Today the U.S. Supreme Court will hear oral arguments in the latest in its constant stream of crimmigration cases. As with many other Supreme Court crimmigration decisions, Torres v. Lynch, No. 14-1096 (U.S.), requires the Court to untangle the aggravated felony basis of removal. In particular, Torres concerns the aggravated felony category concerning arson crimes.
Stemming from a decision of the U.S. Court of Appeals for the Second Circuit affirming a BIA decision, Torres hones in on the precise meaning of the phrase “described in” which appears in several subsections of the sprawling aggravated felony definition, INA § 101(a)(43). The specific section that has led to Torres’s predicament is INA § 101(a)(43)(E)(i) which provides, in relevant part, that the phrase “aggravated felony” means “an offense 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).” Relying on an earlier BIA decision (which I blogged about here), DHS convinced an immigration judge that a conviction under New York’s arson offense, N.Y. Penal Code § 110.00 and 150.10, is described in 18 U.S.C. § 844(i), a federal statute criminalizing arson. The BIA affirmed. The Second Circuit found the BIA’s decision reasonable, thus the circuit court deferred to the BIA’s conclusion. Torres v. Holder, 764 F.3d 152 (2d Cir. 2014).
At the heart of the case now before the Supreme Court is whether “described in” requires that there be an absolute match between the elements of the state criminal offense and the federal criminal statute referenced in the aggravated felony definition. This matching puzzle is a predicament familiar to crimmigration attorneys. Beginning in 1990, the Court has issued a long line of decisions hammering out the contours of an analytical method that calls for just this type of perfect alignment. Called the categorical approach (and frequently discussed alongside its analytical supporting actor, the modified categorical approach), this analysis looks to ensure that a person is deemed removable only if an immigration judge can be sure that the migrant was in fact convicted of an offense that Congress has listed in the INA. In an implied recognition of the severe consequence that is removal (Justice Brandeis once referred to it as “losing all that makes life worth living), doubt is resolved in favor of the migrant. [For a more thorough description of the categorical approach, see pages 30-41 of my book Crimmigration Law.]
The trouble with the arson type of aggravated felony is that courts can’t agree whether Congress intended for a state arson crime to have to meet all of the requirements of the federal arson crime, 18 U.S.C. § 844(i). If that’s the case, then, as the Justice Department correctly points out, few state arson offenses would ever meet this standard because the federal crime includes a jurisdictional requirement. To be convicted of federal arson under § 844(i), the prosecutor must prove that the defendant “maliciously damage[d] or destroy[ed]…by means of fire or an explosive, any…real or personal property used in interstate or foreign commerce…” (emphasis added). The italicized portion is the jurisdictional element of the federal offense that’s almost always absent from analogous state crimes.
Torres argues that, to be considered an aggravated felony under this provision, the jurisdictional element should be a necessary component of any state conviction. In contrast, the Justice Department contends that the jurisdictional element is superfluous to this analysis. It explains that language found in other subsections of the aggravated felony definition lead to the conclusion that Torres desires. Specifically, the phrase “defined in” appears several times in INA § 101(a)(43). That language, the Justice Department claims, requires a perfect match between the elements of the statute of conviction and the federal arson crime. Of course, the aggravated felony language that pushed Torres to the precipice of removal isn’t “defined in” but “described in.” According to the Justice Department, the latter is a more flexible phrase that requires a match between all of the elements except the jurisdictional requirement.
If the Supreme Court adopts the approach proposed by Torres, then most state convictions would not be aggravated felonies under this provision. If the Court embraces the approach advocated by the Justice Department, then Torres and others convicted of a state arson offense face the possibility of having their convictions deemed aggravated felonies under this language. Because an aggravated felony conviction leads to removability and precludes eligibility from most forms of relief from removal, the stakes are high.
Stay tuned to crImmigration.com for updates as the Court decides.