Saturday, August 1, 2015
Criminal Removal Case Before the Supreme Court: Torres v. Lynch
In June, the Supreme Court granted certiorari in Torres v. Lynch, which presents the question whether a state offense constitutes 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. The U.S. Court of Appeals for the Second Circuit (Judge Sack, Raggi, and Chin) deferred to the judgment of the Board of Immigration Appeals.
The Second Circuit considered whether a conviction under New York Penal Law §§ 110 and 150.10 for attempted arson in the third degree constitutes an “aggravated felony” under the Immigration and Nationality Act. Answering this question required the court to decide whether this state crime, which lacks a federal jurisdictional element, is an “offense described in” 18 U.S.C. § 844(i), the federal statute governing explosive materials offenses, which does contain such an element. The court deferred to the BIA's "reasonable determination" that a state “offense described in” 18 U.S.C. § 844(i) need not contain a federal jurisdictional element.
So far, this case appears to be the only immigration case on the docket for the 2015 Term. The Court has taken a number of criminal removal cases in recent years, including Mellouli v. Lynch (the drug paraphernalia/sock case from last Term).
Isn't there a circuit split on this, six to one, with the Third holding the ace. If Torres had flown into Newark rather than JFK, as his lawyers point out, he'd be sitting pretty.
Posted by: Timothy Dugdale | Aug 3, 2015 6:39:49 AM