Cite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
1 After oral argument, the DHS filed a motion to expedite, which we have considered in our
prompt adjudication of this detained case.
616
Matter of Robert BAUTISTA, Respondent
Decided October 13, 2011
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Attempted arson in the third degree in violation of sections 110 and 150.10 of the
New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(E)(i) (2006), even though the State
crime lacks the jurisdictional element in the applicable Federal arson offense. Matter
of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed.
FOR RESPONDENT: Raymond G. Lahoud, Esquire, Easton, Pennsylvania
FOR THE DEPARTMENT OF HOMELAND SECURITY: Robert D. Tennyson, Associate
Legal Advisor; Brian G. McDonnell, Assistant Chief Counsel
BEFORE: Board Panel: GRANT, MALPHRUS, and MULLANE, Board Members.
MULLANE, Board Member:
In a decision dated February 8, 2011, an Immigration Judge found the
respondent ineligible for discretionary relief and ordered him removed from
the United States. The respondent has appealed from that decision, arguing
that he is eligible for cancellation of removal under section 240A(a)
of the Immigration and Nationality Act, 8 U.S.C. § 1229b(a) (2006). The
Department of Homeland Security(“DHS”) opposed the appeal, and the Board
heard oral argument on August 10, 2011.1 The appeal will be dismissed.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of the Dominican Republic,
was admitted to the United States as a lawful permanent resident in August
1984. On June 5, 2003, he was convicted in New York of attempted
arson in the third degree in violation of sections 110 and 150.10 of the
New York Penal Law, for which he was sentenced to 5 years’ probation.Cite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
2 The respondent has not raised on appeal the question of his eligibility for a waiver
of inadmissibility under section 212(h) of the Act.
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On September 13, 2009, the respondent was stopped at the airport when
he was returning to the United States from the Dominican Republic, and
he was paroled into the country pending a secondary inspection. On March 25,
2010, the DHS issued a Notice to Appear (Form I-862) and instituted removal
proceedings against the respondent, charging that he is removable because
he is inadmissible under section 212(a)(2)(A)(i)(I) of the Act, 8 U.S.C.
§ 1182(a)(2)(A)(i)(I) (2006), as an alien convicted of a crime involving moral
turpitude.
At a hearing before the Immigration Judge, the respondent admitted the
allegation that he was convicted of attempted arson, but he denied the charge
of inadmissibility. The Immigration Judge determined that the respondent
is inadmissible to the United States as charged.
The DHS filed a motion to pretermit the respondent’s applications for
cancellation of removal under section 240A(a)(3) of the Act and a waiver
of inadmissibility under section 212(h), arguing that his crime of arson
corresponded to the offenses described in 18 U.S.C. §§ 844(f)(1) and (i)
(2006) and was therefore an aggravated felony under section 101(a)(43)(E)(i)
of the Act, 8 U.S.C. § 1101(a)(43)(E)(i) (2006). Although the Immigration
Judge initially denied the motion, the DHS filed a motion to reconsider, which
was granted by the Immigration Judge. In his February 8, 2011, decision,
the Immigration Judge incorporated his previous rulings and ordered the
respondent removed to the Dominican Republic. The respondent has
appealed, arguing that the New York offense of attempted arson in the third
degree is not an aggravated felony and that he remains eligible to apply for
cancellation of removal.2
II. ISSUE
The issue in this case is whether the offense of attempted arson in the third
degree in violation of sections 110 and 150.10 of the New York Penal Law
is a crime “described in” section 101(a)(43)(E)(i) of the Act and is therefore
an aggravated felony, which precludes the respondent from establishing
eligibility for cancellation of removal under section 240A(a)(3) of the Act.
We review this question of law de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2011).Cite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
618
III. ANALYSIS
The term “aggravated felony” is defined in section 101(a)(43) of the Act.
The specific provision at issue in this case is section 101(a)(43)(E)(i), which
includes within the definition of an aggravated felony
an offense described in—
(i) section 842(h) or (i) of title 18, United States Code, or section 844(d), (e), (f),
(g), (h), or (i) of that title (relating to explosive materials offenses) . . . .
Furthermore, the final paragraph of section 101(a)(43) states the following
regarding the definition of an aggravated felony:
The term [aggravated felony] applies to an offense described in this paragraph
whether in violation of Federal or State law and applies to such an offense
in violation of the law of a foreign country for which the term of imprisonment was
completed within the previous 15 years. Notwithstanding any other provision of law
(including any effective date), the term applies regardless of whether the conviction
was entered before, on, or after the date of enactment of this paragraph.
(Emphasis added.)
Under the categorical approach set forth in Taylor v. United States, 495 U.S.
575, 600 (1990), to determine if the respondent’s State offense of attempted
arson is a crime “described in” the aggravated felony provision at section
101(a)(43)(E)(i) of the Act, we compare the crime he was convicted of with
the Federal crimes set forth in that section, which Congress has designated
as aggravated felonies. Under section 150.10 of the New York Penal Law,
a “person is guilty of arson in the third degree when he intentionally damages
a building or motor vehicle by starting a fire or causing an explosion.” Section
101(a)(43)(E)(i) of the Act states that “an offense described in . . . [18 U.S.C.
