deference to the BIA's

construction of the term "moral turpitude," but not to its reading

of the underlying criminal statutes at issue, "as to which it has

no expertise."       Id. at 61 (quoting Patel, 707 F.3d at 79).

Generally, "our review is limited to the reasoning articulated

below."   Patel, 707 F.3d at 80 n.1.           Neither the government nor

this   court   is   at   liberty   to   fill   gaps   and   remedy   material

deficiencies in the BIA's analysis.         See Mejia v. Holder, 756 F.3d

64, 69 (1st Cir. 2014).

           The INA does not define "moral turpitude."                  Absent

guidance from Congress, we have adopted the BIA's definition:

           "conduct that shocks the public conscience as
           being inherently base, vile, or depraved, and
           contrary to the accepted rules of morality and
           the duties owed between persons or to society
           in general," or, in other words, "an act which
           is   per   se   morally    reprehensible   and
           intrinsically wrong" and is "accompanied by a
           vicious motive or a corrupt mind."

Da Silva Neto, 680 F.3d at 29 (quoting Maghsoudi v. INS, 181 F.3d

8, 14 (1st Cir. 1999)).

           Importantly, to ascertain whether a crime categorically

involves moral turpitude, the focus must be on the "'least of th[e]

acts' criminalized" under the statute.         Coelho, 864 F.3d at 61 n.1



                                    - 7 -
(quoting Moncrieffe v. Holder, 569 U.S. 184, 191 (2013)).            "'[T]he

particular     circumstances        of    [the   petitioner's]    acts    and

convictions' are off-limits."             Da Silva Neto, 680 F.3d at 31

(quoting Maghsoudi, 181 F.3d at 14).

             In its post-remand opinion, the BIA concluded, relying

on Matter of S, that Massachusetts Arson is categorically a CIMT.

The BIA's opinion must be remanded because it provides inadequate

reasoning on two points.        First, both the IJ and the BIA in its

pre-remand decision opined that the Massachusetts Arson statute

reaches "conduct that may not be deemed morally reprehensible,

. . . such as an owner setting fire to the contents in his

building."     The BIA has not addressed the moral reprehensibility

of the least culpable conduct criminalized under the statute, an

issue which it had recognized in its first opinion.              It does not

articulate what it is about the least culpable conduct covered by

the statute that is "per se morally reprehensible and intrinsically

wrong," nor does it explicate why such behavior necessarily evinces

a "vicious motive or a corrupt mind," as required for a finding of

moral turpitude.       Da Silva Neto, 680 F.3d at 29.4

             Second,    the   BIA   has    not   adequately   discussed   the

specialized meaning of "malice" under the Massachusetts Arson


     4    The government argues in its brief that deliberately
burning property unlawfully is intrinsically reprehensible conduct
because   of   its  inherent   dangerousness   and   unpredictable



                                     - 8 -
statute, or why Matter of S is dispositive in light of that term's

definition.5 Matter of S held that attempted arson under a Canadian

statute is categorically a CIMT.    3 I. & N. Dec. at 618.   The BIA

asserts that that Canadian statute describes "the same basic

elements and the same level of intent" as the Massachusetts Arson

statute.   But the two statutes' scienter requirements differ,6 as

the government correctly conceded at oral argument.   The Canadian

statute requires acting "willfully," defined as "not merely . . .

voluntarily" but "purposely with an evil intention, or, in other

words, . . . deliberately, intentionally, and corruptly, and

without any justifiable excuse." Id. at 618 (quoting R. v. Duggan,

4 W.L.R. 481, 490 (1906)).         The Massachusetts Arson statute

requires acting "willfully and maliciously."    For that statute's




consequences: fire can spread to non-targeted property, and, in
cases where a burning building is occupied, there is a risk of
deadly harm to occupants as well as to firefighters. This argument
may be potent, but the BIA did not make it.         The BIA's CIMT
determination must be upheld, if at all, on the basis articulated
in the decision itself. See Mejia, 756 F.3d at 69.

     5    The other case cited by the BIA, Vuksanovic, does not
bind the BIA in this circuit. Moreover, we note that the Eleventh
Circuit reached its conclusion -- that arson "evinces a certain
baseness," Vuksanovic, 439 F.3d at 1311 -- under Florida law,
without engaging in the type of analysis that the Massachusetts
statute at issue here requires.

     6    The Canadian arson statute also differs from its
Massachusetts counterpart in that, rather than prohibit burning
any property, it specifically targets setting fire to combustible
substances that one would expect to cause widespread damage.
Matter of S, 3 I. & N. Dec. at 617-18.


                              - 9 -
purposes, the Massachusetts Supreme Judicial Court has construed

"willful" to mean intentional as opposed to accidental, without

requiring evil intent, ill will, or malevolence, see Commonwealth

v. Dung Van Tran, 972 N.E.2d 1, 15-16 (Mass. 2012), and it has

construed "malice" to require no more than "[t]he wilful doing of

an unlawful act without excuse."     Id. at 15 (quoting McLaughlin,

729 N.E.2d at 259 n.6); see also Commonwealth v. Lamothe, 179

N.E.2d 245, 246 (Mass. 1961) ("The malice which is a necessary

element in the crime of arson . . . need not take the form of

malevolence or ill will, but it is sufficient if one deliberately

and without justification or excuse sets out to burn the dwelling

house of another.").

          That the Massachusetts Arson statute requires neither

"evil intent" nor a "corrupt" mindset7 may be significant for the

CIMT determination.    In Da Silva Neto, this court upheld the BIA's

conclusion that Massachusetts "malicious destruction of property"

is a CIMT, emphasizing that the statute required "an act 'by design

hostile to the owner . . . of the property,' meaning . . . motivated

by 'cruelty, hostility, or revenge' toward an individual, not just

an inanimate object."     680 F.3d at 32 (quoting Commonwealth v.

Morris M., 876 N.E.2d 462, 466 (Mass. App. Ct. 2007)).     Da Silva




     7    The government conceded at oral argument that the
Massachusetts Arson statute, unlike its counterpart in Matter of
S, does not require the perpetrator to act with a "corrupt mind."


                               - 10 -
Neto acknowledged the Ninth Circuit's holding in Rodriguez-Herrera

v. INS, 52 F.3d 238 (9th Cir. 1995) that Washington second-degree

malicious mischief -- "knowingly and maliciously . . . [c]aus[ing]

physical damage to the property of another" -- is not a CIMT.   Id.

at 239-40 (quoting Wash. Rev. Code Ann. § 9A.48.080(1)(a)).     But

Da Silva Neto distinguished Rodriguez-Herrera on the basis that

malice under the malicious mischief statute "could . . . 'be

inferred if the act [was] merely wrongfully done without just cause

or excuse,'" whereas malice under the malicious destruction of

property statute entailed, "[i]n addition to the intent to inflict

injury to property, . . . a state of mind infused with cruelty,

hostility or revenge."    Id. at 30 n.8 (quoting Commonwealth v.

Redmond, 757 N.E.2d 249, 252 (Mass. App. Ct. 2001)).      Da Silva

Neto's reasoning suggests that, absent "fraud" or a "risk of

physical harm to another person," ill will is at least relevant,

and may perhaps be critical, to a finding of moral turpitude.   Id.

at 32.   For these reasons, we remand this case to the BIA.

                                III.

           We grant the petition for review, vacate the BIA's

February 27, 2017 opinion, and remand for further proceedings

consistent with our opinion.




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