OPINION
GREENAWAY, JR., Circuit Judge.
Petitioner Robert Bautista, a legal permanent resident, was ordered removed from the United States by an immigration judge (“IJ”). The IJ found him removable because he is inadmissible under § 212(a) (2)(A) (i) (I) of the Immigration and Nationality Act (“INA”) as an alien convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). The IJ also found him ineligible for cancellation of removal under § 240A(a) of the INA because his New York conviction for attempted arson constituted an aggravated felony. 8 U.S.C. § 1229b(a). Bautista appealed to the Board of Immigration Appeals (“BIA”), which dismissed his appeal. The BIA agreed that the arson conviction fell within the relevant definition of an aggravated felony under § 101(a)(43) of the INA. 8 U.S.C. § 1101(a)(43).
Bautista filed a timely petition for review in this Court. We will grant the petition because the New York attempted arson conviction is not an aggravated felony in respect to collateral immigration consequences under the INA. Applying the categorical approach, as we must, the New York statute under which Bautista was convicted does not match the elements of 18 U.S.C. § 844(i), the corresponding federal statute under the INA. 8 U.S.C. § 1101(a)(43)(E)(i). A conviction under that New York arson statute cannot qualify as an aggravated felony because it lacks the jurisdictional element of § 844(i), which the Supreme Court has found to be a critical and substantive element of that arson offense. We vacate the BIA ruling and remand to the BIA for further consideration in light of this opinion.
I. BACKGROUND
Bautista is a citizen of the Dominican Republic, where he was born in 1974. He was admitted to the United States as a legal permanent resident in 1984 and attended school in the Bronx. In 1996, he married Yenny Bautista, also a legal permanent resident. They have three minor children, all of whom are United States citizens. Bautista’s mother is also a United States citizen. Bautista owns and operates an automobile repair business in Ea-ston, Pennsylvania, with seven employees.
Bautista has two criminal convictions. In 2001, he was charged in New Jersey with uttering a forged instrument, in violation of the New Jersey Code of Criminal Conduct, N.J. Stat. Ann. § 2C:21-la(3). He pled guilty to that crime in 2004 and [57]*57received a sentence of one year of probation. In 2003, after trial in the Bronx, New York, he was convicted of attempted arson in the third degree, in violation of New York Penal Law §§ 110 and 150.10. He was sentenced to five years of probation.
In 2009, while returning from a trip to the Dominican Republic, Bautista was stopped and detained by Customs and Border Patrol officials at John F. Kennedy International Airport. He was released upon Deferred Inspection status, pending a secondary inspection, and, the following spring, the Department of Homeland Security instituted removal proceedings against him based on his inadmissibility under § 212(a)(2)(A)(i)(I) of the INA as an alien convicted of a crime involving moral turpitude. 8 U.S.C. § 1182(a)(2)(A)(i)(I). At a hearing before the IJ, Bautista admitted that he was convicted of attempted arson, and the IJ determined that he was inadmissible.
At an immigration hearing on April 8, 2010, Bautista applied for cancellation of removal but the Government moved to pretermit the application on the ground that his attempted arson conviction counts as an aggravated felony under § 101(a)(43)(E) of the INA, making him ineligible for cancellation under § 240A(a)(3) of the INA. Bautista also applied for a waiver of inadmissibility under § 212(h) of the INA, which the Government also moved to pretermit based on the attempted arson conviction. 8 U.S.C. § 1182(h). The IJ initially denied the Government’s motions but granted them after the Government filed motions for reconsideration. On February 8, 2011, the IJ ordered Bautista removed.
Bautista appealed only the cancellation of removal issue to the BIA. He argued that his attempted arson conviction was not an aggravated felony described in § 101(a)(43)(E)(i) of the INA, which lists arson offenses under federal law. 8 U.S.C. § 1101(a)(43)(E)(i). The penultimate sentence of § 101(a)(43) explains that an aggravated felony is “an offense described in this paragraph whether in violation of Federal or State law.” 8 U.S.C. § 1101(a)(43). Bautista argued that, because the New York statute under which he was convicted does not require that the object of the arson be used in interstate commerce, as the corresponding federal statute does, his New York conviction was not one “described in” the aggravated felony definition of § 101(a)(43)(E)(i).
On October 13, 2011, the BIA rejected this argument. Bautista asks this Court to review the BIA decision, renewing his argument that the absence of the federal jurisdictional element in the New York arson statute exempts it from the § 101(a)(43)(E)(i) definition of an aggravated felony. For the following reasons, we will grant Bautista’s petition.
