The definition of “aggravated felony” under federal immigration law, 8 U.S.C. § 1101(a)(43), has 21 subsections covering dozens of different crimes. Many of the subsections refer to offenses “described in” particular federal statutes, all of which include the interstate commerce element necessary for federal criminal jurisdiction. A catch-all at the end of the statute says that “aggravated felony” includes “an offense described in this paragraph whether in violation of Federal or State law….” This decision says that a state offense that lacks an interstate commerce element, but corresponds in all other ways to a listed federal offense, is an aggravated felony.
A majority of the Court concludes the meaning of the relevant statutory text—“described in”—can’t be resolved in the abstract because “[l]ike many words, ‘describe’ takes on different meanings in different contexts.” Given the different meanings, “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.” (Slip op. at 6).
Since the meaning of the phrase can’t be determined by choosing between the different dictionary definitions brandished by the parties, it has to be determined by contextual considerations, two of which are dispositive: “The first is § 1101(a)(43)’s penultimate sentence, 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. The second is a well-established background principle distinguishing between substantive and jurisdictional elements in federal criminal statutes.” (Slip op. at 7).
The majority elaborates at length on these considerations (slip op. at 7-21), but doesn’t convince three dissenters (Sotomayor, joined by Thomas and Breyer). The dissent reads the plain language of “described in” to require state offenses to have all the elements of the corresponding federal offense. (Dissent at 4-5). The majority’s concern that this reading would exclude a great many state offenses, says the dissent, ignores the fact that the immigration statutes have multiple ways to capture state-law offenders (e.g., under statutes defining “crimes of violence”). (Dissent at 5-8). The dissent also finds the majority’s contextual considerations less than dispositive, and in particular argues there’s no strong, entrenched distinction between substantive and jurisdictional elements. (Dissent at 8-13).
This decision resolves a lopsided circuit split, affirming the reading adopted by a majority of circuits, including ours, Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008). The meaning of “aggravated felony” in § 1101(a)(43) is important, of course, because of the immigration consequences of an aggravated felony conviction: deportation, ineligibility for cancellation of removal, expedited removal proceedings, and increased sentences for reentering the U.S. without permission. See, e.g., Maria Theresa Baldini-Potermin, Defending Non-Citizens in Illinois, Indiana, and Wisconsin 3-34 et seq. (2009).