Luna Torres v. Holder

1
13‐2498
Luna Torres v. Holder
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term, 2013 3
(Argued: May 5, 2014 Decided: August 20, 2014) 4
Docket No. 13‐2498 5
6
JORGE LUNA TORRES, 7
Petitioner, 8
v. 9
ERIC H. HOLDER, JR., Attorney General of the United States, 10
Respondent.* 11
12
Before: SACK, RAGGI, and CHIN, Circuit Judges. 13
The petitioner, a lawful permanent resident of the United States, was 14
convicted of attempted arson in the third degree in violation of New York Penal 15
Law §§ 110 and 150.10. A United States Immigration Judge determined that this 16
conviction was an ʺoffense described inʺ 18 U.S.C. § 844(i) and therefore 17
constituted an ʺaggravated felonyʺ rendering the petitioner ineligible for 18
cancellation of removal under the Immigration and Nationality Act. See 8 U.S.C. 19
§ 1101(a)(43)(E)(i). The Board of Immigration Appeals affirmed, rejecting the 20
petitionerʹs argument that the state provision under which he was convicted is 21
* The Clerk of the Court is respectfully directed to amend the caption as set forth
above.

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2
not an ʺoffense described inʺ 18 U.S.C. § 844(i) because it lacks a federal 1
jurisdictional element. We conclude that under Chevron, U.S.A., Inc. v. Natural 2
Resources Defense Council, Inc., 467 U.S. 837 (1984), we must defer to the 3
reasonable determination of the Board of Immigration Appeals that a state law 4
offense need not contain a federal jurisdictional element in order to qualify as an 5
ʺoffense described inʺ 18 U.S.C. § 844(i), and thereby constitute an aggravated 6
felony. The petition is therefore 7
DENIED. 8
MATTHEW L. GUADAGNO, New York, 9
NY, for Petitioner. 10
REBECCA HOFFBERG PHILLIPS, Trial 11
Attorney (Stuart F. Delery, Assistant 12
Attorney General; William C. Peachey, 13
Assistant Director; Brianne Whelan Cohen, 14
Acting Senior Litigation Counsel, on the 15
brief), Civil Division, U.S. Department of 16
Justice, Washington, DC, for Respondent. 17
S ACK, Circuit Judge: 18
We consider on this appeal whether a conviction under New York Penal 19
Law §§ 110 and 150.10 for attempted arson in the third degree constitutes an 20
ʺaggravated felonyʺ under the Immigration and Nationality Act (ʺINAʺ). See 8 21
U.S.C. § 1101(a)(43)(E)(i). Answering this question requires us to decide whether 22
this state crime, which lacks a federal jurisdictional element, is an ʺoffense 23

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described inʺ 18 U.S.C. § 844(i), the federal statute governing explosive materials 1
offenses, which does contain such an element. Because we defer to the BIAʹs 2
reasonable determination that a state ʺoffense described inʺ 18 U.S.C. § 844(i) 3
need not contain a federal jurisdictional element, we deny the petition. 4
BACKGROUND 5
Jorge Luna Torres, a native and citizen of the Dominican Republic and a 6
lawful permanent resident of the United States, was convicted in 1999 of 7
attempted arson in the third degree in violation of New York Penal Law §§ 110 8
and 150.10. Luna1 was sentenced to one day of imprisonment and five years of 9
probation. 10
In 2006, Luna sought admission to the United States as a lawful 11
permanent resident after a trip abroad. On March 13, 2007, the Immigration and 12
Naturalization Service issued a Notice to Appear charging Luna with 13
inadmissibility as an alien convicted of a crime involving moral turpitude. 14
Luna applied for cancellation of removal. After a merits hearing, a United 15
States Immigration Judge (ʺIJʺ) found Luna removable as charged, a conclusion 16
which Luna does not challenge before this Court. Relying on Matter of Bautista, 17
1 Although the removal proceedings employ the petitionerʹs full name, Jorge Luna
Torres, he refers to himself as Jorge Luna. We follow his preference here.