II. JURISDICTION AND STANDARD OF REVIEW
The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15 and we have jurisdiction to review the BIA’s final order of removal under 8 U.S.C. § 1252(a)(1).
Where, as here, the BIA issues a written decision on the merits, we review its decision and not the decision of the IJ. Catwell v. Att’y Gen., 623 F.3d 199, 205 (3d Cir.2010).
Because the basis for Bautista’s removal is a conviction for a crime involving moral turpitude, the REAL ID Act limits our jurisdiction to “constitutional claims or questions of law”. 8 U.S.C. § 1252(a)(2)(D); see Catwell v. Attorney Gen. of U.S., 623 F.3d 199, 205 (3d Cir.2010) (noting limited jurisdiction to review removal orders based on aggravated felony [58]*58convictions). We review legal determinations made by the BIA de novo, subject to the principles of deference articulated in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Catwell, 623 F.3d at 205.
III. ANALYSIS
In reviewing an agency decision, we must give deference to a reasonable agency interpretation of a statute unless that interpretation is inconsistent with a clearly expressed congressional intent. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. A statute cannot be deemed ambiguous, however, until the court exhausts the aid of “traditional tools of statutory construction.” Chevron, 467 U.S. at 843 n. 9, 104 S.Ct. 2778. Here, we find that the BIA’s construction with respect to the classification of state convictions as aggravated felonies under § 101 (a) (43) (E) (i) is inconsistent with Congress’s expressed intent.
Our dissenting colleague observes that the statute is “at best ambiguous” by the virtue of our disagreement over the construction of the statute. While we sympathize with this view, not every difficult question of statutory construction amounts to a statutory gap for a federal agency to fill. The Supreme Court’s Chevron jurisprudence is replete with instances where disagreements in the lower courts did not prevent the Court from discerning Congressional intent from complex statutory provisions. See, e.g., Food & Drug Admin. v. Brown & Williamson Tobacco, 529 U.S. 120, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (holding that Congress had expressed an intention on the precise question of whether the FDA could regulate tobacco notwithstanding numerous cases in which the courts of appeal had found ambiguity in closely related statutory language); N.L.R.B. v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 580, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) (holding that “the Board’s test is inconsistent with both the statutory language and th[e] Court’s precedents”). To conclude otherwise would be to find that every time there is a disagreement about statutory construction, we accord deference to agencies. This is not what Chevron instructs us to do.1
In light of our forthcoming discussion, we find here that Congress has spoken with sufficient clarity to make deference inappropriate.
A. Statutory Construction of § 101(a)(43) of the INA
Bautista applied for cancellation of removal under the INA, which is only available to an alien who “has not been convicted of any aggravated felony.” 8 U.S.C. § 1229b. An “aggravated felony” is defined by § 101(a)(43) of the INA, which enumerates a number of offenses that qualify as aggravated felonies. 8 U.S.C. § 1101(a)(43). Primarily, interpretation of [59]*59§ 101(a)(43) revolves around three features of the statute’s structure: its references to a category of aggravated felonies with generic offenses or federal statutes, its usage of “described in” or “defined in” when utilizing federal statutes, and its penultimate sentence.2
Due to the wide structural and linguistic variation among state statutes that criminalize the same type of conduct, § 101(a)(43) references some aggravated felonies with their generic offense, such as “murder” or “theft”, while it references other aggravated felonies with a specific federal criminal statute, such as 18 U.S.C. § 922(g)(1) (for possession of a weapon by a felon) or 18 U.S.C. § 844(i) (for arson). When referencing a specific federal statute, the INA does so in two ways: It either deems that an aggravated felony is an offense “described in” a federal statute or that an aggravated felony includes criminal conduct “defined in” a federal statute. For example, § 101 (a)(43)(E)(i) covers any offense “described in” 18 U.S.C. § 844(i).
