Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.
Lower court opinion: Torres v. Holder, 764 F.3d 152 (2nd Cir. 2014)
Last week we saw the decision in Johnson v. U.S., involving the “residual clause” of the Armed Career Criminal Act’s definition of a “violent felony,” which had defied consistent application by sentencing judges. Today the Court takes another case involving a question about the meaning of a federal statute that triggers certain consequences based on a person’s prior convictions.
In this case the question is the meaning of one part of the long definition of “aggravated felony” in 8 U.S.C. § 1101(a)(43). The meaning is important because of the immigration consequences that result if an alien is determined to have been convicted of an aggravated felony: deportation, ineligibility for cancellation of removal, expedited removal proceedings, an increased sentence for reentering the U.S. without permission. As with the ACCA’s residual clause, the lower courts have split on one aspect of the definition—namely, whether a state law offense is “described in” a specified federal statute when all the elements are the same except for the interstate commerce element (a necessary feature for a federal criminal statute, but not for a state law).
Six circuits—including ours, Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008)—hold that a state offense is “described in” a federal statute even if the state offense lacks an interstate commerce element that is present in the federal statute. These courts reason that the interstate commerce element is merely a jurisdictional requirement, not an essential substantive element, and that requiring state offenses to have that element wasn’t what Congress intended, as it would greatly reduce the number of state offenses that are “aggravated felonies” because few, if any, state statutes impose an interstate commerce requirement. The Third Circuit, by contrast, takes the view that under the plain language of the statute, a state offense is “described in” a federal statute under § 1101(a)(43) only if the state offense includes all the elements listed in the federal statute, including the interstate commerce element. The dispute, then, mirrors the question decided in another case issued last week, King v. Burwell, where the Court had to decide whether Congress meant what it literally said, or whether the language in question was ambiguous in context and had to be interpreted in light of the evident purpose of the statute.