                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 13-2418


SANDRA YAMILETH ESPINAL-ANDRADES,

                Petitioner,

           v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   October 30, 2014                 Decided:   January 22, 2015


Before SHEDD, AGEE, and WYNN, Circuit Judges.


Petition denied by published opinion.      Judge Wynn wrote         the
opinion, in which Judge Shedd and Judge Agee concurred.


ARGUED: Jorge Enrique Artieda, JORGE E. ARTIEDA LAW OFFICE PC,
Falls Church, Virginia, for Petitioner.      Colin James Tucker,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.    ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Civil Division, Anthony W. Norwood, Senior Litigation
Counsel,   Office  of   Immigration  Litigation,   UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
WYNN, Circuit Judge:

     Petitioner     Sandra       Yamileth        Espinal-Andrades,        a     lawful

permanent resident, pled guilty to arson under Maryland’s arson-

in-the-first-degree statute.               At the heart of this appeal is

whether that conviction qualifies as an aggravated felony under

the Immigration and Nationality Act (“INA”).                   We agree with the

immigration judge and Board of Immigration Appeals (“BIA”) that

it does and, for the reasons explained below, deny Espinal’s

petition.



                                           I.

     Espinal immigrated to the United States from El Salvador in

1999 and became a lawful permanent resident that same year.                         On

August 27, 2009, a Maryland grand jury indicted her on four

counts: (1) first degree arson, (2) second degree arson, (3)

first degree malicious burning of property greater than $1,000,

and (4) reckless endangerment.                  On January 27, 2010, Espinal

entered a plea pursuant to N. Carolina v. Alford, 400 U.S. 25

(1970), on the first degree arson count, and the state dropped

the remaining three charges.               She was sentenced to 360 days in

prison.

     On   March    12,   2013,       the   Department    of    Homeland       Security

(“DHS”)   issued    Espinal      a    Notice     to   Appear   (“Notice”).         The

Notice    made   several   factual         allegations    concerning      Espinal’s

                                           2
citizenship      status,    and    she    denied    each     one.     Espinal       also

denied the charge that she was subject to removal under 8 U.S.C.

§ 1227(a)(2)(A)(iii), contesting DHS’s assertion that her first

degree arson conviction qualified as an aggravated felony.

      On May 9, 2013, an immigration judge ruled that all of

DHS’s factual allegations in the Notice were true, and Espinal

raised    no   objections     to   this    ruling.       Espinal      did,   however,

object to the classification of her state arson charge as an

aggravated felony under 8 U.S.C. § 1101(a)(43)(E), which defines

“aggravated felony” as, inter alia, “an offense described in” 18

U.S.C. § 844(i), a federal arson statute.

      The parties briefed the issue, and on June 4, 2013, the

immigration      judge    ruled    against       Espinal.      In    doing    so,    the

immigration judge acknowledged that the Maryland statute lacked

the federal jurisdictional element contained in § 844(i), which

requires that the destroyed property be “used in interstate or

foreign     commerce.”       However,      the    immigration       judge    favorably

cited two precedential BIA cases holding that convictions under

state statutes qualified as removable aggravated felonies under

the   INA      “even     though    the     state     offense[s]       lack[ed]       the

jurisdictional         elements    of    the   federal      crime[s].”        A.R.   44

(citing Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011),

vacated sub nom. Bautista v. Attorney Gen. of U.S., 744 F.3d 54

(3d Cir. 2014), and In re Vasquez-Muniz, 23 I. & N. Dec. 207

                                           3
(BIA 2002) (en banc)).          Accordingly, the immigration judge ruled

that    Espinal’s      arson    conviction         qualified    as   an    aggravated

felony and ordered her removed.

       Espinal appealed the decision to the BIA.                        In a single-

member panel decision, the BIA dismissed Espinal’s appeal.                          It

recognized agency precedent establishing that “Congress meant to

cover State arson offenses when it referenced § 844(i) in the

definition of an aggravated felony and did not intend to exclude

them    simply      because       a        State    crime      lacked     a    Federal

jurisdictional element.”          A.R. 3 (citing In re Vasquez-Muniz, 23

I. & N. Dec. 207 (BIA 2002) (en banc), and Matter of Bautista,

25 I. & N. Dec. 616 (BIA 2011)).                   Espinal then petitioned this

Court for review of the BIA’s decision.



