Amicus Curiae Brief — Torres v. Lynch, 135 S. Ct. 2918 (2015) (No. 14-1096)

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No. 14-1096

3n the Supreme Court of the Hnited States

JORGE LUNA TORRES, PETITIONER,

LORETTA E. LYNCH, ATTORNEY GENERAL

OF THE UNITED STATES, RESPONDENT

3 On Writ of Certiorari to

the United States Court of Appeals for the

Second Circuit

BRIEF FOR THE

NATIONAL IMMIGRANT JUSTICE CENTER AND

THE AMERICAN IMMIGRATION LAWYERS

ASSOCIATION IN SUPPORT OF PETITIONER

LINDA T, COBERLY . CHUCK ROTH

Counsel of Record National Immigrant

MATTHEW R. CARTER Justice Center

Winston & Strawn LLP 208 South LaSalle Street

35 West Wacker Drive Ste. 1300

Chicago IL 60601 Chicago, IL 60601

(312) 558-5600 (312) 660-1613

JEFF P. JOHNSON RUSSELL ABRUTYN

Winston & Strawn LLP MARK R. BARR

1700 K Street NW American Immigration

Washington, DC 20006 Lawyers Association

(202) 282-5000 1331 G Street NW, Ste. 300

Washington, DC 20005

(202) 507-7600

Counsel for Amici Curiae

QUESTION PRESENTED

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.

TABLE OF CONTENTS

Page

ps PF dt Ff |g, En Ce iv

INTRODUCTION AND INTERESTS OF AMICI ......1

SUMMARY OF ARGUMENT.................0000cccee eee 4

RTE SSUES SOE SP ER PPR nD 7

I. The Government's position would treat

many minor state arson offenses—including

misdemeanors—as “aggravated felonies,”

distorting that term’s meaning and violating

RE TERT aie eer ae 7

Il. The catastrophic, irrevocable consequences

of an aggravated felony conviction counsel

against an overbroad interpretation. ................ 14

A. An aggravated felony conviction

precludes a longtime resident from

seeking relief from removal no matter

how inequitable the result.......0000000.000cccck. 15

B. An aggravated felony conviction bars a

noncitizen from seeking asylum................... 19

C. An aggravated felony conviction subjects

certain noncitizens to expedited removal

and mandatory detention. ..........0.....cccccc00es 23

D. An aggravated felony conviction is a

permanent bar to naturalization. ................ 24

II]. The Government's position violates this

Court’s canon construing ambiguity in the

immigration laws in favor of noncitizens. ......... 26

Ee SSeS An eaknemnae es 28

TABLE OF AUTHORITIES

Page(s)

Cases

Amaral v. INS,

cage § ft: Ls 9 SE eeneeeere 16

Arguelles-Olivares vy. Mukasey,

526 F.3d 171 (6th Cir. 2008)....................0.....00000.. 16

Berhe v. Gonzales,

— to & ff gener eens 22

Matter of C-V-T-,

78 7 & ef | Re eeereeeoren 16

Matter of Crammond,

23 1. & N. Dec. 9, 14 (en banc),

vacated on other grounds, 23 1. & N.

