In re Bautista
| Decision Date | 13 October 2011 |
| Docket Number | Interim Decision #3730 |
| Parties | Matter of Robert BAUTISTA, Respondent |
| Court | U.S. DOJ 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.
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.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
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).
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 realproperty 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:
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 jurisdictionof 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 ...
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