                                            II.

       Generally,      this    Court       lacks   jurisdiction      to   review   the

final     order   of    removal       of     an    alien    convicted     of   certain

enumerated crimes, including an aggravated felony.                        Ramtulla v.

Ashcroft, 301 F.3d 202, 203 (4th Cir. 2002).                    But under 8 U.S.C.

§ 1252(a)(2)(D), we retain jurisdiction to consider questions of

law, such as whether a conviction qualifies as an aggravated

felony.    Mbea v. Gonzales, 482 F.3d 276, 279 (4th Cir. 2007).

       We review the BIA’s legal conclusions de novo.                     Martinez v.

Holder, 740 F.3d 902, 909 (4th Cir. 2014).                     The BIA’s statutory

                                             4
interpretations         of     the       INA    are        afforded      the        appropriate

deference,         “recognizing        that    Congress         conferred       on     the    BIA

decisionmaking        power       to   decide       such    questions      of    law.”         Id.

(citing INS v. Aguirre–Aguirre, 526 U.S. 415, 424 (1999), and

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 842–43 (1984)).

       To determine what deference is owed, “we begin our analysis

with     a   determination          of    whether         the   statute        at     issue    is

unambiguous with respect to the question presented.                                 If so, then

the    plain       meaning    controls         the     disposition         of       [Espinal’s]

appeal.”       Bracamontes v. Holder, 675 F.3d 380, 384 (4th Cir.

2012).       This is Chevron step one.                But if the statute is silent

or ambiguous, “the question for this court becomes whether the

BIA’s interpretation ‘is based on a permissible construction of

the statute.’”         Saintha v. Mukasey, 516 F.3d 243, 251 (4th Cir.

2008) (quoting Chevron, 467 U.S. at 843).                          This is Chevron step

two.

       However, we do not afford the BIA’s single-member decisions

Chevron deference because they lack precedential value.                                       See,

e.g., Martinez, 740 F.3d at 909-10.                        But the single-member BIA

decision      on    appeal    here       relies      on    precedential         en    banc    and

three-member        panel     decisions.             See    A.R.   3–4     (citing       In     re

Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc) (holding

that   possession       of    a    firearm      in    violation       of   California          law

                                                5
qualified as an aggravated felony under 8 U.S.C. § 1101(a)(43)

despite the absence of the federal jurisdictional element), and

Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011) (holding that

a conviction under a New York arson statute qualified as an

aggravated    felony   under   8   U.S.C.    §   1101(a)(43)     despite     the

absence of the federal jurisdictional element), vacated sub nom.

Bautista v. Attorney Gen. of U.S., 744 F.3d 54 (3d Cir. 2014)). 1

That controlling precedent is given Chevron deference.



                                     III.

     With her main argument on appeal, Espinal contends that she

is not deportable because her Maryland arson conviction does not

qualify      as   an    “aggravated         felony”    under      8     U.S.C.

§ 1101(a)(43)(E).       Both   the    immigration     judge     and   the    BIA

reached    the    opposite     conclusion,       relying   on     the       BIA’s

precedential decisions in Matter of Bautista and In re Vasquez-

Muniz.    Upon careful review, we, too, reject Espinal’s argument.




     1
       Although the Third Circuit vacated the BIA decision in
Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011), this does
not affect the decision’s precedential effect outside the Third
Circuit.   See Matter of Anselmo, 20 I. & N. Dec. 25, 31 (BIA
1989) (“We are not required to accept an adverse determination
by one circuit court of appeals as binding throughout the United
States.” (citing several circuit court cases)).



                                      6
                                                   A.

       To provide context for our Chevron analysis, we find it

helpful to first set out the pertinent statutes.                                 Under the INA,

“[a]ny alien who is convicted of an aggravated felony at any

time        after      admission              is        deportable.”                   8         U.S.C.

