The aggravated felony statute includes “illicit trafficking in firearms or destructive devices (as defined in section 921 of title 18, United States Code) or in explosive materials (as defined in section 841(c) of that title) . . . .” [689]  This ground therefore has the following elements:

 

(1)     a conviction of an offense that is

(2)     illicit trafficking

(3)     in firearms or destructive devices (as defined in section 921 of title 18, United States Code), or

(4)     in explosive materials (as defined in section 841(c) of that title).

 

                Unlike the drug trafficking definition, the firearms trafficking definition is limited to the common-sense definition of “trafficking,” and resort is had to federal statutes only to define the “firearms,” “destructive devices,” or “explosives” that must be the subject of the illicit trafficking.  For purposes of determining whether an offense involves illicit trafficking in firearms,[690] “firearms” and “destructive devices” are defined in 18 U.S.C. § 921(a)(3). 

 

                Illicit trafficking in explosive materials (as defined in 18 U.S.C. § 841(c)) also constitutes an aggravated felony.[691]  “‘Explosive materials’ means explosives, blasting agents, and detonators.”[692]  “Explosives” “means any chemical compound mixture, or device, the primary or common purpose of which is to function by explosion . . . .”[693]  “The Secretary shall publish and revise at least annually in the Federal Register a list of these and any additional explosives which he determines to be within the coverage of this chapter.”[694]

 

There are a number of safe havens and defenses applicable to this section:

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

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

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

[692] 18 U.S.C. § 841(c).

[693] 18 U.S.C. § 841(d).

[694] Ibid.

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.