The Supreme Court has determined that when applying the categorical approach to an aggravated felony ground that references a federal statute with a jurisdictional element involving interstate commerce, the state offense need contain that jurisdictional element to be a categorical match to the aggravated felony ground.  At issue in this case was New York's arson statute, which matched the federal arson statute (cross-referenced in the aggravated felony definition in the Immigration and Nationality Act) in every way except that it did not require that the arson involve interstate commerce.  The Supreme Court relied heavily on the traditional distinction drawn between substantive and jurisdictional elements, as well as the penultimate sentence of the aggravated felony definition, which indicates that it encompasses federal, state and foreign convictions.  The Court noted that requiring the statute of conviction to include an element of interstate commerce would exclude virtually all state and foreign convictions from the arson aggravated felony ground (and several other aggravated felony grounds as well).

The full text of Luna Torres v. Lynch can be found here: