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1 After oral argument, the DHS filed a motion to expedite, which we have considered in our

prompt adjudication of this detained case.

616

Matter of Robert BAUTISTA, Respondent

Decided October 13, 2011

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Attempted arson in the third degree in violation of sections 110 and 150.10 of the

New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State

crime lacks the jurisdictional element in the applicable Federal arson offense. Matter

of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed.

FOR RESPONDENT: Raymond G. Lahoud, Esquire, Easton, Pennsylvania

FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert D. Tennyson, Associate

Legal Advisor; Brian G. McDonnell, Assistant Chief Counsel

BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.

MULLANE, Board Member:

In a decision dated February 8, 2011, an Immigration Judge found the

respondent ineligible for discretionary relief and ordered him removed from

the United States. The respondent has appealed from that decision, arguing

that he is eligible for cancellation of removal under section 240A(a)

of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). The

Department of Homeland Security(“DHS”) opposed the appeal, and the Board

heard oral argument on August 10, 2011.1 The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent, a native and citizen of the Dominican Republic,

was admitted to the United States as a lawful permanent resident in August

1984. On June 5, 2003, he was convicted in New York of attempted

arson in the third degree in violation of sections 110 and 150.10 of the

New York Penal Law, for which he was sentenced to 5 years’ probation.
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2 The respondent has not raised on appeal the question of his eligibility for a waiver

of inadmissibility under section 212(h) of the Act.

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On September 13, 2009, the respondent was stopped at the airport when

he was returning to the United States from the Dominican Republic, and

he was paroled into the country pending a secondary inspection. On March 25,

2010, the DHS issued a Notice to Appear (Form I-862) and instituted removal

proceedings against the respondent, charging that he is removable because

he is inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C.

§ 1182(a)(2)(A)(i)(I) (2006), as an alien convicted of a crime involving moral

turpitude.

At a hearing before the Immigration Judge, the respondent admitted the

allegation that he was convicted of attempted arson, but he denied the charge

of inadmissibility. The Immigration Judge determined that the respondent

is inadmissible to the United States as charged.

The DHS filed a motion to pretermit the respondent’s applications for

cancellation of removal under section 240A(a)(3) of the Act and a waiver

of inadmissibility under section 212(h), arguing that his crime of arson

corresponded to the offenses described in 18 U.S.C. §§ 844(f)(1) and (i)

(2006) and was therefore an aggravated felony under section 101(a)(43)(E)(i)

of the Act, 8 U.S.C. § 1101(a)(43)(E)(i) (2006). Although the Immigration

Judge initially denied the motion, the DHS filed a motion to reconsider, which

was granted by the Immigration Judge. In his February 8, 2011, decision,

the Immigration Judge incorporated his previous rulings and ordered the

respondent removed to the Dominican Republic. The respondent has

appealed, arguing that the New York offense of attempted arson in the third

degree is not an aggravated felony and that he remains eligible to apply for

cancellation of removal.2

II. ISSUE

The issue in this case is whether the offense of attempted arson in the third

degree in violation of sections 110 and 150.10 of the New York Penal Law

is a crime “described in” section 101(a)(43)(E)(i) of the Act and is therefore

an aggravated felony, which precludes the respondent from establishing

eligibility for cancellation of removal under section 240A(a)(3) of the Act.

We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).
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618

III. ANALYSIS

The term “aggravated felony” is defined in section 101(a)(43) of the Act.

The specific provision at issue in this case is section 101(a)(43)(E)(i), which

includes within the definition of an aggravated felony

an offense described in—

(i) section 842(h) or (i) of title 18, United States Code, or section 844(d), (e), (f),

(g), (h), or (i) of that title (relating to explosive materials offenses) . . . .

Furthermore, the final paragraph of section 101(a)(43) states the following

regarding the definition of an aggravated felony:

The term [aggravated felony] applies to an offense described in this paragraph

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. Notwithstanding any other provision of law

(including any effective date), the term applies regardless of whether the conviction

was entered before, on, or after the date of enactment of this paragraph.

(Emphasis added.)

Under the categorical approach set forth in Taylor v. United States, 495 U.S.

575, 600 (1990), to determine if the respondent’s State offense of attempted

arson is a crime “described in” the aggravated felony provision at section

101(a)(43)(E)(i) of the Act, we compare the crime he was convicted of with

the Federal crimes set forth in that section, which Congress has designated

as aggravated felonies. Under section 150.10 of the New York Penal Law,

a “person is guilty of arson in the third degree when he intentionally damages

a building or motor vehicle by starting a fire or causing an explosion.” Section

101(a)(43)(E)(i) of the Act states that “an offense described in . . . [18 U.S.C.

