Common Sense Prevails at the Supreme Court in at Least One Deportation Case

By Dan Cadman on May 20, 2016

In September of last year, I wrote about the Supreme Court reviewing the case of an alien found to be deportable due to an aggravated felony (for which there is no relief) based on his conviction of a state charge of arson.

The Court took the case because of a split in thinking between two different federal circuit courts of appeal. The provision in immigration law outlining aggravated felonies involving arson invokes a federal statute (18 U.S.C. 844(i)), which defines an aggravated felon as "Whoever 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". (Emphasis added.)

As a consequence, one of the circuit courts found that a state conviction did not meet the definition of aggravated felony because the state charge of arson did not require an element involving interstate commerce, whereas the circuit court that heard the case did hold that a state charge of arson met the definition of aggravated felony, notwithstanding the lack of an interstate commerce element.

As I discussed in my original blog, interpreting the definition of aggravated felony used in immigration law to require an interstate commerce connection in state charges is the height of absurdity. The only reason it is invoked in the federal criminal arson charge is because that is the only way that the federal government can involve itself in crimes that are otherwise within the sovereign jurisdiction of the states. In fact, it seems to me that to place such an element in state criminal statutes would not only be unnecessary, but could quite conceivably be an impermissible and unconstitutional intrusion into the uniquely federal authority over interstate commerce.

I'm pleased to say that the Supreme Court upheld the findings of the immigration judge, the Board of Immigration Appeals, and the Second Circuit Court of Appeals in determining that the state charge of arson did, in fact, meet the test of aggravated felony, notwithstanding the lack of any element of interstate commerce.

But the case has me thinking that it should never have had to be heard by the highest court in the land. It is astounding to me that any circuit could ever have bought into the argument that a state crime required an interstate commerce element to meet the definition of aggravated felony. I sometimes think that easily half of the court's caseload consists not of earthshaking and momentous decisions of import to society, but rather of riding herd over wayward children dressed in the judicial robes of lower courts, constantly trying to rein them in within the limits of its docket capacity. What a sad state of affairs.

Now, if only the government can actually find the alien and enforce the order of removal upheld by the Court, because the chances are pretty strong that, having posted bond, he's long gone. But that's another story for another day.