2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-27-2014

Robert Bautista v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket 11-3942

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-3942

_____________

ROBERT BAUTISTA,

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_____________

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

(Agency No. A038-509-855)

Immigration Judge: Honorable Walter A. Durling

____________

Submitted Under Third Circuit LAR 34.1(a)

September 20, 2012

______________
2

Before: AMBRO, GREENAWAY, JR., and O’MALLEY,

*

Circuit Judges.

(Opinion Filed: February 28, 2014)

Raymond G. Lahoud, Esq.

Baurkot & Baurkot

227 South 7th Street

Easton, PA 18042

Counsel for Petitioner

Jacob A. Bashyrov, Esq.

Lindsay B. Glauner, Esq.

Eric H. Holder, Jr., Esq.

Thomas W. Hussey, Esq.

Sarah Maloney, Esq.

United States Department of Justice

Office of Immigration Litigation, Civil Division

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Counsel for Respondent

 * Hon. Kathleen M. O’Malley, Circuit Judge, United States 

Court of Appeals for the Federal Circuit, sitting by 

designation.
3

______________

OPINION

______________

GREENAWAY, JR., Circuit Judge.

Petitioner Robert Bautista, a legal permanent resident, 

was ordered removed from the United States by an 

immigration judge (“IJ”). The IJ found him removable 

because he is inadmissible under § 212(a)(2)(A)(i)(I) of the 

Immigration and Nationality Act (“INA”) as an alien 

convicted of a crime involving moral turpitude. 8 U.S.C. 

§ 1182(a)(2)(A)(i)(I). The IJ also found him ineligible for 

cancellation of removal under § 240A(a) of the INA because 

his New York conviction for attempted arson constituted an 

aggravated felony. 8 U.S.C. § 1229b(a). Bautista appealed to 

the Board of Immigration Appeals (“BIA”), which dismissed 

his appeal. The BIA agreed that the arson conviction fell 

within the relevant definition of an aggravated felony under § 

101(a)(43) of the INA. 8 U.S.C. § 1101(a)(43). 

Bautista filed a timely petition for review in this Court. 

We will grant the petition because the New York attempted 

arson conviction is not an aggravated felony in respect to 

collateral immigration consequences under the INA. 

Applying the categorical approach, as we must, the New York 

statute under which Bautista was convicted does not match 

the elements of 18 U.S.C. § 844(i), the corresponding federal 

statute under the INA. 8 U.S.C. § 1101(a)(43)(E)(i). A 

conviction under that New York arson statute cannot qualify 

as an aggravated felony because it lacks the jurisdictional 
4

element of § 844(i), which the Supreme Court has found to be 

a critical and substantive element of that arson offense. We 

vacate the BIA ruling and remand to the BIA for further 

consideration in light of this opinion.

I. BACKGROUND

Bautista is a citizen of the Dominican Republic, where 

he was born in 1974. He was admitted to the United States as 

a legal permanent resident in 1984 and attended school in the 

Bronx. In 1996, he married Yenny Bautista, also a legal 

permanent resident. They have three minor children, all of 

whom are United States citizens. Bautista’s mother is also a 

United States citizen. Bautista owns and operates an 

automobile repair business in Easton, Pennsylvania, with 

seven employees. 

Bautista has two criminal convictions. In 2001, he was 

charged in New Jersey with uttering a forged instrument, in 

violation of the New Jersey Code of Criminal Conduct, N.J. 

Stat. Ann. § 2C:21-1a(3). He pled guilty to that crime in 

2004 and received a sentence of one year of probation. In 

2003, after trial in the Bronx, New York, he was convicted of 

attempted arson in the third degree, in violation of New York 

Penal Law §§ 110 and 150.10. He was sentenced to five

years of probation. 

In 2009, while returning from a trip to the Dominican 

Republic, Bautista was stopped and detained by Customs and 

Border Patrol officials at John F. Kennedy International 

Airport. He was released upon Deferred Inspection status, 

pending a secondary inspection, and, the following spring, the 

Department of Homeland Security instituted removal 
5

proceedings against him based on his inadmissibility under 

§ 212(a)(2)(A)(i)(I) of the INA as an alien convicted of a 

crime involving moral turpitude. 8 U.S.C. § 

1182(a)(2)(A)(i)(I). At a hearing before the IJ, Bautista 

admitted that he was convicted of attempted arson, and the IJ 

determined that he was inadmissible. 

At an immigration hearing on April 8, 2010, Bautista 

applied for cancellation of removal but the Government 

moved to pretermit the application on the ground that his 

attempted arson conviction counts as an aggravated felony 

under § 101(a)(43)(E) of the INA, making him ineligible for 

cancellation under § 240A(a)(3) of the INA. Bautista also 

applied for a waiver of inadmissibility under § 212(h) of the 

INA, which the Government also moved to pretermit based 

on the attempted arson conviction. 8 U.S.C. § 1182(h). The 

IJ initially denied the Government’s motions but granted 

them after the Government filed motions for reconsideration. 

On February 8, 2011, the IJ ordered Bautista removed.

Bautista appealed only the cancellation of removal 

issue to the BIA. He argued that his attempted arson 

conviction was not an aggravated felony described in 

§ 101(a)(43)(E)(i) of the INA, which lists arson offenses 

under federal law. 8 U.S.C. § 1101(a)(43)(E)(i). The 

penultimate sentence of § 101(a)(43) explains that an 

aggravated felony is “an offense described in this paragraph 

whether in violation of Federal or State law.” 8 U.S.C. § 

1101(a)(43). Bautista argued that, because the New York 

statute under which he was convicted does not require that the 

object of the arson be used in interstate commerce, as the 

corresponding federal statute does, his New York conviction 
6

was not one “described in” the aggravated felony definition of 

§ 101(a)(43)(E)(i). 

On October 13, 2011, the BIA rejected this argument. 

Bautista asks this Court to review the BIA decision, renewing 

his argument that the absence of the federal jurisdictional 

element in the New York arson statute exempts it from the 

§ 101(a)(43)(E)(i) definition of an aggravated felony. For the 

following reasons, we will grant Bautista’s petition. 

II. JURISDICTION AND STANDARD OF REVIEW

The BIA had jurisdiction under 8 C.F.R. §§ 

1003.1(b)(3) and 1240.15 and we have jurisdiction to review 

the BIA’s final order of removal under 8 U.S.C. § 1252(a)(1). 

Where, as here, the BIA issues a written decision on 

the merits, we review its decision and not the decision of the 

IJ. Catwell v. Att’y Gen., 623 F.3d 199, 205 (3d Cir. 2010). 

Because the basis for Bautista’s removal is a 

conviction for a crime involving moral turpitude, the REAL 

ID Act limits our jurisdiction to “constitutional claims or 

questions of law”. 8 U.S.C. § 1252(a)(2)(D); see Catwell v. 

Attorney Gen. of U.S., 623 F.3d 199, 205 (3d Cir. 2010)

(noting limited jurisdiction to review removal orders based on 

aggravated felony convictions). We review legal 

determinations made by the BIA de novo, subject to the 

principles of deference articulated in Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). 

See Catwell, 623 F.3d at 205. 
7

III. ANALYSIS

In reviewing an agency decision, we must give 

deference to a reasonable agency interpretation of a statute 

unless that interpretation is inconsistent with a clearly 

expressed congressional intent. Chevron, 467 U.S. at 842-44. 

A statute cannot be deemed ambiguous, however, until the 

court exhausts the aid of “traditional tools of statutory 

construction.” Chevron, 467 U.S. at 843 n.9. Here, we find 

that the BIA’s construction with respect to the classification 

of state convictions as aggravated felonies under 

§ 101(a)(43)(E)(i) is inconsistent with Congress’s expressed 

intent.

