The US Supreme Court [official website] ruled [opinion, PDF] 5-3 on Thursday in Torres v. Lynch [SCOTUSblog materials] that a “state crime counts as an aggravated felony when it corre­sponds to a specified federal offense in all ways,” and that the absence of the jurisdictional element of interstate commerce is “immaterial.” The case arose in connection with an immigration matter in which Jorge Luna Torres, a lawful permanent resident in New York for 23 years, challenged the denial of his re-entry to the country based on a single conviction for a state-law-defined aggravated felony. Between Torres’ initial entry into the US in 1983 and his state conviction for attempted arson in 1999, his record had been clean. While acknowledging that the Immigration and Nationality Act makes any alien convicted of an “aggravated felony” after entering the US deportable, Torres argued that the aggravated felony must either relate to federal law or a state law that possesses every single element of a federal crime and which is supported by the jurisdictional element of interstate commerce. In an opinion by Justice Elena Kagan, the court rejected this argument, stating that, “state and foreign crimes will never precisely replicate a federal statute containing a commerce element” and that such a view “would limit the penultimate sen­tence’s effect in a peculiarly perverse fashion—excluding state and foreign convictions for many of the gravest crimes … while reaching those convic­tions for less harmful offenses.” The court added that “it is scarcely more plau­sible to view an interstate commerce element in any given offense as separating serious from non-serious conduct. … The essential harm of the crime is the same irrespective of state borders. … [T]he national, local, or foreign character of a crime has no bearing on whether it is grave enough to warrant an alien’s automatic removal.” The dissent, authored by Justice Sonia Sotomayor, and joined by Justices Clarence Thomas and Stephen Breyer, noted that jurisdictional elements are not merely “technicalities,” criticized the majority opinion as having the effect of preventing long-time legal permanent residents with convictions for minor state offenses “from even appealing to the mercy of the Attor­ney General.”

Torres’ arson conviction is a felony under New York law, but the federal statute includes the following language [JURIST report] that the New York statute does not: “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.” Both lower courts denied Torres’ petition for cancellation of the removal order. This is not the first time that the court has visited the question of “aggravated felony” in connection with deportation hearings. In a 2012 tax fraud case [JURIST report], the court stated that “[a]nyone who is convicted of an offense that ‘involves fraud or deceit in which the loss to the victim or victims exceeds $10,000’ has committed an aggravated felony and is subject to deportation pursuant to 8 USC § 1227(a)(2)(A)(iii).”