Fourth Circuit Rules that 1st Degree Arson is Aggravated Felony

For Foreign Law Firms in Australia
January 26, 2015
Ending Artesia
January 27, 2015

The fourth circuit ruled  that Maryland’s 1st degree arson is an aggravated felony for immigration purposes. The petitioner was a lawful permanent resident who pleaded to first degree arson under Maryland law. She was sentenced to 365 in prison. in 2013, the Service placed her in removal proceedings for her first degree arson conviction. She was placed into removal as an alien who was convicted of an aggravated felony under 101(a)(43)(E) of the INA. Her attorney argued that her first degree arson was not an aggravated felony since the property was not used in interstate commerce to fall under the federal 1st degree arson statute. The immigration judge ruled against her and she appealed. The Board, in a one member panel, upheld the immigration judge’s decision.

Before reaching the main issue of whether the first degree arson conviction was an aggravated felony, the court decided that the Board’s decision warranted Chevron deference. The court ruled that it does. It then moved to consider the first degree arson conviction for immigration purposes. the court compared Maryland’s first degree arson to the federal statute and found them identical except for the interstate commerce element. The court ruled that Congress did not intend for statutes to be exact matches for them to be aggravate felonies under the INA’s definition. The court ruled that even though Maryland’s first degree arson was not an exact match, it could still be deemed an aggravated felony for immigration purposes. The court reasoned that giving the statute a different meaning would contradict Congress’s intent. The court, however, had to go through the second step of Chevron since there was a contradictory ruling from a sister court. The court ruled that the precedential decisions on which the Board relied deserved deference under the Chevron analysis.  The court thus denied the Petition for review.

This decision shows that aggravated felonies are very hard to determine. It was not clear whether there was an argument under Padilla v. Kentucky or if counsel moved to rescind the conviction based on lack of immigration consequences advise. It is very important to hire an experience counsel to help you in removal proceedings, especially if you have been convicted of a serious crime which might be classified as an aggravated felony under 101(a)(43(E) of the INA.

The decision is ESPINAL-ANDRADES v. HOLDER, and you can read it here.

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