§ 1227(a)(2)(A)(iii).              And an “aggravated felony” is “an offense

described      in     .      .     .     18        U.S.C.        § 844(i).”                8     U.S.C.

§ 1101(a)(43)(E).

       In turn, 18 U.S.C. § 844(i) prescribes various punishments

for    an    individual       who       “maliciously         damages        or    destroys,           or

attempts to damage or destroy, by means of fire or an explosive,

any building, vehicle, or other real or personal property used

in interstate or foreign commerce or in any activity affecting

interstate     or     foreign       commerce.”            The      elements       of       18    U.S.C.

§ 844(i)      and    the     Maryland         statute        under     which       Espinal            was

convicted are identical in all but one respect: the Maryland

statute lacks the federal jurisdictional element requiring that

the    destroyed      property          be     “used        in    interstate           or       foreign

commerce.”          Compare       18    U.S.C.         § 844(i),     with    Md.       Code       Ann.,

Crim. Law § 6-102 (West).                 See also Gov’t’s Br. 11 (noting that

this is not in dispute).

       Finally, the penultimate sentence of 8 U.S.C. § 1101(a)(43)

states      that    “[t]he       term    [‘aggravated            felony’]        applies         to    an

offense      described       in    this      paragraph           whether    in    violation            of

                                                   7
Federal or State law and applies to such an offense in violation

of    the    law    of     a     foreign    country      for   which     the    term    of

imprisonment was completed within the previous 15 years.”                                 8

U.S.C. § 1101(a)(43) (emphases added).

                                             B.

      In analyzing these statutes under Chevron, we “must first

consider whether ‘Congress has directly spoken to the precise

question’ at issue.”                United States v. Thompson–Riviere, 561

F.3d 345, 350 n.2 (4th Cir. 2009) (quoting Chevron, 467 U.S. at

842).       To determine whether Congress has spoken directly through

the     relevant         statutes,    we    must    “begin     by      examining       [the

statute’s] plain language” and “give the relevant terms their

common and ordinary meaning.”                 Yi Ni v. Holder, 613 F.3d 415,

424 (4th Cir. 2010).

      Section       §    1101(a)(43)(E)      defines      “aggravated     felony,”      in

relevant part, as “an offense described in . . . 18 U.S.C.

§ 844(i).”         (emphasis       added).         By     contrast,      three     other

subparagraphs in 8 U.S.C. § 1101(a)(43) use the term “defined

in” instead of “described in” to identify aggravated felonies.

E.g., 8 U.S.C. § 1101(a)(43)(B), (C), and (F).

      Comparing          dictionary      definitions,     “described      in”     is   the

broader of         the    two    terms.      The   American    Heritage        Dictionary

defines      “define”       as   “[t]o     state   the   precise    meaning,”       “make

clear the outline or form of,” or “[t]o specify distinctly.”

                                              8
The American Heritage Dictionary of the English Language 476

(5th       ed.   2011).      By    contrast,     the    same    dictionary    defines

“describe” as “[t]o convey an idea or impression of,” or “[t]o

trace the form or outline of.”              Id. at 490.         Other circuits have

also       interpreted    the     terms   this   way.     See,    e.g.,   Torres   v.

Holder, 764 F.3d 152, 157 (2d Cir. 2014) (noting that “described

in” has a “broader standard”); United States v. Castillo-Rivera,

244 F.3d 1020, 1023 (9th Cir. 2001) (noting that “described in”

is a looser standard). 2             Bearing the plain meaning of “define”

and “describe” in mind, it appears as if Congress intended for

the    aggravated      felonies      “described    in”    the    pertinent    federal

statute to include crimes that are not “defined in”—that is,

precisely identical to–that federal statute.