We must assume that Congress intended some meaning through its use of “described in” versus “defined in” and this intention can be inferred by observing the pattern of § 101(a)(43) and the federal statutes that it references. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (“[Wjhere Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion” (alteration in original) (internal quotation. marks omitted)). Section 101(a)(43) uses “defined in” when the reference to a federal statute is preceded by criminal conduct terms, such as “illicit trafficking of drugs” or “crime of violence”, which Congress has chosen to define by reference to a federal statute. In these “defined in” subsections of § 101(a)(43), the state conviction need not be punishable under that federal statute but need only include the listed criminal conduct, as it is “defined” by the federal statute. This elicits a sensible interpretation of legislative intent when observing that the federal statutes following the “defined in” phrasing are the definitional sections of criminal statutes or sections that explicitly define the listed criminal conduct. See 8 U.S.C. § 1101(a)(43)(B) (referencing 21 U.S.C. § 802, a “Definitions” section, which defines “controlled substance”); id. (referencing 18 U.S.C. § 924, which defines “drug trafficking crime” in § 924(c)(2)); 8 U.S.C. § 1101(a)(43)(C) (referencing 18 U.S.C. § 921, a “Definitions” section, which defines “destructive devices”); id. (referencing 18 U.S.C. § 841(c), another “Definitions” section, which defines “explosive materials”); 8 U.S.C. § 1101(a)(43)(F) (referencing 18 U.S.C. § 16, entitled “Crime of violence defined”, which defines “crime of violence”).
In contrast, Congress employs “described in” to classify a state conviction as an aggravated felony when an offense would be punishable under a federal statute because the conduct or state statute of the conviction encompasses the same elements as a federal statute. These federal statutes are not definitional but, rather, describe a specific type of offense. See, e.g., 8 U.S.C. § 1101(a)(43)(E), (H)-(J), (L). In drafting § 101(a)(43), Congress often [60]*60grouped several federal criminal statutes of like kind together in order to achieve any desired breadth in scope, which would serve to describe the targeted offenses under a more generic category. See, e.g., 8 U.S.C. § 1101 (a)(43)(E)(i) (grouping 18 U.S.C. §§ 842(h), (i), 844(d)® together as crimes “relating to explosive materials offenses”).
Lastly, § 101(a)(43) includes a penultimate sentence that clarifies the relationship of state convictions to the overall statutory scheme of § 101(a)(43). The penultimate sentence reads as follows:
The term [aggravated felony] applies to an offense described in this paragraph 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.
Id. (emphasis added). By adding this sentence, Congress expressed its intention that both state and federal offenses may serve as aggravated felonies under § 101(a)(43). As the Supreme Court explained, the penultimate sentence “has two perfectly straightforward jobs to do: it provides that a generic description ... covers either [a state or federal conviction], and it confirms that a state offense whose elements include the elements of a felony punishable under the [referenced federal statute] is an aggravated felony.” Lopez v. Gonzales, 549 U.S. 47, 57, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).
Pertinent to our inquiry, § 101(a)(43)(E)(i) lists as aggravated felonies the offenses described in “section 842(h) or (i) of Title 18, or section 844(d), (e), (f), (g), (h), or (i) of that title (relating to explosive materials offenses).” 8 U.S.C. § 1101(a)(43)(E)(i). Of those offenses, the one that most closely corresponds to Bau-tista’s conviction is 18 U.S.C. § 844®. That statute states as follows:
Whoever 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 shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.
Id. (emphasis added).
Bautista was convicted of attempted arson in the third degree, in violation of New York Penal Law §§ 110 and 150.10. Section 150.10 states 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.” N.Y. Penal Law § 150.10. Section 110 is the general attempt provision. N.Y. Penal Law § 110. Bautista does not dispute that the New York statute and the federal statute contain three identical, substantive elements: 1) damaging a building or vehicle, 2) intentionally, 3) by using fire or explosives. The Government does not dispute that the jurisdictional element of § 844®, requiring that the object of arson be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce,” is not contained in the New York statute. What Bautista urges is that the jurisdictional element is also a substantive element and, consequently, that his conviction cannot qualify as an aggravated felony.
Based on the opinions of several of our sister circuits, the Government argues that this jurisdictional element is not substantive and, therefore, is not an element describing an offense under § 844®. See Nieto Hernandez v. Holder, 592 F.3d 681, 685-86 (5th Cir.2009) (analyzing § 922(g)(1) under § 101(a)(43)(E)(ii)); Negrete-Rodriguez v. Mukasey, 518 F.3d 497, 501-03 (7th Cir.2008) (same); United [61]*61States v. Castillo-Rivera, 244 F.3d 1020, 1023-24 (9th Cir.2001) (same); see also Spacek v. Holder, 688 F.3d 536, 538-39 (8th Cir.2012) (following the Ninth, Seventh, and Fifth Circuits in analyzing 18 U.S.C. § 1962 under § 101(a)(43)(J)).
