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Torres v. Lynch

United States Supreme Court

May 19, 2016

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

         Argued: November 3, 2015

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

          Affirmed.

          SYLLABUS

          [194 L.Ed.2d 739] Any alien convicted of an " aggravated felony" after entering the United States is deportable, ineligible for several forms of discretionary relief, and subject to expedited removal. 8 U.S.C. § § 1227(a)(2)(A)(iii), (3). An " aggravated felony" is defined as any of numerous offenses listed in § 1101(a)(43), each of which is typically identified either as an offense " described in" a specific federal statute or by a generic label ( e.g., " murder" ). [194 L.Ed.2d 740] Section 1101(a)(43)'s penultimate sentence states that each enumerated crime is an aggravated felony irrespective of whether it violates federal, state, or foreign law.

         Petitioner Jorge Luna Torres (Luna), a lawful permanent resident, pleaded guilty in a New York court to attempted third-degree arson. When immigration officials discovered his conviction, they initiated removal proceedings. The Immigration Judge determined that Luna's arson conviction was for an " aggravated felony" and held that Luna was therefore ineligible for discretionary relief. The Board of Immigration Appeals affirmed. It found the federal and New York arson offenses to be identical except for the former's requirement that the crime have a connection to interstate or foreign commerce. Because the federal statute's commerce element serves only a jurisdictional function, the Board held, New York's arson offense is " described in" the federal statute, 18 U.S.C. § 844(i), for purposes of determining whether an alien has been convicted of an aggravated felony. The Second Circuit denied review.

          Held :

          A state offense counts as a ยง 1101(a)(43) " aggravated felony" when it has every element of a listed federal crime except one requiring a connection to interstate or foreign commerce.

         Because Congress lacks general constitutional authority to punish crimes, most federal offenses include a jurisdictional element to tie the substantive crime to one of Congress's enumerated powers. State legislatures are not similarly constrained, and so state crimes do not need such a jurisdictional hook. That discrepancy creates the issue here -- whether a state offense lacking a jurisdictional element but otherwise mirroring a particular federal offense can be said to be " described" by that offense. Dictionary definitions of the word " described" do not clearly resolve this question one way or the other. Rather, two contextual considerations decide this case: § 1101(a)(43)'s penultimate sentence and a well-established background principle that distinguishes between substantive and jurisdictional elements in criminal statutes. Pp. 4-21.

         (a) Section § 1101(a)(43)'s penultimate sentence shows that Congress meant the term " aggravated felony" to capture serious crimes regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. But Luna's view would substantially undercut that function by excluding from the Act's coverage all state and foreign versions of any enumerated federal offense containing an interstate commerce element. And it would do so in a particularly perverse fashion -- excluding state and foreign convictions for many of § 1101(a)(43)'s gravest crimes ( e.g., most child pornography offenses), while reaching convictions for far less harmful offenses ( e.g., operating an unlawful gambling business). Luna theorizes that such haphazard coverage might reflect Congress's belief that crimes with an interstate connection are generally more serious than those without. But it is implausible that Congress viewed the presence of an interstate commerce element as separating serious from non-serious conduct. Luna's theory misconceives the function of interstate commerce elements and runs counter to the penultimate sentence's [194 L.Ed.2d 741] central message--that the state, federal, or foreign nature of a crime is irrelevant. And his claim that many serious crimes excluded for want of an interstate commerce element would nonetheless count as § 1101(a)(43)(F) " crime[s] of violence" provides little comfort: That alternative would not include nearly all such offenses, nor even the worst ones. Pp. 7-14.

         (b) The settled practice of distinguishing between substantive and jurisdictional elements in federal criminal statutes also supports reading § 1101(a)(43) to include state analogues that lack only an interstate commerce requirement. Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment. See, e.g., United States v. Yermian, 468 U.S. 63, 68, 104 S.Ct. 2936, 82 L.Ed.2d 53. And that is true where, as here, the judicial task is to compare federal and state offenses. See Lewis v. United States, 523 U.S. 155, 165, 118 S.Ct. 1135, 140 L.Ed.2d 271. Pp. 14-19.

764 F.3d 152, affirmed.

         Matthew L. Guadagno argued the cause for petitioner.

         Elaine J. Goldenberg argued the cause for respondent.

         KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which THOMAS and BREYER, JJ., joined.

          OPINION

         KAGAN, JUSTICE

         The Immigration and Nationality Act (INA or Act) imposes certain adverse immigration consequences on an alien convicted of an " aggravated felony." The INA defines that term by listing various crimes, most of which are identified as offenses " described in" specified provisions of the federal criminal code. Immediately following that list, the Act provides that the referenced offenses are aggravated felonies irrespective of whether they are " in violation of Federal[,] State[,]" or foreign law. 108 Stat. 4322, 8 U.S.C. § 1101(a)(43). In this case, we must decide if a state crime counts as an aggravated felony when it corresponds to a specified federal offense in all ways but one--namely, the state crime lacks the interstate commerce element used in the federal statute to establish legislative jurisdiction ( i.e., Congress's power to enact the law). We hold that the absence of such a jurisdictional element is immaterial: A state crime of that kind is an aggravated felony.

         I

          The INA makes any alien convicted of an " aggravated felony" after entering the United States deportable. See § 1227(a)(2)(A)(iii). Such an alien is also ineligible for several forms of discretionary relief, including cancellation of removal--an order allowing a deportable alien to remain in the country. See § 1229b(a)(3). And because of his felony, the alien faces expedited removal proceedings. See § 1228(a)(3)(A).

         The Act defines the term " aggravated felony" by way of a long list of offenses, now codified at § 1101(a)(43). In all, that provision's 21 subparagraphs enumerate some 80 different crimes. In more than half of those subparagraphs, Congress specified [194 L.Ed.2d 742] the crimes by citing particular federal statutes. According to that common formulation, an offense is an aggravated felony if it is " described in," say, 18 U.S.C. § 2251 (relating to child pornography), § 922(g) (relating to unlawful gun possession), or, of particular relevance here, § 844(i) (relating to arson and explosives). 8 U.S.C. § § 1101(a)(43)(E), (I). Most of the remaining subparagraphs refer to crimes by their generic labels, stating that an offense is an aggravated felony if, for example, it is " murder, rape, or sexual abuse of a minor." § 1101(a)(43)(A). Following the entire list of crimes, § 1101(a)(43)'s penultimate sentence reads: " The 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 for which the term of imprisonment was completed within the previous 15 years." So, putting aside the 15-year curlicue, the penultimate sentence provides that an offense listed in § 1101(a)(43) is an aggravated felony whether in violation of federal, state, or foreign law.

         Petitioner Jorge Luna Torres, who goes by the name George Luna, immigrated to the United States as a child and has lived here ever since as a lawful permanent resident. In 1999, he pleaded guilty to attempted arson in the third degree, in violation of New York law; he was sentenced to one day in prison and five years of probation. Seven years later, immigration officials discovered his conviction and initiated proceedings to remove him from the country. During those proceedings, Luna applied for cancellation of removal. But the Immigration Judge found him ineligible for that discretionary relief because his arson conviction qualified as an aggravated felony. See App. to Pet. for Cert. 21a-22a.

         The Board of Immigration Appeals (Board) affirmed, based on a comparison of the federal and New York arson statutes. See id., at 15a-17a. The INA, as just noted, provides that " an offense described in" 18 U.S.C. § 844(i), the federal arson and explosives statute, is an aggravated felony. Section 844(i), in turn, 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." For its part, the New York law that Luna was convicted under prohibits " intentionally damag[ing]," or attempting to damage, " a building or motor vehicle by starting a fire or causing an explosion." N.Y. Penal Law Ann. § § 110, 150.10 (West 2010). The state law, the Board explained, thus matches the federal statute element-for-element with one exception: The New York law does not require a connection to interstate commerce. According to the Board, that single difference did not matter because the federal statute's commerce element is " jurisdictional" -- that is, its function is to establish Congress's power to legislate. See App. to Pet for Cert. 16a-17a. Given that the two laws' substantive ( i.e., non-jurisdictional) elements map onto each other, the Board held, the New York arson offense is " described in" 18 U.S.C. § 844(i).

         The Court of Appeals for the Second Circuit denied Luna's petition for review of the Board's ruling. See 764 F.3d 152 (2014). The court's decision [194 L.Ed.2d 743] added to a Circuit split over whether 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. [1] We granted certiorari. 576 U.S. ___, 135 S.Ct. 2918, 192 L.Ed.2d 923 (2015).