§§] 844(d), (e), (f), (g), (h) or (i) . . . (relating to explosive materials offenses)”
is an aggravated felony. Specifically relevant to this case is § 844(i), which
provides in pertinent part as follows:
Whoever maliciously damages or destroys, or attempts to damage or destroy,
by means of fire or an explosive, any building, vehicle, or other real or personal
property used in interstate or foreign commerce or in any activity affecting interstate
or foreign commerce shall be imprisoned for not less than 5 years and not more than
20 years, fined under this title, or both . . . .
(Emphasis added.) Also of significance is § 844(f)(1), which reads as follows:
Whoever maliciously damages or destroys, or attempts to damage or destroy,
by means of fire or an explosive, any building, vehicle, or other personal or realCite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
3 The respondent also asserts that his violation of section 150.10 does not qualify
as an aggravated felony because 18 U.S.C. § 844(f) deviates from the New York statute
in that an essential element of the crime involves a finding that personal or real property
in whole or in part was possessed by or leased to the United States, or any department
or agency thereof. Given our conclusion regarding 18 U.S.C. § 844(i), we do not need
to reach this issue.
4 The respondent has the burden of proof to show that he is eligible for cancellation
of removal. 8 C.F.R. § 1240.8(d) (2011). This is of no practical significance here because
the question before us is purely a legal one.
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property in whole or in part possessed by, or leased to, the United States, or any
department or agency thereof, or any institution or organization receiving Federal
financial assistance, shall be imprisoned for not less than 5 years and not more than
20 years, fined under this title, or both.
The respondent argues that his violation of section 150.10 of the New York
Penal Law does not qualify as an aggravated felony because 18 U.S.C. § 844(i)
deviates from the New York statute in that an essential element of the Federal
crime involves a finding that the property damaged was used in interstate
commerce.3 His claim is that section 150.10 is not “described in” § 844(i),
which is referenced in section 101(a)(43)(E)(i) of the Act, because the
interstate commerce requirement is an essential element of the crime.4
We considered a similar issue in Matter of Vasquez-Muniz, 23 I&N
Dec. 207, 211-12 (BIA 2002). In that case, the respondent was convicted
of “‘possession of a firearm by a felon—one prior’ in violation of section
12021(a)(1) of the California Penal Code.” Id. at 208. The issue was whether
that conviction was “described in” 18 U.S.C. § 922(g)(1) (1994), a provision
listed in section 101(a)(43)(E)(ii) of the Act. Id. If it was, then the conviction
was for an aggravated felony under the Act. We noted that the State and
Federal crimes were “substantially the same,” but the State crime did not
include the final element of the Federal crime—“affecting interstate or foreign
commerce.” Id. at 210. We summarized the interpretative question this way:
[T]he key to the meaning of the Act is to determine whether section 101(a)(43)(E)
encompasses a state crime having no federal jurisdictional element, such as the
respondent’s offense, as a crime “described in” the enumerated federal statutes.
If so, the purely “jurisdictional element” of the federal statute loses its significance
for determining whether the state crime is an aggravated felony.
Id.
We observed that the penultimate sentence in section 101(a)(43) of the Act,
quoted above, had special significance for resolving the question. This
provision was significant because it meant that “the crimes specified are
aggravated felonies regardless of whether they fall within the jurisdictionCite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
620
of the federal government, a state, or, in certain cases, a foreign country.”
Id. at 211. In order to give meaning to this sentence, we said “it must
render irrelevant any purely jurisdictional element appearing in the crimes
enumerated.” Id. at 212. Noting the rarity of a State crime including a Federal
jurisdictional element, we reasoned that “virtually no state crimes would ever
be included in section 101(a)(43)(E), despite the statute’s language.” Id.
Furthermore, relying on section 241(a)(4)(B)(ii) of the Act, 8 U.S.C.
§ 1231(a)(4)(B)(ii) (Supp. V 1999), we said its exception “for those aliens who
are confined by a state pursuant to a final conviction for an offense described
in section 101(a)(43)(E)” would be superfluous. Id. We made a similar
point regarding foreign offenses because they, too, would rarely “contain
jurisdictional elements similar to those appearing in our federal statutes.” Id.
at 212-13. We also noted that the United States Court of Appeals for the Ninth
Circuit reached the same conclusion in United States v. Castillo-Rivera, 244
F.3d 1020 (9th Cir. 2001). Accordingly, we held that “possession of a firearm
by a felon in violation of section 12021(a)(1) of the California Penal Code,
is ‘described in’ section 101(a)(43)(E)(ii) of the Act, and is an aggravated
felony regardless of whether it contains the federal jurisdictional element
of affecting intestate commerce contained in 18 U.S.C. § 922(g)(1).” Matter
of Vasquez-Muniz, 23 I&N Dec. at 214.
