Issues
In order for a state-law criminal offense to qualify as an aggravated felony because that offense is “described in” a federal criminal statute, must the state offense contain all of the elements of the corresponding federal offense—including the federal jurisdictional requirements?
The Supreme Court will consider whether a state offense that is “described in” a federal criminal statute must meet all elements of the statute, including jurisdictional requirements, to constitute an aggravated felony. See Brief for Petitioner, Jorge Luna Torres at 2. Petitioner Jorge Luna Torres argues that under the plain meaning of the aggravated felony definition, the New York offense of arson is not described in the federal arson offense because it does not satisfy the federal statute’s interstate commerce requirement. See id. But U.S. Attorney General Loretta Lynch contends that it is reasonable to interpret that a state offense may constitute an aggravated felony under the relevant federal offense, even if the conduct does not meet a jurisdictional element. See Brief for Respondent, Loretta E. Lynch at 17. The Court’s ruling will clarify the definition of “aggravated felony,” and impact the relationship between immigration law and criminal law, particularly with respect to immigrants facing deportation. See Brief of Amici Curiae National Association of Criminal Defense Lawyers et al. (“NACDL”), in Support of the Petitioner at 1.
Questions as Framed for the Court by the Parties
Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks?
Facts
Jorge Luna Torres, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, plead guilty to and was convicted of attempted third-degree arson in violation of New York State Penal Law §§ 110.00 and 150.10 in 1999. Torres v. Holder, 764 F.3d 152, 153 (2d Cir. 2014). Torres was sentenced to one day in prison and five-year probation. Id. Following his conviction, Torres traveled back to the Dominican Republic and, in 2006, sought re-entry into the United States as a lawful permanent resident. Id. Because Torres’ prior conviction was for a crime involving moral turpitude, the Immigration and Naturalization Service (“INS”) determined he was statutorily inadmissible as a lawful resident into the United States. Id. at 153-154. Torres subsequently applied for cancellation of INS’ removal. Id. at 154.
A U.S. Immigration Judge (“IJ”) determined, in part, that Torres was ineligible for cancellation of removal as a permanent resident, because Torres was convicted of an aggravated felony. Id. In the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43), the definition of aggravated felony includes references to several generic crimes, such as murder, rape, and sexual abuse, as well as references to specific statutes using the words “described in” or “defined in.” Id. at 156. The IJ relied on two prior decisions by the Board of Immigration Appeals (“BIA”), which had interpreted the INA’s definition of aggravated felony, to conclude that Torres’ arson conviction under the New York Penal Law constituted an aggravated felony described in federal statute 18 U.S.C. § 844(i). This section prohibits the malicious destruction by fire or explosives of property used in interstate commerce. See id. at 154. The IJ accepted the BIA’s holding that a state or foreign conviction for an offense described in a federal criminal provision still constitutes an aggravated felony if the only element not met was interstate commerce. Id. at 155.
On appeal to the Second Circuit Court of Appeals, Torres argued that Congress intended section 1101(a)(43) aggravated felonies to encompass state law crimes that met all the elements of the federal offense, including jurisdictional elements. Id. at 155. In the alternative, Torres plead that the IJ’s reliance on a BIA decision should not have been retroactively applied to his case, because he lacked notice that the state arson crime to which he pled guilty would constitute an aggravated felony. Id. at 158. The Second Circuit rejected both of Torres’ arguments. On the first claim, the Second Circuit gave deference to what it believed was a reasonable interpretation of the provision in question by the BIA under the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Id. at 156. On the second claim, the Second Circuit found that the BIA did not retroactively apply a new law, but rather applied the law as it always meant. Id. at 158.
Torres appealed to the Supreme Court of the United States. See Brief for Petitioner, Jorge Luna Torres at 1. The Court granted certiorari.