Our dissenting colleague observes that the statute is “at 

best ambiguous” by the virtue of our disagreement over the 

construction of the statute. While we sympathize with this 

view, not every difficult question of statutory construction 

amounts to a statutory gap for a federal agency to fill. The 

Supreme Court’s Chevron jurisprudence is replete with 

instances where disagreements in the lower courts did not 

prevent the Court from discerning Congressional intent from

complex statutory provisions. See, e.g., Food & Drug Admin.

v. Brown & Williamson Tobacco, 529 U.S. 120 (2000)

(holding that Congress had expressed an intention on the 

precise question of whether the FDA could regulate tobacco

notwithstanding numerous cases in which the courts of appeal 

had found ambiguity in closely related statutory language); 

N.L.R.B. v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 

580 (1994) (holding that “the Board’s test is inconsistent with 

both the statutory language and th[e] Court’s precedents”). 

To conclude otherwise would be to find that every time there 

is a disagreement about statutory construction, we accord 
8

deference to agencies. This is not what Chevron instructs us 

to do.

1

 

In light of our forthcoming discussion, we find here 

that Congress has spoken with sufficient clarity to make

deference inappropriate. 

A. Statutory Construction of § 101(a)(43) of the INA

Bautista applied for cancellation of removal under the 

INA, which is only available to an alien who “has not been 

convicted of any aggravated felony.” 8 U.S.C. § 1229b. An 

“aggravated felony” is defined by § 101(a)(43) of the INA, 

which enumerates a number of offenses that qualify as 

aggravated felonies. 8 U.S.C. § 1101(a)(43). Primarily, 

 1 Consider Immigration & Naturalization Serv. v. CardozaFonseca, 480 U.S. 421 (1987). In that case, the Supreme 

Court was tasked with deciding whether the plain meaning of 

the statutory language indicated a congressional intent that 

the proof standards under §§ 208(a) and 243(h) of the INA

should differ. The Court engaged in an extensive 

investigation into the structure and the legislative history of 

the statute and concluded that Congress did not intend the two 

standards to be identical. This conclusion was reached 

notwithstanding that dissenting Justices found the statute to 

be “far more ambiguous than the Court [did].” 480 U.S. at 

459 (Powell, J., dissenting). In doing so, the CardozaFonseca Court pronounced that “[t]he question whether 

Congress intended the [proof standards under §§ 208(a) and 

243(h) of the INA] to be identical is a pure question of 

statutory construction for the courts to decide.” CardozaFonseca, 480 U.S. at 446.
9

interpretation of § 101(a)(43) revolves around three features 

of the statute’s structure: its references to a category of 

aggravated felonies with generic offenses or federal statutes, 

its usage of “described in” or “defined in” when utilizing 

federal statutes, and its penultimate sentence.2

Due to the wide structural and linguistic variation 

among state statutes that criminalize the same type of 

conduct, § 101(a)(43) references some aggravated felonies 

with their generic offense, such as “murder” or “theft”, while 

it references other aggravated felonies with a specific federal 

criminal statute, such as 18 U.S.C. § 922(g)(1) (for possession 

of a weapon by a felon) or 18 U.S.C. § 844(i) (for arson). 

When referencing a specific federal statute, the INA does so 

in two ways: It either deems that an aggravated felony is an 

offense “described in” a federal statute or that an aggravated 

felony includes criminal conduct “defined in” a federal 

statute. For example, § 101(a)(43)(E)(i) covers any offense 

“described in” 18 U.S.C. § 844(i). 

We must assume that Congress intended some 

meaning through its use of “described in” versus “defined in” 

and this intention can be inferred by observing the pattern of 

§ 101(a)(43) and the federal statutes that it references. See 

Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here 

Congress includes particular language in one section of a 

statute but omits it in another section of the same Act, it is 

 2 We refer to a “generic” offense as an offense described by 

its “commonly understood” elements, such as “burglary” or 

“theft”, rather than by the elements of a particular federal or 

state statute. Descamps v. United States, 133 S. Ct. 2276, 

2281 (2013); see Nijhawan v. Holder, 557 U.S. 29, 37 (2013).
10

generally presumed that Congress acts intentionally and 

purposely in the disparate inclusion or exclusion” (alteration

in original) (internal quotation marks omitted)). Section 

101(a)(43) uses “defined in” when the reference to a federal 

statute is preceded by criminal conduct terms, such as “illicit 

trafficking of drugs” or “crime of violence”, which Congress 

has chosen to define by reference to a federal statute. In these 

“defined in” subsections of § 101(a)(43), the state conviction 

need not be punishable under that federal statute but need 

only include the listed criminal conduct, as it is “defined” by 

the federal statute. This elicits a sensible interpretation of 

legislative intent when observing that the federal statutes 

following the “defined in” phrasing are the definitional

sections of criminal statutes or sections that explicitly define

the listed criminal conduct. See 8 U.S.C. § 1101(a)(43)(B) 

(referencing 21 U.S.C. § 802, a “Definitions” section, which 

defines “controlled substance”); id. (referencing 18 U.S.C. § 

924, which defines “drug trafficking crime” in § 924(c)(2)); 8 

U.S.C. § 1101(a)(43)(C) (referencing 18 U.S.C. § 921, a 

“Definitions” section, which defines “destructive devices”); 

id. (referencing 18 U.S.C. § 841(c), another “Definitions” 

section, which defines “explosive materials”); 8 U.S.C. 

§ 1101(a)(43)(F) (referencing 18 U.S.C. § 16, entitled “Crime 

of violence defined”, which defines “crime of violence”). 

In contrast, Congress employs “described in” to 

classify a state conviction as an aggravated felony when an 

offense would be punishable under a federal statute because 

the conduct or state statute of the conviction encompasses the 

same elements as a federal statute. These federal statutes are 

not definitional but, rather, describe a specific type of offense. 

See, e.g., 8 U.S.C. § 1101(a)(43)(E), (H)-(J), (L). In drafting 

§ 101(a)(43), Congress often grouped several federal criminal 
11

statutes of like kind together in order to achieve any desired 

breadth in scope, which would serve to describe the targeted 

offenses under a more generic category. See, e.g., 8 U.S.C. § 

1101(a)(43)(E)(i) (grouping 18 U.S.C. §§ 842(h), (i), 844(d)-

(i) together as crimes “relating to explosive materials 

offenses”).

Lastly, § 101(a)(43) includes a penultimate sentence 

that clarifies the relationship of state convictions to the 

overall statutory scheme of § 101(a)(43). The penultimate 

sentence reads as follows:

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. 

Id. (emphasis added). By adding this sentence, Congress 

expressed its intention that both state and federal offenses 

may serve as aggravated felonies under § 101(a)(43). As the 

Supreme Court explained, the penultimate sentence “has two 

perfectly straightforward jobs to do: it provides that a generic 

description . . . covers either [a state or federal conviction], 

and it confirms that a state offense whose elements include 

the elements of a felony punishable under the [referenced 

federal statute] is an aggravated felony.” Lopez v. Gonzalez, 

549 U.S. 47, 57 (2006).

Pertinent to our inquiry, § 101(a)(43)(E)(i) lists as 

aggravated felonies the offenses described in “section 842(h) 
12

or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of 

that title (relating to explosive materials offenses).” 8 U.S.C. 

§ 1101(a)(43)(E)(i). Of those offenses, the one that most 

closely corresponds to Bautista’s conviction is 18 U.S.C. § 

844(i). That statute states 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.

Id. (emphasis added). 

