Background

• Bautista is a Dominican-born lawful permanent resident in the U.S. since 1984.
• On June 5, 2003, Bautista was convicted in New York of attempted arson in the third degree (N.Y. Penal Law §§ 110, 150.10) and received five years’ probation.
• In 2009 Bautista was stopped at a Dominican Republic return and paroled pending inspection; in 2010 DHS instituted removal proceedings asserting inadmissibility under 8 U.S.C. § 1182(a)(2)(A)(i)(I) for a crime involving moral turpitude.
• DHS argued Bautista’s arson conviction is an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i) because it is within the category of offenses described in 18 U.S.C. § 844(i).
• An Immigration Judge initially denied relief but later granted reconsideration and ordered removal; Bautista appeals alleging eligibility for cancellation of removal under § 240A(a).
• The Board reviews whether the New York arson offense is an “aggravated felony” under § 101(a)(43)(E)(i) and thus bars cancellation.

Issues

Key Cases Cited

• Jones v. United States, 529 U.S. 848 (2000) (recognizes interstate commerce element as essential in § 844(i))
• Taylor v. United States, 495 U.S. 575 (1990) (categorical approach for comparing state and federal offenses)
• McFadden v. United States, 814 F.2d 144 (3d Cir. 1987) (definitions of maliciously include intentional conduct)
• United States v. Wiktor, 146 F.3d 815 (10th Cir. 1998) (discusses malware of § 844(i) elements)
• United States v. Corona, 108 F.3d 565 (5th Cir. 1997) (interprets § 844(i) elements in context of interstate commerce)
• United States v. Gullett, 75 F.3d 941 (4th Cir. 1996) (construction of § 844(i) elements)
• Castillo-Rivera, 244 F.3d 1020 (9th Cir. 2001) (relates to jurisdictional elements in federal offenses)