Right and Fair for Whom? The Court’s Decision in Torres v. Lynch Is Wrong and Unfair, by Angela Morrison

Despite the majority’s statement that its reading of the Immigration and Nationality Act (INA) was “right and fair,” the decision in Torres v. Lynch is wrong and unfair to many long-term legal residents and their families. The Court held in a 5 to 3 decision that a New York state court conviction for attempted arson fell within the INA’s “aggravated felony” provision even though the federal statute for arson includes a jurisdictional element not in the state statute. The Court broadly interpreted the statute to reach conduct not specified in the statute, contrary to the rule of lenity, which calls on courts to narrowly construe criminal statutes. As a result, long-term, legal residents who have committed crimes their respective states view as relatively minor will now face permanent exile from the United States.

The INA contains a category of crimes called aggravated felonies. INA § 101(43)(a). Noncitizens convicted of an aggravated felony are not only removable, but also barred from most forms of discretionary relief—including cancellation of removal. Going forward, they are generally proscribed from ever re-entering the United States. Thus, a finding that a noncitizen committed an aggravated felony carries severe consequences for the noncitizen.

The definition of “aggravated felony” has 28 subsections with a list of around 80 offenses that qualify as aggravated felonies. Some of the offenses refer to specific federal statutes, other offenses are “generic,” such as burglary, which the statute defines as a “burglary offense for which the term of imprisonment [sic] at least one year.” The government argued that Mr. Luna, the petitioner in Torres, committed an offense “described in . . . section 844(i) of [Title 18].” INA § 101(a)(43)(i). After the section lists several more offenses, the penultimate sentence of the section states “[t]he term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country[.]”

One of the major hurdles the Court had to overcome in reaching its decision was that it has repeatedly found that to qualify as an aggravated felony, the elements of state crimes must “categorically match” the elements of the federal statute. The elements of the state statute in Torres and the federal statute for arson, however, do not match.

The New York statute setting forth Mr. Luna’s conviction provides “A person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.” The federal arson statute, 18 U.S.C. § 844(i), to which the INA referred, provides “[w]hoever maliciously . . . 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.” As Justice Sotomayor, joined by Justices Breyer and Thomas, wrote in the dissent, “[t]here is one more element in the federal offense than in the state offense . . . the interstate or foreign commerce element. Luna thus was not convicted of an offense ‘described in’ the federal statute. Case closed.”

The majority, nonetheless, offered two “contextual considerations” to support its decision to exempt the “jurisdictional” element: (1) the penultimate sentence in the “aggravated felony” definition which, according to the Court, shows that Congress intended every crime listed to include federal, state, and foreign convictions; and (2) a “well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes.”

The dissent correctly asserted that the majority’s reading is wrong. First, as the dissenters noted, even under the majority’s reading, the penultimate sentence will not apply to every offense listed in the aggravated felony statute since there are some listed offenses that are solely federal and cannot have a state or foreign law counterpart, like disclosing national defense information. Thus, both Luna’s reading and the majority’s reading mean that some of the listed offenses will not have a state or federal law analog but the majority opinion gave no compelling reason to prefer its reading over Luna’s.

Second, the dissent disposed of the majority’s argument that the Court has a settled practice of “distinguishing between substantive and jurisdictional elements in federal criminal statutes.” The majority based its reading on two points—a jurisdictional element does not require the defendant’s knowledge for conviction, and the Court has previously disregarded the jurisdictional element in two other statutes that compare state and federal crimes. As the dissent notes, the first point does not hold water because there are federal, “public welfare” crimes that contain elements for which a conviction does not require knowledge. As an example, the dissent used controlled substance offenses, which do not require the defendant to know the substance is a narcotic. But the Court would never determine that element to be superfluous based on the defendant’s lack of knowledge.

Likewise, the dissent demonstrated why the majority was wrong in its analysis of other federal statutes to establish a settled practice of ignoring jurisdiction elements. Both statutes cited by the majority opinion, the Assimilative Crimes Act and the federal three strikes statute–are inapt comparisons. The Assimilative Crimes Act does not use a simple elements-matching test and the three strikes law uses the language “wherever committed” to indicate the jurisdictional element is immaterial. Finally, the dissent pointed out several instances of Congress expressly excluding jurisdictional elements when comparing state and federal offenses.

The decision similarly is unfair to Mr. Luna, other long-term residents like him, and their families. Instead of applying the rule of lenity to narrowly construe the statute, the majority read the statute broadly. The Court’s expansive reading of the provision gives the appearance that the Court cared more about trying to force the statute to reach conduct the individual justices are concerned with—child pornography, for example—than interpreting the statute according to its plain meaning. But, as the dissent noted, “an intuition about how the statute ought to work” is “[in]sufficiently persuasive to overcome the most natural reading of the aggravated felony statute.”

Unfortunately, based on nothing more than an intuition, long-term, legal residents and their families will suffer. Having served only one day in jail over 15 years ago, Mr. Luna, a homeowner, engineering student, and the sole-financial support for his U.S. citizen fiancée, is now “foreclose[d] from appealing even to the mercy of the Attorney General.” And, that’s not only wrong but also unfair.

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.