Bautista was convicted of attempted arson in the third 

degree, in violation of New York Penal Law §§ 110 and

150.10. Section 150.10 states that “[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.” N.Y. Penal Law § 150.10. Section 110 is the

general attempt provision. N.Y. Penal Law § 110. Bautista 

does not dispute that the New York statute and the federal 

statute contain three identical, substantive elements: 1) 

damaging a building or vehicle, 2) intentionally, 3) by using 

fire or explosives. The Government does not dispute that the 

jurisdictional element of § 844(i), requiring that the object of 

arson be “used in interstate or foreign commerce or in any 

activity affecting interstate or foreign commerce,” is not 

contained in the New York statute. What Bautista urges is 
13

that the jurisdictional element is also a substantive element 

and, consequently, that his conviction cannot qualify as an 

aggravated felony. 

Based on the opinions of several of our sister circuits, 

the Government argues that this jurisdictional element is not 

substantive and, therefore, is not an element describing an 

offense under § 844(i). See Nieto Hernandez v. Holder, 592 

F.3d 681, 685-86 (5th Cir. 2009) (analyzing § 922(g)(1) 

under § 101(a)(43)(E)(ii)); Negrete-Rodriguez v. Mukasey, 

518 F.3d 497, 501-03 (7th Cir. 2008) (same); United States v. 

Castillo-Rivera, 244 F.3d 1020, 1023-24 (9th Cir. 2001)

(same); see also Spacek v. Holder, 688 F.3d 536, 538-39 (8th 

Cir. 2012) (following the Ninth, Seventh, and Fifth Circuits in 

analyzing 18 U.S.C. § 1962 under § 101(a)(43)(J)).

While Bautista’s argument has been rejected by 

several of our sister circuits in regard to offenses described in 

§ 922(g)(1), we find it congruous with the structure of the 

INA and Supreme Court precedent regarding § 844(i). Cf. 

Maislin Industries v. Primary Steel, Inc., et al., 497 U.S. 116, 

131 (1990) (“Once we have determined a statute’s clear

meaning, we adhere to that determination under the doctrine

of stare decisis, and we judge an agency’s later interpretation

of the statute against our prior determination of the statute’s

meaning.”). 

B. Use of the Categorical Approach

In order to determine whether a state conviction is an 

aggravated felony within the meaning of § 101(a)(43), we 

generally compare the elements provided by the federal law 

to the conduct and state statute of conviction, as set forth by 
14

the Supreme Court in Taylor v. United States, 495 U.S. 575, 

601 (1990). See Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-

85 (2013); Aguilar v. Att’y Gen., 663 F.3d 692, 695 (3d Cir. 

2011). In employing this “categorical approach”, we 

essentially assess whether the state statute and the conduct 

actually punished by the conviction amounts to a felony 

punishable under the corresponding federal statute. 

Carachuri-Rosendo v. Holder, 130 S. Ct. 2577, 2588 (2010)

(explaining that the categorical approach determines whether 

“the state offense . . . is ‘punishable as a felony under federal 

law’” (quoting Lopez v. Gonzales, 549 U.S. at 60)); see 

Catwell, 623 F.3d at 206 n.11; Aguilar, 663 F.3d at 695. As 

such, the purpose of the categorical approach is to sort out 

which state offenses are properly included within the 

substance of a federal statute or generic offense and which are 

not. 

The categorical approach is usually undertaken as a 

“formal categorical approach”, which strictly requires us to 

“look to the elements of the statutory state offense, not to the 

specific facts [of the case], reading the applicable statute to 

ascertain the least culpable conduct necessary to sustain 

conviction under the statute.” Aguilar, 663 F.3d at 695 

(quoting Denis v. Att’y Gen., 633 F.3d 201, 206 (3d Cir. 

2011)); Borrome v. Att’y Gen., 687 F.3d 150, 155 (3d Cir. 

2012). In certain, limited circumstances, a “modified 

categorical approach” may be appropriate, where a state 

statute “contain[s] several different crimes, each described 

separately.” Moncrieffe, 133 S. Ct. at 1684; Descamps v. 

United States, 133 S. Ct. 2276, 2284-85 (2013) (limiting the 

modified categorical approach to statutes that create 

alternative crimes by including disjunctive elements); see also 

Taylor, 495 U.S. at 600-01; Denis, 633 F.3d at 206. In such a 
15

case, “a court may determine which particular offense the 

noncitizen was convicted of by examining” a limited set of 

documents from the record of conviction. Moncrieffe, 133 S. 

Ct. at 1684. However, the modified categorical approach 

“acts not as an exception, but instead as a tool” to the 

implementation of the categorical approach, and it “retains 

the categorical approach’s basic method: comparing [the 

conviction’s] elements with the generic offense’s.” 

Descamps, 133 S. Ct. at 2285. This approach, therefore, does 

not invite inquiry into the facts underlying the conviction. Id.

Here, we are not faced with one of those narrow 

circumstances and, so, we limit our inquiry to the formal 

categorical approach.3

 The New York arson statute does not 

describe multiple crimes with alternative elements, but only 

describes a single crime with a single set of indivisible 

elements. Descamps, 133 S. Ct. at 2285.

By its design, application of the categorical approach 

depends upon the substantive nature of the offense. For 

instance, the categorical approach for illicit drug trafficking 

under § 101(a)(43)(B) takes into account different 

 3 In Nijhawan v. Holder, 557 U.S. 29, 36 (2009), the Supreme 

Court broke from the categorical approach and engaged in a 

“circumstance-specific approach”. We do not venture down 

such a path since the Supreme Court limited such an approach 

to subsections of § 101(a)(43) that include “in which” 

requirements written directly into the INA by Congress. Id. 

at 38-40. In the subsection at issue here, § 101(a)(43)(E)(i), 

the jurisdictional element is not written directly into the INA 

by Congress but resides as an element in the enumerated 

federal criminal statutes. See Moncrieffe, 133 S. Ct. at 1691.
16

considerations than the categorical approach for possession of 

a firearm by a felon under § 101(a)(43)(E)(ii); under § 

101(a)(43)(B), it matters whether the state statute includes a 

trafficking element, whether the state statute criminalizes a 

sufficiently large quantity of drugs, and whether remuneration 

is required. See Moncrieffe, 133 S. Ct. at 1685-86; see, e.g., 

Catwell, 623 F.3d at 206-07. Or, with crimes of violence 

under § 101(a)(43)(F), it matters whether the state conviction 

punishes the proper level of mens rea. See, e.g., Aguilar, 663 

F.3d at 695-700. For this reason, the rationale that our sister 

circuits have developed in applying the categorical approach 

to § 922(g)(1) under § 101(a)(43)(E)(ii) has limited import to 

our categorical approach to § 844(i) under § 101(a)(43)(E)(i). 

Thus, while both § 922(g)(1) and § 844(i) fall under the same 

subsection, § 101(a)(43)(E), they are still distinct categories 

of aggravated felonies and that distinction bears on the 

application of the subsection.

In following the rationale of our sister circuits, the BIA 

removed the jurisdictional element from its categorical 

approach analysis and ruled that Bautista’s conviction was an 

aggravated felony because all the “substantive” elements of 

the New York attempted arson offense corresponded to the 

substantive elements of § 844(i). Bautista, 25 I. & N. Dec. 

