(A)  Elements of the Aggravated Felony Category.  In addition to the firearms trafficking aggravated felony discussed in § 7.77, supra, the aggravated felony definition[585] includes an offense described in the following sections of Title 18 U.S. Code:

 

·          844(h) (receiving stolen explosives),

 

·          841(i) (shipping or receiving explosives in interstate or foreign commerce by indictee, felon, fugitive, addict, or mental defective or committee),

 

·          844(d) (transportation or receipt of explosives in interstate or foreign commerce with intent to injure, intimidate or damage property),

 

·          844(e) (communication of threat or false information concerning attempt to injure, intimidate, or damage property by fire or explosive),

 

·          844(f) (malicious damage by fire or explosive to property of United States or organization receiving federal funds),

 

·          844(g) (illegal possession of explosive in airport),

 

·          844(h) (use or carrying of explosive in commission of federal felony),

 

·          844(i) (malicious destruction by fire or explosive of property used in or affecting commerce),

 

·          922(g)(1)-(5) (shipping or receiving firearms or ammunition by felon, fugitive, addict, mental defective or committee, alien unlawfully in U.S., dishonorable discharge, or person who renounced U.S. citizenship),

 

·          922(j) (receiving stolen arms or ammunition),

 

·          922(n) (shipping or receiving arms or ammunition by felony indictee),

 

·          922(o) (possession of machine gun),

 

·          922(p) (possession of undetectable firearm),

 

·          922(r) (assembly of illegal rifle or shotgun from imported parts),

 

·          924(b) (ship or receive firearm or ammunition with intent therewith to commit a felony), and

 

·          924(h) (transfer of firearm with knowledge it will be used to commit a crime of violence or drug trafficking offense).

 

            The definition also includes “an offense described in” Internal Revenue Code § 5861 (26 U.S.C. § 5861) (failure to pay firearms tax, possession of unregistered firearm or one with serial number altered, etc.).  That section prohibits the following acts:

 

a.         engage in business as firearms dealer without having paid special tax or registered as required in 26 U.S.C. § § 5801, 5802,

 

b.         possess a firearm transferred in violation of this chapter (26 U.S.C. § § 5801-5872),

 

            c.         possess a firearm made in violation of this chapter,

 

d.         possess a firearm not registered to the possessor in the National Firearms Registration and Transfer Record,

 

            e.         transfer a firearm in violation of this chapter,

 

f.          make a firearm in violation of this chapter,

 

            g.         alter identification of a firearm required by this chapter,

 

            h.         possess a firearm with altered identification,

 

            i.          possess a firearm not identified as required by this chapter,

 

j.          transport or receive any firearm in interstate commerce which has not been registered as required by this chapter,

 

k.         possess a firearm imported into the U.S. in violation of 26 U.S.C. § 5844, or

 

            l.          knowingly make a false entry on any record required by this chapter.

 

A conviction of a listed offense, or of a state offense all of whose elements fall entirely within one of the listed offenses, will constitute an aggravated felony under this definition.

 

[585] INA § 101(a)(43)(E), 8 U.S.C. § 1101(a)(43)(E).

Third Circuit

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY " FIREARMS AND DESTRUCTIVE DEVICES " ARSON " FEDERAL JURISDICTIONAL ELEMENT
Bautista v. Atty Gen. of the U.S., 744 F.3d 54 (3d Cir. Feb. 28, 2014) (New York conviction of attempted arson in the third degree, in violation of Penal Law 110 and 150.10, did not categorically constitute a match for the elements of 18 U.S.C. 844(i), and is therefore not an aggravated felony under INA 101(a)(43)(E)(i), 8 U.S.C. 1101(a)(43)(E)(i), because the New York arson statute does not require the federal jurisdictional element that the object of the arson be used in interstate commerce, which the Supreme Court has found to be a critical and substantive element of that arson offense). The court reasoned as follows: We must assume that Congress was aware of the limits imposed by the Commerce Clause on the reach of the statutes it passes and that it restricted the breadth of 101(a)(43)(E) with the substantive constraints of the included jurisdictional elements in mind. See United States v. Am. Bldg. Maint. Indus., 422 U.S. 271, 279"80, 95 S.Ct. 2150, 45 L.Ed.2d 177 (1975) (comparing Congress's use of in commerce versus affected commerce to show that Congress is aware of its Commerce Clause power and the extent to which it asserts that power in drafting statutes). We cannot undermine the categorical approach and Congress's deliberate choice to include 844(i), rather than generic arson, in 101(a)(43)(E)(i). Further, were we to ignore the jurisdictional element in our categorical approach to 844(i), as the BIA has here, we would be characterizing a state conviction for arson of the intrastate house in Jones as an aggravated felony described in 844(i), when the Supreme Court clearly excised the arson of such intrastate objects from the scope of that federal statute. Id. at 64-66.

AGGRAVATED FELONY - FIREARMS TRAFFICKING
Joseph v. Attorney General of U.S., ___ F.3d ___, 2006 WL 2796256 (3d Cir. Oct. 2, 2006) (federal conviction of importing a firearm into a state, in violation of 18 U.S.C. 922(a)(3), does not constitute an "aggravated felony" of "illicit trafficking in firearms" under INA 101(a)(43)(C) and 237(a)(2)(A)(iii), 8 U.S.C. 1101(a)(43)(C), 1227(a)(2)(A)(iii), because 922(a)(3) does not include a "trafficking element").

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).

AGGRAVATED FELONY - FIREARMS TRAFFICKING - TRANSPORTATION ACROSS STATE LINES
Joseph v. United States Atty Gen., 465 F.3d 123 (3d Cir. Oct. 2, 2006) (federal conviction of 18 U.S.C. 922(a)(3) and 924(a)(1)(D) [transporting firearm across state lines] is not an aggravated felony firearms trafficking offense under INA 101(a)(43)(C) for immigration purposes because the statute does not at a minimum require "trafficking" in firearms; the offense may be committed by bringing ones own firearm across state lines).