PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2418

SANDRA YAMILETH ESPINAL-ANDRADES,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Appeals.

Argued: October 30, 2014 Decided: January 22, 2015

Before SHEDD, AGEE, and WYNN, Circuit Judges.

Petition denied by published opinion. Judge Wynn wrote the 

opinion, in which Judge Shedd and Judge Agee concurred.

ARGUED: Jorge Enrique Artieda, JORGE E. ARTIEDA LAW OFFICE PC, 

Falls Church, Virginia, for Petitioner. Colin James Tucker, 

UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for 

Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney 

General, Civil Division, Anthony W. Norwood, Senior Litigation 

Counsel, Office of Immigration Litigation, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
2

WYNN, Circuit Judge:

Petitioner Sandra Yamileth Espinal-Andrades, a lawful 

permanent resident, pled guilty to arson under Maryland’s arsonin-the-first-degree statute. At the heart of this appeal is 

whether that conviction qualifies as an aggravated felony under 

the Immigration and Nationality Act (“INA”). We agree with the 

immigration judge and Board of Immigration Appeals (“BIA”) that 

it does and, for the reasons explained below, deny Espinal’s 

petition. 

I.

Espinal immigrated to the United States from El Salvador in 

1999 and became a lawful permanent resident that same year. On 

August 27, 2009, a Maryland grand jury indicted her on four 

counts: (1) first degree arson, (2) second degree arson, (3) 

first degree malicious burning of property greater than $1,000, 

and (4) reckless endangerment. On January 27, 2010, Espinal

entered a plea pursuant to N. Carolina v. Alford, 400 U.S. 25 

(1970), on the first degree arson count, and the state dropped 

the remaining three charges. She was sentenced to 360 days in 

prison.

On March 12, 2013, the Department of Homeland Security 

(“DHS”) issued Espinal a Notice to Appear (“Notice”). The 

Notice made several factual allegations concerning Espinal’s 
3

citizenship status, and she denied each one. Espinal also 

denied the charge that she was subject to removal under 8 U.S.C. 

§ 1227(a)(2)(A)(iii), contesting DHS’s assertion that her first 

degree arson conviction qualified as an aggravated felony.

On May 9, 2013, an immigration judge ruled that all of 

DHS’s factual allegations in the Notice were true, and Espinal 

raised no objections to this ruling. Espinal did, however, 

object to the classification of her state arson charge as an 

aggravated felony under 8 U.S.C. § 1101(a)(43)(E), which defines 

“aggravated felony” as, inter alia, “an offense described in” 18 

U.S.C. § 844(i), a federal arson statute.

The parties briefed the issue, and on June 4, 2013, the 

immigration judge ruled against Espinal. In doing so, the 

immigration judge acknowledged that the Maryland statute lacked

the federal jurisdictional element contained in § 844(i), which 

requires that the destroyed property be “used in interstate or 

foreign commerce.” However, the immigration judge favorably 

cited two precedential BIA cases holding that convictions under 

state statutes qualified as removable aggravated felonies under 

the INA “even though the state offense[s] lack[ed] the 

jurisdictional elements of the federal crime[s].” A.R. 44 

(citing Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011), 

vacated sub nom. Bautista v. Attorney Gen. of U.S., 744 F.3d 54 

(3d Cir. 2014), and In re Vasquez-Muniz, 23 I. & N. Dec. 207 
4

(BIA 2002) (en banc)). Accordingly, the immigration judge ruled 

that Espinal’s arson conviction qualified as an aggravated 

felony and ordered her removed. 

Espinal appealed the decision to the BIA. In a singlemember panel decision, the BIA dismissed Espinal’s appeal. It 

recognized agency precedent establishing that “Congress meant to 

cover State arson offenses when it referenced § 844(i) in the 

definition of an aggravated felony and did not intend to exclude 

them simply because a State crime lacked a Federal 

jurisdictional element.” A.R. 3 (citing In re Vasquez-Muniz, 23 

I. & N. Dec. 207 (BIA 2002) (en banc), and Matter of Bautista, 

25 I. & N. Dec. 616 (BIA 2011)). Espinal then petitioned this 

Court for review of the BIA’s decision.

II. 

Generally, this Court lacks jurisdiction to review the 

final order of removal of an alien convicted of certain 

enumerated crimes, including an aggravated felony. Ramtulla v. 

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002). But under 8 U.S.C. 

§ 1252(a)(2)(D), we retain jurisdiction to consider questions of 

law, such as whether a conviction qualifies as an aggravated 

felony. Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2007). 

We review the BIA’s legal conclusions de novo. Martinez v.

