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. e du/thir dc ir c uit_2014/236PRECEDENTIAL

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 IMM IGRATION 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 Judge s.

(Opinion F iled: February 2 8 , 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.
Unite d 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 Appeal s for the Federal Circuit, sitting by designation.3 ______________

OPINION

______________

GREENAWAY, JR., Circuit Judge

.

Petitioner Robert Baut ista, a legal permanent resident, was ordered removed from the United States by an

i mmigration j udge (“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
convi cted 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. § 11 01(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 a rson statute cannot qualify as an aggravated felony because it lacks the jurisdictional4 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 f or 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 19 96, 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 guilt y 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, pend ing a secondary inspection, and, the following spring, the Department of Homeland Security instituted removal5 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 turpit ude. 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. Bauti sta 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 descr ibed 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 violatio n 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, h is New York conviction6 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 o f 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 B IA 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 n ot 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 “constituti onal claims or

qu estions 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 BI A 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 re asonable 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 “traditi onal 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 in consistent with Congress ’ s expres sed
intent

.

O u r 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

amou nts 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 provisio ns

. 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 co nclude otherwise would be to find that every time there is a disagreement about statutory construction, we accord8 deference to agencies. Th is is not what Chevron instructs us to do

. 1

In light of our forthcoming discussion, we find here that Congress ha s 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 ag gravated 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. Cardoza

Fonseca , 480 U.S. 421 (1987) . In that case, the Supreme
Court was tasked with deciding whether the plain meaning of the statutory language indicate d 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 identica l. This conclusion was reached notwithstanding that dissenting J ustices found the statute to
be “far more ambiguous than the Court [did]. ” 480 U.S. at
459 (Powell, J., d issenting). In doing so, the Cardoza

Fonseca C o urt p ronounced 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.” Cardoza

Fonseca , 480 U.S. at 446.9 interpretation of § 101(a)(43) revolves arou nd 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 fel onies 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 aggr avated 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 tha t 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 term s , 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 st atute. 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 cond uct. 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) (referenci ng 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 “Cr ime of violence defined”, which defines “crime of violence”).

In contrast, Congress em ploys “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 st atute 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), Congr ess often grouped several federal criminal11 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) (groupin g 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 whic h 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 Sup reme 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 elemen ts 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 t o 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 acti vity 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 violati on 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. Sectio n 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 ide ntical, 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 th e New York statute. What Bautista urges is13 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 Governm ent 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)) ; N egrete

- 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 Fi fth 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 agen cy’ 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) , w e generally compare the elements provided by the federal law to the conduct and state statute of conviction, as set forth by14 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 emplo ying 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) ) ; s ee 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 c ategorical 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 c ategorical 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 a15 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 i t “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, w e 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 sing le 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 su ch 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 I NA 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

. S ee Moncrieffe , 133 S. Ct. at 1685

- 86; s ee, e.g. , Catwell , 623 F.3d at 206

- 07. Or, with crimes of violence under § 101(a)(43)(F), it matters whether the s tate 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 limit ed 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

r emov ed the jurisdictional element from its categorical approach analysis and ruled that Bautista’s conviction was an aggravated felony because all the “ substant ive ” 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 cl ear 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. 20717 ( BIA 2002). In that decision, the BIA decided that conviction for possession of a firearm by a felon u nder 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 Vasquez

Muniz , 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 jurisdict ion 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 woul d 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 a ggravated 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 more18 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

- R ivera , 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 ”

, wh ich 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 1 023. 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, Fi fth, 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 G uidelines 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 circuit s, the Eighth Circuit , applied the same rationale to 18 U.S.C. § 1962 under § 101(a)(43)(J). Space k

, 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 se ntence 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 cri minal 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 int o 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 off ense, 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 ag gravated 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 element s of f ederal
felonies for the purposes of § 101(a)(43)(E). If Congress had intended to exclude the jurisdictional element of all federal20 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 a t 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 c ommerce. 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 constraint s of the included jurisdictional eleme nts
in mind. See United S tates 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 Congres s is aware of its Commerce Clause power and the
extent to which it asserts tha t 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) substant ially 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 convict ed 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 equ ivalent 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 st atute 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 no t 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 meaningle ss 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

cons equences 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 regu lation 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 di d 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 di scounting 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 cho se to define some categories of aggravated
felonies by reference to federal criminal statutes: It is because

f

ederal 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 w ill only be “described in”, and punishable under § 844(i)

, if the state statute includes an24 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 ca tegorical 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 “ desc ribe ” 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 [t hat 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 (“Congre ss can define an aggravated felony . . . in an unexpected way. But Congress would need to tell us so, and there are good reason s 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 in25 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 ele ment 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

ar son, but arson that involves interstate commerce.