616, 619-21 (BIA 2011). Analyzing the language of § 

101(a)(43), the BIA concluded that the penultimate sentence 

makes clear that “‘the crimes specified are aggravated 

felonies regardless of whether they fall within the jurisdiction 

of the federal government, a state, or, in certain cases, a 

foreign country.’” Id. at 619-20 (quoting Vasquez-Muniz, 23 

I. & N. Dec. 207, 210 (BIA 2002)). The BIA’s decision 

relied in substantial part on its previous interpretation of § 

101(a)(43)(E) in In re Vasquez-Muniz, 23 I. & N. Dec. 207 
17

(BIA 2002). In that decision, the BIA decided that conviction 

for possession of a firearm by a felon under California law 

was an offense “described in” § 922(g)(1) under § 

101(a)(43)(E)(ii) even though the California statute lacked the 

jurisdictional element of § 922(g)(1). Id. at 208. In VasquezMuniz, the BIA determined that the jurisdictional element of 

§ 922(g)(1) was not integral to the categorical approach 

analysis because the language in the penultimate sentence of 

§ 101(a)(43) confirmed that “the [state] crimes specified are 

aggravated felonies regardless of whether they fall within the 

jurisdiction of the federal government [or] a state.” Id. at 

211. The Vasquez-Muniz decision went on to posit that “if 

state crimes must include a federal jurisdictional element in 

order to be classified as aggravated felonies, then virtually no 

state crimes would ever be included in section 101(a)(43)(E), 

despite the statute’s language to the contrary.” Id. Based on 

Vasquez-Muniz, the BIA in this case reasoned that, if the 

absence of the jurisdictional element were allowed to remove 

state convictions from the aggravated felony category, state 

convictions would rarely, if ever, qualify as aggravated 

felonies. Bautista, 25 I. & N. Dec. at 620. 

The rationale of the BIA follows that of our three sister 

circuits, all of which have interpreted § 101(a)(43)(E) in the § 

922(g)(1) context. See Nieto Hernandez v. Holder, 592 F.3d 

681, 685 (5th Cir. 2009) (finding 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 surplusage,’ a jurisdictional element does little more 
18

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); United States v. Castillo-Rivera, 244 F.3d 

1020, 1023-24 (9th Cir. 2001) (holding that the interstate 

commerce element is “‘merely a jurisdictional basis’” and, 

therefore, finding the state offense to be an aggravated 

felony).4

 

In ascribing legislative intent to the phrasing of §

101(a)(43)(E), our sister circuits have posited that the use of 

“described in”, which each asserts is broader than “defined 

in”, can reach conduct beyond the bare elements of the 

federal statutes to which they are tied. See Castillo-Rivera, 

244 F.3d at 1023. As a result, these circuits have concluded 

that Congress intended for the “described in” categories to be 

broad enough to encompass state statutes that do not include 

the jurisdictional element of the federal statute cognate. 

Because the Seventh, Fifth, and Eighth Circuits followed the 

Ninth Circuit’s reasoning in Castillo-Rivera, a discussion of 

the Ninth Circuit’s opinion suffices to examine the rationale 

of our sister circuits.

In Castillo-Rivera, an illegal reentry case involving a 

Sentencing Guidelines enhancement, the Ninth Circuit ruled 

that the appellant’s state conviction did not need a 

jurisdictional element to qualify as an aggravated felony 

under § 101(a)(43)(E)(ii). 244 F.3d at 1023-24. Based on the 

penultimate sentence of § 101(a)(43) and the deliberate use of 

 4 The fourth of our sister circuits, the Eighth Circuit, applied 

the same rationale to 18 U.S.C. § 1962 under § 101(a)(43)(J). 

Spacek, 688 F.3d at 538.
19

“described in”, the Ninth Circuit presumed that Congress 

desired that the aggravated felony categories include more 

than a negligible amount of state convictions. Id. at 1023. 

The Ninth Circuit reasoned that the penultimate sentence of 

§ 101(a)(43), which emphasizes that aggravated felonies can 

be “in violation of Federal or State law,” plainly indicated 

that Congress intended for state convictions to count as 

aggravated felonies; the fact that only a minute number of 

state criminal statutes have a jurisdictional element further 

convinced the Ninth Circuit that Congress must not have 

intended for the jurisdictional element of federal statutes to 

hamper Taylor’s categorical approach. Id. at 1023-24. 

Second, meaning was read into Congress’s decision to use 

“defined in” for some aggravated felony subcategories and 

“described in” for others. Id. at 1023. The Ninth Circuit 

reasoned that the use of “described in” was a deliberate 

choice by Congress to capture more than a handful of state 

convictions within § 101(a)(43)(E). Lastly, relying on United 

States v. Lopez, 514 U.S. 549 (1995), the Ninth Circuit 

determined that the jurisdictional element was simply a 

jurisdictional requirement detached from the substantive 

nature of the offense, included only to confer Congress with 

the authority to pass federal statutes. Id. at 1024.

We agree with our sister circuits that the penultimate 

sentence conveys Congress’s intent to qualify more than a 

negligible number of state convictions as aggravated felonies. 

We do not find, however, that the structure of § 101(a)(43)(E) 

evidences Congress’s intent to accomplish that objective 

through the use of “described in” rather than “defined in” as a 

means to always discard jurisdictional elements of federal 

felonies for the purposes of § 101(a)(43)(E). If Congress had 

intended to exclude the jurisdictional element of all federal 
20

statutes from the categorical approach analysis, it could 

simply have included a different penultimate sentence stating 

that jurisdictional elements should be ignored, as it clearly 

expressed its directives regarding specific subsections

elsewhere in § 101(a)(43). See, e.g., 8 U.S.C. § 

1101(a)(43)(D), (M)(i) (setting monetary thresholds for these 

subsections); id. § 1101(a)(43)(F) (excluding “purely political 

offense[s]” under this subsection); id. § 1101(a)(43)(J) 

(directing that an offense described in 18 U.S.C. § 1084 only 

qualifies under this subsection “if it is a second or subsequent 

offense”); id. (setting imprisonment at one year or more to 

qualify under this subsection). 

Congress also could have defined the offenses 

embodied in the federal statutes by their generic names rather 

than by specific statutes, as it also did elsewhere in 

§ 101(a)(43). For instance, in the case of § 844(i), it could 

have simply left the category open to all explosive materials 

offenses or at least to all acts of arson. But it did not make 

such a generic reference: It referred to arson that included a 

sufficient relationship to interstate commerce. We must 

assume that Congress was aware of the limits imposed by the 

Commerce Clause on the reach of the statutes it passes and 

that it restricted the breadth of § 101(a)(43)(E) with the

substantive constraints of the included jurisdictional elements 

in mind. See United States v. Am. Bldg. Maint. Indus., 422 

U.S. 271, 279-80 (1975) (comparing Congress’s use of “in 

commerce” versus “affected commerce” to show that 

Congress is aware of its Commerce Clause power and the 

extent to which it asserts that power in drafting statutes). In 

some circumstances, the jurisdictional element may be the 

most meaningful and differentiating element, since it is what 

distinguishes generic arson from the arson described by § 
21

844(i), thereby evincing Congress’s intent in selecting § 

844(i) rather than generic arson.5

 

C. The Jurisdictional Element of 18 U.S.C. § 844(i)

Unlike our sister circuits’ precedent in the § 922(g)(1) 

context, the Supreme Court has explained that the 

jurisdictional element of § 844(i) substantially narrows the 

range of arson criminalized therein. In Jones v. United States, 

529 U.S. 848 (2000), the Supreme Court paid particular 

attention to the significance of the jurisdictional element of 

the statute. In Jones, the petitioner had been convicted under 

§ 844(i) for tossing a Molotov cocktail into his cousin’s 

house. The Supreme Court overturned his conviction, 

holding that the house did not satisfy the jurisdictional 

element of § 844(i) because it did not have a sufficient nexus 

with interstate commerce. The Court reasoned that Congress 

intended for the “used in interstate commerce” language of § 

844(i) to require that the object of an arson be used actively, 

rather than passively, in commerce. Id. at 855-56. The fact 

that the cousin’s house was fed by natural gas used in 

interstate commerce, was mortgaged with a loan used in 

 5 The Dissent agrees with the Seventh Circuit’s reasoning in 

Negrette-Rodriguez that Congress did not need to define 

arson generically to achieve a scope broader than the mere 

elements of § 844(i). This is problematic for two reasons. 

