The Board of Immigration Appeals (BIA) in Matter of Bautista, s 25 I&N Dec. 616 (BIA 2011) determined that:
“Attempted arson in the third degree in violation of sections 110 and 150.10 of the New York Penal Law is an aggravated felony under section 101(a)(43)(E)(i) of the Immigration and Nationality Act, 8U.S.C. § 1101(a)(43)(E (i) (2006), even though the State crime lacks the jurisdictional element in the applicable Federal arson offense. Matter of Vasquez-Muniz, 23 I&N Dec. 207 (BIA 2002), followed.”
The contention we really have with the case is this is just another situation where the BIA is engaging in judicial activism of trying to write conservative immigration laws. The Federal Government hold exclusive authority over immigration, but here the BIA is finding a state crime to be a deportable offense even though there is no Federal law that deems it deportable.
