May 19, 2016

Supreme Court Decides Torres v. Lynch

On May 19, 2016, the U.S. Supreme Court decided Torres v. Lynch (No. 14-1096), holding that a state criminal offense counts as an “aggravated felony” under § 1101(a)(43) of the Immigration and Nationality Act (INA) when it has every element of a federal crime listed in the statute except one requiring a connection to interstate or foreign commerce.

Under the INA, any alien convicted of an “aggravated felony” after entering the United States is deportable, is ineligible for several forms of discretionary relief (including cancellation of removal), and may face expedited removal proceedings. Section 1101(a)(43) INA defines “aggravated felony” through a list of approximately 80 different crimes, and often provides that an offense is an aggravated felony if it is “described in” one of the enumerated crimes. One of those enumerated crimes is 18 U.S.C. § 844(i), which makes it a crime to “maliciously damage[] or destroy[], or attempt[] to damage or destroy, by means of fire or an explosive, any building [or] vehicle…used in interstate or foreign commerce….” The penultimate sentence of § 1101(a)(43) provides that an offense listed in the section is an aggravated felony whether it violates federal, state, or foreign law.

Jorge Torres immigrated to the United States as a child and has lived in the U.S. as a lawful permanent resident. In 1999, he pleaded guilty to attempted third-degree arson in violation of New York law. Seven years later, immigration officials discovered the conviction and began proceedings to remove him. Torres applied for cancellation of removal, but the Immigration judge found him ineligible for that relief because his arson conviction qualified as an “aggravated felony” under § 1101(a)(43).

Torres appealed to the Board of Immigration Appeals, pointing out that the crime “described in” 18 U.S.C. § 844(i) included an interstate-commerce requirement, while the New York statute that he violated did not. The Board affirmed, holding that the fact that the federal statute included an interstate-commerce requirement while the New York law did not was irrelevant because the federal interstate-commerce element was only jurisdictional, and not a substantive element of the crime. Because all of the substantive elements of the New York arson offense were included in the federal offense, the Board held that the New York arson offense was “described in” 18 U.S.C. § 844(i), and was therefore an “aggravated felony” under § 1101(a)(43) of the INA. Torres petitioned the Second Circuit for review of the Board’s decision, but the Second Circuit denied the petition.

The Supreme Court affirmed. The Court began by pointing out that Congress has no general constitutional power to punish felonies, and may do so only if it can connect the law to one of its constitutionally enumerated powers. Quite often, Congress links criminal statutes to its authority to regulate interstate commerce; thus, many federal offenses include an interstate-commerce requirement like the one in 18 U.S.C. § 844(i). State laws, by contrast, typically do not contain an interstate-commerce requirement because states have the power to create criminal offenses without regard to their interstate nature.

The Court then concluded that the plain language of the phrase “described in” in § 1101(a)(43) of the INA could not resolve the case, because its meaning depended on the context in which it was used. The Court found two contextual considerations that persuaded it that “described in” did not require an exact match between the elements of a federal crime enumerated in § 1101(a)(43) and the elements of a state crime. The first is the penultimate sentence of § 1101(a)(43), which provides that 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….” If “describe in” required a state crime to include an interstate-commerce requirement that is present in an enumerated federal criminal statute, it would exclude most state and foreign versions of those enumerated federal statutes because the state and foreign crimes typically do not have an interstate-commerce requirement. The second contextual consideration is the settled practice of distinguishing substantive and jurisdictional elements in federal criminal statutes. The interstate-commerce requirement in federal criminal statutes is a jurisdictional element, not a substantive element of the offense. Congress does not expect jurisdictional and substantive elements to receive identical treatment. That supports reading § 1103(a)(43) to include state crimes that contain the same elements as enumerated federal crimes with the sole exception of the interstate-commerce requirement.

Justice Kagan delivered the opinion of the Court, in which Chief Justice Roberts and Justices Kennedy, Ginsburg, and Alito joined. Justice Sotomayor filed a dissenting opinion in which Justices Thomas and Breyer joined.

Download Opinion of the Court

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