BIA: NY attempted arson is aggravated felony

In a precedential decision, the BIA held that New York’s attempted arson offense falls within the arson category of aggravated felony. Matter of Bautista, 25 I&N Dec. 616 (BIA 2011) (Grant, Malphrus, and Mullane, Board Members).  Board Member Mullane wrote the panel’s opinion.

This case involved a LPR who was convicted of attempted arson in violation of New York Penal Code §§ 110 and 150.10. Matter of Bautista, 25 I&N Dec. at 616. Six years after conviction he left the United States and, upon returning, was flagged by DHS at the airport. After being paroled into the country, removal proceedings were initiated charging him as removable pursuant to INA § 212(a)(2)(A)(i)(I) for having been convicted of a crime involving moral turpitude. Matter of Bautista, 25 I&N Dec. at 617.

After an IJ found him inadmissible as charged, Bautista sought Cancellation of Removal for LPRs. At that point, DHS claimed that he was ineligible for Cancellation because the attempted arson conviction constitutes an aggravated felony. Matter of Bautista, 25 I&N Dec. at 617.

Applying the categorical approach to statutory construction, the BIA determined that all but one element of the state offense match those contained in one of the crimes enumerated in the arson or explosives category of aggravated felony, INA § 101(a)(43)(E)(i). Specifically,all but one of the elements necessary for a conviction for the New York offense match those necessary for conviction under 18 U.S.C. § 844(i), a federal statute penalizing arson. Matter of Bautista, 25 I&N Dec. at 618.

The one element contained in the federal arson offense that is not contained in the state arson offense, the BIA explained, concerns the federal government’s jurisdiction.  The federal offense requires that the targeted property be “used in interstate or foreign commerce.” Matter of Bautista, 25 I&N Dec. at 618 (quoting 18 U.S.C. § 844(i)).

Relying on Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), the Board held, “‘it must render irrelevant any purely jurisdictional element appearing in the crimes enumerated.’” Matter of Bautista, 25 I&N Dec. at 620 (quoting Matter of Vasquez-Muniz, 23 I&N Dec. at 212). Were it to require the state offense to contain the “interstate or foreign commerce” requirement as does the federal offense, “‘virtually no state crimes would ever be included in section 101(a)(43)(E), despite the statute’s language.’” Matter of Bautista, 25 I&N Dec. at 620 (quoting Matter of Vasquez-Muniz, 23 I&N Dec. at 212).

Accordingly, the BIA held that New York’s attempted arson offense constitutes an arson type aggravated felony; therefore Bautista is ineligible for Cancellation.