Luna Torres v. Lynch, 578 U.S. ___ (2016)


Issues: ,

Dissent (Sotomayor)

Contents

SUPREME COURT OF THE UNITED STATES

_________________

No. 14?1096

_________________

JORGE LUNA TORRES, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL

on writ of certiorari to the united states court of appeals for the second circuit

[May 19, 2016]

Justice Sotomayor, with whom Justice Thomas and Justice Breyer join, dissenting.

The Immigration and Nationality Act (INA) metes out severe immigration consequences to a noncitizen convicted of any of a number of ?aggravated felon[ies].? 8 U.?S.?C. ?1101(a)(43). An offense ?described in? 18 U.?S.?C. ?844(i)?a federal arson statute?qualifies as such a crime.

In this case, petitioner, who goes by George Luna, was convicted of third-degree arson under N. Y. Penal Law Ann. ?150.10 (West 2010), which punishes anyone who (1) ?intentionally? (2) ?damages,? by (3) ?starting a fire or causing an explosion,? (4) ?a building or motor vehicle.? By contrast, the federal arson statute, 18 U.?S.?C. ?844(i), applies when someone (1) ?maliciously? (2) ?damages or destroys,? (3) ?by means of fire or an explosive,? (4) ?any building, vehicle, or other real or personal property? (5) ?used in interstate or foreign commerce.? There is one more element in the federal offense than in the state offense?(5), the interstate or foreign commerce element. Luna thus was not convicted of an offense ?described in? the federal statute. Case closed.

Not for the majority. It dubs the fifth element ?jurisdictional,? then relies on contextual clues to read it out of the statute altogether. As a result of the majority?s sleuthing, Luna?a long-time legal permanent resident?is foreclosed from even appealing to the sound discretion of the Attorney General to obtain relief from removal. Because precedent and the text and structure of the INA require the opposite result, I respectfully dissent.

I

A

Noncitizens convicted of crimes face various consequences under the INA. Among the harshest of those consequences fall on noncitizens convicted of 1 of the approximately 80 ?aggravated felonies.? A crime that falls into one of the listed provisions can be an aggravated felony ?whether in violation of Federal or State law? or ?in violation of the law of a foreign country.? See 8 U.?S.?C. ?1101(a)(43).

An aggravated felony conviction has two primary repercussions for noncitizens: It renders them deportable, ?1227(a)(2)(A)(iii), and it makes them categorically ineligible for several forms of immigration relief ordinarily left to the discretion of the Attorney General. See,e.g., ??1229b(a)?(b) (cancellation of removal).

The dozens of aggravated felonies in the INA are specified in two main ways. First, some are specified by reference to a generic crime. It is an aggravated felony, for instance, to commit ?murder, rape, or sexual abuse of a minor.? ?1101(a)(43)(A). Some of those crimes use a federal definition as one of the elements. For example: ?Illicit trafficking in a controlled substance (as defined in [ 21 U.?S.?C. ?802]).? 8 U.?S.?C. ?1101(a)(43)(B) (emphasis added). (?Illicit trafficking? is a generic crime; the element of ?controlled substance? takes the meaning in 21 U.?S.?C. ?802, the ?Definitions? provision of the Controlled Substances Act.)

Second, it lists crimes that are wholly ?described in? the federal criminal code. See, e.g., ?1101(a)(43)(H) (?an offense described in section 875, 876, 877, or 1202 of title 18 (relating to the demand for or receipt of ransom)?); ?1101(a)(43)(I) (?an offense described in section 2251, 2251A, or 2252 of title 18 (relating to child pornography)?). The Government contends that Luna committed a crime in this second category: an ?offense described in? 18 U.?S.?C. ?844?(i), which criminalizes arson. 8 U.?S.?C. ?1101?(a)?(43)?(E)?(i).

B

In 2006, Luna was found removable from the United States. He attempted to apply for cancellation of removal, a form of relief available to long-time legal permanent residents at the discretion of the Attorney General. ?1229b(a). Nothing in Luna?s history would otherwise preclude cancellation. He was the sole source of financial support for his U. S. citizen fianc?e, enrolled in college and studying engineering, a homeowner, and a law-abiding legal permanent resident since he was brought to the United States as a child over 30 years ago, aside from the one third-degree arson conviction at issue in this case, for which he served a day in jail.