Dec. 179 (BIA 2001) (en banc)..................ccceeeeeeees 11

Carachuri-Rosendo v. Holder,

gS NRE IE Omen eeenneeeT 5, 11

Chan v. Gantner,

464 F.3d 289 (2d Cir. 2006) .................................. 25

Chang v. INS,

307 F.3d 1185 (9th Cir. 2002)... cece 16

Descamps v. United States,

ais MII snicsieniacnantertsdesaiianvinnionasiecnaunatenii 8

United States v. Diaz-Calderone,

716 F.3d 1845 (11th Cir. 2013).............000000.0.. 23

Fernandez v. Mukasey,

544 F.3d OGS (7th Cir. 2OOB)............0cccccccccccoscsceese 17

Ferreira v. Ashcroft,

382 F.3d 1045 (9th Cir. 2004)..................0....0..000. 16

Matter of Flores-Gomez,

2004 WL 2374449 (BIA Jul. 27, 2004) o.oo. 17

Flores-Torres v. Mukasey,

- ff & [Le eee 24

Fong Haw Tan v. Phelan,

EE RSA A lS Reet Ronee 6, 26

Guerrero-Perez v. Holder,

fee kL _, ER RENERie roe 12

INS vy. Stevic,

I 20

INS v. Cardoza-Fonseca,

rn 20, 21, 26

INS v. Errico,

I ell 27

INS v. St. Cyr,

ileal 6, 26

Johnson v. United States,

a 23

Jordan v. De George,

ne Se ances cecinctnnsencidinepatinininnsebuiminian 17

United States ex rel. Klonis vy. Davis,

Ey ici escdecicadchaccrendnsatindasionds 17

Knutsen v. Gonzales,

if & 1, Lo 3 Seeaeeennennnennneers 16

Kuhali v. Reno,

fe Lf. Le | eee ese 14

Leocal v. Ashcroft

I a 26

Lopez v. Gonzales,

tf Ec 5, 10, 11, 12

Lopez-De Rowley v. INS,

fe tt lt ey Sno 16

Malu v. U.S. Atty. Gen.,

764 F.3d 1282 (11th Cir. 2014), cert.

dismissed, 2015 WL 802339 U.S.

