                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                              FOR THE NINTH CIRCUIT                           MAY 05 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

FERNANDO ENRIQUE CABRERA-                        No. 07-73354
ARUCHA, a.k.a. Fernando Cabrera a.k.a.
Fernando Enrique Cabrera a.k.a. Fernando         Agency No. A043-276-889
Enrique Arucha a.k.a. Fernando Hernandez
Arocha,
                                                 MEMORANDUM *
             Petitioner,

  v.

ERIC H. HOLDER Jr., Attorney General,

             Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                           Argued and Submitted June 5, 2009
                                 Pasadena, California

Before: W. FLETCHER, CLIFTON, and M. SMITH, Circuit Judges.

       Petitioner Fernando Enrique Cabrera-Arucha, a native and citizen of El

Salvador, appeals the BIA’s ruling upholding the IJ’s decision that he is removable

under INA § 237(a)(2)(A)(iii) for being an alien convicted of an aggravated felony.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Cabrera-Arucha argues that the BIA erred in concluding that his underlying

offense of conviction, arson under California Penal Code § 451(d), was an

aggravated felony subjecting him to removal. As the facts and procedural history

are familiar to the parties, we do not recite them here except as necessary to

explain our disposition. We have jurisdiction under 8 U.S.C. § 1252(a)(2)(D), and

we deny the petition.

      1.     Categorical Analysis

      First, the BIA erred in holding that California Penal Code § 451(d) is

categorically an aggravated felony. Cabrera-Arucha was found removable

pursuant to INA § 237(a)(2)(A)(iii), 8 U.S.C. § 1227(a)(2)(A)(iii). Under that

provision, an alien who was convicted of an “aggravated felony,” which is defined

as, among other things, “a crime of violence . . . for which the term of

imprisonment [is] at least one year,” id. § 1101(a)(43)(F), is removable. Id. §

1227(a)(2)(A)(iii). A “crime of violence” is defined as “any . . . offense that is a

felony and that, by its nature, involves a substantial risk that physical force against

the person or property of another may be used in the course of committing the

offense.” 18 U.S.C. § 16(b).

      The California statute under which Cabrera-Arucha was convicted is broader

than the definition of a “crime of violence” under 18 U.S.C. § 16. A defendant can


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violate § 451(d) by “burning or causing to be burned his or her own personal

property” provided there is “an intent to defraud.” Cal. Pen. Code § 451(d);

People v. Jameson, 223 Cal. Rptr. 108, 109 (Cal. Ct. App. 1986). Therefore, a

defendant found guilty under § 451(d) has not necessarily committed an offense

that “involves a substantial risk [of] physical force against the person or property

of another.” 18 U.S.C. § 16(b); cf. Jordison v. Gonzales, 501 F.3d 1134, 1135 (9th

Cir. 2007) (conviction for Cal. Penal Code § 452(c) did not qualify as a crime of

violence because the state was not required to prove petitioner set fire to someone

else’s property to obtain a conviction). Cabrera-Arucha’s offense of conviction

was not categorically an aggravated felony.

      2.     Modified Categorical Analysis

      However, Cabrera-Arucha’s offense under California Penal Code § 451(d)

did constitute an aggravated felony using the modified categorical analysis. Under

that approach, we may consider a charging document in combination with an

abstract of judgment, provided that the documents specifically demonstrate that the

petitioner pled guilty to the elements of the generic crime. See

Ramirez-Villalpando v. Holder, — F.3d —, 2010 WL 1407959, at *4 (9th Cir.

Apr. 9, 2010).




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      Count one of the information charges that Cabrera-Arucha “did willfully,

unlawfully, and maliciously set fire to and burn and cause to be burned the

property of another, to wit, ALFRED CAMARA.” The abstract of judgment

similarly states that Cabrera-Arucha was convicted of “ARSON; PROPERTY” and

lists “ALFRED CAMARA” as the “VICTIM.” Therefore, the offense to which

Cabrera-Arucha pled guilty was an “offense . . . that, by its nature, involves a

substantial risk that physical force against the person or property of another may be

used in the course of committing the offense” and thus was a crime of violence

under 18 U.S.C. § 16(b). Because Cabrera-Arucha was sentenced to 16 months, it

was a crime “for which the term of imprisonment [is] at least one year,” 8 U.S.C. §

1101(a)(43)(F), and the BIA did not err in determining that Cabrera-Arucha was

convicted of an aggravated felony.

      Because the BIA did not err in concluding that Cabrera-Arucha committed

an aggravated felony making him subject to removal, we deny his petition.

      PETITION DENIED.




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