PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALEXIS MBEA, 

Petitioner,

v.  No. 05-1204

ALBERTO R. GONZALES, Attorney

General,

Respondent. 

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A91-203-997)

Argued: February 1, 2007

Decided: March 22, 2007

Before WILKINSON, WILLIAMS, and MICHAEL, Circuit Judges.

Petition for review denied by published opinion. Judge Wilkinson

wrote the opinion, in which Judge Williams and Judge Michael

joined. 

COUNSEL

ARGUED: Emmanuel Damascus Akpan, Silver Spring, Maryland,

for Petitioner. John Darren Williams, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington,

D.C., for Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney General, Civil Division, Christopher C. Fuller, Senior Litigation

Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office

of Immigration Litigation, Washington, D.C., for Respondent.
OPINION

WILKINSON, Circuit Judge: 

This case arises out of the removal proceeding of Alexis Mbea, a

citizen of Cameroon and permanent resident of the United States. The

Board of Immigration Appeals found Mbea subject to removal under

Section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act

("INA") because Mbea had twice been convicted of crimes involving

moral turpitude: arson and destruction of property. See 8 U.S.C.

§ 1227(a)(2)(A)(i)(I) (2000). 

Mbea contends that he is nonetheless eligible for various forms of

removal relief including cancellation of removal under INA

§ 240(A)(a), a hardship waiver under INA § 212(h)(B), and a deportation waiver under INA § 212(c). We hold that, because the malicious

burning of property in violation of D.C. Code § 22-401 (1994) is a

crime of violence, Mbea’s arson conviction is an aggravated felony

which renders him statutorily ineligible for cancellation of removal

under INA § 240(A)(a) and for a hardship waiver under INA

§ 212(h)(B). Likewise, because Congress repealed INA § 212(c) subsequent to Mbea’s convictions, and because Mbea never acted in reliance upon that provision, Mbea is ineligible for § 212(c) relief. The

petition for review is, therefore, denied.

I.

Alexis Mbea entered the United States in 1975 as a diplomatic officer of the Cameroon Embassy. He became a permanent resident in

1988. In 1994, however, Mbea was tried and convicted of arson and

destruction of public property in violation of §§ 22-401 and 22-403

of the District of Columbia Code. See D.C. Code Ann. § 22-401

(1994) (current version at D.C. Code Ann. § 22-301 (2001)); D.C.

Code Ann. § 22-403 (1994) (current version at D.C. Code Ann. § 22-

303 (2001)). He was sentenced to not less than eighteen months and

no more than five years’ imprisonment for arson. For the destruction

of property conviction, Mbea was sentenced to three to ten years’

imprisonment. These sentences, set to run consecutively, were suspended upon Mbea’s successful completion of five years’ probation.

2 MBEA v. GONZALES
In the spring of 2002, Mbea visited Cameroon. Upon returning to

the United States, he applied for admission as a returning resident.

Because of Mbea’s prior criminal convictions, however, the Immigration and Naturalization Service viewed him as an arriving alien and

commenced removal proceedings. The INS alleged that Mbea was

subject to removal under INA § 212(a)(2)(A)(i)(I) because of his convictions for arson and destruction of property. Mbea responded that

arson and destruction of property were not crimes involving moral

turpitude and also applied for removal relief pursuant to INA

§§ 212(c), 212(h)(B), and 240(A)(a). 

At the removal hearing, the immigration judge held that Mbea’s

convictions for arson and destruction of property were crimes involving moral turpitude, and, as a result, a basis for removal under

§ 212(a)(2)(A)(i)(I). The IJ then denied Mbea’s petitions for removal

relief and ordered him removed to Cameroon. 

Mbea appealed to the Board of Immigration Appeals, which

affirmed and adopted the IJ’s decision. Mbea now appeals.1

II.

Mbea concedes that he is deportable on the ground that arson is a

crime involving moral turpitude, but nonetheless contends that he is

entitled to removal relief under INA §§ 240(A)(a) and 212(h)(B).