But the Immigration Judge found?and the Board of Immigration Appeals and the Second Circuit confirmed?that Luna was ineligible for cancellation of removal. Luna?s New York State arson conviction, the judge held, qualified as an aggravated felony under the provision for ?an offense described in? ?844(i), a federal arson statute. See ?1101(a)(43)(E)(i). Aggravated felons are ineligible for can-cellation of removal. See ?1229b(a)(3). Luna?s cancellation-of-removal application was thus summarily denied.

II

But the offense of which Luna was convicted is not ?described in? ?844(i). This Court?s ordinary method of interpreting the aggravated felony statute, the plain text of that provision, and the structure of the INA all confirm as much.

A

This is not the first time the Court has been tasked with determining whether a state offense constitutes an ?aggravated felony? under the INA. Until today, the Court has always required the state offense to match every element of the listed ?aggravated felony.?Kawashima v. Holder, 565 U.?S. ___, ___ (2012) (slip op., at 4); see also Moncrieffe v. Holder, 569 U.?S. ___, ___ (2013) (slip op., at 4?5); Carachuri-Rosendo v. Holder, 560 U.?S. 563, 580 (2010) ; Nijhawan v. Holder, 557 U.?S. 29, 33 (2009) ; Gonzales v. Duenas-Alvarez, 549 U.?S. 183, 185 (2007) ; Lopez v. Gonzales, 549 U.?S. 47 ?53 (2006); Leocal v. Ashcroft, 543 U.?S. 1, 8 (2004) .

Our ordinary methodology thus confirms that the federal arson statute does not describe the New York arson statute under which Luna was convicted. As I have outlined above, see supra, at 1, the federal statute is more limited: It applies only to fires that involve ?interstate or foreign commerce.? The state statute contains no such limitation. Thus, under the approach we have used in every case to date, the omission of the interstate commerce element means that Luna?s state arson conviction was not an aggravated felony under the INA.

B

The plain language of the statute supports this straightforward approach. The word ?describe? means to ?express,? ?portray,? or ?represent.? See Black?s Law Dictionary 445 (6th ed. 1990); Webster?s Third New International Dictionary 610 (1986). A description may be ?detailed? or it may be general, setting forth only the ?recognizable features, or characteristic marks,? of the thing described while leaving the rest to the imagination. 4 Oxford English Dictionary 512 (2d ed. 1989). For example, a Craigslist ad describing an apartment with ?in-unit laundry, a dishwasher, rooftop access, central A/C, and a walk-in closet? may leave much to the imagination. After all, the description does not mention the apartment?s square footage, windows, or floor number. But though the ad omits features, we would still call it a ?description? because it accurately conveys the ?recognizable features? of the apartment.

However, even the most general description cannot refer to features that the thing being described does not have. The ad is only an accurate description if the apartment ?described in? it has at least the five features listed. If the apartment only has four of the five listed features?there is no rooftop access, say, or the walk-in closet is not so much walk-in as shimmy-in?then the Craigslist ad no longer ?describes? the apartment. Rather, it misdescribes it.

So, too, with the statutes in this case. The federal description can be general as long as it is still accurate?that is, as long as the state law has at least all of the elements in the federal law. But there is no meaning of ?describe? that allows the Court to say ?844(i) ?describes? the New York offense when the New York offense only has four of the five elements listed in ?844(i). Section 844(i) misdescribes the New York offense just as surely as the too-good-to-be-true Craigslist ad misdescribes the real-life apartment.

C

The structure of the INA confirms that conclusion and makes clear that we need not contort the ordinary, accepted meaning of the phrase ?described in.? The INA has many overlapping provisions that assign carefully calibrated consequences to various types of criminal convictions. The Court thus need not interpret any provision?and certainly none of the aggravated felony provisions, among the harshest in the INA?as broadly as possible because the INA as a whole ensures that serious criminal conduct is adequately captured.