Holder, 740 F.3d 902, 909 (4th Cir. 2014). The BIA’s statutory 
5

interpretations of the INA are afforded the appropriate 

deference, “recognizing that Congress conferred on the BIA 

decisionmaking power to decide such questions of law.” Id.

(citing INS v. Aguirre–Aguirre, 526 U.S. 415, 424 (1999), and

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 

U.S. 837, 842–43 (1984)).

To determine what deference is owed, “we begin our analysis 

with a determination of whether the statute at issue is 

unambiguous with respect to the question presented. If so, then 

the plain meaning controls the disposition of [Espinal’s]

appeal.” Bracamontes v. Holder, 675 F.3d 380, 384 (4th Cir. 

2012). This is Chevron step one. But if the statute is silent 

or ambiguous, “the question for this court becomes whether the 

BIA’s interpretation ‘is based on a permissible construction of 

the statute.’” Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir. 

2008) (quoting Chevron, 467 U.S. at 843). This is Chevron step 

two.

However, we do not afford the BIA’s single-member decisions 

Chevron deference because they lack precedential value. See, 

e.g., Martinez, 740 F.3d at 909-10. But the single-member BIA 

decision on appeal here relies on precedential en banc and 

three-member panel decisions. See A.R. 3–4 (citing In re 

Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc) (holding 

that possession of a firearm in violation of California law 
6

qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43) 

despite the absence of the federal jurisdictional element), and 

Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011) (holding that 

a conviction under a New York arson statute qualified as an

aggravated felony under 8 U.S.C. § 1101(a)(43) despite the 

absence of the federal jurisdictional element), vacated sub nom.

Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014)).1 

That controlling precedent is given Chevron deference.

III. 

With her main argument on appeal, Espinal contends that she 

is not deportable because her Maryland arson conviction does not 

qualify as an “aggravated felony” under 8 U.S.C. 

§ 1101(a)(43)(E). Both the immigration judge and the BIA 

reached the opposite conclusion, relying on the BIA’s 

precedential decisions in Matter of Bautista and In re VasquezMuniz. Upon careful review, we, too, reject Espinal’s argument. 

 1 Although the Third Circuit vacated the BIA decision in

Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011), this does 

not affect the decision’s precedential effect outside the Third 

Circuit. See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA 

1989) (“We are not required to accept an adverse determination 

by one circuit court of appeals as binding throughout the United 

States.” (citing several circuit court cases)).
7

A.

To provide context for our Chevron analysis, we find it 

helpful to first set out the pertinent statutes. Under the INA,

“[a]ny alien who is convicted of an aggravated felony at any 

time after admission is deportable.” 8 U.S.C. 

§ 1227(a)(2)(A)(iii). And an “aggravated felony” is “an offense 

described in . . . 18 U.S.C. § 844(i).” 8 U.S.C. 

§ 1101(a)(43)(E). 

In turn, 18 U.S.C. § 844(i) prescribes various punishments 

for an individual who “maliciously damages or destroys, or 

attempts to damage or destroy, by means of fire or an explosive, 

any building, vehicle, or other real or personal property used 

in interstate or foreign commerce or in any activity affecting 

interstate or foreign commerce.” The elements of 18 U.S.C. 

§ 844(i) and the Maryland statute under which Espinal was 

convicted are identical in all but one respect: the Maryland 

statute lacks the federal jurisdictional element requiring that 

the destroyed property be “used in interstate or foreign 

commerce.” Compare 18 U.S.C. § 844(i), with Md. Code Ann., 

Crim. Law § 6-102 (West). See also Gov’t’s Br. 11 (noting that 

this is not in dispute). 

Finally, the penultimate sentence of 8 U.S.C. § 1101(a)(43) 

states that “[t]he term [‘aggravated felony’] applies to an 

offense described in this paragraph whether in violation of 
8

Federal or State law and applies to such an offense in violation 

of the law of a foreign country for which the term of 

imprisonment was completed within the previous 15 years.” 8 

U.S.C. § 1101(a)(43) (emphases added).

B.

In analyzing these statutes under Chevron, we “must first 

consider whether ‘Congress has directly spoken to the precise 

question’ at issue.” United States v. Thompson–Riviere, 561 

F.3d 345, 350 n.2 (4th Cir. 2009) (quoting Chevron, 467 U.S. at 

842). To determine whether Congress has spoken directly through 

the relevant statutes, we must “begin by examining [the 

statute’s] plain language” and “give the relevant terms their 

common and ordinary meaning.” Yi Ni v. Holder, 613 F.3d 415, 

424 (4th Cir. 2010). 

Section § 1101(a)(43)(E) defines “aggravated felony,” in 

relevant part, as “an offense described in . . . 18 U.S.C. 

