The Board of Immigration Appeals (BIA) has ruled that attempted arson in the third degree in violation of NYPL §§ 110 and 150.10 is an aggravated felony under INA §101(a)(43)(E)(i), despite the fact that the statute lacks the jurisdictional element in the applicable Federal arson offense. See Matter of Robert BAUTISTA, 25 I&N Dec. 616 (BIA 2011).
The BIA used the categorical approach set forth in Taylor v. United States, 495 U.S. 575, 600 (1990), to determine if the offense of attempted arson in New York is a crime “described in” the aggravated felony provision of INA §101(a)(43)(E)(i), comparing the New York crime with the Federal crimes that Congress has designated as aggravated felonies.
The BIA concluded that New York State arson is “described in” INA §101(a)(43)(E)(i) because the omission of the Federal jurisdictional element in §844(i) from the State statute is not dispositive, finding that the offense in NYPL §150.10 contains all of the other substantive elements contained in §844(i), rendering it an aggravated felony.
The BIA saw no distinction between the Federal jurisdictional element in §844(i) and the Federal jurisdictional element in §922(g)(1) reasoning that interpreting NYPL §150.10 as not being “described in” §844(i) would render the "penultimate sentence" in INA §101(a)(43) meaningless, the exception clause in INA §241(a)(4)(B)(ii) "superfluous", and State (and foreign) arson crimes would therefore not be covered by section 101(a)(43)(E)(i).
Click here to read the BIA's decision.
Matthew Kolken is a trial lawyer with experience in all aspects of United States Immigration Law including Immigration Courts throughout the United States, and appellate practice before the Board of Immigration Appeals, the U.S. District Courts, and U.S. Courts of Appeals. He is admitted to practice in the courts of the State of New York , the United States District Court for the Western District of New York, the United States Court of Appeals for the Second Circuit, and is a member of the American Immigration Lawyers Association (AILA).