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Matthew Kolken on Deportation And Removal

BIA Decision: Third-Degree Attempted Arson in New York is an Aggravated Felony

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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.

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  1. Tony's Avatar
    I can think of a lot of curse words to describe this nsnoense, but Gid, I think you hit the nail right on the head. Since when did the word, accident disappear from the English language? I don't think I want to live in a society where an 8 year old kid playing with matches or whatever is subject to the full panoply of the criminal law. And let's not forget about the emasculation of the kid's parents. What, are they supposed to sit and take this sitting down? How would I answer the question, Daddy, why did you let them do that to me? Not something I care to think about. Accidents happen. That's life. And I cannot imagine myself thinking any different if my own child died at the hand of such an accident. Prosecuting 8 year olds for reckless behavior is an exercise in stupidity. There's no way, simply on the basis of the fact that the kid was playing with matches and it got out of hand, to determine whether this kid is someone in need of intervention or just the one that got hit by lightning, so to speak. That, coupled with the obvious harm here, makes this about as cruel an act as I can imagine.Sorry for the rant. This just pisses me off.
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