§ 844(i).” (emphasis added). By contrast, three other

subparagraphs in 8 U.S.C. § 1101(a)(43) use the term “defined 

in” instead of “described in” to identify aggravated felonies. 

E.g., 8 U.S.C. § 1101(a)(43)(B), (C), and (F). 

Comparing dictionary definitions, “described in” is the 

broader of the two terms. The American Heritage Dictionary 

defines “define” as “[t]o state the precise meaning,” “make 

clear the outline or form of,” or “[t]o specify distinctly.”
9

The American Heritage Dictionary of the English Language 476

(5th ed. 2011). By contrast, the same dictionary defines 

“describe” as “[t]o convey an idea or impression of,” or “[t]o 

trace the form or outline of.” Id. at 490. Other circuits have 

also interpreted the terms this way. See, e.g., Torres v. 

Holder, 764 F.3d 152, 157 (2d Cir. 2014) (noting that “described 

in” has a “broader standard”); United States v. Castillo-Rivera, 

244 F.3d 1020, 1023 (9th Cir. 2001) (noting that “described in” 

is a looser standard).2 Bearing the plain meaning of “define” 

and “describe” in mind, it appears as if Congress intended for 

the aggravated felonies “described in” the pertinent federal 

statute to include crimes that are not “defined in”—that is, 

precisely identical to–that federal statute. 

Further, the penultimate sentence of 8 U.S.C. § 1101(a)(43) 

states that convictions under the described offenses qualify as 

aggravated felonies “whether in violation of Federal or State 

law and applies to such an offense in violation of the law of a 

foreign country for which the term of imprisonment was completed 

within the previous 15 years.” (emphases added). It is “a 

cardinal principle of statutory construction that a statute 

 2 We recognize that the Third Circuit, in a divided opinion, 

ruled differently on this precise issue. Bautista, 744 F.3d at 

54. Frankly, we disagree with the majority opinion’s analysis 

and conclusion, not least for many of the reasons expressed in 

Judge Ambro’s thoughtful dissent. Id. at 69-74.
10

ought, upon the whole, to be so construed that, if it can be 

prevented, no clause, sentence, or word shall be superfluous, 

void, or insignificant.” Alaska Dep’t of Envtl. Conservation v. 

E.P.A., 540 U.S. 461, 489 n.13 (2004) (citations omitted). 

Accordingly, we must try to give every word in the statute

meaning to avoid rendering its terms superfluous. Discover Bank 

v. Vaden, 396 F.3d 366, 369 (4th Cir. 2005). 

Doing so here yields an obvious result: Because state laws 

will seldom—if ever—contain a federal jurisdictional element, 

and foreign crimes are even less likely to contain a United 

States–jurisdictional element, we conclude that Congress clearly

expressed its intent for aggravated crimes “described in” 

federal statutes to include substantively identical state and 

foreign crimes that lack only the federal jurisdictional 

element. Any contrary reading would render the penultimate 

sentence superfluous. 

The plain meaning of the terms and the application of 

statutory construction principles leave us with no doubt 

regarding Congress’s intent. Nevertheless, a sister circuit has 

come down the other way on this issue. Bautista, 744 F.3d at

57. Recognizing that such a disagreement may be, to some, an 

indication that the statute is ambiguous (again, we do not think 

it is), we take a belt-and-suspenders approach and turn to the 

second step of Chevron. 
11

C.

At Chevron step two, we determine whether the BIA’s

interpretation of 8 U.S.C. § 1101(a)(43)(E) is reasonable. If 

it is, we cannot substitute our own preferred statutory 

interpretation. Chevron, 467 U.S. at 844. And the BIA’s 

interpretation is reasonable as long as it is not “arbitrary, 

capricious, or manifestly contrary to the statute.” Id. 

As noted above, the single-member BIA panel that issued 

Espinal’s decision relied on the precedential decisions of In re 

Vasquez-Muniz and Matter of Bautista. In In re Vasquez-Muniz, 

the BIA looked at the statute’s “overall design,” “the language 

of the aggravated felony provision itself,” “very specific 

[statutory] references” that a contrary interpretation would 

render superfluous, and persuasive authority from an analogous 

Ninth Circuit case.3 23 I. & N. Dec. at 209–12. In Matter of 

 3 In In re Vasquez-Muniz, the BIA briefly discussed United 

States v. Castillo–Rivera, 244 F.3d 1020 (9th Cir. 2001). 23 I. 

