Wednesday, June 22, 2016
In Torres v. Lynch (May 19, 2016), the Supreme Court in an opinion by Justice Elena Kagan addressed whether interstate commerce that is an essential element of a federal crime is a necessary element to make a state crime an "aggravated felony," thus making an immigrant ineligible for cancellation of removal and other remedies.
Luna was found guilty of arson under New York law. In New York unlike in the federal statute, the crime of arson does require that the crime have a link to interstate or foreign commerce. The federal crime of arson is considered to be an aggravated felony.
This case considers whether an interstate commerce element is necessary to make the New York crime of arson an "aggravated felony" for immigration purposes. 8 U.S.C. 1101 (a)(43) defines an "aggravated felony." In 1999, Torres pleaded guilty to third degree arson and was sentenced to one day in jail and five years’ probation. Seven years later, immigration officials initiated removal proceedings. The immigration court denied his claim for cancellation of removal, finding that he had been convicted of an "aggravated felony."
The federal statute defines arson or makes it a crime to “ maliciously damage or destroy, or attempt  to damage or destroy, by means of fire or an explosive, any building [or] vehicle . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” (emphasis added). The New York arson statute prohibits “intentionally damag[ing],” or attempting to damage, “a building or motor vehicle by starting a fire or causing a fire or causing an explosion.” N.Y. Penal Law Ann. sections 110, 150.10 (West 2010). It does not have an interstate commerce element. Both of the statutes are the same except for the jurisdictional element of interstate commerce present in the federal statute. Because the interstate commerce section is merely a jurisdictional element, the Board of Immigration Appeals denied Luna’s petition for review of the removal order. The Second Circuit affirmed.
The Court held that “A state offense is an aggravated felony when it has all the elements of a listed federal crime except one requiring a connection to interstate commerce.” Torres v. Lynch 136 S. Ct. 1619, 1624 (2016). Section 1101(a)(43)’s penultimate sentence provides that Congress meant the term “aggravated felony” to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. Section 1101(a)(43) applies to federal, state, and foreign crimes and makes clear that the listed offense should lead to swift removal, no matter what level of law enforcement it violated.
There is a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws and finding that state laws that do not include an interstate commerce requirement are the equivalent. The jurisdictional elements limit the federal law to what Congress can constitutionally legislate. Ordinarily, a criminal defendant does not need to be aware of an interstate commerce connection to be found guilty. The Supreme Court and others recognize the jurisdictional elements as distinct from the substantive elements of federal and state crimes.
Luna contended that if Congress had intended ordinary state laws like arson to count as aggravated felonies, it would have clearly so stated in the statute. However, the Court found that Congress meant for the jurisdictional elements to be set aside when comparing federal and state law. Because the New York arson law and the federal statute only differ in regards to the interstate commerce element, the Court held that, so long as all other elements of the state law match the federal law, the jurisdictional element can be disregarded. The Court affirmed the Second Circuit's decision.
Justice Sotomayor, joined by Justices Thomas and Breyer, dissented. She wrote that, because of precedent and the structure of the Immigration and Nationality Act (INA), the majority erred. She emphasized that, until this case, the Court had always required every element of a state crime to match every element of a federal crime for those listed as aggravated felonies. The federal statute, unlike the state counterpart, is limited to those cases that involve interstate commerce. The lack of an interstate element under the state statute meant that a conviction under the statute was not an aggravated felony.
Justice Sotomayor observed that, Congress could exclude jurisdictional elements but failed to do so here. The majority presumes that state arson offenses and federal arson offenses are equal when they are not. At the end of the day, the Court is saying that mostly law abiding legal permanent resident can be deported due to a minor state offense even when not every element of the federal offense was satisfied.