While Bautista’s argument has been rejected by several of our sister circuits in regard to offenses described in § 922(g)(1), we find it congruous with the structure of the INA and Supreme Court precedent regarding § 844(i). Cf Maislin Industries v. Primary Steel, Inc., et al., 497 U.S. 116, 131, 110 S.Ct. 2759, 111 L.Ed.2d 94 (1990) (“Once we have determined a statute’s clear meaning, we adhere to that determination under the doctrine of stare decisis, and we judge an agency’s later interpretation of the statute against our prior determination of the statute’s meaning.”).
B. Use of the Categorical Approach
In order to determine whether a state conviction is an aggravated felony within the meaning of § 101(a)(43), we generally compare the elements provided by the federal law to the conduct and state statute of conviction, as set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Moncrieffe v. Holder, — U.S. —, 133 S.Ct. 1678, 1684-85, 185 L.Ed.2d 727 (2013); Aguilar v. Att’y Gen., 663 F.3d 692, 695 (3d Cir.2011). In employing this “categorical approach”; we essentially assess whether the state statute and the conduct actually punished by the conviction amounts to a felony punishable under the corresponding federal statute. Carachuri-Rosendo v. Holder, 560 U.S. 563, 130 S.Ct. 2577, 2588, 177 L.Ed.2d 68 (2010) (explaining that the categorical approach determines whether “the state offense ... is ‘punishable as a felony under federal law’ ” (quoting Lopez v. Gonzales, 549 U.S. at 60, 127 S.Ct. 625)); see Catwell, 623 F.3d at 206 n. 11; Aguilar, 663 F.3d at 695. As such, the purpose of the categorical approach is to sort out which state offenses are properly included within the substance of a federal statute or generic offense and which are not.
The categorical approach is usually undertaken as a “formal categorical approach”, which strictly requires us to “look to the elements of the statutory state offense, not to the specific facts [of the case], reading the applicable statute to ascertain the least culpable conduct necessary to sustain conviction under the statute.” Aguilar, 663 F.3d at 695 (quoting Denis v. Att’y Gen., 633 F.3d 201, 206 (3d Cir.2011)); Borrome v. Att’y Gen., 687 F.3d 150, 155 (3d Cir.2012). In certain, limited circumstances, a “modified categorical approach” may be appropriate, where a state statute “contain[s] several different crimes, each described separately.” Moncrieffe, 133 S.Ct. at 1684; Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2284-85, 186 L.Ed.2d 438 (2013) (limiting the modified categorical approach to statutes that create alternative crimes by including disjunctive elements); see also Taylor, 495 U.S. at 600-01, 110 S.Ct. 2143; Denis, 633 F.3d at 206. In such a case, “a court may determine which particular offense the noncitizen was convicted of by examining” á limited set of documents from the record of conviction. Moncrieffe, 133 S.Ct. at 1684. However, the modified categorical approach “acts not as an exception, but instead as a tool” to the implementation of the categorical approach, and it “retains the categorical approach’s basic method: comparing [the conviction’s] elements with the generic offense’s.” Descamps, 133 S.Ct. at 2285. This approach, therefore, does not invite inquiry into the facts underlying the conviction. Id.
[62]*62Here, we are not faced with one of those narrow circumstances and, so, we limit our inquiry to the formal categorical approach.3 The New York arson statute does not describe multiple crimes with alternative elements, but only describes a single crime with a single set of indivisible elements. Descamps, 133 S.Ct. at 2285.
By its design, application of the categorical approach depends upon the substantive nature of the offense. For instance, the categorical approach for illicit drug trafficking under § 101(a)(43)(B) takes into account different considerations than the categorical approach for possession of a firearm by a felon under § 101(a)(43)(E)(ii); under § 101(a)(43)(B), it matters whether the state statute includes a trafficking element, whether the state statute criminalizes a sufficiently large quantity of drugs, and whether remuneration is required. See Moncrieffe, 133 S.Ct. at 1685-86; see, e.g., Catwell, 623 F.3d at 206-07. Or, with crimes of violence under § 101(a)(43)(F), it matters whether the state conviction punishes the proper level of mens rea. See, e.g., Aguilar, 663 F.3d at 695-700. For this reason, the rationale that our sister circuits have developed in applying the categorical approach to § 922(g)(1) under § 101(a)(43)(E)(ii) has limited import to our categorical approach to § 844(i) under § 101(a)(43)(E)(i). Thus, while both § 922(g)(1) and § 844(i) fall under the same subsection, § 101(a)(43)(E), they are still distinct categories of aggravated felonies and that distinction bears on the application of the subsection.
