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In determining whether a state crime counts as an aggravated felony under 8 U.S.C.S. § 1101(a)(43) when it corresponds to a specified federal offense in all ways but one, i.e., the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction (i.e., Congress’s power to enact the law), the United States Supreme Court holds that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony.
Petitioner Jorge Luna Torres, a lawful permanent resident, pleaded guilty in a New York court to attempted third-degree arson. When immigration officials discovered his conviction, they initiated removal proceedings. The Immigration Judge determined that petitioner’s arson conviction was for an “aggravated felony” and held that petitioner was therefore ineligible for discretionary relief. The Board of Immigration Appeals affirmed. It found the federal and New York arson offenses to be identical except for the former's requirement that the crime have a connection to interstate or foreign commerce. Because the federal statute's commerce element served only a jurisdictional function, the Board held, New York's arson offense was “described in” the federal statute, 18 U.S.C. §844(i), for purposes of determining whether an alien has been convicted of an aggravated felony. Petitioner challenged the decision.
For purposes of determining whether an alien has been convicted of an aggravated felony, was the New York arson offense “described in” the federal statute, 18 U.S.C. §844(i)?
Under the penultimate sentence of 8 U.S.C.S. § 1101(a)(43), a state offense was an aggravated felony when it had every element of a listed federal crime except the interstate commerce element that was used to establish legislative jurisdiction. Since the petitioner had acknowledged that New York arson law differed from 18 U.S.C.S. § 844(i) in only one respect, i.e., it lacked an interstate commerce element, and did not contest that § 844(i)'s commerce element was of the standard, jurisdictional kind, the lower court properly denied the petition for review of the Board’s ruling that petitioner’s New York arson offense was described in § 844(i).