These provisions permit the Attorney General to cancel or waive

removal in certain circumstances, but they are cabined by a number

of requirements, most pertinently that aliens convicted of aggravated

felonies are not eligible. More specifically, INA § 240(A)(a) allows

the Attorney General to cancel removal for certain long-term permanent residents — but only if the alien "has not been convicted of any

1This court has jurisdiction to review Mbea’s appeal pursuant to 8

U.S.C. § 1252(a)(2)(C) (2000). Although that section generally bars judicial review of final removal orders when those orders are entered on the

ground that the alien committed an aggravated felony or a crime involving moral turpitude, it permits review where, as here, a petition for

appeal raises "constitutional claims or questions of law." Id.

§ 1252(a)(2)(D) (Supp. V 2005). 

MBEA v. GONZALES 3
aggravated felony." 8 U.S.C. § 1229b(a) (2000).2

 Section 212(h)(B)

similarly authorizes the Attorney General to waive removal proceedings where "the alien’s denial of admission would result in extreme

hardship" to a family member who is either a United States citizen or

a lawful permanent resident. 8 U.S.C. § 1182(h)(B) (2000).3 But no

such waiver may issue if, since the date of the alien’s initial admission, "the alien has been convicted of an aggravated felony." Id.

§ 1182(h). 

In sum, Mbea’s eligibility for both cancellation of removal under

§ 240(A)(a), and a hardship waiver under § 212(h)(B), turns on

whether arson as defined by D.C. Code § 22-401 is an "aggravated

felony." This court reviews legal issues, including the question of

whether arson is an "aggravated felony," de novo. Blanco de Belbruno v. Ashcroft, 362 F.3d 272, 278 (4th Cir. 2004).

A.

Section 101(a)(43)(F) of the INA defines "aggravated felony" as a

"crime of violence" for which the term of imprisonment is at least one

year. 8 U.S.C. § 1101(a)(43)(F) (2000). In turn, "crime of violence"

is defined as (1) "any offense that has as an element the use,

attempted use, or threatened use of physical force against the person

or property of another," 18 U.S.C. § 16(a) (2000); or (2) "any other

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," id. § 16(b).

2

8 U.S.C. § 1229b(a) provides that the Attorney General may cancel

removal if an alien: "(1) has been an alien lawfully admitted for permanent residence for not less than 5 years, (2) has resided in the United

States continuously for 7 years after having been admitted in any status,

and (3) has not been convicted of any aggravated felony." 

3

8 U.S.C. § 1182(h)(B) provides that the Attorney General may, in his

discretion, waive removal "in the case of . . . an alien lawfully admitted

for permanent residence if it is established to the satisfaction of the

Attorney General that the alien’s denial of admission would result in

extreme hardship to the United States citizen or lawfully resident spouse,

parent, son, or daughter of such alien." 

4 MBEA v. GONZALES
The question of whether a conviction falls within the ambit of 18

U.S.C. § 16 is a categorical one. Leocal v. Ashcroft, 543 U.S. 1, 7

(2004); see also Taylor v. United States, 495 U.S. 575, 600 (1990);

United States v. Pierce, 278 F.3d 282, 286 (4th Cir. 2002). We must

therefore consider the nature of the offense as defined by statute, not

the conduct at issue in any particular case. Leocal, 543 U.S. at 7;

United States v. Galo, 239 F.3d 572, 581-82 (3d Cir. 2001); see also

Taylor, 495 U.S. at 600.

B.

There can be no doubt that arson, as defined by D.C. Code § 22-

401, is a "crime of violence." The D.C. arson statute punishes with

one to ten years’ imprisonment those who:

maliciously burn or attempt to burn any dwelling, or house,

barn, or stable adjoining thereto, or any store, barn, or outhouse, or any shop, office, stable, store, warehouse, or any

other building, or any steamboat, vessel, canal boat, or other

watercraft, or any railroad car, the property, in whole or in

part, of another person, or any church, meetinghouse,

schoolhouse, or any of the public buildings in the District,

belonging to the United States or the District of Columbia.

D.C. Code Ann. § 22-401 (1994) (current version at D.C. Code Ann.

§ 22-301 (2000)). 

Mbea argues that his conviction for the above D.C. Code offense

is not an "aggravated felony" as that term is defined in 18 U.S.C.