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25 I. & N. Dec. 616 (BIA 2011), overruled by Bautista v. Attorney Gen., 744 F.3d 54 1
(3d Cir. 2014), the IJ also found Luna ineligible for cancellation of removal as a 2
permanent resident convicted of an aggravated felony, see 8 U.S.C. § 1229b(a)(3). 3
In Matter of Bautista, the Board of Immigration Appeals (ʺBIAʺ) had concluded 4
that a conviction under the same provision of the New York Penal Law 5
constitutes an aggravated felony under section 101(a)(43)(E)(i) of the INA as an 6
ʺoffense described inʺ 18 U.S.C. § 844(i). Matter of Bautista, 25 I. & N. Dec. at 618– 7
20; see 8 U.S.C. § 1101(a)(43)(E)(i) (codifying INA § 101(a)(43)(E)(i)). 8
Luna appealed the denial of cancellation to the BIA. He argued that the 9
agency should reconsider Matter of Bautista and that, if it did not, the decision 10
should not be applied retroactively to his case. The BIA dismissed Lunaʹs 11
appeal, declining to reconsider Matter of Bautista and concluding that its effect 12
was not impermissibly retroactive. Luna timely petitioned this Court for review, 13
repeating both of these arguments. 14
After briefing but before oral argument in Lunaʹs appeal, the Third Circuit 15
vacated the BIAʹs ruling in Matter of Bautista, concluding that the New York 16
arson statute did not qualify as an aggravated felony because it lacked the 17
federal jurisdictional element. Bautista v. Attorney Gen., 744 F.3d 54, 56 (3d Cir. 18

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2014). The Third Circuitʹs decision conflicts with interpretations by the Fifth, 1
Seventh, Eighth, and Ninth Circuits of 8 U.S.C. § 1101(a)(43)ʹs ʺoffense described 2
inʺ language. See Spacek v. Holder, 688 F.3d 536 (8th Cir. 2012) (interpreting 3
8 U.S.C. § 1101(a)(43)(J), relating to racketeering offenses); Nieto Hernandez v. 4
Holder, 592 F.3d 681 (5th Cir. 2009) (interpreting 8 U.S.C. § 1101(a)(43)(E)(ii), 5
relating to firearms offenses); Negrete‐Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 6
2008) (same); United States v. Castillo‐Rivera, 244 F.3d 1020 (9th Cir. 2001) (same). 7
We therefore requested supplemental briefing, which the parties submitted prior 8
to oral argument. 9
DISCUSSION 10
I. Jurisdiction and Standard of Review 11
This Court lacks jurisdiction to review the BIAʹs denial of discretionary 12
relief from removal. See 8 U.S.C. §§ 1252(a)(2)(B)(ii), 1229b(a). But Lunaʹs claim 13
that his conviction is not an aggravated felony rendering him statutorily 14
ineligible for cancellation of removal raises a question of law which we retain 15
jurisdiction to review, id. § 1252(a)(2)(D), and which we evaluate under the 16
principles of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources 17
Defense Council, Inc., 467 U.S. 837 (1984). 18

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II. Whether a Violation of New York Penal Law § 150.10 Constitutes an 1
Aggravated Felony Under the INA 2
On appeal, Luna argues that Matter of Bautista was incorrectly decided 3
because Congress intended to define as ʺaggravated feloniesʺ only those state 4
law crimes encompassing all elements of the federal statute, including so‐called 5
ʺjurisdictionalʺ elements. Because we defer to the BIAʹs reasonable conclusion to 6
the contrary, we reject this argument. 7
The Statutory Framework 8
Under the INA, an alien is ineligible for cancellation of removal if he has 9
been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). The statute 10
defines the term ʺaggravated felonyʺ by enumerating an extensive catalogue of 11
crimes identified with varying degrees of specificity. See id. § 1101(a)(43). The 12
definitionʹs penultimate sentence also provides that ʺ[t]he term applies to an 13
offense described in this paragraph whether in violation of Federal or State law 14
and applies to such an offense in violation of the law of a foreign country for 15
which the term of imprisonment was completed within the previous 15 years.ʺ 16
Id. 17