In the respondent’s case the substantive elements of the New York State
arson crime and the Federal arson crime are also “substantially the same.” The
only difference is that the Federal arson crime set forth at § 844(i), like
§ 922(g)(1), has an additional element, which is that the property must
be “used in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” This requirement that the property be “used
in interstate or foreign commerce” is a jurisdictional element. Jones
v. United States, 529 U.S. 848 (2000); Russell v. United States, 471 U.S. 858
(1985). Because it is a “jurisdictional element,” our analysis in Matter
of Vasquez-Muniz controls this case.
The respondent’s New York State arson offense is “described in” section
101(a)(43)(E)(i) of the Act because the omission of the Federal jurisdictional
element in § 844(i) from the State statute is not dispositive. The offense
in section 150.10 of the New York Penal Law contains all of the other
substantive elements that are contained in § 844(i), so it is an aggravated
felony under the Act. We see no distinction between the Federal
jurisdictional element in § 844(i) and the Federal jurisdictional element
in § 922(g)(1). Interpreting section 150.10 of the New York Penal Law as not
being “described in” § 844(i) would create the same problems identified
in Matter of Vasquez-Muniz. That is, the penultimate sentence in section
101(a)(43) of the Act would be rendered meaningless, the exception clauseCite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
5 As noted above, the respondent was convicted of attempted arson in the third degree. The
respondent does not argue that there is any difference between attempt under New York law
and Federal law. The Second Circuit has described Federal and New York law regarding
attempt as “virtually identical.” United States v. Celaj, 649 F.3d 162, 170 (2d Cir. 2011).
621
in section 241(a)(4)(B)(ii) would be superfluous, and State (and foreign) arson
crimes would not be covered by section 101(a)(43)(E)(i).
The respondent makes two other arguments in support of his claim that his
conviction is not for an aggravated felony under the Act.5 The first is that
interpreting the New York State crime of arson as an offense described
in 18 U.S.C. § 844(i) “ignores” the Federal jurisdictional element. He relies
on Jones v. United States, 529 U.S. at 859, and its holding “that § 844(i) does
not cover the arson of an owner-occupied dwelling.” We disagree with the
respondent’s interpretation of Jones as it applies to the question whether
a State arson crime is “described in” § 844(i). Jones is relevant to this case
to the extent that its holding makes clear that the phrase “used in interstate
or foreign commerce” is an essential Federal jurisdictional element in § 844(i).
As noted above, the holding in Jones related to the scope of the Federal
criminal statute, not the collateral consequences in an immigration case.
The Supreme Court rejected the Government’s application of § 844(i)
to an owner-occupied dwelling, in part, based upon concerns about the
constitutionality of a Federal crime that would applyto virtually every building
in the country. Id. at 857 (“Were we to adopt the Government’s expansive
interpretation of § 844(i), hardly a building in the land would fall outside the
federal statute’s domain.”). Our decision in this case does not mean that the
Federal jurisdictional element is not important for Federal criminal cases.
On the contrary, we simply conclude, as we did in Matter of Vasquez-Muniz,
that Congress meant to cover State arson offenses when it referenced § 844(i)
in the definition of an aggravated felony and did not intend to exclude them
simply because a State crime lacked a Federal jurisdictional element. Nothing
in Jones is contrary to that principle.
The respondent also argues that the term “maliciously,” included in each
Federal provision, requires greater culpability than a specific intent to damage
or destroy property and thus goes beyond the mens rea requirement of the
New York statute. We disagree. The Third Circuit, in whose jurisdiction this
matter arises, has stated that the term “maliciously,” as used in § 844(f)(1),
means “intentionally or with willful disregard of the likelihood that damage
or injury will result.” McFadden v. United States, 814 F.2d 144, 146 (3d Cir.
1987). Other courts of appeals that have considered this issue for § 844(i)
have reached the same conclusion. United States v. Wiktor, 146 F.3d 815, 818
(10th Cir. 1998); United States v. Corona, 108 F.3d 565, 571 (5th Cir. 1997);
United States v. Gullett, 75 F.3d 941, 947-48 (4th Cir. 1996). Because theCite as 25 I&N Dec. 616 (BIA 2011) Interim Decision #3730
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term “maliciously” includes destruction of property undertaken intentionally,
the “intentional” mens rea of section 150.10 of the New York Penal Law
is covered by the term “maliciously” in § 844(i). The respondent cites
no contrary precedent in support of his claim.
IV. CONCLUSION
The Immigration Judge properlyconcluded that the respondent’s conviction
under section 150.10 of the New York Penal Law is for an aggravated felony
under section 101(a)(43)(E)(i) of the Act. Pursuant to section 240A(a)(3), the
respondent is therefore ineligible for cancellation of removal. Accordingly, his
appeal will be dismissed.
ORDER: The appeal is dismissed.