         II

         The issue in this case arises because of the distinctive role interstate commerce elements play in federal criminal law. In our federal system, " Congress cannot punish felonies generally," Cohens v. Virginia, 19 U.S. 264, 6 Wheat. 264, 428, 5 L.Ed. 257 (1821); it may enact only those criminal laws that are connected to one of its constitutionally enumerated powers, such as the authority to regulate interstate commerce. As a result, most federal offenses include, in addition to substantive elements, a jurisdictional one, like the interstate commerce requirement of § 844(i). The substantive elements " primarily define[ ] the behavior that the statute calls a 'violation' of federal law," Scheidler v. National Organization for Women, Inc., 547 U.S. 9, 18, 126 S.Ct. 1264, 164 L.Ed.2d 10 (2006)--or, as the Model Penal Code puts the point, they relate to " the harm or evil" the law seeks to prevent, § 1.13(10). The jurisdictional element, by contrast, ties the substantive offense (here, arson) to one of Congress's constitutional powers (here, its authority over interstate commerce), thus spelling out the warrant for Congress to legislate. See id., at 17-18, 126 S.Ct. 1264, 164 L.Ed.2d 10 (explaining that Congress intends " such statutory terms as 'affect commerce' or 'in commerce' . . . as terms of art connecting the congressional exercise of legislative authority with the constitutional provision (here, the Commerce Clause) that grants Congress that authority" ).

         For obvious reasons, state criminal laws do not include the jurisdictional elements common in federal statutes. [2] State legislatures, exercising their plenary police powers, are not limited to Congress's enumerated powers; and so States have no reason to tie their substantive offenses to those grants of authority. See, e.g., United States v. Lopez, 514 U.S. 549, 567, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995). In particular, state crimes do not contain interstate commerce elements because a State does not need such a jurisdictional hook. Accordingly, even state offenses whose substantive elements match up exactly with a federal law's will part ways with respect to interstate commerce. That slight discrepancy creates the issue here: If a state offense lacks an interstate commerce element but otherwise mirrors one of the federal statutes [194 L.Ed.2d 744] listed in § 1101(a)(43), does the state crime count as an aggravated felony? Or, alternatively, does the jurisdictional difference reflected in the state and federal laws preclude that result, no matter the laws' substantive correspondence?

         Both parties begin with the statutory text most directly at issue, disputing when a state offense (here, arson) is " described in" an enumerated federal statute (here, 18 U.S.C. § 844(i)). Luna, armed principally with Black's Law Dictionary, argues that " described in" means " expressed" or " set forth" in -- which, he says, requires the state offense to include each one of the federal law's elements. Brief for Petitioner 15-16. [3] The Government, brandishing dictionaries of its own, contends that the statutory phrase has a looser meaning -- that " describing entails . . . not precise replication," but " convey[ance of ] an idea or impression" or of a thing's " central features." Brief for Respondent 17. [4] On that view, " described in," as opposed to the more precise " defined in" sometimes found in statutes, denotes that the state offense need only incorporate the federal law's core, substantive elements.

         But neither of those claims about the bare term " described in" can resolve this case. Like many words, " describe" takes on different meanings in different contexts. Consider two ways in which this Court has used the word. In one case, " describe" conveyed exactness: A contractual provision, we wrote, " describes the subject [matter] with great particularity[,] . . . giv[ing] the precise number of pounds [of tobacco], the tax for which each pound was liable, and the aggregate of the tax." Ryan v. United States, 86 U.S. 514, 19 Wall. 514, 517, 22 L.Ed. 172 (1874). In another case, not: " The disclosure provision is meant," we stated, " to describe the law to consumers in a manner that is concise and comprehensible to the layman--which necessarily means that it will be imprecise." CompuCredit Corp. v. Greenwood, 565 U.S. 95, 102, 132 S.Ct. 665, 181 L.Ed.2d 586 (2012). So staring at, or even looking up, the words " described in" cannot answer whether a state offense must replicate every last element of a listed federal statute, including its jurisdictional one, to qualify as an aggravated felony. In considering that issue, we must, as usual, " interpret the relevant words not in a vacuum, but with reference to the statutory context." Abramski v. United States, 573 U.S. ___, ___, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262, 278 (2014). [5]

         Here, two contextual considerations [194 L.Ed.2d 745] decide the matter. The first is § 1101(a)(43)'s penultimate sentence, which shows that Congress meant the term " aggravated felony" to capture serious crimes regardless of whether they are prohibited by federal, state, or foreign law. The second is a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes. We address each factor in turn.