D. The Jurisdictional Aspects of the Offenses Enumerated in § 101(a)(43) Must Be Considered Separately

W e 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 jurisdic tional element has a meaningful narrowing effect on the range of arson criminalized

, exclud ing 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 pa ragraph 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 subsecti on.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 jurisdiction al 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 c onvictions 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
threshol d 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) rational e to the § 1962 racketeering context under § 101(a)(43)(J)

. See Spacek , 688 F.3d at 538

- 3 9. 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 (emp hasis 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 a rson 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 on e 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 c apture 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 wheth er 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 se ems 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 i f the law of alien removal was “dependent on varying state criminal classifications . . . when Congress has28 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 a irports 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 ju risdictional 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 gener ally, 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 5 8 (“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 a29 given act more heavily.”); Moncrieffe , 133 S. Ct. at 1689 (calling it an “anomaly” t o 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 tax es. 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 wil l 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) beca use the state statute of his conviction does not require a nexus with interstate commerce. We30 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 aggravate d felony
under INA § 101(a)(43)(E)(i) . The BIA held that hi s 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 B IA’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 ar son 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

Subs ection 101(a)(43) of the INA defines an aggravated felony , “whether in viola tion 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 specif ic federal s tatute. 8 U.S.C. § 1101(a)( 43). Subs ection 101(a)(43)(E)(i), the provision involved here, is of the third kind: it states that an aggravated felony includes any offense “de scribed in” 18 U.S.C. § 844(i).
T he latter criminalizes the (i) damage or destruc tion, (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 jurisd ictional hook

– the authority to make an act a federal
crime exists when inter state 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 pro vides 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 a n explosion.” For purposes of the INA, a ttempting to commit arson has the same consequences as committin g it. 8 U.S.C. § 1101 (a) ( 43)(U). Bautis ta 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 essentiall y 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 , 3 50 F.3d 382, 396 (3d Cir. 2003); see also Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc ., 467 U.S. 8 37 (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 ans wer 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] constructi on 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 qu ickly that Congress ’ s intent with respect to the classification of state convictions as aggravated felonies under § 10 1(a)(43)(E)(i) is
clear and that the BIA’s construction of the statute is contrary
to that intent

. T he 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 . P roceed ing to the second ste p , 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 th at 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 re ference 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) (quot ing United States v. Heirs of Boisdore , 49 U.S. 113, 122 (1850)). While I agree with the majority that disagreements in the courts do not4 automatically mean a statute is ambiguous, those disagreements are evidence that reasonable minds may differ
in inter preting statutory language. Here I believe that, at best

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

un ambiguously 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. The ir rationale flows as follows. “Congress intended some meaning through its use of
‘described i n’ 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 mo re broadly than
“described in

. ” A s our sister Circuit Courts of Appeal s have concluded, “described in” i s 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
fe lony. See United States v. Castillo

- Rivera , 244 F.3d 1020, 1023 (9th Cir. 2001) (“Cong ress 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 as5 aggravated feloni es

. ”) (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 f elony 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. A n offense “described” in § 844(i) incl udes any offense that inv olves 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 C ongress intend ed 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 feder al arson statute for purposes of §101(a)(43)(E) is that “Congress [

, in formulating the pr ovision

, ] . . . could have defined the offenses embodied in the federal statutes by their generic

names ra ther than by specific statutes. ” Maj. Op. at 19. That Cong ress 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 f irearm ) , 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
includ ed within the definition of an “ aggravated felony.” Indeed, many firearms offens es are not6 susceptible to being easily described in general terms, while others are dependent on o ther provisions in a statutory scheme.

Id. at 503 (emphases in original) (citation omitted). I think
this ar gument 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 commerce

affecting activity.” Id. at 850

- 51. The Court focused on interpreting the jurisdicti onal 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 owner

occupied private home would [effectively change the federal

state balance in the prosecution of crimes]

, for arson is a paradigmatic common

- law state crime .”)

. Jones ruled that
the “int erstate commerce” language of § 844(i) was substantive for the purpose of federal jurisdiction , and interpreted that language narrowly in order to pre vent “[every] building in the land [from falling within] the federal
statute’s domain.” Id. at 849 . That ruling, I submit, doe s not support the majority’s position that the jurisdictional component of § 844(i) is a substantive element of the underlying c rime.

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. I nstead , I am persuaded by the BIA’s7 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).

W ere 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 a rson could qualify as an aggravated felony for purposes of the removal statute despite the Supreme Court’s ruling in Jones that such a co nviction would not hold under § 844(i). Specifically, they write that “[w]e are loath to suggest that Congress woul d 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 senten ce 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 felo ny” for purposes of the INA, an arson offense need not be directly punishable under the federal statute. Instead, as our sister Circuit Courts of Appeal s have held, the quoted sentence can reasonably be read to suggest that Congress intend ed 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 t hree 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” elemen t of the federal statute is simp ly8 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. C astillo

- 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 jurisdict ional element contained in § 1962 in order to be “described” by the
feder al 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 logi cal 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 qualif ies 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 instea d that under
Jones all statutory elements

– including those that are “jurisdictional”

– are re levant to the scope of state arson
offenses.

Under this reading of the statute, however, it would seem that Congress inte nded 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 nexus9 to interstate commerce. I do not believe that this resu lt 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 m ore 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 dis tinguish the jurisdicti onal elements of § 922(g) and § 844(i) i n 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

pro vides 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 implicit ly creates a C ircuit 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 fel ony, a question on which our C ourt 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 eit her abandoning the logic of the majority’s opinion or ruling counter to our
sister Circuit Courts

.

What I no te is not intended to establish that my opposing con struction of the statute is correct (though I believe it is)

. The takeaway is that reasonable minds so differently in terpreting the same language indicates starkly
that the statute is at best ambiguous. As such , I continue to10 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 ambiguou s 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)(4 3)(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 li mited application of Jones

.

* * * * *

Given the BIA’s thorough analysis , as well as the persuasive authority from our C ircuit colleagues interpreting a related pairing of immigration and federal criminal provisions , I conclude tha t the BIA’s interpretation of § 101(a)(43)( E)(i ) as it relates to § 84 4(i) i s 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

reg rettable result is that Bautista is ineligible for cancellation
of r emoval. I thus respectfully dissent.