Congress has defined the term “aggravated
felony” to include state and foreign crimes that are
“described in” certain federal statutes, such as the arson offense codified at 18 U.S.C.
§ 844(i), which makes it a federal crime to “maliciously
damage[] or destroy[], or attempt[] 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.”
In a five-to-three ruling handed down on Thursday,
the Supreme Court held that, even though most state and foreign crimes lack
such an “interstate or foreign commerce” element, they are nevertheless
“described in” the relevant federal statute so long as all of the elements of
the federal statute that arenot “jurisdictional”
are part of the state or foreign conviction.
In the process, the Court in Luna Torres
v. Lynch not only threaded a statutory
interpretation needle without expressly relying upon any canons of statutory
interpretation, but may have also further highlighted an emerging divide among
the Justices over how to resolve the many interpretive dilemmas posed by
federal immigration law.
Writing for a majority that
included Justices Anthony Kennedy, Ruth Bader Ginsburg, and Samuel Alito,
Justice Elena Kagan reached this result through two interrelated conclusions: First, she explained, the meaning of the relevant
statutory text – “described in” – cannot be resolved in the abstract, since,
“[l]ike many words, ‘describe’ takes on different meanings in different
contexts.” Because of the different meanings, Kagan concluded, “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.”
Second, given that the dispute could
not be resolved on the basis of text alone, the majority turned to contextual
considerations, and identified two that “decide the matter”: the penultimate
sentence of the definition of aggravated felony, “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,” and “a
well-established background principle distinguishing between substantive and
jurisdictional elements in federal criminal statutes.”
In a lengthy dissent on behalf
of herself and Justices Clarence Thomas and Stephen Breyer, Justice Sonia
Sotomayor took issue with each step of the majority’s analysis. Starting with
the observation that, “[u]ntil today, the Court has always required the state
offense to match every element of the listed
‘aggravated felony,’” Sotomayor argued that the plain text confirms that
approach, since “even the most general description cannot refer to features
that the thing being described does not have.”
And in any event, she continued,
concerns that serious state-law offenses would not qualify as aggravated
felonies simply because they lacked a federal jurisdictional element were
overtaken by the structure of federal immigration law, which provides numerous
ways in which serious state offenses can constitute aggravated felonies,
including a catch-all for all “crime[s] of violence . . . for which the term of
imprisonment [is] at least one year.” Indeed, she explained, “[l]ooking for
consistency in the aggravated felony provisions of [federal immigration law] is
often a fool’s errand.”
As for the majority’s
contextual considerations, Sotomayor continued, they provide “no reason to
prefer one reading [of the “described in” language] over the other.” If
anything, she continued, they only underscore the difficulty of trying to
distinguish between “substantive” and “jurisdictional” elements in matching
state crimes to federal ones:
Section 844(i) requires that
the property destroyed be “used in interstate . . . commerce.” The Court has
held [in Jones v. United States] that “standard,
jurisdictional” element demands the property’s “active employment for
commercial purposes, and not merely a passive, passing, or past connection to
commerce.” 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. Surely, however, a New York prosecutor could have secured a
conviction under [the relevant New York arson statute] had the same crime been
prosecuted in state, rather than federal, court.
But regardless of who had the
better of this argument, the bottom line of Thursday’s ruling is to expand the
class of state or foreign convictions that will qualify as “aggravated
felonies” under federal immigration law. And while that may be a modest
outcome, the more significant takeaway may be the lineup; for only the second
time in their seven years serving together on the Court, Sotomayor was joined
in dissent by the duo of Thomas and Breyer. And just as in the earlier case – Scialabba v. Cuellar
de Osorio – the dispute was over how judges should
interpret language in federal immigration law that seems to compel a
particular, if somewhat strange, result.
Thus, whereas Thursday’s
decision may end up better known for the Justices’ first-ever references to
Craigslist and Lonely Planet, the more lasting
implications may be the new battle lines it appears to portend over how courts
should cut the Gordian knots routinely presented by the text of federal
immigration law.
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