That overlapping structure is apparent throughout the INA. First, the aggravated felony list itself has multiple fail-safe provisions. Most serious offenses, for instance, will qualify as ?crime[s] of violence .?.?. for which the term of imprisonment [is] at least one year,? 8 U.?S.?C. ?1101(a)(43)(F), even if they are not covered by a more specific provision in the aggravated felony list. Had his crime been charged as a more serious arson and had he been punished by one year of imprisonment instead of one day, Luna might have qualified as an aggravated felon under that provision. See Santana v. Holder, 714 F.?3d 140, 145 (CA2 2013) (second-degree arson in New York is a ?crime of violence?).1

Second, other sections of the INA provide intertwining coverage for serious crimes. Some examples of provisions that encompass many offenses include those for the commission of a ?crime involving moral turpitude,? a firearms offense, or a controlled substance offense, all of which will render a noncitizen removable, even if he or she has not committed an aggravated felony. See ??1227(a)(2)(A)(i), (B)(i), (C); ??1182(a)(2)(A)(i)?(ii). Cf. Judulang v. Holder, 565 U.?S. 42, 48 (2011) (commenting on the breadth of the ?crime involving moral turpitude? provision).2

And finally, in Luna?s case or anyone else?s, the Attorney General can exercise her discretion to deny relief to a serious criminal whether or not that criminal has been convicted of an aggravated felony. See Carachuri-Rosendo, 560 U.?S., at 581 (doubting that a narrow reading of ?1101(a)(43) will have ?any practical effect on policing our Nation?s borders?).

To be sure, on Luna?s reading, some serious conduct may not be captured by the INA. But not nearly so much as the majority suggests. By contrast, once the aggra-vated felony statute applies to a noncitizen, no provision in the INA?and virtually no act by the Attorney General?can prevent him or her from being removed.

Looking for consistency in the aggravated felony provisions of the INA is often a fool?s errand. See Kawashima, 565 U.?S., at ___, n.?2 (slip op., at 9, n.?2) (Ginsburg, J., dissenting) (noting the absurdity of making a tax misdemeanor, but not driving while drunk and causing serious bodily injury, an aggravated felony). But the structure of the INA gives the Court no reason to read the aggravated felony provisions as broadly as possible.3 ?That is why this Court has repeatedly cautioned against interpreting the aggravated felony section to sweep in offenses that?like many state arson convictions?may be neither aggravated nor felonies. See Carachuri-Rosendo, 560 U.?S., at 574; Brief for National Association of Criminal Defense Lawyers et?al. as Amici Curiae 28?29 (collecting state misdemeanor arson statutes).

III

The majority denies Luna the opportunity to present his case to the Attorney General based on two ?contextual considerations,? ante, at 7, and an intuition about how the statute ought to work. None are sufficiently persuasive to overcome the most natural reading of the aggravated felony statute.

A

The majority first perceives a conflict between Luna?s reading of the INA and what it calls the ?penultimate sentence? of the aggravated felony statute. The ?penultimate sentence? provides that an offense can be an aggravated felony ?whether in violation of Federal or State law? or ?in violation of the law of a foreign country.? 8 U.?S.?C. ?1101(a)(43). The majority claims that Luna?s reading of the INA would vitiate the quoted proviso. Ante, at 8?10.

It is true that, on Luna?s reading, some of the aggra-vated felonies listed in the INA (including ?an offense de-scribed in? ?844(i)) will have no state or foreign analog. But the proviso still applies to generic offenses, which constitute nearly half of the entries in the aggravated felony list. See, e.g., ??1101(a)(43)(A), (G), (M)(i). And that already-large portion jumps to close to three-quarters of the offenses after counting those many listed federal statutes with no jurisdictional element. See, e.g., ??1101(a)(43)(C), (E)(ii), (J). In fact, it applies to the vast majority of offenses adjudicated under the INA given that most serious crimes are also ?crimes of violence.? See ?1101(a)(43)(F).4

And the majority must admit that its interpretation will also leave entries in the aggravated-felony section with no state or foreign analogs. For instance, it seems unlikely that the proviso contemplates state analogs for the aggravated felony provisions regarding treason, levying war against the United States, or disclosing national defense information. See ??1101(a)(43)(L)(i), (P).