         A

         Section 1101(a)(43)'s penultimate sentence, as noted above, provides: " The 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 for which the term of imprisonment was completed within the previous 15 years." See supra, at 2. That sentence (except for the time limit on foreign convictions) declares the source of criminal law irrelevant: The listed offenses count as aggravated felonies regardless of whether they are made illegal by the Federal Government, a State, or a foreign country. That is true of the crimes identified by reference to federal statutes (as here, an offense described in 18 U.S.C. § 844(i)), as well as those employing generic labels (for example, murder). As even Luna recognizes, state and foreign analogues of the enumerated federal crimes qualify as aggravated felonies. See Brief for Petitioner 21 (contesting only what properly counts as such an analogue). The whole point of § 1101(a)(43)'s penultimate sentence is to make clear that a listed offense should lead to swift removal, no matter whether it violates federal, state, or foreign law.

         Luna's jot-for-jot view of " described in" would substantially undercut that function by excluding from the Act's coverage all state and foreign versions of any enumerated federal offense that (like § 844(i)) contains an interstate commerce element. Such an element appears in about half of § 1101(a)(43)'s listed statutes -- defining, altogether, 27 serious crimes. [6] Yet under Luna's reading, only those federal crimes, and not their state and [194 L.Ed.2d 746] foreign counterparts, would provide a basis for an alien's removal--because, as explained earlier, only Congress must ever show a link to interstate commerce. See supra, at 4-5. No state or foreign legislature needs to incorporate a commerce element to establish its jurisdiction, and so none ever does. Accordingly, state and foreign crimes will never precisely replicate a federal statute containing a commerce element. And that means, contrary to § 1101(a)(43)'s penultimate sentence, that the term " aggravated felony" would not apply to many of the Act's listed offenses irrespective of whether they are " in violation of Federal[,] State[, or foreign] law" ; instead, that term would apply exclusively to the federal variants. [7]

         Indeed, Luna's view would limit the penultimate sentence's effect in a peculiarly perverse fashion -- excluding state and foreign convictions for many of the gravest crimes listed in § 1101(a)(43), while reaching those convictions for less harmful offenses. Consider some of the state and foreign crimes that would not count as aggravated felonies on Luna's reading because the corresponding federal law has a commerce element: most child pornography offenses, including selling a child for the purpose of manufacturing such material, see § 1101(a)(43)(I); demanding or receiving a ransom for kidnapping, see § 1101(a)(43)(H); and possessing a firearm after a felony conviction, see § 1101(a)(43)(E)(ii). Conversely, the term " aggravated felony" in Luna's world would include state and foreign convictions for such comparatively minor offenses as operating an unlawful gambling business, see § 1101(a)(43)(J), and possessing a firearm not identified by a serial number, see § 1101(a)(43)(E)(iii), because Congress chose, for whatever reason, not to use a commerce element when barring that conduct. And similarly, the term would cover any state or foreign [194 L.Ed.2d 747] conviction for such nonviolent activity as receiving stolen property, see § 1101(a)(43)(G), or forging documents, see § 1101(a)(43)(R), because the INA happens to use generic labels to describe those crimes. This Court has previously refused to construe § 1101(a)(43) so as to produce such " haphazard" -- indeed, upside-down -- coverage. Nijhawan v. Holder, 557 U.S. 29, 40, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). We see no reason to follow a different path here: Congress would not have placed an alien convicted by a State of running an illegal casino at greater risk of removal than one found guilty under the same State's law of selling a child. [8]