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7
Among the offenses included under INA § 101(a)(43)ʹs definition is ʺan 1
offense described inʺ 18 U.S.C. § 844(i). See 8 U.S.C. § 1101(a)(43)(E)(i). That 2
section in turn provides: 3
Whoever maliciously damages or destroys, or attempts to damage 4
or destroy, by means of fire or an explosive, any building, vehicle, or 5
other real or personal property used in interstate or foreign 6
commerce or in any activity affecting interstate or foreign commerce 7
shall be imprisoned for not less than 5 years and not more than 20 8
years, fined under this title, or both . . . . 9
10
18 U.S.C. § 844(i). New York Penal Law § 150.10, under which Luna was 11
convicted, provides that ʺ[a] person is guilty of arson in the third degree when he 12
intentionally damages a building or motor vehicle by starting a fire or causing an 13
explosion.ʺ N.Y. Penal Law § 150.10(1). The two statutes are substantially 14
similar except that 18 U.S.C. § 844(i) contains one element—that the property 15
destroyed be ʺused in interstate or foreign commerce or in any activity affecting 16
interstate or foreign commerceʺ—which New York Penal Law § 150.10 lacks. 17
The question this appeal poses is whether the New York provision must include 18
this jurisdictional element in order to qualify as an ʺoffense described inʺ the 19
federal statute. 20

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8
The BIAʹs Decision in Matter of Bautista 1
The BIA confronted precisely this question in Matter of Bautista. After 2
determining that New York Penal Law § 150.10 and 18 U.S.C. § 844(i) are 3
substantially similar except for the jurisdictional element, the BIA concluded that 4
its analysis in Matter of Vasquez‐Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc), 5
controlled. Matter of Bautista, 25 I. & N. Dec. at 618‐20. 6
In Matter of Vasquez‐Muniz, the BIA decided that a conviction under the 7
California Penal Code for possession of a firearm by a felon constituted an 8
aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii) as an ʺoffense described inʺ 9
18 U.S.C. § 922(g)(1). Matter of Vasquez‐Muniz, 23 I. & N. Dec. at 213. The BIA, 10
sitting en banc, reasoned that a state crime ʺdescribed inʺ a federal crime need not 11
reproduce the federal jurisdictional element. Id. The BIA concluded that the 12
penultimate sentence of section 1101(a)(43), which clarifies that the term 13
ʺaggravated felonyʺ applies to ʺan offense described in this paragraph whether in 14
violation of Federal or State lawʺ or ʺthe law of a foreign country,ʺ expressed a 15
congressional ʺconcern over substantive offenses rather than any concern about 16
the jurisdiction in which they are prosecuted.ʺ Id. at 210 (emphasis added). The 17
BIA also reasoned that, since states rarely include federal jurisdictional language 18

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in their criminal statutes, requiring state crimes to reproduce federal 1
jurisdictional elements in order to constitute aggravated felonies would virtually 2
excise state criminal convictions from the ambit of section 1101(a)(43)(E), despite 3
clear language to the contrary. Id. at 211 (citing 8 U.S.C. § 1231(a)(4)(B)(ii), which 4
refers to aliens ʺin the custody of a Stateʺ pursuant to a final conviction for an 5
offense described in 8 U.S.C. § 1101(a)(43)(E)). The same would be true, the BIA 6
concluded, of foreign offenses. Id. at 211‐12. 7
Applying this reasoning in Matter of Bautista, the BIA found no distinction 8
between the federal jurisdictional element of 18 U.S.C. §§ 844(i) and that of 9
922(g)(1). Matter of Bautista, 25 I. & N. Dec. at 620. The BIA also distinguished 10
the holding of Jones v. United States, 529 U.S. 848 (2000), which emphasized the 11
importance of section 844(i)ʹs federal jurisdictional element, as ʺrelated to the 12
scope of the Federal criminal statute, not the collateral consequences in an 13
immigration case.ʺ Matter of Bautista, 25 I. & N. Dec. at 621. The BIA therefore 14
concluded that a conviction under New York Penal Law §§ 110 and 150.10 15
constituted an aggravated felony rendering an alien ineligible for cancellation of 16
removal. Id. at 622. 17