       Further, the penultimate sentence of 8 U.S.C. § 1101(a)(43)

states that convictions under the described offenses qualify as

aggravated felonies “whether in violation of Federal or State

law and applies to such an offense in violation of the law of a

foreign country for which the term of imprisonment was completed

within the previous 15 years.”                   (emphases added).        It is “a

cardinal         principle   of    statutory     construction      that   a   statute

       2
       We recognize that the Third Circuit, in a divided opinion,
ruled differently on this precise issue. Bautista, 744 F.3d at
54.   Frankly, we disagree with the majority opinion’s analysis
and conclusion, not least for many of the reasons expressed in
Judge Ambro’s thoughtful dissent. Id. at 69-74.



                                            9
ought, upon the whole, to be so construed that, if it can be

prevented, no clause, sentence, or word shall be superfluous,

void, or insignificant.”               Alaska Dep’t of Envtl. Conservation v.

E.P.A.,      540   U.S.    461,     489       n.13       (2004)      (citations      omitted).

Accordingly,       we    must    try     to       give    every      word   in    the    statute

meaning to avoid rendering its terms superfluous.                                Discover Bank

v. Vaden, 396 F.3d 366, 369 (4th Cir. 2005).

       Doing so here yields an obvious result: Because state laws

will   seldom—if        ever—contain          a    federal     jurisdictional           element,

and foreign crimes are even less likely to contain a United

States–jurisdictional element, we conclude that Congress clearly

expressed      its      intent     for    aggravated            crimes      “described       in”

federal statutes to include substantively identical state and

foreign      crimes      that     lack        only       the    federal      jurisdictional

element.       Any      contrary    reading            would   render       the    penultimate

sentence superfluous.

       The   plain      meaning    of     the          terms   and    the   application      of

statutory      construction         principles            leave       us    with    no    doubt

regarding Congress’s intent.                  Nevertheless, a sister circuit has

come down the other way on this issue.                            Bautista, 744 F.3d at

57.    Recognizing that such a disagreement may be, to some, an

indication that the statute is ambiguous (again, we do not think

it is), we take a belt-and-suspenders approach and turn to the

second step of Chevron.

                                                  10
                                           C.

     At    Chevron   step     two,     we       determine      whether    the     BIA’s

interpretation of 8 U.S.C. § 1101(a)(43)(E) is reasonable.                           If

it   is,   we   cannot    substitute            our   own     preferred        statutory

interpretation.      Chevron,        467       U.S.   at    844.    And    the    BIA’s

interpretation is reasonable as long as it is not “arbitrary,

capricious, or manifestly contrary to the statute.”                      Id.

     As noted above, the single-member BIA panel that issued

Espinal’s decision relied on the precedential decisions of In re

Vasquez-Muniz and Matter of Bautista.                      In In re Vasquez-Muniz,

the BIA looked at the statute’s “overall design,” “the language

of   the   aggravated    felony      provision        itself,”     “very       specific

[statutory]     references”    that        a    contrary      interpretation      would

render superfluous, and persuasive authority from an analogous

Ninth Circuit case. 3       23 I. & N. Dec. at 209–12.                In Matter of


     3
       In In re Vasquez-Muniz, the BIA briefly discussed United
States v. Castillo–Rivera, 244 F.3d 1020 (9th Cir. 2001). 23 I.
& N. Dec. 207, 212 (BIA 2002).      Castillo-Rivera held that a
state firearm possession offense was an aggravated felony under
the INA, concluding that that the interstate commerce element
included in 18 U.S.C. § 922(g) is “merely a jurisdictional
basis.”   244 F.3d at 1023–24.   Two circuits have since adopted
the same interpretation.    See Nieto Hernandez v. Holder, 592
F.3d 681, 685 (5th Cir. 2009) (holding that the “interstate
commerce element is simply an element that ensures federal
jurisdiction” and that requiring it to be present in a state
offense   “would  undermine   Congress’s  evident   intent  that
jurisdiction be disregarded in applying” the definition of an
aggravated felony); Negrete–Rodriguez v. Mukasey, 518 F.3d 497,
501–03 (7th Cir. 2008) (holding that, “[a]lthough not ‘mere
(Continued)
                                           11
Bautista, the BIA reaffirmed In re Vasquez-Muniz’s analysis and,

after   analyzing      Jones   v.   United   States,   529    U.S.    848    (2000)

(discussing scope of a federal arson statute vis-à-vis a federal

jurisdictional element), specifically concluded that “Congress

meant to cover State arson offenses when it referenced § 844(i)

in the definition of an aggravated felony.”                25 I. & N. Dec. at

618–21.       The    BIA   tethered   its    interpretation     to    traditional

tools of statutory interpretation, and nothing leads this Court

to conclude that its construction is unreasonable.