In other words, under Luna?s reading, the ?penultimate sentence? applies to most, but not all, of the entries of the aggravated felony statute; under the majority?s reading, the ?penultimate sentence? also applies to most, but not all, of the entries of the aggravated felony statute. The majority?s first ?contextual consideration? thus supplies no reason to prefer one reading over the other.

B

Just as important, the majority suggests, is a ?settled practice of distinguishing between substantive .?.?. elements??those that define ?the evil Congress seeks to prevent??and ?jurisdictional element[s],? which merely ?establis[h] legislative authority.? Ante, at 15. The majority admits that the Court does not distinguish between substantive and jurisdictional elements for many purposes, such as proof beyond a reasonable doubt and the rightto a jury trial. Ibid.; see Ring v. Arizona, 536 U.?S. 584, 606 (2002) . But it nonetheless insists on a standard distinction so entrenched that Congress must have intended it to apply even absent any particular indication in the INA.

None of the three examples that the majority proffers is evidence of such a strong norm. First, the majority invokes our rules for interpreting criminal statutes. Ante, at 15?16. Whereas our general assumption is that a de-fendant must know each fact making his conduct illegal, courts generally hold that a criminal defendant need not know the facts that satisfy the jurisdictional element of a statute.

But jurisdictional elements are not the only elements a defendant need not know. Under the ?default rule,? ante, at 18, n.?12, for interpreting so-called ?public welfare? offenses, courts have held that a defendant need not know that the substance he possesses is a narcotic, that the device he possesses is unregistered, or that he reentered the United States after previously being deported. SeeStaples v. United States, 511 U.?S. 600 ?609, 611 (1994) (citing United States v. Balint, 258 U.?S. 250 (1922) , and United States v.Freed, 401 U.?S. 601 (1971) ); United States v. Burwell, 690 F.?3d 500, 508?509 (CADC 2012); United States v. Giambro, 544 F.?3d 26, 29 (CA1 2008); United States v. Martinez-Morel, 118 F.?3d 710, 715?717 (CA10 1997). But surely the majority would not suggest that if we agree with those holdings regarding mens rea, we must then ignore the ?controlled substance? element of the drug trafficking aggravated felony, the ?unregistered? element of the unregistered firearms aggravated felony, or the ?following deportation? element of the illegal reentry aggravated felony. See 8 U.?S.?C. ??1101(a)(43)(B), (E)(iii), (M)(i), (O). So there is likewise no reason to believe that the ?default rule? for assigning mens rea to jurisdictional elements is embedded in the INA.

The majority next points to two of the many statutes that, like the INA, require comparing the elements of federal and state offenses. But in each case, it is the statute?s language and context, not some ?settled practice,? ante, at 15, that command the omission of the jurisdic-tional element.

The majority?s first example, ante, at 16?17, is the Assimilative Crimes Act, 18 U.?S.?C. ?13(a), a gap-filling statute that incorporates state criminal law into federal enclaves if the ?act or omission? is not ?made punishable by any enactment of Congress? but ?would be punishable if committed or omitted within the jurisdiction of the State.? The Court held that, in identifying such a gap, courts should ignore ?jurisdictional, or other technical,? differences between a state and federal statute. Lewis v. United States, 523 U.?S. 155, 165 (1998) . But the way courts match the elements of a state law to a federal analog under the Assimilative Crimes Act differs fundamentally from our INA inquiry. The basic question under the Assimilative Crimes Act is whether ?federal statutes reveal an intent to occupy so much of the field as would exclude the use of the particular state statute at issue.? Id., at 164. Under the Assimilative Crimes Act, the state statute is not compared to a single federal statute, but rather to a complex of federal statutes that roughly cover the same general conduct and ?policies.? Ibid. That statute thus has little to teach us about 8 U.?S.?C. ?1101(a)(43): In interpreting the Assimilative Crimes Act, every Member of the Court rejected the simple elements-matching approach that the Court generally employs to construe the aggravated felony provisions of the INA. See 523 U.?S., at 182 (Kennedy, J., dissenting) (allowing ?slight differences? in definition between federal and state statute and using ?same-elements inquiry? only as a ?starting point?).