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Our Analysis Under Chevron 1
Chevron requires us to defer to an agencyʹs reasonable interpretation of the 2
statute it administers. Chevron, 467 U.S. at 842‐44; Kar Onn Lee v. Holder, 701 F.3d 3
931, 936 (2d Cir. 2012). We must first ask ʺwhether Congress has directly spoken 4
to the precise question at issue[,] . . . for the court, as well as the agency, must 5
give effect to the unambiguously expressed intent of Congress.ʺ Chevron, 467 6
U.S. at 842‐43. ʺ[I]f the statute is silent or ambiguous with respect to the specific 7
issue, the question for the court is whether the agencyʹs answer is based on a 8
permissible construction of the statute.ʺ Id. at 843. We must defer to the BIAʹs 9
interpretation of the INA unless it is ʺarbitrary, capricious, or manifestly contrary 10
to the statute.ʺ Id. at 844. 11
ʺThe plainness or ambiguity of statutory language is determined by 12
reference to the language itself, the specific context in which that language is 13
used, and the broader context of the statute as a whole.ʺ Kar Onn Lee, 701 F.3d at 14
936 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)) (internal quotation 15
marks omitted). ʺIn interpreting the statute at issue, we consider not only the 16
bare meaning of the critical word or phrase but also its placement and purpose in 17
the statutory scheme.ʺ Id. (quoting Holloway v. United States, 526 U.S. 1, 6 (1999)) 18

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(internal quotation marks omitted). Considering the language of clause 1
1101(a)(43)(E)(i) and its place in paragraph 1101(a)(43) and the INA as whole, we 2
conclude that the statute is ambiguous as to whether a state crime must contain a 3
federal jurisdictional element in order to constitute an aggravated felony. 4
Section 1101(a)ʹs paragraph 43 identifies crimes that constitute aggravated 5
felonies in three ways. Some are indicated in terms of generic offenses or 6
offenses ʺrelating toʺ generic offenses. See, e.g., 8 U.S.C. § 1101(a)(43)(A) 7
(ʺmurder, rape, or sexual abuse of a minorʺ); id. § 1101(a)(43)(S) (ʺan offense 8
relating to obstruction of justice, perjury or subornation of perjury, or bribery of a 9
witnessʺ). Others are referred to as offenses ʺdefined inʺ a particular federal 10
statute. See, e.g., id. § 1101(a)(43)(B) (ʺillicit trafficking in a controlled substance 11
(as defined in section 802 of Title 21), including a drug trafficking crime (as 12
defined in section 924(c) of Title 18)ʺ). And still others are denominated offenses 13
ʺdescribed inʺ a particular federal statute. See, e.g., id. § 1101(a)(43)(E). The 14
provision at issue here belongs in this last category. 15
Luna contends that, for a state offense to be one that is ʺdescribed inʺ a 16
federal statute, the elements of the state and federal crimes, including any 17
jurisdictional elements, must be identical. See Petʹrʹs Br. at 13‐17. The Third 18

