Misunderstandings at the Luna-Torres Argument by Nancy Morawetz
At the heart of the Luna-Torres argument was one central question – whether George Luna, a long term lawful permanent resident charged with removability due to a single state arson offense committed fifteen years ago and for which he received a sentence of one day in jail, should be barred from presenting equities before an immigration judge. No one doubted in his agency proceedings that Mr. Luna’s conviction was a crime involving moral turpitude and that he was properly brought before the immigration court and found subject to removal. The question was whether his crime was also one that Congress identified as warranting a complete bar to relief as an aggravated felony. The answer to that question determines whether Mr. Luna will be able to seek relief based on his long residence, lack of any other criminal record, longstanding record as a taxpayer, and his close family ties to United States citizens.
Some of the Justices’ questions suggested some lack of understanding about the stakes of the case. Chief Justice Roberts suggested that the agency has discretion not to put a person such as Mr. Luna in proceedings, a claim with which the Assistant to the Solicitor General agreed. But that is not how the immigration system works. The Department of Homeland Security will not readmit a lawful permanent resident like Mr. Luna following a trip outside the country if the person is removable for a crime involving moral turpitude, unless he has received a grant of cancellation of removal – the very discretionary relief Mr. Luna sought – or another similar form of relief. These forms of relief are not available if an offense such as Mr. Luna’s is classified as an aggravated felony.
Some of the discussion also misperceived the nature of the specific federal offense at issue in the case. The question in Luna-Torres is what Congress meant by an aggravated felony category that refers to an offense described in a specific federal arson statute. The government argues that so-called “jurisdictional” elements of this federal crime can be ignored when identifying the elements that must be present in a state conviction to trigger mandatory deportation. But as Justice Alito noted in the argument, it is odd to treat the interstate commerce aspects of the federal arson statute as simply “jurisdictional” after the Supreme Court’s decision in Jones v. United States, 529 U.S. 848, 859 (2000). That case explains just how substantive the interstate commerce provisions are for this statute. In Jones, the Court rejected the idea that a purely noncommercial target would meet the requirements of the federal statute. But under the government’s argument, even the most noncommercial target – a fire set as a teenage prank in a garbage can– would meet the federal aggravated felony definition if punished by a state, and even if punished as a misdemeanor. It may be that some federal criminal statutes referenced in the aggravated felony definition have provisions that are merely “jurisdictional” but Jones leaves no doubt that the federal arson statute’s interstate or foreign commerce element has substantive content.
Some Justices seemed concerned by the idea that some aggravated felony categories might not reach state offenses. But that is not so strange when you consider that the aggravated felony definition includes far reaching provisions – like the crime of violence or crime of theft – that reach broad categories of state offenses but which have the safeguard of not sweeping in offenses with less than a year sentence. The essential point is that Congress legislates in the face of at least 51 domestic legal systems – including each state and the federal government. It makes perfect sense that Congress would rely on these more general aggravated felony categories to capture most state offenses it seeks to treat harshly through the aggravated felony designation while adding in federal offenses – like the federal arson statute – that it knows are prosecuted as serious offenses and wishes to use as a basis for barring relief.
Classifying a crime as an aggravated felony is a momentous decision in which overinclusion is much more of a problem than underinclusion. For George Luna, classifying his conviction as an aggravated felony means that he is forever banished from the United States for an offense that only subjected him to a single day of jail time. It means that he cannot present the testimony of his citizen family members or his citizen fiancée, his otherwise clean record, and his history as a taxpaying member of our society. In contrast, applying the aggravated felony definition in a way that is true to the elements of the federal arson statute does not prevent the deportation of a person who has a more serious state arson conviction. That person would probably be classified as having a conviction of an aggravated felony crime of violence. But even if that were not the case, that person, like Mr. Luna, could face deportation for a crime involving moral turpitude. If the conviction were serious and the equities did not overcome the criminal record, an immigration judge could deny relief. For that reason, the Supreme Court has repeatedly recognized that it can be very appropriate to read the aggravated felony definition in a way that excludes some serious state offenses. See, e.g., Lopez v. Gonzales, 549 U.S. 47, 60 (2006) (reading the drug aggravated felony ground as not including some serious state drug possession offenses).
It is true that the aggravated felony definition can be very harsh. But the question is always whether a particular conviction fits the requirements for such harsh treatment. With arson, Congress was not so inflexible that it mandated that every state arson, no matter how lightly punished or how noncommercial the property, serve as a bar to presenting the kinds of compelling equities that Mr. Luna is prepared to present at a hearing in his case. Let’s hope that the Court lets him make his case to remain with his family and the country he has called home since the age of nine.
Professor of Clinical Law