To trigger deportation, the conviction must fall within an aggravated felony category listed in the statute.  See N. Tooby, Aggravated Felonies § 3.12 (2003).[120]  That is, the elements of the offense of conviction must satisfy the statutory definition of a particular category of aggravated felony offense, and the necessary sentence (if any) must have been potential or imposed, as the definition of the particular aggravated felony category requires.  Only then does the conviction constitute an aggravated felony. 

All reported cases of the BIA and all federal courts holding that a particular conviction does not fall within a particular aggravated felony category have been indexed in Chapter 8, infra.  They are also indexed in two different ways (by aggravated felony category and by type of crime) in Appendix A and B to N. Tooby, Aggravated Felonies (2003).

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

BIA

AGGRAVATED FELONY - GENERIC DEFINITION - BIA DUTY TO FILL IN AMBIGUITIES IN CONGRESSIONAL INTENT
Matter of Velazquez-Herrera, 24 I. & N. Dec. 503, ___ (BIA May 20, 2008) ("If that language constitutes a plain expression of congressional intent, it must be given effect. See Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 842-43. When Congress's intent is not plainly expressed, however, it is our duty to resolve any ambiguities and fill any statutory gaps in a reasonable manner, at least insofar as they pertain to portions of the statute that fall within the scope of our expertise. INS v. Aguirre-Aguirre, 526 U.S. 415, 424-33 (1999) (following Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., supra, at 843-44). In doing so, we bear in mind that "the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." Food and Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (quoting Davis v. Michigan Dep't of Treasury, 489 U.S. 803, 809 (1989)); see also Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997).").

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.