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Circuit took a similar approach in rejecting the BIAʹs decision in Matter of 1
Bautista, concluding that state offenses ʺdescribed inʺ a federal statute must 2
reproduce the federal jurisdictional element to constitute aggravated felonies, 3
while offenses ʺdefined inʺ a federal statute need not.2 Bautista, 744 F.3d at 59. 4
We are inclined to disagree. It seems to us, as it did to the Fifth, Seventh, 5
Eighth, and Ninth Circuits, that ʺdescribed inʺ is the broader standard, and that 6
an offense identified in this way need not reproduce the federal jurisdictional 7
element to have immigration consequences. See Castillo‐Rivera, 244 F.3d at 1023 8
(stating that Congress ʺʹhad to use some looser standard such as ʺdescribed inʺ 9
rather than the more precise standard of ʺdefined in,ʺ if it wanted more than a 10
negligible number of state offenses to count as aggravated feloniesʹʺ); Negrete‐ 11
Rodriguez, 518 F.3d at 502, 503 (discussing Castillo‐Riveraʹs distinction between 12
ʺdescribed inʺ and ʺdefined inʺ and rejecting petitionerʹs argument that ʺʹdefined 13
inʹ and ʹdescribed inʹ are synonymousʺ); Nieto Hernandez, 592 F.3d at 685‐86 14
2 The Third Circuit also reasoned that if Congress had intended all state arson crimes
to constitute aggravated felonies, it could have written section 1101(a)(43)(E)(i) to refer
to the generic offense of arson rather than the federal statute governing explosives
offenses. Bautista, 744 F.3d at 64. While this argument is not without force, we find at
least equally persuasive the counterargument that Congress may have chosen to
indicate the covered crimes by referring to 18 U.S.C. § 844 because the explosives
offenses detailed therein are broader than generic or common‐law arson. Cf. Negrete‐
Rodriguez, 518 F.3d at 503 (ʺ[M]any firearms offenses are not susceptible to being easily
described in general terms . . . .ʺ).

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(citing Negrete‐Rodriguez and Castillo‐Rivera); Spacek, 688 F.3d at 538 (ʺSection 1
1101(a)(43)(J) requires only ʹan offense described in section 1962 of title 18,ʹ while 2
Congress used the more restrictive construction ʹas defined inʹ elsewhere in the 3
statute.ʺ (emphases in original)); see also Bautista, 744 F.3d at 71 (Ambro, J., 4
dissenting) (ʺTo me, the phrase ʹdescribed inʹ refers broadly to the type of 5
offense.ʺ (emphasis in original)). 6
On the other hand, we do not think that this conclusion follows inexorably 7
from the INAʹs text and structure. We are not fully convinced, for example, that 8
paragraph 43ʹs penultimate sentence unequivocally expresses Congressʹs intent 9
to discount federal jurisdictional elements when determining whether a state 10
offense is ʺdescribed inʺ a federal statute. The BIA has reasoned and the 11
government has argued that the penultimate sentence—which states that the 12
term ʺaggravated felonyʺ ʺapplies to an offense described in this paragraph 13
whether in violation ofʺ federal, state, or foreign law—requires this 14
interpretation, because otherwise section 1101(a)(43)(E) would capture few, if 15
any, state crimes. See Matter of Bautista, 25 I. & N. Dec. at 619‐20; Respʹtʹs Br. at 16
21‐24. We think, though, that the penultimate sentence could also be read to 17
make clear that an offense will not be exempted from the definition of an 18

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ʺaggravated felonyʺ merely because it was a violation of state or foreign, rather 1
than federal, law. This reading would not require the result that the government 2
and the BIA appear to have reached. We therefore are not persuaded that the 3
penultimate sentence evinces an unambiguously expressed congressional intent. 4
The BIA also determined in Matter of Bautista, and the government argues 5
on appeal, that reading 8 U.S.C. § 1101(a)(43) to require state offenses to include a 6
federal jurisdictional element renders meaningless another provision of the 7
Immigration and Naturalization Act. See Matter of Bautista, 25 I. & N. Dec. at 620 8
(citing Matter of Vasquez‐Muniz, 23 I. & N. Dec. at 212); Respʹtʹs Br. at 25. That 9
provision refers to the removal of aliens who are held ʺin the custody of a 10
State . . . pursuant to a final conviction for . . . an offense described inʺ 8 U.S.C. 11
§ 1101(a)(43)(E), among other provisions. 8 U.S.C. § 1231(a)(4)(B)(ii). We agree 12
with the BIA and the government that this provision suggests that at least some 13
state offenses must constitute aggravated felonies under subparagraph (E), or 14
there could be no individuals held in state custody pursuant to crimes 15
ʺdescribedʺ there. But this fact alone does not compel the conclusion that 16
Congress has spoken unequivocally regarding whether a state offense ʺdescribed 17
inʺ 18 U.S.C. § 844(i) must reproduce that statuteʹs jurisdictional element. 18

