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
                ______________
    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.




                              2
                       ______________

                          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




                               3
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




                              4
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




                              5
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., 

, 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., 

, 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., 

, 844 (1984).
See 

.




                              6
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. 

.
A statute cannot be deemed ambiguous, however, until the
court exhausts the aid of “traditional tools of statutory
construction.” 

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, 

(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., 

,
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




                               7
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. Cardoza-
Fonseca, 

(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 

(Powell, J., dissenting). In doing so, the Cardoza-
Fonseca 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.” Cardoza-

.




                              8
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, 

, 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, 

,
2281 (2013); see Nijhawan v. Holder, 

, 37 (2013).




                              9
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”); 

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”);

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




                               10
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.

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,

, 57 (2006).

      Pertinent to our inquiry, § 101(a)(43)(E)(i) lists as
aggravated felonies the offenses described in “section 842(h)




                              11
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.

        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




                                12
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, 

, 685-86 (5th Cir. 2009) (analyzing § 922(g)(1)
under § 101(a)(43)(E)(ii)); Negrete-Rodriguez v. Mukasey,

, 501-03 (7th Cir. 2008) (same); United States v.
Castillo-Rivera, 

, 1023-24 (9th Cir. 2001)
(same); see also Spacek v. Holder, 

, 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., 

,
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




                               13
the Supreme Court in Taylor v. United States, 

,
601 (1990). See Moncrieffe v. Holder, 

, 1684-
85 (2013); Aguilar v. Att’y Gen., 

, 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, 

, 2588 (2010)
(explaining that the categorical approach determines whether
“the state offense . . . is ‘punishable as a felony under federal
law’” (quoting Lopez v. 

)); see

n.11; 

. 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.” 

(quoting Denis v. Att’y Gen., 

, 206 (3d Cir.
2011)); Borrome v. Att’y Gen., 

, 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.” 

; Descamps v.
United States, 

, 2284-85 (2013) (limiting the
modified categorical approach to statutes that create
alternative crimes by including disjunctive elements); see also

; 

. In such a




                               14
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.”

. This approach, therefore, does
not invite inquiry into the facts underlying the conviction. 

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. 

.

       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, 

, 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. 

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 

.




                              15
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 

; see, e.g.,

-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., 

-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.’” 

(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




                               16
(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). 

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

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.” 

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, 

, 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, 

, 501-03 (7th Cir. 2008) (holding that, “[a]lthough not
‘mere surplusage,’ a jurisdictional element does little more




                               17
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, 

, 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 

. 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 § 

. 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).

.




                              18
“described in”, the Ninth Circuit presumed that Congress
desired that the aggravated felony categories include more
than a negligible amount of state convictions. 

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. 

Second, meaning was read into Congress’s decision to use
“defined in” for some aggravated felony subcategories and
“described in” for others. 

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, 

(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. 

       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




                              19
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); 

(excluding “purely political
offense[s]” under this subsection); 

(directing that an offense described in 18 U.S.C. § 1084 only
qualifies under this subsection “if it is a second or subsequent
offense”); 

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., 

, 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 §




                              20
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,

(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. 

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.




                              21
interstate commerce, and was used to obtain a casualty
insurance policy used in interstate commerce, were not
sufficiently active uses in commerce. 

used as a
rental property, on the other hand, would be used actively in
interstate commerce. 

(citing Russell v. United
States, 

, 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 

(“We conclude that §
844(i) is not soundly read to make virtually every arson in the
country a federal offense.”); see also 

(“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. 

.

       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 

.




                              22
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. 

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

(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




                               23
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.

, 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)].”); 

(“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



                              24
        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.




                               25
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 

(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,

, 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

-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.” 

(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.




                              26
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 

, 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, 

, 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 

(“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. 

-
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




                              27
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. 

(“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




                               28
given act more heavily.”); 

(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




                             29
remand this case to the BIA for further consideration in
accord with this opinion.




                          30
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.
       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, 

, 396 (3d Cir. 2003); see also Chevron
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 

(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., 

, 197
(3d Cir. 2008) (alteration in original) (quoting 

). If the answer is yes, the inquiry ends. 

“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.” 

(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]




                                2
reading differs from what [we believe] is the best statutory
interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 

, 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, 

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

, 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., 

, 217 (3d Cir. 2011) (quoting United States
v. Heirs of Boisdore, 

, 122 (1850)). While I agree
with the majority that disagreements in the courts do not




                               3
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.” 

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, 

,
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




                               4
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, 

(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




                               5
       susceptible to being easily described in general
       terms, while others are dependent on other
       provisions in a statutory scheme.

(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,

(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.” 

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 

(“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 “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.” 

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




                              6
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,

, 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




                               7
a jurisdictional requirement distinct from the substantive
nature of the offense. See Nieto Hernandez v. Holder, 

(5th Cir. 2009); Negrete-Rodriguez v. Mukasey, 

(7th Cir. 2008); United States v. Castillo-Rivera,

(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, 

, 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




                              8
to interstate commerce. I do not believe that this result is
supported by the language of the statute. See 

-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




                                9
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.” 

. 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.




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