The majority?s analogy to the federal three strikes statute, 18 U.?S.?C. ?3559(c)(2)(F), ante, at 17?18, is similarly unhelpful. That provision counts as a predicate ???serious violent felony??? any ???Federal or State offense .?.?. wherever committed, consisting of??? various crimes, including several ???as described in??? federal statutes. Ante, at 17. (emphasis added). Though this Court has not construed the statute, the majority notes that courts of appeals disregard the jurisdictional element of federal statutes in assessing whether a state conviction is for a ?serious violent felony.? Ante, at 15?16. But nearly all of the statutes listed in ?3559(c)(2)(F) contain place-based jurisdiction elements?the crime must take place ?within the special maritime and territorial jurisdiction of the United States,? e.g., ?1111(b), or within ?the special aircraft jurisdiction of the United States,? 49 U.?S.?C. ?46502, and so on. In the two cases cited by the majority, for instance, ante, at 17, Courts of Appeals concluded that a state robbery offense qualified as an offense ?described in? the federal bank robbery statute even though the robbery did not take place in a bank. See United States v. Wicks, 132 F.?3d 383, 387 (CA7 1997); United States v. Rosario-Delgado, 198 F.?3d 1354, 1357 (CA11 1999). In that statute, it is the ?wherever committed,? not some loose construction of ?described in,? that specifically instructs the courts that the location where a crime occurs does not matter.

Moreover, in other statutes where Congress wants to exclude jurisdictional elements when comparing state and federal offenses, it ordinarily just says so. See, e.g., 18 U.?S.?C. ?3142(e)(2)(A) (requiring detention of defendant pending trial if ?the person has been convicted .?.?. of a State or local offense that would have been an offense described in subsection (f?)(1) of this section if a circumstance giving rise to Federal jurisdiction had existed?); ?2265A(b)(1)(B); ?2426(b)(1)(B); ?3142(f)(1)(D); ?5032; 42 U.?S.?C. ??671(a)(15)(D)(ii)(I)?(II); ??5106a(b)(2)(B)(xvi)(I)?(II). Absent comparably clear language, the Court should not presume that the INA intended deportability to depend on a not-so-?settled practice,? ante, at 15, of occasionally distinguishing between substantive and jurisdictional elements.

C

Finally, the majority suggests that it would be ?peculiarly perverse,? ante, at 10, to adopt Luna?s plain-text readingof the statute because it would draw a distinction among crimes based on a jurisdictional element that the majority assumes is wholly divorced from ?the evil Congress seeks to prevent,? ante, at 15. The jurisdictional element of a federal statute, the majority asserts, is as trivial as the perfunctory warning on a new electronic device: ?[A] person would say that she had followed the instructions for setting up an iPhone that are ?described in? the user?s manual, even if she in fact ignored the one? instructing that she ?begin by ?read[ing] important safety information.??? Ante, at 7, n.?5; see also ibid. (comparing jurisdictional element to a ?detour? in a 3-week itinerary).

For instance, the majority assumes that it would not be ?plausible,? ante, at 12, for Congress to have thought that interstate crimes are worse than wholly intrastate crimes. Perhaps. But when faced with an offense that, like arson, admits of a range of conduct, from the minor to the serious, Congress could plausibly have concluded that arsons prosecuted as federal crimes are more uniformly serious than arsons prosecuted as state crimes and counted only the former as aggravated felonies. See, e.g., Klein et al., Why Federal Prosecutors Charge: A Comparison of Fed-eral and New York State Arson and Robbery Filings, 2006?2010, 51 Houston L. Rev. 1381, 1406, 1416?1419 (2014) (finding that arsons prosecuted federally involve more property damage and more injury than arsons prosecuted under state law).

