FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL GABRIEL JORDISON,  No. 04-71026

Petitioner, Agency No.

v. A79-371-001 

PETER D. KEISLER,* Acting ORDER AND

Attorney General, AMENDED

Respondent. OPINION 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted December 8, 2006

Submission Vacated January 24, 2007

Resubmitted August 15, 2007

Pasadena, California

Filed September 4, 2007

Amended October 30, 2007

Before: Melvin Brunetti, Alex Kozinski and

Pamela Ann Rymer, Circuit Judges.

Opinion by Judge Kozinski

*Peter D. Keisler is substituted for his predecessor, Alberto R. Gonzales, as Acting Attorney General of the United States, pursuant to Federal

Rule of Appellate Procedure 43(c)(2). 

14261
COUNSEL

Paul N. Medved, Law Offices of Paul N. Medved, Los Angeles, California, for the petitioner. 

Peter D. Keisler, Assistant Attorney General, Civil Division;

Greg D. Mack, Senior Litigation Counsel, Office of Immigration Litigation; Wayne C. Raabe, Senior Trial Attorney, U.S.

Department of Justice, Criminal Division, Narcotics and Dangerous Drugs Section, Washington, D.C., for the respondent.

ORDER

The opinion filed on September 4, 2007 is ordered

amended. The following paragraph, which appears on page

11409 of the slip opinion, is deleted:

Ordinarily we would remand so the government

could submit petitioner’s complete record of conviction and the agency could apply the modified categorical approach in the first instance. See Gonzales

v. Thomas, 126 S. Ct. 1613, 1615 (2006) (per

curiam) (describing the ordinary remand rule). But

because the government has conceded that it has

already submitted everything it could obtain bearing

on Jordison’s conviction,3 a remand would be pointless. Fernandez-Ruiz v. Gonzales, 466 F.3d 1121,

1135 (9th Cir. 2006) (en banc). 

In its place, the following paragraph is inserted: 

The government asks us to remand so that the

agency may apply the modified categorical

approach, but such a remand would be pointless, as

the government concedes it has already submitted

Jordison’s complete record of conviction.3 In these

JORDISON v. KEISLER 14263
circumstances, there is no need to remand; we may

decide the question ourselves. See Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1135 (9th Cir. 2006) (en

banc). 

The text of footnote 3 is unchanged. 

OPINION

KOZINSKI, Circuit Judge: 

We consider whether petitioner’s conviction under California Penal Code § 452(c) for “recklessly set[ting] fire to . . . a

structure or forest land” is a “crime of violence” under 18

U.S.C. § 16(b). 

Michael Gabriel Jordison is a Canadian citizen who came

to this country on a temporary visa and remained here after

that visa expired. Jordison pled guilty to setting a fire in violation of California Penal Code § 452(c),1

 and the government

sought to deport him on the theory that this is an “aggravated

felony.” See 8 U.S.C. § 1227(a)(2)(A)(iii) (aliens “convicted

of an aggravated felony” are “deportable”). The immigration

judge agreed with the government and ordered Jordison

removed to Canada. The Board of Immigration Appeals

affirmed, holding that every violation of section 452(c) is a

“crime of violence” under 18 U.S.C. § 16(b) and thus, by definition, an “aggravated felony.” See 8 U.S.C. § 1101(a)(43)(F)

(defining “aggravated felony”). Because the interpretation of

“crime of violence” is a “question of law,” we have jurisdiction to hear Jordison’s petition for review of the Board’s decision under 8 U.S.C. § 1252(a)(2)(D). 

1This provision prohibits “[u]nlawfully causing a fire of a structure or

forest land.” California Penal Code § 452 defines “unlawfully causing a

fire” to mean “recklessly set[ting] fire to or burn[ing] or caus[ing] to be

burned.” 

14264 JORDISON v. KEISLER
[1] 18 U.S.C. § 16(b) defines “crime of violence” as an “offense that . . . involves a substantial risk that physical force

against the person or property of another may be used in the

course of committing the offense.” The government argues

that setting a fire “involves a substantial risk” that other people and their property will be harmed by the “physical force”

of the flames. 

[2] But an incendiary can violate section 452(c) by “set[-

ting] fire” to his own “structure or forest land.” California law

defines “structure” and “forest land” to include any building

and any forest land. Cal. Penal Code § 450(a)-(b). Section

452(c)’s prohibition is not limited to fires that damage the

property of others, unlike other California crimes of burning,

which do require proof that someone else’s property was damaged.2

 Comparing section 452(c) with neighboring sections

makes it clear that the state was not required to prove that

Jordison set fire to someone else’s structure or forest land in

order to obtain a conviction. 

[3] Section 16(b), by contrast, does require such proof: A

crime of violence involves risk that physical force may be

used against the person or property “of another.” Therefore,

not every violation of section 452(c) is a “crime of violence”

under 18 U.S.C. § 16(b). See United States v. Grisel, 488 F.3d

844, 850 (9th Cir. 2007) (en banc) (“Where, as here, a state

statute explicitly defines a crime more broadly than the

generic definition, no ‘legal imagination’ is required to hold

that a realistic probability exists that the state will apply its

statute to conduct that falls outside the generic definition of

2

See Cal. Penal Code § 451(d) (“For purposes of this paragraph, arson

of property does not include one burning or causing to be burned his or

her own personal property unless there is an intent to defraud or there is

injury to another person or another person’s . . . property.”); id. § 452(d)

(“For purposes of this paragraph, unlawfully causing a fire of property

does not include one burning or causing to be burned his own personal

property unless there is injury to another person or to another person’s . . .

property.”). 

JORDISON v. KEISLER 14265
the crime.” (quoting Gonzales v. Duenas-Alvarez, 127 S. Ct.

815, 822 (2007) (citation omitted))). 

[4] We next consider whether Jordison’s crime is a crime

of violence under the modified categorical approach. See

Chang v. INS, 307 F.3d 1185, 1189-92 (9th Cir. 2002). The

record contains the original information, charging Jordison

with arson, and a “minute order” of Jordison’s plea colloquy.

The minute order notes that the information was amended “to

change count 01 to read violation 452(c) PC-cause fire struct/

forest land instead of 451(d) PC-arson,” and that a “new and

different plea of guilty [was] entered.” There is no amended

information, no transcript of the plea colloquy, nor any other

document describing the details of the crime to which Jordison pled guilty. Nothing in the record precludes the possibility

that Jordison was convicted for setting fire to his own property. 

The government asks us to remand so that the agency may

apply the modified categorical approach, but such a remand

would be pointless, as the government concedes it has already

submitted Jordison’s complete record of conviction.3 In these

circumstances, there is no need to remand; we may decide the

question ourselves. See Fernandez-Ruiz v. Gonzales, 466 F.3d

1121, 1135 (9th Cir. 2006) (en banc). 

[5] We vacate the BIA’s order of removal, and we remand

so the agency can consider whether Jordison is eligible for

any form of relief from removal. 

PETITION FOR REVIEW GRANTED, ORDER

VACATED and REMANDED.

3The government’s brief states that the proceedings before the immigration judge were “suspended” so that Jordison’s “complete official records

of . . . conviction” could be “produced.” At oral argument, government

counsel professed his belief that all relevant documents are in the record.

14266 JORDISON v. KEISLER