The respondent, a Mexican national who has lived in the United States since 1978 and was granted LPR status in April 1990, argued in his appeal to the BIA that in Alaska a person can be convicted of first degree arson even when the prosecution presents no proof that the person used physical force against either the person or property of another.  In addition, he argued, first degree arson as defined by Alaska law is not by its nature a crime of violence as defined by the relevant federal statutes.  Furthermore, rather than determining whether the crime for which the respondent had been convicted under Alaska law fit a generic definition (derived from federal law) of arson, the immigration judge who found him deportable erred by looking at the facts of the criminal case to arrive at the conclusion that the respondent had committed a crime of violence.

The Immigration and Naturalization Service had charged the respondent with being deportable as an aggravated felon after he was convicted in 1995 of first degree arson and sentenced to seven years’ imprisonment with three years suspended.  According to facts supplied in the dissenting opinion of BIA member Lori Rosenberg, the respondent was convicted of setting his own couch and possessions on fire "in an apparent suicide attempt."  The INS issued the Notice to Appear in April 1997.  On Nov. 19, 1997, the IJ found the respondent deportable and ineligible for relief from removal.

In rejecting the respondent’s appeal, the BIA conceded (without, however, stating explicitly that the IJ had erred) that the IJ had considered the underlying facts of the respondent’s criminal case in finding that he had committed a crime of violence.  In doing so, the IJ had violated a BIA precedent which requires that such an analysis be based on the "generic elements" of the offense rather than on the specific facts of the particular offense. Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994) at 813.  Therefore, to arrive at the same conclusion, the BIA had to independently determine whether the respondent’s conviction was one for an offense, as defined under Alaska law, that fits the definition of "crime of violence" supplied by the federal statute, 18 U.S.C. section 16.

For the majority, BIA member Vacca wrote, "In determining whether a particular offense is a ‘crime of violence’ under [18 U.S.C. section 16], we have held that either the elements of the offense must be such that physical force is an element of the crime [§ 16(a)], or that the nature of the crime—as evidenced by the generic elements of the offense—must be such that its commission ordinarily would present a risk that physical force would be used against the person or property of another, irrespective of whether the risk develops or harm actually occurs [§ 16(b)].  Matter of Alcantar, 20 I. & N. Dec. 801 (BIA 1994)."

The BIA found that the respondent’s conviction—for first degree arson under Alaska law—satisfies this test.  To be convicted under the Alaska statute, a person must have intentionally damaged "any property by starting a fire or causing an explosion" (Alaska Stat. § 11.46.400(a), emphasis added).  According to the BIA, such an action "ordinarily would lead to the substantial risk of damaging [the] property of another," e.g., via "the risk that the fire will spread beyond the original intended property."  The possibility that an intentionally set fire might spread into another structure that may be occupied means that arson, as defined by Alaska law, is an act that "involves substantial risk to another person," the BIA decision says.  Therefore, the respondent’s conviction was for a crime of violence, which makes him deportable as an aggravated felon and ineligible for relief.