Argument analysis: The surprising absence of canons from a debate over the meaning of ambiguous statutory text
on Nov 4, 2015 at 11:24 am
If yesterday’s second argument in Lockhart v. United States was, as Evan Lee put it, “The Battle of the Canons,” the first argument in Torres v. Lynch might best be remembered as “A Battle Without Canons,” as the Justices all-but ignored the competing statutory interpretation doctrines relied upon by the parties in trying to divine the meaning of two words buried in a hyper-specific provision of federal immigration law. To some observers, the relative paucity of references to canons in the hour-long session might suggest that the case is a “very close call.” But the Court’s near-exclusive focus on Congress’s purpose in defining as an “aggravated felony” any offense “described in” a particular federal statute appears to bode ill for Jorge Torres — and to portend a ruling that state law convictions are “described in” federal statutes even when they lack jurisdictional elements that the federal statute includes. If that is the ultimate result in this case, it will only increase the range of criminal convictions that will render immigrants categorically ineligible for cancellation of their removal from the United States.
As we explained in our argument preview, this case once again presents the Court with the question of which offenses Congress meant to include as “aggravated felonies” under 8 U.S.C. § 1101(a)(43). Some provisions of Section 1101(a)(43) simply refer to generic offenses (such as “murder”). Others refer to crimes “defined in” specific federal statutes (such as “illicit trafficking in a controlled substance”). A third category of aggravated felonies — the one at issue in this case — involve crimes “described in” federal statutes, such as 18 U.S.C. § 844(i), which makes it a federal offense to “maliciously damage or destroy, or attempt 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.” The petitioner, Jorge Luna Torres (who goes by George Luna), was convicted of third-degree arson under New York law — an offense the elements of which mirror the federal statute, except for the requirement that the damaged or destroyed property be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce.” Thus, the question before the Court was whether a conviction could be “described in” a federal statute if it lacked a jurisdictional element that the federal statute required.
Arguing on behalf of Torres, New York-based solo immigration practitioner Matthew Guadagno ran into difficulty from the outset, with Justice Ruth Bader Ginsburg interrupting his opening statement to observe that his “reading [of ‘described in’] leaves out some very serious arson offenses,” since even the most serious state crimes will never include uniquely federal jurisdictional elements. Justice Samuel Alito soon jumped in, pointing out the penultimate sentence of Section 1101(a)(43), which specifies that the preceding definitions of “aggravated felonies” “appl[y] to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” Why would Congress go out of its way to emphasize that the definitions generally applied to state and foreign offenses if the use of the term “described in” required the inclusion of uniquely federal jurisdictional elements? Although Guadagno effectively explained why his reading of “described in” would not render that provision superfluous, he nevertheless appeared to find few takers for the view that Congress actually meant to exclude virtually all state and foreign convictions from any of the categories of aggravated felonies that are “described in” federal statutes with jurisdictional elements. Perhaps the strongest evidence of Guadagno’s unsympathetic reception was the complete absence of any reference to the rule of lenity — the principle of statutory interpretation that suggests that ambiguities in statutes with criminal consequences (including Section 1101(a)(43)) ought to be resolved against the government. Guadagno mentioned it once in passing, but did not seem to find any takers on the bench.
Arguing on behalf of the United States, Assistant to the Solicitor General Elaine Goldenberg appeared to fare somewhat better, although her toughest questioning came, perhaps surprisingly, from Justice Antonin Scalia, who worried about the rule the United States seeks — which would require courts to determine which elements of federal criminal statutes are “substantive” (and must therefore be part of the underlying conviction), and which are “jurisdictional” (and need not therefore be part of the underlying conviction).
In his words, “if it’s an element, it’s an element. And if Congress really wants to eliminate the jurisdictional element, it can — it can say so, the way — the way it did in some other statutes.” Goldenberg’s rejoinder — focusing, again, on the penultimate clause of § 1101(a)(43) — seemed to assuage Scalia’s concern, or, at the very least, suggest that any mess such a rule might produce is one Congress meant. As with Torres’s reliance upon the rule of lenity, though, Goldenberg said very little about Chevron deference, and the idea that, so long as the statute is ambiguous, courts must defer to the Board of Immigration Appeals’ reasonable interpretation thereof. Indeed, Chevron only came up in the very last question Goldenberg received — from Ginsburg, as Goldenberg was concluding her presentation. By that point, it appeared to be beside the point, and the Justices appeared headed for a broad ruling that state (or foreign) convictions are in fact “described in” federal offenses even when the federal offense includes a jurisdictional element that the offense of conviction lacks, with or without reliance upon Chevron. Although such a decision may still leave open the question of where the line between “jurisdictional” and “substantive” elements lies going forward, there appeared to be no disagreement among the Justices that the “interstate commerce” requirement at issue in this case clearly falls on the “jurisdictional” side of that line.