In following the rationale of our sister circuits, the BIA removed the jurisdictional element from its categorical approach analysis and ruled that Bautista’s conviction was an aggravated felony because all the “substantive” elements of the New York attempted arson offense corresponded to the substantive elements of § 844(i). Bautista, 25 I. & N. Dec. 616, 619-21 (BIA 2011). Analyzing the language of § 101(a)(43), the BIA concluded that the penultimate sentence makes clear that “ ‘the crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government, a state, or, in certain cases, a foreign country.’ ” Id. at 619-20 (quoting Vasquez-Muniz, 23 I. & N. Dec. 207, 210 (BIA 2002)). The BIA’s decision relied in substantial part on its previous interpretation of § 101(a)(43)(E) in In re Vasquez-Muniz, 23 I. & N. Dec. 207 (BIA 2002). In that decision, the BIA decided that conviction for possession of a firearm by a felon under California law was an offense “described in” § 922(g)(1) under § 101(a)(43)(E)(ii) even though the California statute lacked the jurisdictional element of § 922(g)(1). Id. at 208. In Vasquez-Muniz, the BIA determined that the jurisdictional element of § 922(g)(1) was not integral to the categorical approach analysis because the language in the penultimate sentence of § 101(a)(43) confirmed that “the [state] crimes specified are aggravated felonies regardless of whether they fall within the jurisdiction of the federal government [or] a state.” Id. at 211. The Vasquez-Muniz decision went [63]*63on to posit that “if state crimes must include a federal jurisdictional element in order to be classified as aggravated felonies, then virtually no state crimes would ever be included in section 101(a)(43)(E), despite the statute’s language to the contrary.” Id. Based on Vasquez-Muniz, the BIA in this case reasoned that, if the absence of the jurisdictional element were allowed to remove state convictions from the aggravated felony category, state convictions would rarely, if ever, qualify as aggravated felonies. Bautista, 25 I. & N. Dec. at 620.
The rationale of the BIA follows that of our three sister circuits, all of which have interpreted § 101(a)(43)(E) in the § 922(g)(1) context. See Nieto Hernandez v. Holder, 592 F.3d 681, 685 (5th Cir.2009) (finding 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, “[ajlthough not ‘mere 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); United States v. Castillo-Rivera, 244 F.3d 1020, 1023-24 (9th Cir.2001) (holding that the interstate commerce element is “ ‘merely a jurisdictional basis’ ” and, therefore, finding the state offense to be an aggravated felony).4
In ascribing legislative intent to the phrasing of § 101(a)(43)(E), our sister circuits have posited that the use of “described in”, which each asserts is broader than “defined in”, can reach conduct beyond the bare elements of the federal statutes to which they are tied. See Castillo-Rivera, 244 F.3d at 1023. As a result, these circuits have concluded that Congress intended for the “described in” categories to be broad enough to encompass state statutes that do not include the jurisdictional element of the federal statute cognate. Because the Seventh, Fifth, and Eighth Circuits followed the Ninth Circuit’s reasoning in Castillo-Rivera, a discussion of the Ninth Circuit’s opinion suffices to examine the rationale of our sister circuits.
In Castillo-Rivera, an illegal reentry case involving a Sentencing Guidelines enhancement, the Ninth Circuit ruled that the appellant’s state conviction did not need a jurisdictional element to qualify as an aggravated felony under § 101(a)(43)(E)(ii). 244 F.3d at 1023-24. Based on the penultimate sentence of § 101(a)(43) and the deliberate use of “described in”, the Ninth Circuit presumed that Congress desired that the aggravated felony categories include more than a negligible amount of state convictions. Id. at 1023. The Ninth Circuit reasoned that the penultimate sentence of § 101(a)(43), which emphasizes that aggravated felonies can be “in violation of Federal or State law,” plainly indicated that Congress intended for state convictions to count as aggravated felonies; the fact that only a minute number of state criminal statutes have a jurisdictional element further convinced the Ninth Circuit that Congress must not have intended for the jurisdictional element of federal statutes to hamper Taylor’s categorical approach. Id. at 1023-24. Second, meaning was read into Congress’s decision to use “defined in” for some aggravated felony subcategories and [64]*64“described in” for others. Id. at 1023. The Ninth Circuit reasoned that the use of “described in” was a deliberate choice by Congress to capture more than a handful of state convictions within § 101(a)(43)(E). Lastly, relying on United States v. Lopez, 514 U.S. 549, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), the Ninth Circuit determined that the jurisdictional element was simply a jurisdictional requirement detached from the substantive nature of the offense, included only to confer Congress with the authority to pass federal statutes. Id. at 1024.
We agree with our sister circuits that the penultimate sentence conveys Congress’s intent to qualify more than a negligible number of state convictions as aggravated felonies. We do not find, however, that the structure of § 101(a)(43)(E) evidences Congress’s intent to accomplish that objective through the use of “described in” rather than “defined in” as a means to always discard jurisdictional elements of federal felonies for the purposes of § 101(a)(43)(E). If Congress had intended to exclude the jurisdictional element of all federal statutes from the categorical approach analysis, it could simply have included a different penultimate sentence stating that jurisdictional elements should be ignored, as it clearly expressed its directives regarding specific subsections elsewhere in § 101(a)(43). See, e.g., 8 U.S.C. § 1101(a)(43)(D), (M)(i) (setting monetary thresholds for these subsections); id. § 1101(a)(43)(F) (excluding “purely political offense[s]” under this subsection); id. § 1101(a)(43)(J) (directing that an offense described in 18 U.S.C. § 1084 only qualifies under this subsection “if it is a second or subsequent offense”); id. (setting imprisonment at one year or more to qualify under this subsection).
Congress also could have defined the offenses embodied in the federal statutes by their generic names rather than by specific statutes, as it also did elsewhere in § 101(a)(43). For instance, in the case of § 844(i), it could have simply left the category open to all explosive materials offenses or at least to all acts of arson. But it did not make such a generic reference: It referred to arson that included a sufficient relationship to interstate commerce. 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). In some circumstances, the jurisdictional element may be the most meaningful and differentiating element, since it is what distinguishes generic arson from the arson described by § 844(i), thereby evincing Congress’s intent in selecting § 844(i) rather than generic arson.5
C. The Jurisdictional Element of 18 U.S.C. § 844(i)
Unlike our sister circuits’ precedent in the § 922(g)(1) context, the Supreme [65]*65Court has explained that the jurisdictional element of § 844(i) substantially narrows the range of arson criminalized therein. In Jones v. United States, 529 U.S. 848, 120 5.Ct. 1904, 146 L.Ed.2d 902 (2000), the Supreme Court paid particular attention to the significance of the jurisdictional element of the statute. In Jones, the petitioner had been convicted under § 844(i) for tossing a Molotov cocktail into his cousin’s house. The Supreme Court overturned his conviction, holding that the house did not satisfy the jurisdictional element of § 844(i) because it did not have a sufficient nexus with interstate commerce. The Court reasoned that Congress intended for the “used in interstate commerce” language of § 844(i) to require that the object of an arson be used actively, rather than passively, in commerce. Id. at 855-56, 120 S.Ct. 1904. The fact that the cousin’s house was fed by natural gas used in interstate commerce, was mortgaged with a loan used in interstate commerce, and was used to obtain a casualty insurance policy used in interstate commerce, were not sufficiently active uses in commerce. Id. A house used as a rental property, on the other hand, would be used actively in interstate commerce. Id. at 853, 120 S.Ct. 1904 (citing Russell v. United States, 471 U.S. 858, 859, 862, 105 S.Ct. 2455, 85 L.Ed.2d 829 (1985)).
The Court surmised that reading the jurisdictional element too loosely would render the statute far too broad since every building has some indirect connection to interstate commerce. 529 U.S. at 859, 120 S.Ct. 1904 (“We conclude that § 844(i) is not soundly read to make virtually every arson in the country a federal offense.”); see also Russell, 471 U.S. at 862, 105 S.Ct. 2455 (“In sum, the legislative history [of § 844(i) ] suggests that Congress at least intended to protect all business property, as well as some additional property that might not fit that description, but perhaps not every private home.”). The Court did not winnow the reach of § 844(i) because a looser interpretation would exceed Congress’s Commerce Clause power but, rather, because such an expansive interpretation of § 844(i) would render Congress’s deliberate wording of “used in” superfluous and meaningless and would not observe the rule of lenity, where criminal statutes are to be read in the most lenient fashion available.6 529 U.S. at 857-58, 120 S.Ct. 1904.