Analysis
The Supreme Court will determine whether a state arson statute, which is defined to include the offense “described in” the federal arson statute, 18 U.S.C. § 844(i), constitutes an aggravated felony. See Brief for Petitioner, Jorge Luna Torres at 2; Brief for Respondent, Loretta E. Lynch at 9. The federal statute contains the same substantive elements as the state statute, but it also includes a federal jurisdictional element requiring the crime to relate to interstate commerce, which is not part of the state statute. See Brief for Petitioner at 2. Torres argues that the INA’s “described in” language limits its scope to offenses that have the same elements, “not a vague category of similar offenses.” See id. at 16. Torres concludes that section 844(i) does not encompass the state arson statute, because the two statutes do not include the same elements; the state offense lacks an interstate commerce element. See id. at 28. Torres further asserts that the court is required to construe an ambiguous deportation statute according to criminal deference standards or in favor of the effected alien. See id. at 39, 44. However, Lynch contends that the phrase “described in,” as it relates to § 844(i), references a broad array of similar crimes including the state arson statute. See Brief for Respondent at 17. Lynch also contends that the court is required to defer to the BIA’s reasonable interpretation of an aggravated felony. See id. at 45.
DO THE TEXT AND CONTEXT OF 8 U.S.C. § 1101(a)(43) DICTATE AN INTERPRETATION?
Torres argues that an aggravated felony under 8 U.S.C. § 1101(a)(43) does not encompass the New York state arson statute. See Brief for Petitioner at 14. Torres reasons that the reference to the offense described in section 844(i) must be construed narrowly to only include crimes that are identical to the statute. See id. at 16. In support, Torres explains that, in section 1101(a)(43), crimes are referenced three ways—as “generic” crimes, crimes “defined in” a statute, and crimes “described in” a statute—and that courts interpret each reference uniformly throughout the U.S. Code. See id. at 4. Torres asserts that generic crimes include all federal and state crimes of that nature, such as murder or rape. See id. at 21. Torres asserts that “defined in” states a definition while “described in” lists the elements of a crime. See id. at 19–20. Torres contends that Congress, by not describing arson as a generic crime, indicated that not all state crimes are aggravated felonies and that some, like arson, must satisfy all of elements described in the relevant federal statute . See id. Torres notes that forms of arson are misdemeanors in some states and that Congress would not want to elevate such crimes by a generic reference to arson. See id. at 25. Similarly, Torres contends that the jurisdictional element described in the federal arson statute is an essential element of the crime. See id. at 26. Torres maintains that the interstate commerce element in the federal arson statute ensures that United States has the constitutional power to prosecute the crime Congress intended to prosecute, and cannot be dismissed as merely jurisdictional. See id. Torres explains that other federal offenses, such as destruction of U.S. property or threats sent through the U.S. Postal Service, include similar elements, which grant the government jurisdiction over the crime and limit the scope of the statutes. See id. at 26-27. Torres maintains that if these elements—ownership by the government, “by the Postal Service,” or in this case, interstate commerce—were removed, the United States could prosecute any property destruction, threats sent by any means, or any type of arson, even though Congress could not have intended that result. See id. at 26-27.
But Lynch argues that the text and context of section 1101(a)(43) compels a different interpretation. See Brief for Respondent at 15. Lynch contends that described in must be read more broadly than defined in, and therefore leaves some leeway in the precise definition of similar state crimes that qualify as aggravated felonies. See id. at 16, 22. Lynch maintains that because Congress intentionally chose different language, Congress must have intended different meanings. See id. at 23. Lynch contends that “defined in” means a “match between provisions,” and that in light of Congress’ intent to create different meanings, “described in” must be defined more fluidly. See id. at 23. Namely, Lynch asserts that described in can encompass state crimes where the sole differentiating factor between the state crime and the federal crime is a jurisdictional element. See id. at 17. Lynch maintains that federal statutes routinely reach state crimes that lack a federal jurisdictional element. See id. at 18. Lynch notes that Congress has amended portions of the U.S. Code containing described-in language, and Congress has not indicated any disapproval of the courts’ interpretation. See id. at 30. Lynch also argues that legislative history indicates that Congress wanted state arson to be considered an aggravated felony. See id. at 42. Although section 1101(a)(43) does not list arson as a generic crime, Lynch contends that a generic label is not necessary for a state crime to be considered an aggravated felony. See id. at 25. Rather, Lynch asserts that Congress chose to refer to the federal statute because arson does not describe all of the relevant explosives-related offenses that are aggravated felonies. See id. at 26. Lynch argues that Congress also wanted to provide guidance on the substantive elements required to be considered an aggravated felony, because the generic crime arson is more ambiguous than rape or murder. See id. at 27.
