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Matter of Robert Bautista

The Board of Immigration Appeals determined that a New York attempted arson offense was an aggravated felony under INA 101(a)(43)(E) as an offense described in 18 U.S.C. § 844(i). It found the New York statute's lack of the federal jurisdictional element of interstate commerce was not significant.

The Board reached this conclusion because the aggravated felony definition has a clause that provides, “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.” Since virtually all state (and foreign) crimes lack a federal jurisdictional element, a contrary conclusion would render this clause meaningless.

The Board also noted a provision for the early removal of nonviolent offenders that included an exception for offenders in state custody for this particular aggravated felony, which likewise would be superfluous if section 101(a)(43)(E) did not cover state offenses.

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