The BIA addressed Jones in its decision, largely declaring it inapplicable to the collateral immigration consequences context. Bautista, 25 I. & N. Dec. at 620-21. The BIA concluded that, in respect to § 101(a)(43)(E), Jones established that the jurisdictional element is “an essential Federal jurisdictional element” and nothing more because the Supreme Court did not extend its holding to collateral immigration consequences. Id. Here, the BIA’s treatment of Jones is in error. Like Jones, Taylor was not an immigration case and did not explicitly extend its holding to collateral immigration consequences, yet its categorical approach is indisputably binding precedent in immigration cases such as this. 495 U.S. at 577-78, 110 S.Ct. 2143 (introducing the issue in the case as the applicability of a sentencing enhancement for burglary).
The Dissent swiftly dispatches Jones by discounting it as a federalism ruling to prevent Congress from encroaching on the power of the states. The Dissent’s position implies that federal criminal statutes should assume different meanings depend[66]*66ing on the use and context of a statute. The Dissent’s reasoning suggests that, in prosecuting a defendant under § 844(i), § 844(i) retains a jurisdictional element but, in removing an alien under the INA, the jurisdictional element of § 844(i) disappears. This seems contrary to the reason why Congress chose to define some categories of aggravated felonies by reference to federal criminal statutes: It is because federal criminal statutes have fixed meanings, that they make stable and reliable reference points for establishing categories of offenses.
Under Jones, it matters to the categorical approach under § 101 (a)(43)(E)(i) whether the object of the arson has a sufficient nexus with interstate commerce — it does more than provide a jurisdictional hook for Congress. Accordingly, a state arson conviction will only be “described in”, and punishable under § 844(i), if the state statute includes an element requiring that the object of the arson be actively used in interstate commerce. Thus, Bautista’s conviction is not an aggravated felony under the formal categorical approach because the New York statute lacks the jurisdictional element that Jones held to be a substantive and substantial element of § 844(i).
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. We 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 counterin-tuitive. See Lopez v. Gonzales, 549 U.S. at 58, 59, 127 S.Ct. 625 (“[I]t would have been passing strange for Congress to intend [that federal consequences of state crimes would vary by state] when a state criminal classification is at odds with a federal provision that the INA expressly provides as a specific example of an ‘aggravated felony [like § 924(c)].”); id. at 54-55, 127 S.Ct. 625 (“Congress can define an aggravated felony ... in an unexpected way. But Congress would need to tell us so, and there are good reasons to think it was doing no such thing here.”).7
On these grounds, we decline to apply our sister circuits’ reasoning from the § 922(g)(1) context to the § 844(i) context. Specifically, we find that, even if we accept our sister circuits’ application of the categorical approach to § 922(g)(1), that approach cannot survive the Supreme Court’s understanding of the jurisdictional element of § 844(i) in Jones. In light of Jones and the language of § 101(a)(43)(E)(i), we can find no principled basis for reading the jurisdictional element out of § 844(i). The bottom line is that § 844(i) does not describe generic arson or common law arson, but arson that involves interstate commerce.
[67]*67D. The Jurisdictional Aspects of the Offenses Enumerated in § 101(a)(43) Must Be Considered Separately
We recognize that the salience of a jurisdictional element and its requisite interstate commerce nexus may vary depending on the substantive nature of the offense at hand. As the Supreme Court made clear in Jones, not all arson has a nexus with interstate commerce sufficient for it to be categorized as a federal offense. Under § 844(i), the jurisdictional element has a meaningful narrowing effect on the range of arson criminalized, excluding categories of arson that have no more than an insubstantial effect on interstate commerce— such as arson involving virtually all private residences employed for personal use. Consequently, by referring to § 844(i) in § 101(a)(43)(E)(i), rather than generic arson, Congress deliberately narrowed the range of arson that qualifies as an aggravated felony and we must not expand that range by ignoring the jurisdictional element in the categorical approach.
That this narrows the number of state convictions falling under the umbra of § 101(a)(43)(E)(i) is of little moment to our determination. See Moncrieffe, 133 S.Ct. at 1692-93 (concluding that the dearth of state convictions captured under its interpretation of § 101(a)(43)(B) did not undermine its interpretation). But see Nijhawan v. Holder, 557 U.S. 29, 39-40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (finding its interpretation of § 101(a)(43)(M)(i) controlled by the absence of a monetary threshold requirement in federal and state fraud statutes).8
We also do not find it persuasive that the Eighth Circuit has extended our sister circuits’ § 922(g)(1) rationale to the § 1962 racketeering context under § 101(a)(43)(J). See Spacek, 688 F.3d at 538-39. With respect to the Eighth Circuit’s conclusion that all “jurisdictional” provisions may be disregarded when applying § 101(a)(43)(J), Jones makes clear that all elements of the offense described in § 844(i) are relevant to the scope of covered state arson offenses under § 101 (a) (43) (E) (i), including those elements that may be characterized as “jurisdictional”.