HOW SHOULD AN AMBIGUOUS STATUTE PERTAINING TO DEPORTATION BE INTERPRETED?
If the court finds that § 1101(a)(43) is ambiguous, Torres contends that the court must rely on one of several standards that would not classify state arson as an aggravated felony. See Brief for Petitioner at 38. First, Torres argues that the court must not interpret a statute with both criminal and civil consequences in the same way with regard to deference. See id. at 39. Torres maintains that the aggravated felony definition impacts an alien’s civil rights, such as preventing deportation, but also has the potential to impact further criminal prosecution if the alien is arrested again in the United States. See id. at 39. Torres argues that if a statute implicates both criminal and civil law, criminal standards predominate, and therefore the Chevron standard of deference to reasonable interpretations by government agencies does not apply. See id. at 39, 42. Instead, Torres contends that the controlling criminal standard is the rule of lenity, which compels courts to interpret statutes in favor of aliens. See id. at 40. Even if Chevron applies, Torres concludes that the BIA’s interpretation is unreasonable, because the current interpretation erroneously concludes that no state crimes will qualify as aggravated felonies if the state crime is required to contain federal jurisdictional elements. See id. at 48.
However, Lynch argues that if the statute is ambiguous, the Chevron standard must control. See Brief for Respondent at 45. Lynch maintains that there is no direct criminal application of the aggravated felony definition and therefore criminal standards do not supersede civil ones. See id. at 45. Under the Chevron standard, Lynch contends that the INA assigned power to the attorney general to interpret immigration statutes, and that here the attorney general has properly delegated that power to the BIA; thus the BIA’s interpretation controls. See id. at 46. Lynch further argues that the BIA interpretation is reasonable given the aim of Congress to incorporate all state crimes that are substantively similar to the federal crimes, and asserts that the BIA’s interpretation reflects this intent. See id. at 52. Moreover, Lynch asserts that a contrary interpretation would produce unreasonable results, such as excluding many severe state and foreign crimes that lack an interstate commerce element but have criminal intent and conduct that is otherwise identical. See id. at 53.
Discussion
In this case, the Supreme Court will have to opportunity to clarify whether section 1101(a)(43) of the INA requires that a state offense, to be “described in” a federal criminal provision, must meet all statutory requirements in order to constitute an aggravated felony for purposes of the immigration laws. See Brief for Petitioner, Jorge Luna Torres at 3. Torres argues that a state offense is not described in, pursuant to section 1101, the federal arson statute unless it meets each element of section 844(i), including the interstate commerce element. See Id. at 7. However, Lynch contends that the Court must defer to the BIA’s reasonable interpretation of the statute, which holds that a state offense may be construed as an aggravated felony, even without a federal jurisdiction element, if it meets all the other elements of the federal criminal statute. See Brief for Respondent, Loretta E. Lynch at 16. The Court’s decision will impact the status of current immigrants, who have engaged in domestic criminal activity, and new immigrants, and the ramifications that their prior acts have on their continued or possible status in the United States. See Brief for Petitioner at 3.