         In an attempt to make some sense of his reading, Luna posits that Congress might have believed that crimes having an interstate connection are generally more serious than those lacking one--for example, that interstate child pornography is " worse" than the intrastate variety. Brief for Petitioner 35. But to begin with, that theory cannot explain the set of crazy-quilt results just described: Not even Luna maintains that Congress thought local acts of selling a child, receiving explosives, or demanding a ransom are categorically less serious than, say, operating an unlawful casino or receiving stolen property (whether or not in interstate commerce). And it is scarcely more plausible to view an interstate commerce element in any given offense as separating serious from non-serious conduct: Why, for example, would Congress see an alien who carried out a kidnapping for ransom wholly within a State as materially less dangerous than one who crossed state lines in committing that crime? The essential harm of the crime is the same irrespective of state borders. Luna's argument thus misconceives the function of interstate commerce elements: Rather than distinguishing greater from lesser evils, they serve (as earlier explained) to connect a given substantive offense to one of Congress's enumerated powers. See supra, at 4-5. And still more fundamentally, Luna's account runs counter to the penultimate sentence's central message: that the national, local, or foreign character [194 L.Ed.2d 748] of a crime has no bearing on whether it is grave enough to warrant an alien's automatic removal. [9]

         Luna (and the dissent, see post, at 6) must therefore fall back on a different defense: that his approach would exclude from the universe of aggravated felonies fewer serious state and foreign offenses than one might think. To make that argument, Luna relies primarily on a part of the Act specifying that the term " aggravated felony" shall include " a crime of violence (as defined in [18 U.S.C. § 16]) for which the term of imprisonment [is] at least one year." § 1101(a)(43)(F); see 18 U.S.C. § 16 (defining " crime of violence" as involving the use of " physical force" against the person or property of another). According to Luna, many state and foreign offenses failing to match the Act's listed federal statutes (for want of an interstate commerce element) would count as crimes of violence and, by that alternative route, trigger automatic removal. A different statutory phrase, or so Luna says, would thus plug the holes opened by his construction of the " described in" provisions.

         Luna's argument does not reassure us. We agree that state counterparts of some enumerated federal offenses would qualify as aggravated felonies through the " crime of violence" provision. But not nearly all such offenses, and not even the worst ones. Consider again some of the listed offenses described earlier. See supra, at 10. The " crime of violence" provision would not pick up demanding a ransom for kidnapping. See 18 U.S.C. § 875(a) (defining the crime without any reference to physical force). It would not cover most of the listed child pornography offenses, involving the distribution, receipt, and possession of such materials. It would not reach felon-in-possession laws and other firearms offenses. And indeed, it would not reach arson in the many States defining that crime to include the destruction of one's own property. See Jordison v. Keisler, 501 F.3d 1134, 1135 (CA9 2007) (holding that a violation of California's arson statute does not count as a crime of violence for that reason); Tr. of Oral Arg. 28-29 (Solicitor General agreeing with that interpretation). [10] So under Luna's reading, state and foreign [194 L.Ed.2d 749] counterparts to a broad swath of listed statutes would remain outside § 1101(a)(43)'s coverage merely because they lack an explicit interstate commerce connection. And for all the reasons discussed above, that result would significantly restrict the penultimate sentence's force and effect, and in an utterly random manner. [11]

         B

         Just as important, a settled practice of distinguishing between substantive and jurisdictional elements of federal criminal laws supports reading § 1101(a)(43) to include state analogues lacking an interstate commerce requirement. As already explained, the substantive elements of a federal statute describe the evil Congress seeks to prevent; the jurisdictional element connects the law to one of Congress's enumerated powers, thus establishing legislative authority. See supra, at 4-5; ALI, Model Penal Code § 1.13(10) (1962). Both kinds of elements must be proved to a jury beyond a reasonable doubt; and because that is so, both may play a real role in a criminal case. But still, they are not created equal for every purpose. To the contrary, courts have often recognized--including when comparing federal and state offenses -- that Congress uses substantive and jurisdictional elements for different reasons and does not expect them to receive identical treatment.

         Consider the law respecting mens rea. In general, courts interpret criminal statutes to require that a defendant possess a mens rea, or guilty mind, as to every element of an offense. See Elonis v. United States, 575 U.S. ___, ___, 135 S.Ct. 2001, 2009, 192 L.Ed.2d 1, 13 (2015). That is so even when the " statute by its terms does not contain" any demand of that kind. United States v. X-Citement Video, Inc., 513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). In such cases, courts read the statute against a " background rule" that the defendant must know each fact making his conduct illegal. Staples v. United States, 511 U.S. 600, 619, 114 S.Ct. 1793, ...


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