§§] 844(d), (e), (f), (g), (h) or (i) . . . (relating to explosive materials offenses)”

is an aggravated felony. Specifically relevant to this case is § 844(i), which

provides in pertinent part as follows:

Whoever 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 shall be imprisoned for not less than 5 years and not more than

20 years, fined under this title, or both . . . .

(Emphasis added.) Also of significance is § 844(f)(1), which reads as follows:

Whoever maliciously damages or destroys, or attempts to damage or destroy,

by means of fire or an explosive, any building, vehicle, or other personal or real
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3 The respondent also asserts that his violation of section 150.10 does not qualify

as an aggravated felony because 18 U.S.C. § 844(f) deviates from the New York statute

in that an essential element of the crime involves a finding that personal or real property

in whole or in part was possessed by or leased to the United States, or any department

or agency thereof. Given our conclusion regarding 18 U.S.C. § 844(i), we do not need

to reach this issue.

4 The respondent has the burden of proof to show that he is eligible for cancellation

of removal. 8 C.F.R. § 1240.8(d) (2011). This is of no practical significance here because

the question before us is purely a legal one.

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property in whole or in part possessed by, or leased to, the United States, or any

department or agency thereof, or any institution or organization receiving Federal

financial assistance, shall be imprisoned for not less than 5 years and not more than

20 years, fined under this title, or both.

The respondent argues that his violation of section 150.10 of the New York

Penal Law does not qualify as an aggravated felony because 18 U.S.C. § 844(i)

deviates from the New York statute in that an essential element of the Federal

crime involves a finding that the property damaged was used in interstate

commerce.3 His claim is that section 150.10 is not “described in” § 844(i),

which is referenced in section 101(a)(43)(E)(i) of the Act, because the

interstate commerce requirement is an essential element of the crime.4

We considered a similar issue in Matter of Vasquez-Muniz, 23 I&N

Dec. 207, 211-12 (BIA 2002). In that case, the respondent was convicted

of “‘possession of a firearm by a felon—one prior’ in violation of section

12021(a)(1) of the California Penal Code.” Id. at 208. The issue was whether

that conviction was “described in” 18 U.S.C. § 922(g)(1) (1994), a provision

listed in section 101(a)(43)(E)(ii) of the Act. Id. If it was, then the conviction

was for an aggravated felony under the Act. We noted that the State and

Federal crimes were “substantially the same,” but the State crime did not

include the final element of the Federal crime—“affecting interstate or foreign

commerce.” Id. at 210. We summarized the interpretative question this way:

[T]he key to the meaning of the Act is to determine whether section 101(a)(43)(E)

encompasses a state crime having no federal jurisdictional element, such as the

respondent’s offense, as a crime “described in” the enumerated federal statutes.

If so, the purely “jurisdictional element” of the federal statute loses its significance

for determining whether the state crime is an aggravated felony.

Id.

We observed that the penultimate sentence in section 101(a)(43) of the Act,

quoted above, had special significance for resolving the question. This

provision was significant because it meant that “the crimes specified are

aggravated felonies regardless of whether they fall within the jurisdiction
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620

of the federal government, a state, or, in certain cases, a foreign country.”

Id. at 211. In order to give meaning to this sentence, we said “it must

render irrelevant any purely jurisdictional element appearing in the crimes

enumerated.” Id. at 212. Noting the rarity of a State crime including a Federal

jurisdictional element, we reasoned that “virtually no state crimes would ever

be included in section 101(a)(43)(E), despite the statute’s language.” Id.

Furthermore, relying on section 241(a)(4)(B)(ii) of the Act, 8 U.S.C.

§ 1231(a)(4)(B)(ii) (Supp. V 1999), we said its exception “for those aliens who

are confined by a state pursuant to a final conviction for an offense described

in section 101(a)(43)(E)” would be superfluous. Id. We made a similar

point regarding foreign offenses because they, too, would rarely “contain

jurisdictional elements similar to those appearing in our federal statutes.” Id.

at 212-13. We also noted that the United States Court of Appeals for the Ninth

Circuit reached the same conclusion in United States v. Castillo-Rivera, 244

F.3d 1020 (9th Cir. 2001). Accordingly, we held that “possession of a firearm

by a felon in violation of section 12021(a)(1) of the California Penal Code,

is ‘described in’ section 101(a)(43)(E)(ii) of the Act, and is an aggravated

felony regardless of whether it contains the federal jurisdictional element

of affecting intestate commerce contained in 18 U.S.C. § 922(g)(1).” Matter

of Vasquez-Muniz, 23 I&N Dec. at 214.

