Bautista v. AG of the United States, 744 F.3d 54 (3d Cir. 2014)
Feb 28, 2014OUTCOME: Petition Granted in Client's Favor. Board of Immigration Appeals Decision Vacated.
The Third Circuit Court of Appeals, in a published decision, vacated a published Board of Immigration Appeals Decision as to the question of whether an attempted arson conviction falls withing the Immi ... gration Law's "aggravated felony" definition. The Third Circuit ruled in favor of Client, creating a 6-1 split among the other Federal Circuit Courts that decided the same question. The Court wrote: "Petitioner Robert Bautista, a legal permanent resident, was ordered removed from the United States by an immigration judge ("IJ"). The IJ found him removable because he is inadmissible under § 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act ("INA") as an alien convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ also found him ineligible for cancellation of removal under § 240A(a) of the INA because his New York conviction for attempted arson constituted an aggravated felony. 8 U.S.C. § 1229b(a). Bautista appealed to the Board of Immigration Appeals ("BIA"), which dismissed his appeal. The BIA agreed that the arson conviction fell within the relevant definition of an aggravated felony under § 101(a)(43) of the INA. 8 U.S.C. § 1101(a)(43). Bautista filed a timely petition for review in this Court. We will grant the petition because the New York attempted arson conviction is not an aggravated felony in respect to collateral immigration consequences under the INA. Applying the categorical approach, as we must, the New York statute under which Bautista was convicted does not match the elements of 18 U.S.C. § 844(i), the corresponding federal statute under the INA. 8 U.S.C. § 1101(a)(43)(E)(i). A conviction under that New York arson statute cannot qualify as an aggravated felony because it lacks the jurisdictional element of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense. We vacate the BIA ruling and remand to the BIA for further consideration in light of this opinion."