That is because, far from being token, ?conventional jurisdictional elements? serve to narrow the kinds of crimes that can be prosecuted, not just to specify the sovereign that can do the prosecuting. Take the federal statute at issue in this case. Section 844(i) requires that the property destroyed be ?used in interstate .?.?. commerce.? The Court has held that ?standard, jurisdictional? element,ante, at 21, demands the property?s ?active employment for commercial purposes, and not merely a passive, passing, or past connection to commerce.? Jones v. United States, 529 U.?S. 848, 855 (2000) . As a result, the Court held that a defendant who threw a Molotov cocktail through the window of an owner-occupied residential house could not be guilty under ?844(i) because the house was not ?active[ly] used? in interstate commerce. Id., at 851. Surely, however, a New York prosecutor could have secured a conviction under N. Y. Penal Law Ann. ?150.10 had the same crime been prosecuted in state, rather than federal, court.

The difference between an offense under N. Y. Penal Law Ann. ?150.10 and an offense under 18 U.?S.?C. ?844(i) is thus more than a technical consideration about which authority chooses to prosecute. It is a difference that goes to the magnitude and nature of the ?evil,? ante, at 15, itself.

*??*??*

On the majority?s reading, long-time legal permanent residents with convictions for minor state offenses are foreclosed from even appealing to the mercy of the Attorney General. Against our standard method for comparing statutes and the text and structure of the INA, the majority stacks a supposed superfluity, a not-so-well-settled practice, and its conviction that jurisdictional elements are mere technicalities. But an element is an element, andI would not so lightly strip a federal statute of one. I respectfully dissent.

Notes

1. ?Many of the majority?s own examples of ?the gravest? state offenses supposedly excluded from the aggravated felony list by Luna?s reading actually fall within these fail-safe provisions. Ante, at 10. Many state arsons will qualify as ?crime[s] of violence? under 8 U.?S.?C. ?1101(a)(43)(F), see, e.g., Mbea v. Gonzales, 482 F.?3d 276, 279 (CA4 2007); an even greater fraction of the most serious arsons will fall under that heading because States like New York have enacted gra-dated statutes under which more severe degrees of arson are crimes of violence, see Santana, 714 F.?3d, at 145. To take another of the majority?s examples, while a state conviction for demanding a ransom in a kidnaping is not ?an offense described in [ 18 U.?S.?C. ?875]? under ?1101(a)(43)(H), a state conviction for kidnaping or conspiring to kidnap may qualify as a crime of violence under ?1101(a)(43)(F). See United States v. Kaplansky, 42 F.?3d 320 (CA6 1994).
2. ?Other crimes in the majority?s list of serious offenses, ante, at 10?14, will be covered by these separate INA provisions. For example, the Board of Immigration Appeals has held that any child pornography offense is a ?crime involving moral turpitude,? rendering a noncitizen removable in many cases. See ??1227(a)(2)(A)(i), 1182(a)(2)(A)(i); In re Olquin-Rufino, 23 I.?&?N. Dec. 896 (BIA 2006). Any offense involving a gun would make a noncitizen deportable under one of the catchall provisions for buying, selling, or possessing a firearm in violation of ?any law.? See ?1227(a)(2)(C).
3. ?If the aggravated felony provisions were the primary mechanism for removing serious noncitizen criminals, we would expect anynoncitizen convicted of an aggravated felony to face immigration consequences. In fact, the aggravated felony provisions only apply to noncitizens who are lawfully admitted or later paroled. Matter of Alyazji, 25 I.?&?N. Dec. 397, 399 (BIA 2011). Other noncitizens?such as undocumented immigrants, noncitizens applying for a visa, or some legal permanent residents returning after an extended stay abroad?cannot be removed based on the conviction of an aggravated felony; the Government must rely on the other provisions of the INA, including the statute?s other criminal provisions, to remove such noncitizens. See ??1101(a)(13)(A), 1182, 1227(a)(2)(A)(iii).
4. ?When the proviso was added to the INA in 1990, it would have applied to an even greater fraction of the aggravated felonies: At that time, the aggravated felony statute listed only five offenses, four of which would have had state analogs even on Luna?s reading. See 104Stat. 5048 (1990).