E. Other Considerations Compel This Result
There are several other reasons why our approach to the § 101(a)(43) inquiry is the appropriate one in the context of arson convictions. First, our position is one that remains most faithful to the overarching policy of the INA — uniformity. See Taylor, 495 U.S. at 590-92, 599-600, 110 S.Ct. 2143 (determining that Congress used “uniform, categorical definitions to capture all offenses of a certain level of seriousness ... regardless of technical definitions and labels under state law”); Gerbier v. Holmes, 280 F.3d 297, 312 (3d Cir.2002) (commenting that national uniformity would be undermined if “aliens convicted of drug offenses in different states that punish similar offenses differently [were] treated differently with respect to deportation and cancellation”). A collateral immigration consequence based upon a state criminal conviction should not depend on whether and how individual states choose to criminalize and codify offensive conduct — it should depend on whether the [68]*68state conviction satisfies the elements of the pertinent federal criminal statute listed in § 101(a)(43). See Taylor, 495 U.S. at 590, 110 S.Ct. 2143 (“It seems to us to be implausible that Congress intended a [categorical definition of a crime] to depend on the definition adopted by the State of conviction.”); Lopez v. Gonzales, 549 U.S. at 58-59, 127 S.Ct. 625 (remarking about the “untoward consequences” that would ensue if the law of alien removal was “dependent on varying state criminal classifications ... when Congress has apparently pegged the immigration statutes to the classifications Congress itself chose”).
Next, our interpretation of § 101(a)(43) comports best with the other federal criminal statutes set out in § 101(a)(43). A survey of these statutes reveals that the jurisdictional elements used in federal criminal statutes are not generic or uniform — the jurisdictional element, as an element of the crime, may reflect the conduct targeted by the statute or reflect the intent of Congress in criminalizing such conduct. To provide one example, when § 101(a)(43)(E)(i) refers to an “offense described in” 18 U.S.C. § 844(g), it is targeting explosives possessed in airports regulated by the Federal Aviation Administration (“FAA”) and property controlled by the federal government. Mention of the FAA is not included simply to provide a jurisdictional hook such that the possession of explosives in any airport should be considered an aggravated felony. Or, to provide another example, when § 101(a)(43)(H) refers to an offense described in 18 U.S.C. § 876, it is specifically targeting threatening communications sent through the U.S. Postal Service— that is not merely a jurisdictional hook in order to target mail threats generally. Or, consider § 101 (a) (43) (M) (ii), which refers to an offense described in 26 U.S.C. § 7201 — the reference to the federal tax code is not merely a jurisdictional hook to target tax evasion generally, be it against the federal government or state governments.
Congress hand-picked which specific federal criminal statutes it would include in § 101(a)(43) and we must give due weight to such deliberate choices. See Lopez v. Gonzales, 549 U.S. at 58, 127 S.Ct. 625 (“We cannot imagine that Congress took the trouble to incorporate its own statutory scheme ... if it meant [for] courts to ignore it whenever a State chose to punish a given act more heavily.”); Moncrieffe, 133 S.Ct. at 1689 (calling it an “anomaly” to have courts “ignore the very factors” distinguishing the statutes that Congress has established to designate aggravated felonies).
It would seem anomalous to disregard the explicit requirement that there be a nexus with the FAA, the U.S. Postal Service, or federal taxes in those statutes because applying that “jurisdictional” element would only capture a negligible number of state convictions for possessing explosives at airports, sending threatening communications through the mail, and evading state taxes. A threatening communication sent intrastate via Fed Ex should not be considered an aggravated felony merely because it would provide Congress with legislative jurisdiction if it had been sent via the U.S. Postal Service.
Accordingly, we hold that the formal categorical approach requires that convictions under state criminal statutes include a jurisdictional element to qualify as aggravated felonies corresponding to § 844(f) under § 101(a)(43)(E)(i).
IV. CONCLUSION
For the reasons set forth above, we will grant Bautista’s petition and vacate the BIA’s decision. We find that, since the statute of Bautista’s conviction does not [69]*69contain the jurisdictional element of 18 U.S.C. § 844(i), his conviction is not an aggravated felony under § 101(a)(43)(E)(i) because the state statute of his conviction does not require a nexus with interstate commerce. We remand this case to the BIA for further consideration in accord with this opinion.