Supreme Court To Consider Whether State Arson Convictions are Aggravated Felonies

By Dan Cadman on September 25, 2015

A case involving an alien ordered removed after being convicted of an aggravated felony (arson) will be heard by the Supreme Court after the federal Second Circuit Court of Appeals upheld the order of the presiding immigration judge and affirmance of the order by the Board of Immigration Appeals (BIA).

The alien's petition for certiorari was most probably granted by the court because circuit courts are split on whether the definition of "aggravated felony" encompasses the crime for which the alien was convicted in New York — attempted arson.

Section 101(a)(43) of the Immigration & Nationality Act (INA), 8 U.S.C. § 1101(a)(43), defines the crimes that constitute an aggravated felony, including "(U) an attempt or conspiracy to commit an offense described in this paragraph."

The section also says "The term [aggravated felony] applies to an offense described in this paragraph whether in violation of Federal or State law." That is the crux of the appeal — the portion of the aggravated felony definition dealing with arson cites to a federal statute (18 U.S.C. 844(i)), which says "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)

A finding by the immigration judge that the New York conviction constituted an aggravated felony rendered Jorge Luna-Torres, a resident alien originally from the Dominican Republic, not only deportable, but ineligible for relief from removal. From there, the case wound its tortured way through the appellate process, resulting in the August decision from the Second Circuit rejecting Luna-Torres's appeal.

The usual group of alien advocacy groups has circled the wagons on Luna-Torres' behalf, filing amicus curiae (friend of the court) briefs to argue that, because New York's penal code doesn't require a connection to "interstate commerce", which is inherent in the federal crime of arson, it can't possibly be within the confines of the aggravated felony definition.

Of course the state crime doesn't require such a connection, and for good reason. The Tenth Amendment to the Constitution says "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Practically speaking, there can be no federal crime of arson unless there is a connection to interstate or foreign commerce, because such a law would impermissibly intrude on states' sovereign legislative and executive rights. Conversely, if the New York penal code were to criminalize arson based on interstate commerce, it would almost certainly be intruding on federal prerogatives because Article I, Section 8, Clause 3 of the Constitution reserves to the central government matters affecting interstate commerce.

For these reasons, it makes no sense to argue that, because the state arson crime didn't include the interstate commerce requirement, Congress cannot possibly have intended the aggravated felony definition to apply "whether in violation of Federal or State law". To take such a stance is to render meaningless almost any nexus between a state statute and a federal violation, since many — perhaps most — federal crimes of this nature will inevitably rely on the "interstate or foreign commerce" clause to derive their legitimacy.

Let's do a little thought experiment here. Substitute the crime bank robbery for the crime of arson. The same logic applies: The federal government has no inherent jurisdiction over bank robberies; it criminalizes this offense based on its relationship to interstate commerce — think crossing state lines during your getaway; or think Federal Reserve and Federal Deposit Insurance Corporation, which protects your money against bank defaults. Although most bank robbery charges are in fact brought in state court these days, at one time the reverse was true. It was pursuit of gangsters such as Bonnie and Clyde, Pretty Boy Floyd, Ma Barker's gang, and others that created the reputation of J. Edgar Hoover and the FBI. They did this because states found themselves ineffectual at apprehending fugitives who frequently and with impunity crossed state lines (and in so doing adversely affected interstate commerce). Now, if the charge against Luna-Torres had been "attempted bank robbery", can anyone doubt that Congress intended the crime to be encompassed within the definition of aggravated felony, despite the lack of an "interstate commerce" clause within the state criminal statute?

The other argument apparently being made in the amicus briefs is that to apply the definition of aggravated felony to the offense would be draconian: "the government's position would effectively bar a resident from the U.S. based on an offense that didn't injure anyone and involved less that $100 of property." Isn't that a little like saying "It can't be attempted murder because the bullet only nicked his ear when my client fired the gun"?

It's good that the case will be heard by the Supreme Court in light of the split among federal appellate courts, and I hope that the Court sustains the order of the immigration judge — not to mention the affirmances by the BIA and the Second Circuit. But the case also exemplifies everything that's wrong with our present system of immigration enforcement: There are nearly 12 million aliens illegally in the country and almost no one gets removed. Luna-Torres was convicted of the offense in 1999, and 16 years later he is still in the United States appealing his removal.