dissenting.
Mr. Bautista is ineligible for cancellation of removal under the INA if he has committed an aggravated felony under INA § 101(a)(43)(E)(i). The BIA held that his attempted arson conviction under New York state law is an aggravated felony. In vacating and remanding this ruling, my colleagues determine that (1) § 101(a)(43)(E)(i) is unambiguous; (2) the BIA’s construction of the statute was not consistent with Congress’ expressed intent; and (3) Bautista’s state arson conviction cannot qualify as an aggravated felony because it does not contain as an element the jurisdictional requirement of the federal arson provision in 18 U.S.C. § 844(i). Because I believe § 101(a)(43)(E)(i) to be ambiguous and the BIA’s construction of it reasonable, I respectfully dissent.
I. Background
Subsection 101(a)(43) of the INA defines an aggravated felony, “whether in violation of Federal or State law ... [or] the law of a foreign country,” in one of three ways: 1). generically (for example, “murder” or “rape”); 2) as an offense “defined in” a specific federal statute; or 3) as an offense “described in” a specific federal statute. 8 U.S.C. § 1101(a)(43). Subsection 101(a)(43)(E)(i), the provision involved here, is of the third kind: it states that an aggravated felony includes any offense “described in” 18 U.S.C. § 844(i). The latter criminalizes the (i) damage or destruction, (ii) by means of fire or an explosive, (iii) of any building, vehicle, or other real or personal property (iv) used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. The last item is what we call a jurisdictional hook — the authority to make an act a federal crime exists when interstate or foreign commerce is involved.
Bautista was convicted of attempted arson in the third degree, in violation of New York Penal Law §§ 150.10 and 110. Section 150.10 provides that “[a] person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.” For purposes of the INA, attempting to commit arson has the same consequences as committing it. 8 U.S.C. § 1101(a)(43)(U). Bautista concedes that — apart from the jurisdictional element of § 844(i), which requires that the target of the arson have a nexus with interstate commerce — N.Y. Penal Law § 150.10 and 18 U.S.C. § 844(i) are essentially identical. He argues, however (and the majority agrees), that the jurisdictional element of the federal statute is a substantive element of the crime, and thus his conviction under N.Y. Penal Law § 150.10 is not “an offense described in” 18 U.S.C. § 844(i).
II. Chevron Deference
“[T]he BIA should be accorded Chevron deference for its interpretations of the immigration laws.” Tineo v. Ashcroft, 350 F.3d 382, 396 (3d Cir.2003); see also Chevron U.S.A, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). This involves a two-step inquiry. At step one, we determine “whether Congress has directly spoken to the precise question at issue and unambiguously expressed [its] intent.” Yusupov v. Attorney Gen. of U.S., 518 F.3d 185, 197 (3d Cir.2008) (alteration in original) (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct.
*702778). If the answer is yes, the inquiry ends. Id. If instead “the statute is silent or ambiguous with respect to the specific issue, [we proceed] to step two [and inquire] whether the agency’s answer is based on a permissible construction of the statute.” Id. at 198 (internal quotation marks and citation omitted). If the statute is ambiguous and the BIA’s construction of the statute is reasonable, we are required “to accept the [BIA’s] construction of the statute, even if [that] reading differs from what [we believe] is the best statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005) (citation omitted).
My colleagues at step one conclude quickly that Congress’s intent with respect to the classification of state convictions as aggravated felonies under § 101 (a) (43) (E) (i) is clear and that the BIA’s construction of the statute is contrary to that intent. The bulk of their opinion, therefore, explains what they believe to be Congress’ expressed intent. Unlike my colleagues, I believe that, under Chevron step one, § 101(a)(43)(E)(i) is ambiguous as to when a state arson conviction qualifies as an aggravated felony. Proceeding to the second step, I conclude that the BIA’s construction of § 101(a)(43)(E)(i) is reasonable. Hence we must accept its construction regardless whether we believe a different or better construction exists. The consequence is that, because the BIA concluded reasonably that Bautista’s state arson conviction qualifies as an aggravated felony under § 101(a)(43)(E)(i), he is ineligible for cancellation of removal under the INA.
