SCOTUS May Set Low Bar for Convicted Immigrant Removal

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By Patrick Gregory

Nov. 3 — Most U.S. Supreme Court justices seemed inclined to take a broad view of what constitutes an “aggravated felony” under an immigration law at oral argument Nov. 3.

An immigrant convicted of an aggravated felony is ineligible for cancellation of removal.

Under the Immigration and Nationality Act, 8 U.S.C. §1229b(a)(3), an “aggravated felony” includes, among other offenses, an offense “described in” the federal arson statute, 18 U.S.C. §844(i).

The dispute centers on whether a state arson offense is “described in” the federal statute even if it lacks the “interstate commerce” element contained in the federal statute.

Justice Elena Kagan said not including such a state offense would exclude state crimes such as child pornography in a way that would “not make much sense.”

Similarly, Justice Anthony M. Kennedy said such exclusions would make the statute a “nullity” as to the states.

The justices had tough questions for both sides, but the attorney arguing for immigrant Jorge Luna Torres—convicted of a state misdemeanor arson offense—appeared to be more on the defensive.

The U.S. Court of Appeals for the Second Circuit found that a third-degree arson conviction under New York law was an aggravated felony despite lacking the interstate commerce element in Torres v. Holder, 764 F.3d 152 (2d Cir. 2014).

The Second Circuit deferred to the Board of Immigration Appeals's “reasonable determination that a state ‘offense described in’ 18 U.S.C. §844(i) need not contain a federal jurisdictional element.”

Statutory Problem ‘Greatest.'

“Congress made a choice,” Matthew L. Guadagno of The Law Offices of Matthew L. Guadagno, New York, arguing for Torres, said.

It chose not to make state arson offenses automatically count as aggravated felonies, he said.

Some states have laws against “misdemeanor arson,” and Congress didn't want such minor state offenses to be included, Guadagno said.

Justice Samuel A. Alito Jr. told Guadagno that statutory language “seems to present the greatest problem for your position.”

Alito and Chief Justice John G. Roberts Jr. both pointed out that the INA, Section 1101(a)(43), says the term “aggravated felony” applies to offenses described in Section 844(i) “whether in violation of Federal or State law.”

It can therefore be argued that if a federal offense has a “jurisdictional provision” such as an interstate commerce element, that provision can be disregarded because “you're never going to find that” element in state law, Alito said.

Kennedy agreed, saying that applying the statute only to offenses including the interstate commerce element would nullify the law with respect to state offenses.

Justice Antonin Scalia said similarly that “every federal crime has some jurisdictional element in it” in order to allow federal action, whether mentioned in the statute or not.

But under Guadagno's view, only jurisdictional elements specifically listed in the statute would limit what constitutes an aggravated felony, Scalia said.

“That seems to me a little illogical,” Scalia said.

But Scalia later noted that Congress could have explicitly excluded the jurisdictional element as a requirement and didn't do so.

Sotomayor Not Convinced

Congress enacted the statute against a backdrop of many laws where the jurisdictional, interstate commerce element “drops away when a federal crime is being compared to a state” crime, Elaine J. Goldenberg of the Department of Justice, Washington, said in arguing for the federal government.

Justice Sonia Sotomayor seemed more skeptical of this argument than most of the other justices.

“I don't take much from your argument,” Sotomayor said.

The fact that the jurisdictional element “drops away in other sections” doesn't mean that it does so here concerning arson, Sotomayor said.

Unlike sections in the statute concerning other offenses, “Congress didn't just say” the jurisdictional element “dropped away here,” Sotomayor said.

‘Nonsensical' Argument?

But Guadagno's theory would create a world where some offenses are excluded from being aggravated felonies in a nonsensical way, Kagan said.

Offenses such as child pornography and kidnapping offenses have the jurisdictional element in the statute, Kagan said.

Guadagno's approach would therefore exclude state child pornography and kidnapping offenses from counting as aggravated felonies, Kagan said.

In contrast, minor offenses such as operating a gambling establishment—which lack a jurisdictional element—could constitute an aggravated felony under Guadagno's view, Kagan said.

That's not a “sensible categorization,” Kagan said.

Underinclusive, Overinclusive Concerns

Justice Ruth Bader Ginsburg expressed concern that serious arson offenses under state law wouldn't be included under Guadagno's view.

Such offenses would still be considered aggravated felonies under the statute's provision for violent crimes, Guadagno said.

But Guadagno's interpretation would leave out serious state offenses including those relating to gun possession and child pornography, Goldenberg said.

“So it is an underinclusive approach,” Goldenberg said.

Further, serious foreign offenses wouldn't count as aggravated felonies under that approach because those don't involve interstate commerce, Goldenberg argued.

But Ginsburg pressed Goldenberg from the other side, suggesting that the statute would overinclusively “sweep up” misdemeanor offenses under the government's view.

Goldenberg responded that it's “well-recognized” that a state's attachment of a low penalty to a crime doesn't prevent it from being an aggravated felony.

Still, Congress could have understood that there are a “wealth of minor” arson offenses that should be excluded, Kagan said.

Breyer's Interest Piqued

Justice Stephen G. Breyer said he was initially concerned that Guadagno's narrow approach could exclude dangerous state crimes—such as those involving explosives—from counting as an aggravated felony of arson.

But then Guadagno argued, as paraphrased by Breyer, “have no fear, read on, because there is a section that makes it an aggravated crime to commit a crime of violence.”

“So now, if that's right, I'm left with only half the problem I thought I was left with,” Breyer said.

The underinclusiveness concern would be solved under the narrow approach, Breyer said.

But under the government's broader approach, “the half I'm still left with,” what “we will suddenly do” is put many offenses “into the category ‘aggravated felony,' which forbids the attorney general to exercise her discretion” concerning removal, even for minor offenses such as tax fraud or gambling, Breyer said.

Chevron Deference

“What about the respect we owe to the BIA for their interpretation” of the statute, Ginsburg asked.

Guadagno responded that the BIA shouldn't be given Chevron deference.

The high court created a test for reviewing agency action in Chevron U. S. A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).

Under Chevron, if a court finds that a law's plain language is ambiguous, it must then determine whether the agency's interpretation of the law is permissible.

That deference to the agency applies only under certain circumstances, and statutory rules of construction apply at “step one” that would preclude deference here, Guadagno said.

Goldenberg requested that the court give deference to the BIA if it found the statute ambiguous.

But “four of the courts of appeals that have addressed this have said the statute is unambiguously clear” that state arson offenses constitute aggravated felonies, Goldenberg said.

Ginsburg noted that the BIA “switched positions” on its interpretation.

“Doesn't that dilute the strength of the board's current position,” Ginsburg asked.

But even in Chevron itself, “wasn't there a change in position” from an agency, Roberts asked.

Ginsburg responded affirmatively.

“Well there you go,” Roberts said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jeffrey D. Koelemay at

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