Should a One-Day Jail Sentence Result in a Permanent Ban from the United States? The Question the Court Didn’t Ask, but Should Have in Torres v. Lynch

On Tuesday, the Supreme Court heard oral arguments in Torres v. Lynch. At issue was whether a state court conviction for attempted arson fell within the Immigration and Nationality Act’s “aggravated felony” provision when the federal statute includes a jurisdictional requirement not in the state statute. Lost in the argument was the very real impact the Court’s decision will have on thousands of children and their families. Should the court decide in favor of the government, noncitizens who committed even relatively minor crimes years ago will continue to be subject to deportation, permanently banished from the United States, and separated from their United States citizen spouses, significant others, and children. As several studies have shown, women and children who depend on their noncitizen spouses, fiancés, or fathers for financial and emotional support will be affected the most.

George Luna (the name Jorge Luna Torres uses), a legal permanent resident, has lived in the United States since he was 9 years old, over 32 years. In 1999, he pled guilty to third degree attempted arson under New York state law, and the court imposed a one-day sentence jail sentence with five years of probation. This is his only criminal conviction. In 2006, Mr. Luna took a trip to the Dominican Republic and when he tried to re-enter the United States, the database used by Customs and Border Patrol flagged the seven-year old conviction. The Department of Homeland Security instituted removal proceedings. In immigration court, Mr. Luna sought cancellation of removal, a form of discretionary relief that is available to long-term legal residents. The immigration court determined that Mr. Luna was not eligible for cancellation of removal because his conviction was an “aggravated felony.”

Whether a crime is an aggravated felony has tremendous consequences for a noncitizen. Not only do aggravated felonies make noncitizens ineligible for discretionary relief from removal, but they also render noncitizens permanently inadmissible, permanently ineligible for naturalization, and ineligible for asylum. In effect, a noncitizen convicted of an aggravated felony is barred from the United States for life, regardless of whether he has United States citizen family members, other ties to the United States, or years of residency in the United States.

The Immigration and Nationality Act’s definition of “aggravated felony” lists over 29 offenses, several of which refer to specific provisions within Title 18 of the United States Code. When a noncitizen’s conviction is under a state or foreign law, the immigration court must look at whether the crime is an aggravated felony under the federal law. In recent years, the Court has further clarified and restricted what the immigration judge may consider in making the determination. The court looks at the elements of the generic definition of the crime or at the specific elements of the federal statute describing the crime and compares them to the state or foreign law. If the elements in the statutes are not a categorical match as to each element, then the state offense is not an “aggravated felony,” unless the statute is divisible and the record of conviction shows the noncitizen committed the offense described in that portion of the statute.

At issue in Torres is whether Mr. Luna’s state conviction for arson is an offense “described in . . . section 844(i) of [Title 18].” INA § 101(a)(43)(i). The statute provides “[w]hoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.” Mr. Luna argues that because the federal statute requires, as an element for conviction, a connection to interstate or foreign commerce and the state statute does not, the two are not a categorical match. Thus, Mr. Luna’s conviction is not for an offense described in 18 U.S.C. § 844(i), and is not an aggravated felony. The government contends that the interstate commerce provision is only a jurisdictional element and that the match has to be only to the substantive elements of the crime described in the statute. As a result, the government argued Mr. Luna’s conviction is an aggravated felony.

The Justices focused their questions on two general areas: (1) whether Mr. Luna’s reading of the statute would mean that state or foreign convictions for arson (and by extension other federal crimes referred to in the aggravated felony definition, like child pornography) would never qualify as aggravated felonies if they include a jurisdictional element; and (2) what Congress intended by the term “described in” if it really meant to include federal jurisdictional elements as part of the aggravated felony determination.

Unsurprisingly, given their tendency to focus on the practical impacts of the Court’s decision, Justices Breyer and Sotomayor asked several questions about the effect of Mr. Luna’s reading on whether serious state crimes, such as explosive offenses or child pornography offenses, are aggravated felonies. Nonetheless, there was very little questioning about the disproportionate impact of an aggravated felony determination on noncitizens and their families, particularly where, as in Mr. Luna’s case, the noncitizen served little to no time in jail. The absence of that type of questioning is surprising because the Court has increasingly recognized the severe consequences of deportation in cases such as Padilla v. Kentucky, which imposed a duty on the part of criminal defense attorneys to advise their clients about the immigration consequences of their pleas, and INS v. St. Cyr, which applied an immigration rule of lenity.

That the Justices did not explore how the immigration rule of lenity applies in this case suggests, as Steve Vladeck has argued, that the Justices do not view the language in the statute as ambiguous and instead view the term “as described in” to refer only to the substantive elements and not any elements that establish federal jurisdiction. As a result, it is likely that the Court will adopt the government’s interpretation.

Unfortunately, this means that thousands of mainly children and women will be harmed by their loved one’s or father’s permanent ban from the United States. The vast majority of noncitizens—over ninety percent—whom ICE deports are male. Those men have families who depend on them financially and emotionally. The Urban Institute released a report in September that documented the negative impact a parent’s deportation has on children and the remaining caregiver. The harms include depression, social isolation, poor cognitive and socioemotional development, lackluster school performance, financial distress, and housing instability.

Should the Court decide that the term “as described” does not require every element, including the jurisdictional elements, to categorically match the state conviction for the state offense to count as an aggravated felony, many more noncitizens will be subject to automatic deportation. They and their families will suffer as a result.

Angela Morrison

Professor Morrison was previously the Legal Director of the Nevada Immigrant Resource Project (NIRP) at the William S. Boyd School of Law. As director of NIRP, she conducted outreach on immigration-related issues to community partners, immigrant communities, and governmental organizations. Prior to directing NIRP, Professor Morrison worked for the U.S. Equal Employment Opportunity Commission (EEOC) where she was the first EEOC trial attorney in Las Vegas. Before joining the EEOC, Professor Morrison was a law clerk for the Honorable Judge Philip M. Pro, United States District Court for the District of Nevada. She graduated from the William S. Boyd School of Law where she was the editor-in-chief of the Nevada Law Journal and was a student attorney in the Immigration Clinic. Professor Morrison teaches Lawyering Process, Immigration Law and Employment Discrimination.