§ 16(a). He contends that D.C. Code § 22-401 "does not include any

element requiring the ‘use of force,’ nor is the (willful) ‘use of force’

particularly likely; and therefore any conviction under D.C. Code

Section 22-401 cannot be considered an ‘aggravated felony.’" Mbea

claims in essence that because D.C. Code § 22-401 does not include

the term "force" it cannot be a crime of violence under 18 U.S.C.

§ 16(a) or render Mbea ineligible for removal relief under INA

§§ 240(A)(a) and 212(h)(B). 

We disagree. Not every statute defining a violent criminal offense

MBEA v. GONZALES 5
uses the term "force" in so many words. The D.C. Code provision

prohibiting first degree murder, for example, does not use the word

"force" or "violence," but it is clear that the statute defines an "aggravated felony." See D.C. Code Ann. § 22-2101 (2001).4

 To adopt petitioner’s view therefore would strip the congressional enactment of 18

U.S.C. § 16(a) of any substance or meaning. 

It is plain that the malicious setting of fire to homes, public buildings, and churches "has as an element the use, attempted use, or

threatened use of physical force against the person or property of

another." See 18 U.S.C. § 16(a). Fire is itself a physical force. Indeed,

the Oxford English Dictionary defines "physical force" as, inter alia,

"an influence acting within the physical world, a force of nature." See

Oxford English Dictionary (2003). Fire is nothing if not a "force of

nature" that exerts an influence "within the physical world." For fire

not only has the power to provide warmth and light, but also the

power to destroy. When that destructive force is maliciously set in

motion by human hand for the purpose of burning a home, church,

meetinghouse, or other similar structure, a "physical force" is used

"against the . . . property of another" as required by 18 U.S.C. § 16(a).

See, e.g., Leocal, 543 U.S. at 9 ("The critical aspect of § 16(a) is that

a crime of violence is one involving the ‘use . . . of physical force

against the person or property of another.’") (quoting 18 U.S.C.

§ 16(a)). 

While fire may, of course, pose a danger to people, that is not a

necessary condition for the finding of an "aggravated felony" under

the statute. Rather, 18 U.S.C. § 16(a) defines as a "crime of violence"

the use of physical force against either persons or property. 

We thus hold that the malicious burning of homes, dwellings, and

other property proscribed by D.C. Code § 22-401 is a "crime of violence" as defined by 18 U.S.C. § 16(a). See, e.g., United States v.

Mitchell, 23 F.3d 1, 2 n.3 (1st Cir. 1994) (per curiam) (holding that

federal arson as set forth in 18 U.S.C. § 844(i) is a "crime of violence"

4The D.C. first degree murder statute provides, in part, "Whoever . . .

kills another purposely, either of deliberate and premeditated malice or

by means of poison . . . is guilty of murder in the first degree." D.C.

Code Ann. § 22-2101. 

6 MBEA v. GONZALES
under 18 U.S.C. § 3156(a)(4)); United States v. Marzullo, 780 F.

Supp. 658, 662 & n.7 (W.D. Mo. 1991) (same); United States v. Shaker, 665 F. Supp. 698, 702 n.4 (N.D. Ind. 1987) (same). As a result,

Mbea’s arson conviction is an "aggravated felony" under Section

101(a)(43)(F) of the INA. Because Congress has plainly provided that

aliens convicted of aggravated felonies have no recourse under either

INA § 240(A)(a) or INA § 212(h)(B), Mbea’s applications for such

relief fail.

III.

Mbea next argues that — even if arson is a "crime of violence" and

thus an "aggravated felony" — he is nevertheless eligible for INA

§ 212(c) relief. Mbea is correct that, at the time of his 1994 convictions, Section 212(c) permitted the Attorney General to grant a discretionary deportation waiver to lawful permanent residents of at least

seven years. See 8 U.S.C. § 1182(c) (1994). The Attorney General’s

authority to waive removal was not barred by an aggravated felony

conviction so long as the resident alien had not served a prison sentence of five or more years. Id. But Congress changed all of this when

it passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA") in 1996. Section 304(b) of that statute repealed

INA § 212(c) in its entirety and replaced it with cancellation of

removal under INA § 240(A).5See Pub. L. 104-208, Div. C, Title III,

§ 304(b), Sept. 30, 1996, 110 Stat. 3009-597. Mbea claims, however,

that courts may not apply the IIRIRA’s repeal of INA § 212(c) to his

pre-IIRIRA conviction because such an application would be impermissibly retroactive. 