INCREASING CRIMINAL LAW CONSEQUENCES
In support of Torres, the National Association of Criminal Defense Lawyers (“NACDL”), the National Immigration Project of the National Lawyers Guild (“NIP”), and several other defense and immigration associations (collectively, the “Associations”) argue that the BIA’s interpretation of aggravated felony is too broad in light of the statute’s ambiguity, and will create serious criminal implications for aliens living in the United States. See Brief of Amici Curiae National Association of Criminal Defense Lawyers et al. (“NACDL”), in Support of Petitioner at 16. The Associations assert that complete deference to the BIA’s interpretation would broaden the reach of INA’s criminal statutes beyond their congressionally intended limits, and unfairly penalize those who committed less serious offenses that are normally prosecuted only under state law. See Id. at 5, 30-31. Instead, the Associations suggest that a narrow interpretation of aggravated felony would afford “constitutionally required fair notice to criminal defendants, promote[] consistency in statutory interpretation across criminal and civil applications, and strike[] ‘the proper balance between Congress, prosecutors, and courts’ in defining, administering, and interpreting laws that have criminal applications.” Id. at 6 (internal citation omitted).
But Lynch argues that it is contrary to the foundations of federalism to assume that Congress viewed crimes with identical intent and conduct prosecuted by state officials as less severe than those prosecuted at a federal level. See Brief for Respondent at 16. Lynch claims that states are typically the entities within the federal framework that are charged with prosecuting criminal activity, including the most severe offenses, and that federal prosecutors will often only take a case with overlapping jurisdiction if the state is incapable of prompt and effective prosecution. See id. at 39. Furthermore, Lynch maintains that Congress did not view state prosecution as a proxy for offense seriousness, because it clarified by amendment that the aggravated felony clause should be interpreted to reach state offenses, including arson, in addition to enumerated federal offenses. See id. at 41.
INTERSECTION OF IMMIGRATION AND STATE CRIMINAL LAW
The National Immigrant Justice Center (“NIJC”) and the American Immigration Lawyers Association (“AILA”), in support of Torres, contend that the BIA’s broad interpretation of an aggravated felony would have grave consequences for aliens who have committed relatively minor state-law offenses, such as preventing longtime residents from seeking relief from removal and preventing noncitizens from seeking asylum. See Brief of Amici Curiae National Immigrant Justice Center (“NIJC”) and the American Immigration Lawyers Association (“AILA”), in Support of the Petitioner at 15, 20. Additionally, the Associations argue that immigrants who have previously been convicted of aggravated felonies will incur substantially harsher sentences under the U.S. Sentencing Guidelines, which results in an unwarranted burden on aliens. See Brief of NACDL at 9-10.
Lynch argues that the Court has not, and should not, unnecessarily deny agencies, including the BIA, deference in their interpretation of statutes they administer, solely because those interpretations carry criminal implications. See Brief for Respondent at 48. Lynch contends that agencies’ whose responsibility it is to administer statutory provisions, which might have widespread criminal, civil, and even immigration implications, should be granted deference, because they are likely the most capable parties to enforce the provision. See id. at 48.
Conclusion
The Supreme Court will determine whether a federal jurisdictional element is essential for a state crime to be considered an aggravated felony. See Brief for Petitioner, Jorge Luna Torres at 2. Torres claims that the text and context of the relevant statute prevent state arson from being considered an aggravated felony. See id. at 16. Conversely, Lynch contends that state arson satisfies all of the substantive elements of federal arson, and that the missing federal jurisdictional element does not prevent state arson from being considered an aggravated felony. See Brief for Respondent, Loretta E. Lynch at 17. In resolving this issue, the Supreme Court may determine what entity is given deference in interpreting an ambiguous statute affecting deportation. See Brief for Petitioner at 38. As a result, the Court’s decision will affect aliens facing deportation that have previously been convicted of crimes in the United States. See id. at 3.
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Additional Resources
- Steven Wildberger, Supreme Court Agrees to Hear Affirmative Action, 3 Other Cases, Jurist (June 30, 2015).