A. The Statute is Ambiguous
“The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir.2001) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997)). When interpreting a statute, “we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Prestol Espinal v. Attorney Gen. of U.S., 653 F.3d 213, 217 (3d Cir.2011) (quoting United States v. Heirs of Boisdore, 49 U.S. 113, 122, 8 How. 113, 12 L.Ed. 1009 (1850)). While I agree with the majority that disagreements in the courts do not automatically mean a statute is ambiguous, those disagreements are evidence that reasonable minds may differ in interpreting statutory language. Here I believe that, at best, the structure and language of § 101(a)(43)(E) do not unambiguously express Congressional intent.
The position of my colleagues is, as noted, that the language of § 101(a)(43)(E)(i) leaves no doubt and that the provision is correctly interpreted in only the following way: if a state arson crime would not be directly punishable under 18 U.S.C. § 844(i) because it lacks the federal statute’s jurisdictional element, the state offense does not qualify as an aggravated felony. Their rationale flows as follows. “Congress intended some meaning through its use of ‘described in’ versus ‘defined in.’ ” Maj. Op. at 59. Their take is that the latter is broad: “the state conviction need not be punishable under [the relevant] federal statute, but need only include the listed criminal conduct, as it is ‘defined’ by the federal statute.” Id. “[D]escribed in,” they assert, is narrower and requires that all elements of the federal criminal statute (here § 844(i)) be included within the elements of the state criminal provision (N.Y. Penal Law § 150.10).
*71Though “described in” and “defined in” are not synonymous, I disagree with my colleagues’ against-the-grain suggestion that “defined in” should be read more broadly than “described in.” As our sister Circuit Courts of Appeals have concluded, “described in” is the broader standard, and § 101(a)(43)(E)’s use of “described in” favors finding that Bautista’s state arson conviction qualifies as an aggravated felony. See United States v. Castillo-Rivera, 244 F.3d 1020, 1023 (9th Cir.2001) (“Congress as a practical matter ... had to use some looser standard such as ‘described in[,]’ rather than the more precise standard of ‘defined in,’ if it wanted more than a negligible number of state offenses to count as aggravated felonies.”) (internal quotation marks and citation omitted).
I thus part with my colleagues’ view that Congress used the phrase “described in” to classify a state conviction as an aggravated felony only when the state offense contains the same elements as, and is directly punishable under, a federal statute. To me, the phrase “described in” refers broadly to the type of offense. An offense “described” in § 844(i) includes any offense that involves the substantive elements of arson — the destruction, by means of fire or an explosive, of a building, vehicle, or other real or personal property. Under this reading, the New York state crime of attempted arson would fall under the type of offense Congress intended to make an aggravated felony even if the New York state statute lacks the jurisdictional element of the analogous federal statute.
The majority asserts that one indication that the jurisdictional hook is a substantive element of the federal arson statute for purposes of § 101(a)(43)(E) is that “Congress[, in formulating the provision,] ... could have defined the offenses embodied in the federal statutes by their generic names rather than by specific statutes.” Maj. Op. at 64. That Congress did not fails to persuade me. Instead, I agree with the Seventh Circuit Court’s reasoning in Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir.2008). Responding to the same argument in the context of 18 U.S.C. § 922(g) (felon in possession of a firearm), the Court there noted:
[I]t does not follow that, because Congress has defined some crimes in general terms, it had to define all crimes in general terms in order for the offense’s state law counterpart to be included within the definition of an “aggravated felony.” Indeed, many firearms offenses are not susceptible to being easily described in general terms, while others are dependent on other provisions in a statutory scheme.
Id. at 503 (emphases in original) (citation omitted). I think this argument applies equally in the § 844(i) context.
The majority next relies on Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), to conclude that the federal jurisdictional hook in § 844(i) is a substantive element of the offense. Jones held that the arson of an “owner-occupied residence not used for any commercial purpose [did] not qualify as property ‘used in’ commerce or commerce-affecting activity.” Id. at 850-51, 120 S.Ct. 1904. The Court focused on interpreting the jurisdictional component of § 844(i) in order to curb Congress’ power vis a vis the states and maintain the constitutionality of the federal arson statute. See id. at 858, 120 S.Ct. 1904 (“To read § 844(i) as encompassing the arson of an owner-occupied private home would [effectively change the federal-state balance in the prosecution of crimes], for arson is a paradigmatic common-law state crime.”). Jones ruled that the “interstate commerce” language of § 844(i) was substan*72tive for the purpose of federal jurisdiction, and interpreted that language narrowly in order to prevent “[every] building in the land [from falling within] the federal statute’s domain.” Id. at 849, 120 S.Ct. 1904. That ruling, I submit, does not support the majority’s position that the jurisdictional component of § 844(i) is a substantive element of the underlying crime.
My colleagues also rely on Jones as evidence that Congress intended the jurisdictional element of § 844(i) to narrow the range of arson crimes that qualify as aggravated felonies under § 101(a)(43)(E). Given that Jones postdates § 101(a)(43)(E) by several years, I find this line of reasoning unpersuasive. Instead, I am persuaded by the BIA’s reasoning that “the holding in Jones related to the scope of the Federal criminal statute, not the collateral consequences in an immigration case.” Matter of Robert Bautista, 25 I. & N. Dec. 616, at *5 (Oct. 13, 2011).
Were they to adopt the BIA’s reasoning and ignore the jurisdictional element of § 844(i), my colleagues contend that they “would condone the erroneous outcome” where a state conviction for arson could qualify as an aggravated felony for purposes of the removal statute despite the Supreme Court’s ruling in Jones that such a conviction would not hold under § 844(i). Specifically, they write that “[w]e are loath to suggest that Congress would use a federal statute, like § 844(i), to ‘describe’ offenses outside the parameter of that very federal statute without an unequivocal indication that it was doing something so counterintuitive.” Maj. Op. at 66. My response is that the penultimate sentence of § 101(a)(43), which notes that “the term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law,” is precisely such an indication. 8 U.S.C. § 1101(a)(43). To qualify as an “aggravated felony” for purposes of the INA, an arson offense need not be directly punishable under the federal statute. Instead, as our sister Circuit Courts of Appeals have held, the quoted sentence can reasonably be read to suggest that Congress intended state crimes that are not punishable under any particular federal statute still to have collateral immigration consequences under the INA. See, e.g., United States v. Castillo-Rivera, 244 F.3d 1020, 1023-24 (9th Cir. 2001).
The majority acknowledges that three other Circuit Courts of Appeal — the Fifth, Seventh and Ninth — have interpreted a parallel provision of the INA, § 101 (a) (43) (E) (ii), in the context of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm), and have held that the “interstate commerce” element of the federal statute is simply a jurisdictional requirement distinct from the substantive nature of the offense. See Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir.2009); Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir.2008); United States v. Castillo-Rivera, 244 F.3d 1020 (9th Cir.2001). Similarly, the Eighth Circuit Court analyzed § 101(a)(43)(J) as it applies to 18 U.S.C. § 1962 (the RICO statute), and held that a state racketeering statute was not required to have the interstate jurisdictional element contained in § 1962 in order to be “described” by the federal statute for purposes of § 101(a)(43). See Spacek v. Holder, 688 F.3d 536, 538-39 (8th Cir.20 10). Applying the reasoning of these other Circuit Courts to our case, it seems logical that the jurisdictional element of § 844(i) need not be satisfied in order for a state arson conviction to be an aggravated felony under § 1101(a)(43).