A.

In INS v. St. Cyr, 533 U.S. 289 (2001), the Supreme Court

addressed the retroactive application of IIRIRA § 304(b). The Court

began by finding that Congress had not clearly indicated that the

repeal of INA § 212(c) was to be retrospective. St. Cyr, 533 U.S. at

320. The Court thus considered whether application of IIRIRA

5As noted, supra, Mbea is not eligible for § 240(A)(a)’s cancellation

of removal because that provision does not apply to deportable aliens

"convicted of any aggravated felony." 8 U.S.C. § 1229b(a)(3). 

MBEA v. GONZALES 7
§ 304(b) to St. Cyr, an alien who had "entered into plea agreements

with the expectation that [he] would be eligible for [§ 212(c)] relief"

would produce an impermissible retroactive effect. Id. at 321. The

Court concluded that because St. Cyr and aliens like him had "almost

certainly relied upon [the significant] likelihood [of receiving

§ 212(c) relief] in deciding whether to forgo their right to a trial, the

elimination of any possibility of § 212(c) relief by IIRIRA has an

obvious and severe retroactive effect." Id. at 325. Thus, under the

Supreme Court’s decision in St. Cyr, INA § 212(c) relief "remains

available for aliens . . . whose convictions were obtained through plea

agreements and who . . . would have been eligible for § 212(c) relief

at the time of their plea under the law then in effect." Id. at 326.

B.

In this case, we consider whether applying the IIRIRA’s repeal of

INA § 212(c) to Mbea, an alien who claims to have gone to trial in

reliance upon such relief, produces an impermissible retroactive

effect. This is not a question of first impression. To the contrary, this

court decided precisely this issue in Chambers v. Reno, 307 F.3d 284

(4th Cir. 2002). Like Mbea, the petitioner in Chambers never entered

a guilty plea "with the expectation that [he] would be eligible for

§ 212(c) relief," instead choosing to go to trial. See id. at 289-91.

Chambers nonetheless argued that, like the alien who pled guilty in

St. Cyr, he too possessed "reliance interests that would cause the

application of IIRIRA § 304(b) in his case to operate retroactively."

Id. at 290. 

This court disagreed. We held that IIRIRA’s repeal of § 212(c) did

not produce an impermissibly retroactive effect as applied to an alien

convicted after trial. Id. at 293. The court explained that while an

alien who pleads guilty does so "in the context of a quid pro quo relationship" in which he benefits from the guarantee of a reduced sentence — one "that would ensure continued eligibility for [§ 212(c)]

discretionary relief" — an alien who goes to trial does not strike a

quid-pro-quo bargain or receive any similar assurance. Id. at 290-91.

To the contrary, an individual who goes to trial in a case where the

allowable statutory penalty exceeds that permitted by § 212(c) "actually ensure[s] that his eligibility for discretionary relief w[ill] remain

uncertain." Id. at 291. 

8 MBEA v. GONZALES
Mbea’s contention that the application of IIRIRA § 304(b) to his

pre-IIRIRA convictions has an impermissibly retroactive effect fails

under this Court’s holding in Chambers. The cases are on all fours.

Like Chambers, Mbea rolled the dice and went to trial in a case where

the maximum penalty for the alleged offense exceeded that permitted

by § 212(c). See id. Like Chambers, he did not "abandon his constitutional right to a trial and plead guilty to a deportable offense in reliance on prior law." See id. at 290. Like Chambers, he ensured by

going to trial "that his eligibility for discretionary relief would remain

uncertain." See id. at 291. And, like Chambers, Mbea’s decision to go

to trial did not have an immediate adverse impact on his immigration

status. See id. Finally, it is of no moment that Mbea ended up with

a prison sentence below the five-year eligibility threshold for § 212(c)

relief. As this court stated in Chambers, that fact "does not change the

fact that [Mbea] proceeded to trial fully aware of the risk that he

would be convicted and sentenced to a prison term that would disqualify him under INA § 212(c)." See id. at 291.

IV.

For the foregoing reasons, we deny Mbea’s petition for review.

PETITION FOR REVIEW DENIED

MBEA v. GONZALES 9