First, this strips the meaning from Congress’s deliberate 

choice to define some aggravated felonies by generic offenses 

and others by federal criminal statutes. Second, this suggests 

that defining an aggravated felony by a specific federal statute 

is equivalent to defining it with a generic criminal offense —

such logic contradicts itself.
22

interstate commerce, and was used to obtain a casualty 

insurance policy used in interstate commerce, were not 

sufficiently active uses in commerce. Id. A house used as a 

rental property, on the other hand, would be used actively in 

interstate commerce. Id. at 853 (citing Russell v. United 

States, 471 U.S. 858, 859, 862 (1985)). 

The Court surmised that reading the jurisdictional 

element too loosely would render the statute far too broad 

since every building has some indirect connection to 

interstate commerce. 529 U.S. at 859 (“We conclude that § 

844(i) is not soundly read to make virtually every arson in the 

country a federal offense.”); see also Russell, 471 U.S. at 862 

(“In sum, the legislative history [of § 844(i)] suggests that 

Congress at least intended to protect all business property, as 

well as some additional property that might not fit that 

description, but perhaps not every private home.”). The 

Court did not winnow the reach of § 844(i) because a looser 

interpretation would exceed Congress’s Commerce Clause 

power but, rather, because such an expansive interpretation of 

§ 844(i) would render Congress’s deliberate wording of “used 

in” superfluous and meaningless and would not observe the 

rule of lenity, where criminal statutes are to be read in the 

most lenient fashion available.6 529 U.S. at 857-58.

The BIA addressed Jones in its decision, largely 

declaring it inapplicable to the collateral immigration 

consequences context. Bautista, 25 I. & N. Dec. at 620-21. 

 6 However, the Court recognized that its limited reading of § 

844(i) would also avoid the constitutional question addressed 

in United States v. Lopez regarding the regulation of local 

criminal activity. See Jones, 529 U.S. at 851.
23

The BIA concluded that, in respect to § 101(a)(43)(E), Jones

established that the jurisdictional element is “an essential 

Federal jurisdictional element” and nothing more because the 

Supreme Court did not extend its holding to collateral 

immigration consequences. Id. Here, the BIA’s treatment of 

Jones is in error. Like Jones, Taylor was not an immigration 

case and did not explicitly extend its holding to collateral 

immigration consequences, yet its categorical approach is 

indisputably binding precedent in immigration cases such as 

this. 495 U.S. at 577-78 (introducing the issue in the case as 

the applicability of a sentencing enhancement for burglary). 

The Dissent swiftly dispatches Jones by discounting it

as a federalism ruling to prevent Congress from encroaching 

on the power of the states. The Dissent’s position implies 

that federal criminal statutes should assume different 

meanings depending on the use and context of a statute. The 

Dissent’s reasoning suggests that, in prosecuting a defendant 

under § 844(i), § 844(i) retains a jurisdictional element but, in 

removing an alien under the INA, the jurisdictional element 

of § 844(i) disappears. This seems contrary to the reason why 

Congress chose to define some categories of aggravated 

felonies by reference to federal criminal statutes: It is because 

federal criminal statutes have fixed meanings, that they make

stable and reliable reference points for establishing categories 

of offenses.

Under Jones, it matters to the categorical approach 

under § 101(a)(43)(E)(i) whether the object of the arson has a 

sufficient nexus with interstate commerce — it does more 

than provide a jurisdictional hook for Congress. Accordingly, 

a state arson conviction will only be “described in”, and 

punishable under § 844(i), if the state statute includes an 
24

element requiring that the object of the arson be actively used 

in interstate commerce. Thus, Bautista’s conviction is not an 

aggravated felony under the formal categorical approach 

because the New York statute lacks the jurisdictional element 

that Jones held to be a substantive and substantial element of 

§ 844(i). 

We cannot undermine the categorical approach and 

Congress’s deliberate choice to include § 844(i), rather than 

generic arson, in § 101(a)(43)(E)(i). Further, were we to 

ignore the jurisdictional element in our categorical approach 

to § 844(i), as the BIA has here, we would be characterizing a 

state conviction for arson of the intrastate house in Jones as 

an aggravated felony “described in” § 844(i), when the 

Supreme Court clearly excised the arson of such intrastate 

objects from the scope of that federal statute. We are loath to 

suggest that Congress would use a federal statute, like § 

844(i), to “describe” offenses outside the parameter of that 

very federal statute without an unequivocal indication that it 

was doing something so counterintuitive. See Lopez v. 

Gonzales, 549 U.S. at 58, 59 (“[I]t would have been passing 

strange for Congress to intend [that federal consequences of 

state crimes would vary by state] when a state criminal 

classification is at odds with a federal provision that the INA 

expressly provides as a specific example of an ‘aggravated 

felony’ [like § 924(c)].”); id. at 54-55 (“Congress can define 

an aggravated felony . . . in an unexpected way. But 

Congress would need to tell us so, and there are good reasons

to think it was doing no such thing here.”). 7

 7 It is also worth mentioning that the penultimate sentence of 

§ 101(a)(43) uses the same “described in” phrasing. 8 U.S.C. 

§ 1101(a)(43) (“The term applies to an offense described in 
25

On these grounds, we decline to apply our sister 

circuits’ reasoning from the § 922(g)(1) context to the § 

844(i) context. Specifically, we find that, even if we accept 

our sister circuits’ application of the categorical approach to § 

922(g)(1), that approach cannot survive the Supreme Court’s 

understanding of the jurisdictional element of § 844(i) in 

Jones. In light of Jones and the language of § 

101(a)(43)(E)(i), we can find no principled basis for reading 

the jurisdictional element out of § 844(i). The bottom line is 

that § 844(i) does not describe generic arson or common law 

arson, but arson that involves interstate commerce. 

D. The Jurisdictional Aspects of the Offenses 

Enumerated in § 101(a)(43) Must Be Considered 

Separately

We recognize that the salience of a jurisdictional 

element and its requisite interstate commerce nexus may vary

depending on the substantive nature of the offense at hand. 

As the Supreme Court made clear in Jones, not all arson has a 

nexus with interstate commerce sufficient for it to be 

categorized as a federal offense. Under § 844(i), the 

jurisdictional element has a meaningful narrowing effect on 

the range of arson criminalized, excluding categories of arson 

that have no more than an insubstantial effect on interstate 

commerce — such as arson involving virtually all private 

residences employed for personal use. Consequently, by 

 

this paragraph whether in violation of Federal or State law . . . 

.”) (emphasis added). Clearly, “described in”, as used in the 

penultimate sentence, means the actual conduct enumerated 

in § 101(a)(43), rather than conduct not directly referenced in 

the subsection.
26

referring to § 844(i) in § 101(a)(43)(E)(i), rather than generic 

arson, Congress deliberately narrowed the range of arson that 

qualifies as an aggravated felony and we must not expand that 

range by ignoring the jurisdictional element in the categorical 

approach.

