Tuesday, October 27, 2015
On November 3, the Supreme Court will hear oral argument in Torres v. Lynch. The question presented by the case is 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, when the federal statute includes an interstate commerce element that the state offense lacks. This is an important practical issue under the U.S. immigration laws. An “aggravated felony” renders a noncitizen, including a lawful permanent resident, subject to mandatory removal and detention and makes him or her ineligible for almost any relief from removal. The case involves Jorge Luna Torres, a lawful permanent resident from the Dominican Republic who came to the United States in 1983; the sole blemish on his record is a 1999 conviction under a New York arson statute, for which he was sentenced to one day in jail and five years probation.
In an opinion by Judge Sack, the U.S. Court of Appeals for the Second Circuit deferred to the Board of Immigration Appeals interpretation of the statute in ordering the removal of Torres and denied the petition to review the removal order.
An amicus brief filed by the National Immigrant Justice Center and the American Immigration Lawyers Association outlines the general immigration and criminal law questions raised by the case, many of which (such as deference to the interpretation of the Immigration and Nationality Act by the Board of Immigration Appeals) arise commonly in what are known as "crimmigration" case. The UCLA Supreme Court Clinic is on the brief for Petitioner Jorge Luna Torres.
SCOTUSBLog should be posting a preview of the oral argument soon.
A bit of background is necessary to put the case into its proper context. Torres v. Lynch is one of many arising from the Obama administration’s concerted efforts to focus removal efforts on “criminal aliens,” who President Obama has referred to with the racially-charged phrase “gang bangers.” As none other than Donald Trump can attest, the targeting of criminals for removal often is popular with the general public. Somewhat surprisingly, the Roberts Court has rejected a number of the Executive Branch’s aggressive efforts to remove from the country long term lawful permanent residents based on criminal convictions.
The Obama administration has strived to demonstrate a firm commitment to vigorously enforce the immigration laws, setting deportation records with removals of about 400,000 persons a year. Well-publicized increases in the number of immigrant removals have served as the centerpiece of nothing less than a sustained campaign to convince Congress to enact comprehensive immigration reform, which the President has repeatedly proclaimed to support. The administration’s deep commitment to enforcement is evident in the much-criticized mass detention and removal of thousands of women and children fleeing widespread criminal violence in Central America in 2014. See Flores v. Lynch, 2013 U.S. Dist. LEXIS 112911 (C.D. Cal. Aug. 21, 2015) (denying a motion to reconsider a ruling that the U.S. government’s detention and other actions in response to the 2014 increase in the migration of Central American minors, violated a consent decree).
Not surprisingly, focusing deportation efforts on noncitizens who have encountered a criminal justice system well-known for consistently generating stark racial disparities, in turn has had racially disparate impacts on the removals of noncitizens from the United States. These systems operating in tandem have contributed to the fact that today more than 95 percent of the noncitizens removed annually from the United States are from Mexico and Central America. That stark and jarring statistic represents a much higher percentage than the Latina/o composition of the nation’s overall immigrant − both legal and unauthorized − population.
A number of cases illustrate the racially disparate impacts of allowing criminal law enforcement to feed into immigration enforcement as well as the Executive Branch’s tough removal positions, many of which have been rejected by the Roberts Court. In Moncrieffe v. Holder (2013), a Black immigrant from Jamaica became caught up in what by all appearances was a local drug interdiction operation. A traffic stop on an interstate highway by police in a small Georgia town, questioning, arrest, and criminal conviction all appear to have been influenced by the fact that the driver and passenger of a vehicle in question were Black males. Adrian Moncrieffe ultimately was convicted in Georgia state court for possession of a small amount of marijuana, which has been decriminalized in a number of states, and subsequently was ordered removed from the United States. Finding that Moncrieffe’s removal was not authorized by the federal immigration statute, the Supreme Court set aside the removal order.
Two relatively recent decisions in which the Supreme Court rejected removal orders involving efforts to deport lawful permanent residents from Mexico provide a concrete indication of the disparate impacts of the state and local “war on drugs” on Latina/o immigrants. In Lopez v. Gonzales (2006), the Supreme Court rejected the Justice Department’s argument that a state drug conviction of a lawful permanent resident from Mexico for aiding and abetting another person’s possession of cocaine was an “aggravated felony” under the immigration laws, justifying removal. Similarly, in Carachuri-Rosendo v. Holder (2010), the Court set aside a removal order of a lawful permanent resident from Mexico who had two drug possession convictions, one for simple possession of a small amount of marijuana and one for unlawfully possessing a single tablet of a prescription drug. Both cases involved efforts to remove long term lawful residents of the United States from Mexico who were what can be most reasonably characterized as small time drug offenders caught up in local enforcement of the “war on drugs.”
In a similar vein, the Supreme Court in 2015 in Mellouli v. Lynch, a case involving a lawful permanent resident from Tunisia, rejected as the basis for removal a drug paraphernalia conviction based on possession of a sock used to conceal a prescription drug.
Click here for analysis of the Supreme Court's immigration decisions from 2009-13. Immigrants have done relatively well with the Roberts' Court, with the Obama administration's aggressive litigation positions frequently rejected.
UPDATE (Oct. 29 7 a.m. PST): Here is the SCOTUSBlog argument preview by Steve Vladeck. He concludes that "[a]s the circuit split underscores, there are strong arguments on both sides." I could be wrong but I bet that Jorge Torres wins in the end and, once again, Roberts Court rejects an aggressive removal position taken by the Obama administration, which in certain respects is no friend of immigrants.