Tuesday, November 3, 2015

Some Thoughts on the Oral Arguments in the Supreme Court in Torres v. Lynch: The Latest Crimmigration Case is Too Close to Call

Supeme court

This morning, the Supreme Court heard oral arguments in Torres v. Lynch, which was previewed on the ImmigrationProf blog last week.   Here is the transcript to the arguments.

The case involves another effort by the U.S. government to remove a long term lawful permanent resident of the United States based on a single -- and relatively stale -- criminal conviction.  As discussed in my preview to the arguments, the Supreme Court has taken a number of criminal removal cases in recent years, with the immigrant winning a majority of them.  See, e.g., Moncrieffe v. Holder (2013); Carachuri-Rosendo v. Holder (2010).

Jorge Luna Torres, a lawful permanent resident from the Dominican Republic, 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 of probation.  In 2006, Torres was denied re-entry into the United States as inadmissible because of the conviction of an "aggravated felony."  Torres is now gainfully employed and engaged to be married.

The technical -- and dry -- legal question presented by the case is whether a state offense constitutes an “aggravated felony” under Immigration and Nationality Act § 101(a)(43), 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute but the federal statute includes an interstate element not found in the New York arson statute.  Conviction of an “aggravated felony” has significant immigration consequences; such a conviction 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.  

As described by Steven Vladeck on SCOTUSblog, the Third Circuit was the first court of appeals to consider the specific question whether conviction under the New York arson statute constituted an aggravated felony; it departed from four circuits that concluded that state law offenses could constitute aggravated felonies even if the federal statute those offenses were “described in” included am imterstate element that the state offense lacked. The Second Circuit agreed with the majority of courts of appeal and disagreed with the Third Circuit.  The court explained that under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-844 (1984), it was required “to defer to an agency’s reasonable interpretation of the statute it administers.”  For additional analysis of the legal issues and background in the case, click here.

The basic thrust of the arguments cover familiar doctrinal terrain: 

(1) what is the proper interpretation of the U.S. immigration laws?; 

(2) the application of the rule of lenity in cases involving the criminal removal grounds; and

(3) the deference properly afford the Board of Immigration Appeals (BIA). 

See, e.g., Kawashima v. Holder (2012).  

Torres argues that the plain language of the statute governs and that, if there are any ambiguities, the rule of lenity favoring the narrower interpretation of the removal provision in question.  In contrast, the U.S. government argues that the language of the statute and its context justifies removal and that deference to the BIA is required under Chevron.  For analysis of a number of cases raising similar issues in the Supreme Court in the 2009-13 Terms of the Court, click here


Matthew L. Guadagno, a sole immigration practitioner in New York City, argued on behalf of Petitioner Jorge Torres.

Elaine Goldenberg, Assistant to the Solicitor General, argued for the United States.

I did not attend the oral argument and gleaned whatever insights that I could from the transcript.  Here they are for what they are worth.

All in all, each attorney received heated questions from the Justices, with a specific focus on the technical intricacies of the statutory provisions in the Immigration and Nationality Act in question.  Guadagno had some rocky moments but so did Goldenberg. 

Justice Sotomayor seemed troubled that the Petitioner did not adopt the statutory argument of what she said was the National Association of Criminal Defense Lawyers but seems to have been the argument of the National Immigrant Justice Center and the American Immigration Lawyers Association (page 14) i.e., that the statute should be limited to convictions for "explosive material" offenses.

There was general concern about the implications of the interpretations of the statute offered by both the Petitioner and the U.S. government. 

Torres' interpretation might allow serious arsonists to not be found to have committed an "aggravated felony," a concern expressed by Justice Breyer.  One concern raised by the government was that some child pornography offenses -- child pornography was no doubt on the minds of some of the Justices in light of the fact that a child pornography case was (Lockhart v. United States) was argued immediately before this one) without interstate elements might fall outside the purview of "aggravated felony" if Torres' interpretation was accepted. 

On the other hand, Justice Ginsburg worried that the U.S. government's position might result in mandatory  removal (i.e., no room for administrative discretion) of Torres for a relatively minor arson conviction, with his sentence being one day in jail and five years of probation.  Goldenberg somewhat surprisingly pounced on this expression of sympathy, taking no prisoners:  "That's right that he can't obtain cancellation of removal, and that's consistent with Congress's intent in putting the aggravated felony provision into place, which was to constrain the attorney general's discretion . . . ."  It was mentioned several times during oral argument that the record was not clear about the precise facts surrounding Torres' arson conviction.  

Chevron deference only came up as a mere afterthought in the arguments.  Justice Ginsburg asked what respect was owed the BIA's interpretation.  Guadagno said that it was not owed "any" deference.

I have a hard time predicting how the Court will decide Torres v. Lynch.  It seems like a very close call to me but, if I had to guess, the U.S. government's tough position may win out.  My sense is that Chief Justice Roberts and Justice Alito were convinced by the government's  arguments. 

Depending on the Supreme Court’s decision, the case could have an impact on many criminal removal cases, which have been the centerpiece of the Obama administration’s immigration enforcement efforts. 

UPDATE (Nov. 4, 8:30 PST):  Steve Vladeck has posted a summary of the argument on SCOTUSBlog.



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