The Immigration & Nationality Act (INA); Removal after conviction of an “aggravated felony” (8 USC § 1101(a)(43)); § 1227(a)(2)(A)(iii); Whether a Virginia arson conviction constituted an “aggravated felony” under the INA; 18 USC § 844(i) (the federal arson statute); Whether the Virginia statute was “broader” than the federal statute; Board of Immigration Appeals (BIA); Department of Homeland Security (DHS); Immigration judge (IJ)

The court denied petitioner-Mohammed’s petition for review of the BIA’s removal order, holding that her Virginia arson conviction constituted an “aggravated felony” under the INA, making her deportable under § 1227(a)(2)(A)(iii). Petitioner, a lawful permanent U.S. resident, is a citizen and native of Trinidad and Tobago. After she pled guilty to arson in Virginia, the DHS charged her as removable on the ground that her conviction constituted an aggravated felony. She sought cancellation of removal when she appeared before an IJ, who ruled that the conviction qualified as an aggravated felony and thus, that she was removable and ineligible for discretionary relief. She appealed, and the BIA affirmed the order. The court reviewed the INA definitions of “aggravated felony.” Relevant here, the term includes “‘an offense described in’” § 844(i), the federal arson statute. That statute provides that it is “a crime to ‘maliciously damage[] or destroy[], or attempt[] to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate . . . commerce or in any activity affecting interstate . . . commerce.’” The court had to determine whether petitioner’s Virginia arson conviction “is an offense described in the federal arson statute.” Using the categorical approach, it compared the federal and state statutes. It explained that “[i]f the state offense criminalizes a broader range of conduct than its federal counterpart, it does not qualify as an aggravated felony.” It noted that the “primary difference between the statutes is that the Virginia arson statute expressly applies to conduct that aids and abets arson while the language of the federal arson statute does not.” Petitioner relied on this to argue that the Virginia statute was “broader” than the federal one. But the court noted there is no longer “any distinction between principals and accomplices for purposes of criminal liability” under Virginia law (as with federal law). The court has “explained that ‘aiding and abetting is simply an alternative theory of liability indistinct from the substantive crime.’ . . . This matters because our ‘categorical analysis is reserved for the elements of the offense.’” The court concluded that because “the federal arson statute necessarily incorporates the aiding-and-abetting statute, the Virginia arson statute is not broader than the federal arson statute.” Thus, petitioner’s state arson conviction qualified as an aggravated felony.