My colleagues diverge from our sister Circuit Courts by contending that because not all arson has a nexus with interstate commerce sufficient to qualify as a federal offense, the jurisdictional element of § 844(i) “has a meaningful narrowing ef-*73feet on the range of arson criminalized,” and so must be considered when determining whether an offense qualifies as an aggravated felony under § 101(a)(43)(E). Maj. Op. at 67. They also decline to find the Eighth Circuit’s reasoning in Spacek persuasive, arguing instead that under Jones all statutory elements — including those that are “jurisdictional”' — are relevant to the scope of state arson offenses.
Under this reading of the statute, however, it would seem that Congress intended state arson convictions rarely, if ever, to qualify as aggravated felonies. My colleagues’ position suggests that while murder, rape, theft and firearms offenses qualify as aggravated felonies regardless of jurisdiction, arson is somehow unique in that it triggers collateral immigration consequences only when it has a nexus to interstate commerce. I do not believe that this result is supported by the language of the statute. See Castillo-Rivera, 244 F.3d at 1023-24 (“Interpreting the jurisdictional element of § 922(g) to be necessary in order for a state firearms conviction to constitute an aggravated felony under § 1101(a)(43)(E)(ii) would reduce the number of state firearms offenses that qualify to no more than a negligible number ... [and] would undermine the language of the aggravated felony statute and the evident intent of Congress”). Thus, I see no principled way to distinguish the jurisdictional elements of § 922(g) and § 844(i) in the context of interpreting § 101(a)(43)(E)(i) and § 101(a)(43)(E)(ii).
Another concern I have is that my colleagues’ reading is in tension with the final phrase of § 101(a)(43), which provides that an offense in violation of foreign law may also be an aggravated felony under the INA. Congress surely did not envision that foreign laws would include references to interstate commerce.
I am also concerned that the majority opinion implicitly creates a Circuit split. In their analysis of § 844(i), my colleagues carefully skirt the issue of whether the jurisdictional element of § 922(g) is necessary for a state firearms conviction to qualify as an aggravated felony, a question on which our Court has not ruled. If and when we are asked to decide that question, however, we are likely to find ourselves in the untenable position of either abandoning the logic of the majority’s opinion or ruling counter to our sister Circuit Courts.
What I note is not intended to establish that my opposing construction of the statute is correct (though I believe it is). The takeaway is that reasonable minds so differently interpreting the same language indicates starkly that the statute is at best ambiguous. As such, I continue to the second step of the Chevron inquiry, and consider whether the BIA’s interpretation of the statute is reasonable.
B. The BIA’s Construction of § 101(a)(I3)(E)(i) was Reasonable
If the BIA has spoken to the meaning of an ambiguous statute, the Court’s inquiry is “limited to determining whether the BIA’s statutory interpretation is based on a reasonable, permissible construction of that statute.” Tineo, 350 F.3d at 396. In our case, the BIA has spoken on the meaning of § 101(a)(43)(E)(i) and has expressly held that, because the jurisdictional element of 18 U.S.C. § 844(i) does not define the substantive offense, the New York state law offense of attempted arson is a crime “described in” § 844(i) and thus qualifies as an aggravated felony for purposes of the INA. In its statutory analysis of § 101(a)(43)(E)(i), the BIA addressed several of the points that I have raised above, notably the difficulty of distinguishing the jurisdictional elements of § 844(i) and § 922(g)(1) and the limited application of Jones.
*74Given the BIA’s thorough analysis, as well as the persuasive authority from our Circuit colleagues interpreting a related pairing of immigration and federal criminal provisions, I conclude that the BIA’s interpretation of § 101(a)(43)(E)(i) as it relates to § 844(i) is reasonable under Chevron. I would affirm the BIA’s ruling that Bautis-ta’s arson conviction under New York state law qualifies as an aggravated felony under 8 U.S.C. § 1101(a)(43). The regrettable result is that Bautista is ineligible for cancellation of removal. I thus respectfully dissent.