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Because we conclude that the statute is ambiguous, we owe deference to 1
the BIAʹs interpretation unless it is unreasonable. See Chevron, 467 U.S. at 842–43; 2
Rotimi v. Holder, 577 F.3d 133, 139 (2d Cir. 2009). As already indicated, we find 3
persuasive the BIAʹs reading of the relevant statutory provisions as set forth in 4
Matter of Bautista and might well adopt it ourselves,3 were we not constrained to 5
do so in any event by Chevron. It is noteworthy, too, that the BIAʹs interpretation 6
is consonant with the conclusions of the Fifth, Seventh, Eighth, and Ninth 7
Circuits concerning related provisions of paragraph 43. We therefore defer to the 8
BIAʹs ʺpermissible constructionʺ of section 1101(a)(43)(E)(i).4 See Kar Onn Lee, 701 9
F.3d at 937. 10
III. Whether Applying Matter of Bautista Is Impermissibly Retroactive 11
In the alternative, Luna argues that Matter of Bautista cannot be applied 12
retroactively to him because the decision represented ʺsuch a departure from 13
past practices by the [BIA]ʺ that he lacked notice that the state arson crime to 14
3 Even if we were to decide that the BIAʹs reading of the statute is clearly preferable to
the Petitionerʹs, it would not follow that the provision is unambiguous and that Chevron
deference is therefore not required. Equipoise is not a precondition to a finding of
ambiguity.
4 For this reason, we reject Lunaʹs argument that the rule of lenity should be applied to
his case. See Adams v. Holder, 692 F.3d 91, 107 (2d Cir. 2012) (stating that lenity enters
only ʺwhen none of the other canons of statutory interpretation is capable of resolving
the statuteʹs meaning and the BIA has not offered a reasonable interpretation of the
statuteʺ (internal quotation marks omitted)).

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which he pled guilty would be deemed an aggravated felony. Petʹrʹs Br. 30. We 1
see no obstacle to Matter of Bautistaʹs application in Lunaʹs case. 2
Lunaʹs 1999 conviction postdated the 1996 enactment of 8 U.S.C. 3
§ 1101(a)(43). See Guaylupo‐Moya v. Gonzales, 423 F.3d 121, 126‐27 (2d Cir. 2005). 4
In relying on Matter of Bautista, the BIA therefore ʺdid not retroactively apply a 5
new law but instead applied [its] determination of what the law ʹhad always 6
meant.ʹʺ De Quan Yu v. U.S. Attorney Gen., 568 F.3d 1328, 1333 (11th Cir. 2009) 7
(per curiam) (emphasis in original) (quoting Rivers v. Roadway Express, Inc., 511 8
U.S. 298, 313, n. 12 (1994)). Once Matter of Bautista issued, ʺthat decision became 9
the controlling interpretation of the law and was entitled to full retroactive effect 10
in all cases still open on direct review, regardless of whether the events predated 11
the . . . decision.ʺ Id. at 1334; see also Rivers, 511 U.S. at 312 (ʺThe essence of 12
judicial decisionmaking—applying general rules to particular situations— 13
necessarily involves some peril to individual expectations because it is often 14
difficult to predict the precise application of a general rule until it has been 15
distilled in the crucible of litigation.ʺ). Matter of Bautista therefore governs Lunaʹs 16
case. 17

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CONCLUSION 1
For the foregoing reasons, we defer to the BIAʹs determination, which we 2
conclude is reasonable, that a conviction under New York Penal Law §§ 110 3
and 150.10 constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i), 4
rendering an alien ineligible for cancellation of removal. Lunaʹs petition is 5
therefore DENIED. 6

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