     In      sum,    we    conclude   that    (1)   Espinal’s        state   arson

conviction unambiguously qualifies as an aggravated felony under

8   U.S.C.    §     1101(a)(43)(E),    and    (2)   even   if   any     ambiguity

existed, the BIA’s interpretation was reasonable.



                                       IV.

     Espinal advances two arguments in the alternative: (1) the

BIA should have applied the rule of lenity to her case, and (2)

the BIA’s application of Matter of Bautista was impermissibly

retroactive.        Neither argument has merit.




surplusage,’ a jurisdictional element does little more than
ensure that the conduct regulated in a federal criminal statute
is within the federal government's limited power to proscribe”
and, therefore, finding the state offense to be an aggravated
felony).



                                       12
     Espinal first argues that the BIA should have applied the

rule of lenity to her case.          In the immigration context, “the

rule of lenity stands for the proposition that ambiguities in

deportation     statutes   should    be   construed   in   favor    of   the

noncitizen.”     Hosh v. Lucero, 680 F.3d 375, 383 (4th Cir. 2012)

(citing Fong Haw Tan v. Phelan, 333 U.S. 6, 9–10 (1948)).

     Assuming, without deciding, that Chevron still leaves some

place for the rule of lenity, 4 “[t]o invoke the rule, we must

conclude that there is a grievous ambiguity or uncertainty in

the statute.”     Muscarello v. United States, 524 U.S. 125, 138-39

(1998) (citations omitted).         That is simply not the case here;

the pertinent statute is not grievously ambiguous.           The rule of

lenity therefore has no place here.

     Espinal next argues that applying Matter of Bautista to her

case violates her due process rights because the BIA adopted “a

novel construction of the INA and federal criminal law,” leaving

her without the requisite notice.           Pet.’s Br. 19.         Espinal’s

     4
        In light of Chevron, some have questioned the rule of
lenity’s role in the immigration context.    See, e.g., David S.
Rubenstein, Putting the Immigration Rule of Lenity in Its Proper
Place: A Tool of Last Resort After Chevron, 59 ADMIN. L. REV. 479
(2007) (arguing that the rule of lenity should be used to
resolve lingering statutory ambiguities only after Chevron’s
second step); Matthew F. Soares, Note, Agencies and Aliens: A
Modified Approach to Chevron Deference in Immigration Cases, 99
CORNELL L. REV. 925 (2014) (arguing that the immigration rule of
lenity should be used as an underlying principle to inform the
Chevron analysis).



                                     13
2010    conviction     postdates      the    1996    enactment      of    8    U.S.C.

§ 1101(a)(43).         In   relying    on    the    2011   Matter    of       Bautista

decision, the BIA therefore “did not retroactively apply a new

law but instead applied [its] determination of what the law ‘had

always meant.’”        De Quan Yu v. U.S. Attorney Gen., 568 F.3d

1328,   1333   (11th    Cir.   2009)   (per    curiam)     (quoting       Rivers    v.

Roadway Express, Inc., 511 U.S. 298, 313 n.12 (1994)).                            Once

Matter of Bautista issued, “that decision became the controlling

interpretation of the law and was entitled to full retroactive

effect in all cases still open on direct review, regardless of

whether the events predated the . . . decision.”                    Id. at 1334.

And although the Third Circuit vacated Matter of Bautista, this

does not affect the decision’s precedential effect in the Fourth

Circuit.    See supra note 1.         Accordingly, Matter of Bautista was

not applied impermissibly, and it governs Espinal’s case.



                                        V.

       For the foregoing reasons, we deny Espinal’s petition for

review.

                                                                 PETITION DENIED




                                        14