That this narrows the number of state convictions 

falling under the umbra of § 101(a)(43)(E)(i) is of little 

moment to our determination. See Moncrieffe, 133 S. Ct. at 

1692-93 (concluding that the dearth of state convictions 

captured under its interpretation of § 101(a)(43)(B) did not 

undermine its interpretation). But see Nijhawan v. Holder, 

557 U.S. 29, 39-40 (2013) (finding its interpretation of § 

101(a)(43)(M)(i) controlled by the absence of a monetary 

threshold requirement in federal and state fraud statutes).8

We also do not find it persuasive that the Eighth 

Circuit has extended our sister circuits’ § 922(g)(1) rationale

to the § 1962 racketeering context under § 101(a)(43)(J). See 

Spacek, 688 F.3d at 538-39. With respect to the Eighth 

Circuit’s conclusion that all “jurisdictional” provisions may 

be disregarded when applying § 101(a)(43)(J), Jones makes 

 8 Significantly, our holding that a conviction under N.Y. 

Penal Law § 150.10 does not constitute an aggravated felony 

does not mean that Bautista will escape deportation. “It 

means only avoiding mandatory removal.” Moncrieffe, 133 

S. Ct. at 1692 (emphasis added). Bautista has conceded his 

removability for committing a crime involving moral 

turpitude, and now will be eligible to apply for cancellation of 

removal under § 240A of the INA, which is a discretionary 

determination undertaken by the IJ.
27

clear that all elements of the offense described in § 844(i) are 

relevant to the scope of covered state arson offenses under 

§ 101(a)(43)(E)(i), including those elements that may be 

characterized as “jurisdictional”.

E. Other Considerations Compel This Result

There are several other reasons why our approach to 

the § 101(a)(43) inquiry is the appropriate one in the context 

of arson convictions. First, our position is one that remains 

most faithful to the overarching policy of the INA —

uniformity. See Taylor, 495 U.S. at 590-92, 599-600 

(determining that Congress used “uniform, categorical 

definitions to capture all offenses of a certain level of 

seriousness . . . regardless of technical definitions and labels 

under state law”); Gerbier v. Holmes, 280 F.3d 297, 312 (3d 

Cir. 2002) (commenting that national uniformity would be 

undermined if “aliens convicted of drug offenses in different 

states that punish similar offenses differently [were] treated 

differently with respect to deportation and cancellation”). A 

collateral immigration consequence based upon a state 

criminal conviction should not depend on whether and how 

individual states choose to criminalize and codify offensive 

conduct — it should depend on whether the state conviction 

satisfies the elements of the pertinent federal criminal statute 

listed in § 101(a)(43). See Taylor, 495 U.S. at 590 (“It seems 

to us to be implausible that Congress intended a [categorical 

definition of a crime] to depend on the definition adopted by 

the State of conviction.”); Lopez v. Gonzales, 549 U.S. at 58-

59 (remarking about the “untoward consequences” that would 

ensue if the law of alien removal was “dependent on varying 

state criminal classifications . . . when Congress has 
28

apparently pegged the immigration statutes to the 

classifications Congress itself chose”). 

Next, our interpretation of § 101(a)(43) comports best 

with the other federal criminal statutes set out in §101(a)(43). 

A survey of these statutes reveals that the jurisdictional 

elements used in federal criminal statutes are not generic or 

uniform — the jurisdictional element, as an element of the 

crime, may reflect the conduct targeted by the statute or 

reflect the intent of Congress in criminalizing such conduct. 

To provide one example, when § 101(a)(43)(E)(i) refers to an 

“offense described in” 18 U.S.C. § 844(g), it is targeting 

explosives possessed in airports regulated by the Federal 

Aviation Administration (“FAA”) and property controlled by 

the federal government. Mention of the FAA is not included 

simply to provide a jurisdictional hook such that the 

possession of explosives in any airport should be considered 

an aggravated felony. Or, to provide another example, when 

§ 101(a)(43)(H) refers to an offense described in 18 U.S.C. § 

876, it is specifically targeting threatening communications 

sent through the U.S. Postal Service — that is not merely a 

jurisdictional hook in order to target mail threats generally. 

Or, consider § 101(a)(43)(M)(ii), which refers to an offense 

described in 26 U.S.C. § 7201 — the reference to the federal 

tax code is not merely a jurisdictional hook to target tax 

evasion generally, be it against the federal government or 

state governments. 

Congress hand-picked which specific federal criminal 

statutes it would include in § 101(a)(43) and we must give 

due weight to such deliberate choices. See Lopez v. Gonzales, 

549 U.S. at 58 (“We cannot imagine that Congress took the 

trouble to incorporate its own statutory scheme . . . if it meant 

[for] courts to ignore it whenever a State chose to punish a 
29

given act more heavily.”); Moncrieffe, 133 S. Ct. at 1689 

(calling it an “anomaly” to have courts “ignore the very 

factors” distinguishing the statutes that Congress has 

established to designate aggravated felonies).

It would seem anomalous to disregard the explicit 

requirement that there be a nexus with the FAA, the U.S. 

Postal Service, or federal taxes in those statutes because 

applying that “jurisdictional” element would only capture a 

negligible number of state convictions for possessing 

explosives at airports, sending threatening communications 

through the mail, and evading state taxes. A threatening 

communication sent intrastate via Fed Ex should not be 

considered an aggravated felony merely because it would 

provide Congress with legislative jurisdiction if it had been 

sent via the U.S. Postal Service.

Accordingly, we hold that the formal categorical 

approach requires that convictions under state criminal 

statutes include a jurisdictional element to qualify as 

aggravated felonies corresponding to § 844(i) under § 

101(a)(43)(E)(i).

IV. CONCLUSION

For the reasons set forth above, we will grant 

Bautista’s petition and vacate the BIA’s decision. We find 

that, since the statute of Bautista’s conviction does not 

contain the jurisdictional element of 18 U.S.C. § 844(i), his 

conviction is not an aggravated felony under § 

101(a)(43)(E)(i) because the state statute of his conviction 

does not require a nexus with interstate commerce. We 
30

remand this case to the BIA for further consideration in 

accord with this opinion. 
AMBRO, Circuit Judge, dissenting

Mr. Bautista is ineligible for cancellation of removal 

under the INA if he has committed an aggravated felony 

under INA § 101(a)(43)(E)(i). The BIA held that his

attempted arson conviction under New York state law is an 

aggravated felony. In vacating and remanding this ruling, my 

colleagues determine that (1) § 101(a)(43)(E)(i) is 

unambiguous; (2) the BIA’s construction of the statute was 

not consistent with Congress’ expressed intent; and (3) 

Bautista’s state arson conviction cannot qualify as an 

aggravated felony because it does not contain as an element

the jurisdictional requirement of the federal arson provision in 

18 U.S.C. § 844(i). Because I believe § 101(a)(43)(E)(i) to be

ambiguous and the BIA’s construction of it reasonable, I 

respectfully dissent.

I. Background

Subsection 101(a)(43) of the INA defines an 

aggravated felony, “whether in violation of Federal or State 

law . . . [or] the law of a foreign country,” in one of three 

ways: 1) generically (for example, “murder” or “rape”); 2) as 

an offense “defined in” a specific federal statute; or 3) as an 

offense “described in” a specific federal statute. 8 U.S.C. 

§ 1101(a)(43). Subsection 101(a)(43)(E)(i), the provision 

involved here, is of the third kind: it states that an aggravated 

felony includes any offense “described in” 18 U.S.C. § 844(i).

The latter criminalizes the (i) damage or destruction, (ii) by 

means of fire or an explosive, (iii) of any building, vehicle, or 

other real or personal property (iv) used in interstate or 

foreign commerce or in any activity affecting interstate or 

foreign commerce. The last item is what we call a 

jurisdictional hook – the authority to make an act a federal 

crime exists when interstate or foreign commerce is involved. 
2

Bautista was convicted of attempted arson in the third 

degree, in violation of New York Penal Law §§ 150.10 and 

110. Section 150.10 provides that “[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.” For purposes of the INA, attempting to commit 

arson has the same consequences as committing it. 8 U.S.C. 