& N. Dec. 207, 212 (BIA 2002). Castillo-Rivera held that a

state firearm possession offense was an aggravated felony under 

the INA, concluding that that the interstate commerce element 

included in 18 U.S.C. § 922(g) is “merely a jurisdictional 

basis.” 244 F.3d at 1023–24. Two circuits have since adopted 

the same interpretation. See Nieto Hernandez v. Holder, 592 

F.3d 681, 685 (5th Cir. 2009) (holding that the “interstate 

commerce element is simply an element that ensures federal 

jurisdiction” and that requiring it to be present in a state 

offense “would undermine Congress’s evident intent that 

jurisdiction be disregarded in applying” the definition of an 

aggravated felony); Negrete–Rodriguez v. Mukasey, 518 F.3d 497, 

501–03 (7th Cir. 2008) (holding that, “[a]lthough not ‘mere 

(Continued)
12

Bautista, the BIA reaffirmed In re Vasquez-Muniz’s analysis and, 

after analyzing Jones v. United States, 529 U.S. 848 (2000)

(discussing scope of a federal arson statute vis-à-vis a federal 

jurisdictional element), specifically concluded that “Congress 

meant to cover State arson offenses when it referenced § 844(i) 

in the definition of an aggravated felony.” 25 I. & N. Dec. at 

618–21. The BIA tethered its interpretation to traditional 

tools of statutory interpretation, and nothing leads this Court 

to conclude that its construction is unreasonable. 

In sum, we conclude that (1) Espinal’s state arson 

conviction unambiguously qualifies as an aggravated felony under 

8 U.S.C. § 1101(a)(43)(E), and (2) even if any ambiguity 

existed, the BIA’s interpretation was reasonable.

IV.

Espinal advances two arguments in the alternative: (1) the 

BIA should have applied the rule of lenity to her case, and (2) 

the BIA’s application of Matter of Bautista was impermissibly 

retroactive. Neither argument has merit.

 

surplusage,’ a jurisdictional element does little more than 

ensure that the conduct regulated in a federal criminal statute 

is within the federal government's limited power to proscribe” 

and, therefore, finding the state offense to be an aggravated 

felony). 
13

Espinal first argues that the BIA should have applied the 

rule of lenity to her case. In the immigration context, “the 

rule of lenity stands for the proposition that ambiguities in 

deportation statutes should be construed in favor of the 

noncitizen.” Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 2012) 

(citing Fong Haw Tan v. Phelan, 333 U.S. 6, 9–10 (1948)).

Assuming, without deciding, that Chevron still leaves some 

place for the rule of lenity,4 “[t]o invoke the rule, we must 

conclude that there is a grievous ambiguity or uncertainty in 

the statute.” Muscarello v. United States, 524 U.S. 125, 138-39 

(1998) (citations omitted). That is simply not the case here; 

the pertinent statute is not grievously ambiguous. The rule of 

lenity therefore has no place here.

Espinal next argues that applying Matter of Bautista to her 

case violates her due process rights because the BIA adopted “a 

novel construction of the INA and federal criminal law,” leaving 

her without the requisite notice. Pet.’s Br. 19. Espinal’s 

 4 In light of Chevron, some have questioned the rule of 

lenity’s role in the immigration context. See, e.g., David S. 

Rubenstein, Putting the Immigration Rule of Lenity in Its Proper 

Place: A Tool of Last Resort After Chevron, 59 ADMIN. L. REV. 479 

(2007) (arguing that the rule of lenity should be used to 

resolve lingering statutory ambiguities only after Chevron’s 

second step); Matthew F. Soares, Note, Agencies and Aliens: A 

Modified Approach to Chevron Deference in Immigration Cases, 99 

CORNELL L. REV. 925 (2014) (arguing that the immigration rule of 

lenity should be used as an underlying principle to inform the 

Chevron analysis).
14

2010 conviction postdates the 1996 enactment of 8 U.S.C. 

§ 1101(a)(43). In relying on the 2011 Matter of Bautista

decision, the BIA therefore “did not retroactively apply a new 

law but instead applied [its] determination of what the law ‘had 

always meant.’” De Quan Yu v. U.S. Attorney Gen., 568 F.3d 

1328, 1333 (11th Cir. 2009) (per curiam) (quoting Rivers v. 

Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)). Once 

Matter of Bautista issued, “that decision became the controlling 

interpretation of the law and was entitled to full retroactive 

effect in all cases still open on direct review, regardless of 

whether the events predated the . . . decision.” Id. at 1334.

And although the Third Circuit vacated Matter of Bautista, this 

does not affect the decision’s precedential effect in the Fourth 

Circuit. See supra note 1. Accordingly, Matter of Bautista was 

not applied impermissibly, and it governs Espinal’s case.

V.

For the foregoing reasons, we deny Espinal’s petition for 

review. 

PETITION DENIED