In the respondent’s case the substantive elements of the New York State

arson crime and the Federal arson crime are also “substantially the same.” The

only difference is that the Federal arson crime set forth at § 844(i), like

§ 922(g)(1), has an additional element, which is that the property must

be “used in interstate or foreign commerce or in any activity affecting

interstate or foreign commerce.” This requirement that the property be “used

in interstate or foreign commerce” is a jurisdictional element. Jones

v. United States, 529 U.S. 848 (2000); Russell v. United States, 471 U.S. 858

(1985). Because it is a “jurisdictional element,” our analysis in Matter

of Vasquez-Muniz controls this case.

The respondent’s New York State arson offense is “described in” section

101(a)(43)(E)(i) of the Act because the omission of the Federal jurisdictional

element in § 844(i) from the State statute is not dispositive. The offense

in section 150.10 of the New York Penal Law contains all of the other

substantive elements that are contained in § 844(i), so it is an aggravated

felony under the Act. We see no distinction between the Federal

jurisdictional element in § 844(i) and the Federal jurisdictional element

in § 922(g)(1). Interpreting section 150.10 of the New York Penal Law as not

being “described in” § 844(i) would create the same problems identified

in Matter of Vasquez-Muniz. That is, the penultimate sentence in section

101(a)(43) of the Act would be rendered meaningless, the exception clause
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5 As noted above, the respondent was convicted of attempted arson in the third degree. The

respondent does not argue that there is any difference between attempt under New York law

and Federal law. The Second Circuit has described Federal and New York law regarding

attempt as “virtually identical.” United States v. Celaj, 649 F.3d 162, 170 (2d Cir. 2011).

621

in section 241(a)(4)(B)(ii) would be superfluous, and State (and foreign) arson

crimes would not be covered by section 101(a)(43)(E)(i).

The respondent makes two other arguments in support of his claim that his

conviction is not for an aggravated felony under the Act.5 The first is that

interpreting the New York State crime of arson as an offense described

in 18 U.S.C. § 844(i) “ignores” the Federal jurisdictional element. He relies

on Jones v. United States, 529 U.S. at 859, and its holding “that § 844(i) does

not cover the arson of an owner-occupied dwelling.” We disagree with the

respondent’s interpretation of Jones as it applies to the question whether

a State arson crime is “described in” § 844(i). Jones is relevant to this case

to the extent that its holding makes clear that the phrase “used in interstate

or foreign commerce” is an essential Federal jurisdictional element in § 844(i).

As noted above, the holding in Jones related to the scope of the Federal

criminal statute, not the collateral consequences in an immigration case.

The Supreme Court rejected the Government’s application of § 844(i)

to an owner-occupied dwelling, in part, based upon concerns about the

constitutionality of a Federal crime that would applyto virtually every building

in the country. Id. at 857 (“Were we to adopt the Government’s expansive

interpretation of § 844(i), hardly a building in the land would fall outside the

federal statute’s domain.”). Our decision in this case does not mean that the

Federal jurisdictional element is not important for Federal criminal cases.

On the contrary, we simply conclude, as we did in Matter of Vasquez-Muniz,

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. Nothing

in Jones is contrary to that principle.

The respondent also argues that the term “maliciously,” included in each

Federal provision, requires greater culpability than a specific intent to damage

or destroy property and thus goes beyond the mens rea requirement of the

New York statute. We disagree. The Third Circuit, in whose jurisdiction this

matter arises, has stated that the term “maliciously,” as used in § 844(f)(1),

means “intentionally or with willful disregard of the likelihood that damage

or injury will result.” McFadden v. United States, 814 F.2d 144, 146 (3d Cir.

1987). Other courts of appeals that have considered this issue for § 844(i)

have reached the same conclusion. United States v. Wiktor, 146 F.3d 815, 818

(10th Cir. 1998); United States v. Corona, 108 F.3d 565, 571 (5th Cir. 1997);

United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir. 1996). Because the
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622

term “maliciously” includes destruction of property undertaken intentionally,

the “intentional” mens rea of section 150.10 of the New York Penal Law

is covered by the term “maliciously” in § 844(i). The respondent cites

no contrary precedent in support of his claim.

IV. CONCLUSION

The Immigration Judge properlyconcluded that the respondent’s conviction

under section 150.10 of the New York Penal Law is for an aggravated felony

under section 101(a)(43)(E)(i) of the Act. Pursuant to section 240A(a)(3), the

respondent is therefore ineligible for cancellation of removal. Accordingly, his

appeal will be dismissed.

ORDER: The appeal is dismissed.