§ 1101(a)(43)(U). Bautista concedes that – apart from the 

jurisdictional element of § 844(i), which requires that the 

target of the arson have a nexus with interstate commerce –

N.Y. Penal Law § 150.10 and 18 U.S.C. § 844(i) are 

essentially identical. He argues, however (and the majority 

agrees), that the jurisdictional element of the federal statute is 

a substantive element of the crime, and thus his conviction 

under N.Y. Penal Law § 150.10 is not “an offense described 

in” 18 U.S.C. § 844(i). 

II. Chevron Deference

“[T]he BIA should be accorded Chevron deference for 

its interpretations of the immigration laws.” Tineo v. 

Ashcroft, 350 F.3d 382, 396 (3d Cir. 2003); see also Chevron 

U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 

(1984). This involves a two-step inquiry. At step one, we 

determine “whether Congress has directly spoken to the 

precise question at issue and unambiguously expressed [its] 

intent.” Yusupov v. Attorney Gen. of U.S., 518 F.3d 185, 197 

(3d Cir. 2008) (alteration in original) (quoting Chevron, 467 

U.S. at 842-43). If the answer is yes, the inquiry ends. Id. If 

instead “the statute is silent or ambiguous with respect to the 

specific issue, [we proceed] to step two [and inquire] whether 

the agency’s answer is based on a permissible construction of 

the statute.” Id. at 198 (internal quotation marks and citation 

omitted). If the statute is ambiguous and the BIA’s 

construction of the statute is reasonable, we are required “to 

accept the [BIA’s] construction of the statute, even if [that] 
3

reading differs from what [we believe] is the best statutory 

interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 980 (2005) (citation omitted). 

My colleagues at step one conclude quickly that 

Congress’s intent with respect to the classification of state 

convictions as aggravated felonies under § 101(a)(43)(E)(i) is 

clear and that the BIA’s construction of the statute is contrary 

to that intent. The bulk of their opinion, therefore, explains

what they believe to be Congress’ expressed intent. Unlike 

my colleagues, I believe that, under Chevron step one, 

§ 101(a)(43)(E)(i) is ambiguous as to when a state arson 

conviction qualifies as an aggravated felony. Proceeding to 

the second step, I conclude that the BIA’s construction of 

§ 101(a)(43)(E)(i) is reasonable. Hence we must accept its 

construction regardless whether we believe a different or 

better construction exists. The consequence is that, because

the BIA concluded reasonably that Bautista’s state arson 

conviction qualifies as an aggravated felony under 

§ 101(a)(43)(E)(i), he is ineligible for cancellation of removal 

under the INA. 

A. The Statute is Ambiguous

“The plainness or ambiguity of statutory language is 

determined by reference to the language itself, the specific 

context in which that language is used, and the broader 

context of the statute as a whole.” Marshak v. Treadwell, 240 

F.3d 184, 192 (3d Cir. 2001) (quoting Robinson v. Shell Oil 

Co., 519 U.S. 337, 341 (1997)). When interpreting a statute, 

“we must not be guided by a single sentence or member of a 

sentence, but look to the provisions of the whole law, and to 

its object and policy.” Prestol Espinal v. Attorney Gen. of 

U.S., 653 F.3d 213, 217 (3d Cir. 2011) (quoting United States 

v. Heirs of Boisdore, 49 U.S. 113, 122 (1850)). While I agree 

with the majority that disagreements in the courts do not 
4

automatically mean a statute is ambiguous, those 

disagreements are evidence that reasonable minds may differ 

in interpreting statutory language. Here I believe that, at best, 

the structure and language of § 101(a)(43)(E) do not 

unambiguously express Congressional intent. 

The position of my colleagues is, as noted, that the 

language of § 101(a)(43)(E)(i) leaves no doubt and that the 

provision is correctly interpreted in only the following way: if 

a state arson crime would not be directly punishable under 18 

U.S.C. § 844(i) because it lacks the federal statute’s 

jurisdictional element, the state offense does not qualify as an 

aggravated felony. Their rationale flows as follows.

“Congress intended some meaning through its use of 

‘described in’ versus ‘defined in.’” Maj. Op. at 9. Their take 

is that the latter is broad: “the state conviction need not be 

punishable under [the relevant] federal statute, but need only 

include the listed criminal conduct, as it is ‘defined’ by the 

federal statute.” Id. “[D]escribed in,” they assert, is narrower

and requires that all elements of the federal criminal statute 

(here § 844(i)) be included within the elements of the state 

criminal provision (N.Y. Penal Law § 150.10). 

Though “described in” and “defined in” are not 

synonymous, I disagree with my colleagues’ against-the-grain 

suggestion that “defined in” should be read more broadly than 

“described in.” As our sister Circuit Courts of Appeals have 

concluded, “described in” is the broader standard, and

§ 101(a)(43)(E)’s use of “described in” favors finding that 

Bautista’s state arson conviction qualifies as an aggravated 

felony. See United States v. Castillo-Rivera, 244 F.3d 1020, 

1023 (9th Cir. 2001) (“Congress as a practical matter . . . had 

to use some looser standard such as ‘described in[,]’ rather 

than the more precise standard of ‘defined in,’ if it wanted 

more than a negligible number of state offenses to count as 
5

aggravated felonies.”) (internal quotation marks and citation 

omitted). 

I thus part with my colleagues’ view that Congress 

used the phrase “described in” to classify a state conviction as 

an aggravated felony only when the state offense contains the 

same elements as, and is directly punishable under, a federal 

statute. To me, the phrase “described in” refers broadly to the 

type of offense. An offense “described” in § 844(i) includes 

any offense that involves the substantive elements of arson –

the destruction, by means of fire or an explosive, of a 

building, vehicle, or other real or personal property. Under 

this reading, the New York state crime of attempted arson

would fall under the type of offense Congress intended to 

make an aggravated felony even if the New York state statute 

lacks the jurisdictional element of the analogous federal 

statute.

The majority asserts that one indication that the 

jurisdictional hook is a substantive element of the federal 

arson statute for purposes of §101(a)(43)(E) is that “Congress 

[, in formulating the provision,] . . . could have defined the 

offenses embodied in the federal statutes by their generic 

names rather than by specific statutes.” Maj. Op. at 19. That 

Congress did not fails to persuade me. Instead, I agree with 

the Seventh Circuit Court’s reasoning in Negrete-Rodriguez 

v. Mukasey, 518 F.3d 497 (7th Cir. 2008). Responding to the 

same argument in the context of 18 U.S.C. § 922(g) (felon in 

possession of a firearm), the Court there noted:

[I]t does not follow that, because Congress has 

defined some crimes in general terms, it had to 

define all crimes in general terms in order for 

the offense’s state law counterpart to be 

included within the definition of an “aggravated 

felony.” Indeed, many firearms offenses are not 
6

susceptible to being easily described in general 

terms, while others are dependent on other 

provisions in a statutory scheme.

Id. at 503 (emphases in original) (citation omitted). I think 

this argument applies equally in the § 844(i) context. 

The majority next relies on Jones v. United States, 

529 U.S. 848 (2000), to conclude that the federal 

jurisdictional hook in § 844(i) is a substantive element of the 

offense. Jones held that the arson of an “owner-occupied 

residence not used for any commercial purpose [did] not 

qualify as property ‘used in’ commerce or commerceaffecting activity.” Id. at 850-51. The Court focused on 

interpreting the jurisdictional component of § 844(i) in order

to curb Congress’ power vis a vis the states and maintain the 

constitutionality of the federal arson statute. See id. at 858 

(“To read § 844(i) as encompassing the arson of an owneroccupied private home would [effectively change the federalstate balance in the prosecution of crimes], for arson is a 

paradigmatic common-law state crime.”). Jones ruled that

the “interstate commerce” language of § 844(i) was 

substantive for the purpose of federal jurisdiction, and 

interpreted that language narrowly in order to prevent 

“[every] building in the land [from falling within] the federal 

statute’s domain.” Id. at 849. That ruling, I submit, does not 

support the majority’s position that the jurisdictional 

component of § 844(i) is a substantive element of the 

underlying crime.

