Jorge Luna Torres, a citizen of the Dominican Republic and a lawful permanent resident of the United States, was convicted under a New York state arson statute in 1999. In 2007, the Immigration and Naturalization Service (INS) charged Torres with inadmissibility because he was an alien and charged with a crime involving moral turpitude. Torres applied for a cancellation and removal of the order, but the judge held that Torres was removable because he was convicted of an aggravated felony.
Previously, the Board of Immigration Appeals (BIA) held that a conviction under the New York arson statute constituted an aggravated felony. Torres appealed to the BIA and the BIA dismissed his case. Torres then appealed to the Second Circuit. Prior to it being argued before the Second Circuit, the Third Circuit vacated the BIA’s policy and held that the New York statute no longer constituted an aggravated felony because the statute did not include the federal statute’s interstate commerce element. However, the Second Circuit still upheld Torres’s removal order. With the Third Circuit and Second Circuit’s decisions, there is now a 6-1 circuit split concerning the issue.
The Court will decide, “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 Court held oral argument on November 3, 2015. Professor Angela Morrison of Texas A&M University’s School of Law provided commentary here.