By Michael Mitchell

Defendant Challenges Classification of Arson Conviction as “Aggravated Felony” to Avoid Deportation

Today, in Sandra Espinal-Andrades v. Eric Holder, Jr., the Fourth Circuit considered whether the Defendant’s arson conviction qualifies as an aggravated felony under the Immigration and Nationality Act (“INA”). The court reviewed this Board of Immigration Appeals (“BIA”) case de novo.

BIA Found Defendant’s Arson Conviction Qualified for “Aggravated Felony” Classification Sufficient for Removal

Espinal became a lawful permanent resident after she immigrated to the United States from El Salvador in 1999. She plead guilty to one count of first degree arson in exchange for the state dropping her three additional related charges. She was sentenced to 360 days in prison. The Department of Homeland Security believed that the Defendant’s first degree arson conviction qualified as an aggravated felony, a classification that an immigration judge confirmed and ordered for her removal. Her appeal of this aggravated felony classification to the BIA was dismissed based on agency precedent.

Fourth Circuit Finds Congress Intended Aggravated Felony Classification to Cover State Arson Offenses

Relying on Chevron deference, criminal state statutes may qualify as an aggravated felony under the INA in spite of lacking a federal jurisdictional element based on BIA precedent if the agency’s interpretation of the state statute is a “permissible construction.”

Chevron Deference For BIA’s Controlling Precedent Even Though State Crime Lacked Federal Jurisdictional Element

In a published opinion by Circuit Judge Wynn, the Court considered whether the agency’s decision should be afforded deference under Chevron v. NRDC. The first step of Chevron is whether the statute is silent or ambiguous regarding the question presented. If so, the court next determines whether the agency’s interpretation “is based on a permissible construction of the statute.” Typically, BIA’s single-member decisions do not receive Chevron deference “because they lack precedential value.” However, this particular decision relies on precedential en banc and three-member panel decisions, such that this controlling precedent can be given Chevron deference.

Under the INA, aliens convicted of an “aggravated felony at any time after admission is deportable.” While the Maryland statute under which Espinal was charged is nearly identical to the INA, it lacks the federal jurisdictional element that the destroyed property be “used in interstate or foreign commerce.” Nevertheless, the INA states that aggravated felony includes violations of both federal and state law.

Applying Chevron analysis, the court first considered whether “Congress has directly spoken to the precise question at issue” by examining the statute’s plain language meaning. This involved defining the terms “described in” and “defined in,” which the court concluded evidenced Congress’s intent to include state statutes as aggravated felonies even if they did not address a federal jurisdictional element. Thus, the statute was not ambiguous. Furthermore, under the second step of Chevron, the court considered whether the BIA’s interpretation was reasonable applying an “arbitrary and capricious” standard. Because the single-member BIA panel relied on precedential agency decisions, the Fourth Circuit found that the BIA’s interpretation was reasonable to find that Espinal’s arson conviction qualified as an aggravated felony.

BIA’s Classification of “Aggravated Felony” for Arson Conviction Upheld by Fourth Circuit Based on Chevron Deference

The Fourth Circuit denied the Defendant’s petition for review of the BIA’s classification of her arson conviction as an “aggravated felony” under the INA. As a lawful permanent resident convicted of an aggravated felony, Espinal may be deported back to El Salvador.