My colleagues also rely on Jones as evidence that 

Congress intended the jurisdictional element of § 844(i) to 

narrow the range of arson crimes that qualify as aggravated 

felonies under § 101(a)(43)(E). Given that Jones postdates 

§ 101(a)(43)(E) by several years, I find this line of reasoning 

unpersuasive. Instead, I am persuaded by the BIA’s 
7

reasoning that “the holding in Jones related to the scope of 

the Federal criminal statute, not the collateral consequences in 

an immigration case.” Matter of Robert Bautista, 25 I. & N. 

Dec. 616, at *5 (Oct. 13, 2011). 

Were they to adopt the BIA’s reasoning and ignore the 

jurisdictional element of § 844(i), my colleagues contend that 

they “would condone the erroneous outcome” where a state 

conviction for arson could qualify as an aggravated felony for 

purposes of the removal statute despite the Supreme Court’s 

ruling in Jones that such a conviction would not hold under 

§ 844(i). Specifically, they write that “[w]e are loath to 

suggest that Congress would use a federal statute, like 

§ 844(i), to ‘describe’ offenses outside the parameter of that 

very federal statute without an unequivocal indication that it 

was doing something so counterintuitive.” Maj. Op. at 23. 

My response is that the penultimate sentence of § 101(a)(43), 

which notes that “the term [aggravated felony] applies to an 

offense described in this paragraph whether in violation of 

Federal or State law,” is precisely such an indication. 8 

U.S.C. § 1101(a)(43). To qualify as an “aggravated felony” 

for purposes of the INA, an arson offense need not be directly 

punishable under the federal statute. Instead, as our sister 

Circuit Courts of Appeals have held, the quoted sentence can 

reasonably be read to suggest that Congress intended state 

crimes that are not punishable under any particular federal 

statute still to have collateral immigration consequences 

under the INA. See, e.g., United States v. Castillo-Rivera, 

244 F.3d 1020, 1023-24 (9th Cir. 2001).

The majority acknowledges that three other Circuit 

Courts of Appeal – the Fifth, Seventh and Ninth – have 

interpreted a parallel provision of the INA, 

§ 101(a)(43)(E)(ii), in the context of 18 U.S.C. § 922(g)(1) 

(felon in possession of a firearm), and have held that the 

“interstate commerce” element of the federal statute is simply 
8

a jurisdictional requirement distinct from the substantive 

nature of the offense. See Nieto Hernandez v. Holder, 592 

F.3d 681 (5th Cir. 2009); Negrete-Rodriguez v. Mukasey, 518 

F.3d 497 (7th Cir. 2008); United States v. Castillo-Rivera, 

244 F.3d 1020 (9th Cir. 2001). Similarly, the Eighth Circuit 

Court analyzed § 101(a)(43)(J) as it applies to 18 U.S.C. 

§ 1962 (the RICO statute), and held that a state racketeering 

statute was not required to have the interstate jurisdictional 

element contained in § 1962 in order to be “described” by the 

federal statute for purposes of § 101(a)(43). See Spacek v. 

Holder, 688 F.3d 536, 538-39 (8th Cir. 2010). Applying the

reasoning of these other Circuit Courts to our case, it seems 

logical that the jurisdictional element of § 844(i) need not be 

satisfied in order for a state arson conviction to be an 

aggravated felony under § 1101(a)(43).

My colleagues diverge from our sister Circuit Courts

by contending that because not all arson has a nexus with 

interstate commerce sufficient to qualify as a federal offense, 

the jurisdictional element of § 844(i) “has a meaningful 

narrowing effect on the range of arson criminalized,” and so 

must be considered when determining whether an offense 

qualifies as an aggravated felony under § 101(a)(43)(E). Maj. 

Op. at 25. They also decline to find the Eighth Circuit’s 

reasoning in Spacek persuasive, arguing instead that under 

Jones all statutory elements – including those that are 

“jurisdictional” – are relevant to the scope of state arson 

offenses. 

Under this reading of the statute, however, it would 

seem that Congress intended state arson convictions rarely, if 

ever, to qualify as aggravated felonies. My colleagues’ 

position suggests that while murder, rape, theft and firearms 

offenses qualify as aggravated felonies regardless of 

jurisdiction, arson is somehow unique in that it triggers 

collateral immigration consequences only when it has a nexus 
9

to interstate commerce. I do not believe that this result is

supported by the language of the statute. See Castillo-Rivera, 

244 F.3d at 1023-24 (“Interpreting the jurisdictional element 

of § 922(g) to be necessary in order for a state firearms 

conviction to constitute an aggravated felony under 

§ 1101(a)(43)(E)(ii) would reduce the number of state 

firearms offenses that qualify to no more than a negligible 

number . . . [and] would undermine the language of the 

aggravated felony statute and the evident intent of 

Congress”). Thus, I see no principled way to distinguish the 

jurisdictional elements of § 922(g) and § 844(i) in the context 

of interpreting § 101(a)(43)(E)(i) and § 101(a)(43)(E)(ii). 

Another concern I have is that my colleagues’ reading 

is in tension with the final phrase of § 101(a)(43), which 

provides that an offense in violation of foreign law may also 

be an aggravated felony under the INA. Congress surely did 

not envision that foreign laws would include references to 

interstate commerce. 

I am also concerned that the majority opinion 

implicitly creates a Circuit split. In their analysis of § 844(i), 

my colleagues carefully skirt the issue of whether the 

jurisdictional element of § 922(g) is necessary for a state 

firearms conviction to qualify as an aggravated felony, a 

question on which our Court has not ruled. If and when we 

are asked to decide that question, however, we are likely to 

find ourselves in the untenable position of either abandoning 

the logic of the majority’s opinion or ruling counter to our

sister Circuit Courts. 

What I note is not intended to establish that my 

opposing construction of the statute is correct (though I 

believe it is). The takeaway is that reasonable minds so 

differently interpreting the same language indicates starkly 

that the statute is at best ambiguous. As such, I continue to 
10

the second step of the Chevron inquiry, and consider whether 

the BIA’s interpretation of the statute is reasonable. 

B. The BIA’s Construction of § 101(a)(43)(E)(i) was 

Reasonable

If the BIA has spoken to the meaning of an ambiguous 

statute, the Court’s inquiry is “limited to determining whether 

the BIA’s statutory interpretation is based on a reasonable, 

permissible construction of that statute.” Tineo, 350 F.3d at 

396. In our case, the BIA has spoken on the meaning of 

§ 101(a)(43)(E)(i) and has expressly held that, because the 

jurisdictional element of 18 U.S.C. § 844(i) does not define 

the substantive offense, the New York state law offense of 

attempted arson is a crime “described in” § 844(i) and thus 

qualifies as an aggravated felony for purposes of the INA. In 

its statutory analysis of § 101(a)(43)(E)(i), the BIA addressed 

several of the points that I have raised above, notably the 

difficulty of distinguishing the jurisdictional elements of 

§ 844(i) and § 922(g)(1) and the limited application of Jones. 

* * * * *

Given the BIA’s thorough analysis, as well as the 

persuasive authority from our Circuit colleagues interpreting 

a related pairing of immigration and federal criminal 

provisions, I conclude that the BIA’s interpretation of 

§ 101(a)(43)(E)(i) as it relates to § 844(i) is reasonable under 

Chevron. I would affirm the BIA’s ruling that Bautista’s 

arson conviction under New York state law qualifies as an 

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

regrettable result is that Bautista is ineligible for cancellation 

of removal. I thus respectfully dissent.