Bautista v. Attorney General of the United States, 744 F.3d 54

Background

Robert Bautista, a lawful permanent resident, was convicted in New York of attempted arson (N.Y. Penal Law §§ 110, 150.10) and admitted the conviction in immigration proceedings.
DHS charged Bautista as removable and found him inadmissible for a crime involving moral turpitude; the Government also argued the arson conviction was an aggravated felony making him ineligible for cancellation of removal under INA § 240A(a).
The IJ ordered removal; the BIA agreed the New York attempted-arson conviction was an aggravated felony because § 101(a)(43)(E)(i) of the INA lists offenses “described in” 18 U.S.C. § 844(i).
The dispositive statutory comparison: NY arson requires intentional damage to a building/vehicle by fire/explosion; 18 U.S.C. § 844(i) contains the same substantive elements plus a jurisdictional element — the property must be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.”
The BIA and several circuits had treated such federal jurisdictional elements as non-substantive (jurisdictional hooks) that need not appear in the state statute for it to be “described in” the federal statute; Bautista challenged that approach in the Third Circuit.
The Third Circuit majority vacated the BIA, holding the New York statute lacks the interstate‑commerce nexus required by § 844(i), and under the categorical approach that nexus is a substantive element for purposes of INA § 101(a)(43)(E)(i). Bautista therefore is not an aggravated felon under that subsection and is eligible to seek cancellation of removal.

Issues

Issue	Bautista's Argument	Government/BIA's Argument	Held
Whether a state arson conviction is an aggravated felony under INA § 101(a)(43)(E)(i) when the state statute lacks the interstate‑commerce nexus in 18 U.S.C. § 844(i)	The § 844(i) jurisdictional element is a substantive element; because NY § 150.10 lacks that element, Bautista’s conviction is not an aggravated felony under § 101(a)(43)(E)(i).	The interstate‑commerce language of § 844(i) is merely jurisdictional; the INA’s phrasing (“described in” plus the penultimate sentence) shows Congress intended to treat state offenses as aggravated felonies even if they lack federal jurisdictional hooks.	Held for Bautista: the § 844(i) commerce nexus is substantive for the categorical comparison; NY attempted arson does not qualify as an aggravated felony under § 101(a)(43)(E)(i).
Proper application of the categorical approach to § 101(a)(43)(E)(i) referencing a federal statute	The categorical approach requires comparing state elements to all elements of the referenced federal statute, including jurisdictional elements found to be substantive by the Supreme Court.	The BIA relied on precedents treating some federal jurisdictional elements as non‑substantive and excluded them from the categorical match.	Held: apply the formal categorical approach including the jurisdictional element in § 844(i) because Jones treats that element as meaningful to the scope of the federal offense.
Whether Chevron deference saves the BIA’s contrary interpretation	N/A (argument focused on statutory meaning and Supreme Court precedent).	The BIA’s interpretation is reasonable and entitled to Chevron deference.	Held: Chevron deference not appropriate because Congress’s intent as informed by Supreme Court precedent (Jones, Taylor) supplies a clear construction for this context.
Whether adopting the Government’s view would undermine uniformity or conflict with Supreme Court precedent (Jones)	Congress intended to use specific federal statutes as fixed reference points; ignoring substantive federal elements would expand the INA beyond the federal statute’s scope.	Treating jurisdictional elements as non‑substantive preserves Congress’s intent to capture state offenses broadly under INA categories.	Held: honoring the specific reach of § 844(i) (per Jones) better preserves uniformity and respects Congress’s deliberate choice to reference that federal statute.

Key Cases Cited

Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (deference framework for agency statutory interpretation)
Taylor v. United States, 495 U.S. 575 (categorical approach comparing statutory elements)
Jones v. United States, 529 U.S. 848 (interpreting § 844(i) commerce nexus as narrowing the federal arson offense)
Lopez v. Gonzales, 549 U.S. 47 (use of federal statutes as immigration reference points; limits on importing broader state offenses)
Moncrieffe v. Holder, 569 U.S. 184 (applying categorical approach in immigration context)
Descamps v. United States, 570 U.S. 254 (limits on modified categorical approach)