I a 23, 24

Matter of Marin,

161. & N. Dec. 581 (BIA 1978)........000. ee. 15

Minto v. Mukasey,

302 F. App’x 13 (2d Cir. Dec. 5, 2008).........000000... 17

Moncrieffe v. Holder,

I ee 11,19

Murray v. Charming Betsy,

6 U.S. (2 Cranch) 64 (1804) .................................. 27

Nijhawan v. Holder,

I eal 12

Padilla v. Kentucky,

I ie 27

Matter of Palacios,

22 1. & N. Dec. 434 (BIA 1998)..............0.. 13

Perriello vy. Napolitano,

Pe ee IP CE EE BI cticsincsciccccticsccmnccesaceoctun 14

Matter of S--,

31. & N. Dec. 617-18, 1949 WL 6507

Ria REL SORE EPS as Be a ee Sane ea oe 13

Shurney v. INS,

201 F. Supp. 2d 783 (N.D. Ohio 2001) ................. 16

Matter of Smail,

23 I. & N. Dec. 448 (BIA 2002) (en

Socarras v. DHS,

672 F. Supp. 2d 1320 (S.D. Fla. 2009) ................. 25

Valansi v. Reno,

Ge Fe Be Ce GE, BID ocescccescecsvesccccescecessceses 24

Valenzuela-Zamarano v. Ashcroft,

11 F. App’x 805 (9th Cir. 2001)............................ 17

Vuksanovic v. U.S. Atty. Gen.,

439 F.3d 1308 (11th Cir. 2006)......................cseeeee 13

Matter of Wadud,

19 I. & N. Dec. 182 (BIA 1984).........000000 0. 15

Statutes

UU ii passim

2 SR 5 RRR ene Narr arvana 25

Ire IN cx aicanieas pameeincicicbacaniethaiamniicmceccaadeds 21, 22

I I a a a 13

3 | Eee Ree on ie 24

8 U.S.C. § 1227(a)(2)(A) Gii)................0..ccscsceeesensees 13, 14

ct cstcdisnddasanniniaradninnaanarhadasetadciicesicdininisiiti 23

ESERIES ener eee 15

ON ici insnssccssesigessiec-aiimanianinnbatasniscnibin 21

Bt I isc cssescesthircerinnsrtencaniosislicapdicociinaigsen 25

cscs iadctaneshasctinh epiae ininnibalohipesniouciions 22

es IIE cis hsesnlasincndonhedsccnicninenieaiesccoeeineds 2, 8, 14

Se a A cassia cnciecsetngsdcgunicensscipiteiasincindiacite 11

Ariz. Rev. Stat. § 13-1708 ....................c0ccee0-. 2, 8, 9, 10

es Se ID icicsictncesiscncnneseasepnvtensinnenies 10

Colo. Rev. Stat. § 18-4-103...................ssscccsrceseecees 9, 10

iiss clialtesaaelsubdnaiaide 10

I, as 10

MOO COE BTID wscesisncessntrsecssessonnnsieigiamaaenae 10

Md. Code, Crim. Law § 6-105(c) .0..........ccccccceeessseeseees 10

BED, SHORE, BFE FF vssnnsesisonsstienissuanenciiaamaae 9, 10

Gee. GRR. FI so ccesinsetneteeesnmneteisioiion 9,10, 11

we 8 9,10

DETR. Tho. GUmG. G eicsinniectssas scccmocecasegnicniadaaeeee 10

N.M. Stat. § 30-17-6(B) ........cecccescecssecccsscessesscesessssecees 10

PE, B. ONE RAIN B FE RICE icctoccisinisseninitnshetntecdaennanee 10

Pe. UMNO Rie Te Te iscccicccicocniectsnsccteemenaaammnan 10

8B, 8? fh 5 eer 10

Ohio Rev. Code § 2909.03(B)(2)(a)............ccceeeeceeeees 10

S.C. Code § 16-11-150(@) .........-cecccsssescuesesscosceseeseecoece: 10

Cree Cn © FBG BED corvatecsescnscsinsitnitonianimaauaiianmian 10

VO. Glee. FB Ge ccisnssccvincrinidisnntinibieeaaniaal 10

WO, BO, BO I sccscnsinssiincssncscensienspsesvadasiadiaiin 10

Other Authorities

SOIR. 6 GB oieetinncccdineeee 21

B C.F. § BIA snccsscisnsnsncscsavinssiiisitioianianmaciteamnnsadiiia 22

S C.F.R. § 316.2(8)(7) ....ce.ccesceccocscesscescnsscecsecsescussesenees 25

ANITA U. HATTIANGADI ET AL., NON-

CITIZENS IN TODAY'S MILITARY: FINAL

SERIES 18

Gerry J. Gilmore, Military Recruits Non-

citizen Health Care Workers,

Linguists, AMERICAN FORCES PRESS

ee 18

Letter, Miller, Acting Asst. Comm.

Adjudications HQ 316-C (May 5,

1993), reprinted in 70 No. 22

Interpreter Releases 752, 769-70

SEG 25

CONVENTION RELATING TO THE STATUS OF

REFUGEES, July 28, 1951, art. 23(2),

SUT ETI, BD aioe eeccesccenceseccnvscesscoseessessess 21, 22

PROTOCOL RELATING TO THE STATUS OF

REFUGEES, art. 33, 19 U.S.T. 6223................. 20, 22

INTRODUCTION

AND INTERESTS OF AMICI

The National Immigrant Justice Center and the

American Immigration Lawyers Association, as amici

curiae,' respectfully submit this brief to alert the

Court to the impact the Government’s position would

have on lawful permanent residents and individuals

fleeing persecution. As a practical matter, the

Government's reading of 8 U.S.C. § 1101(a)(43)(E)

would expand the category of “aggravated felonies” to

include a variety of minor state arson offenses, many

of which are punished as misdemeanors. There is

nothing in the text of the statute to suggest that

Congress intended such a counterintuitive result.

Congress has long recognized that deportation

may cause great hardship—leaving children without

parents, depriving families of their livelihood, and

even exposing the deported person to a risk of

persecution and death upon return to his country of

origin. In recognition of this risk of hardship—and in

acknowledgement of our Nation’s obligations under

the 1967 Protocol Relating to the Status of

Refugees—Congress has created several avenues for

relief. These avenues are designed specifically to

provide hope for people who would otherwise be

subject to deportation—for example, people who have

no prior right to be in the United States but have

come here seeking safety from persecution, and

longstanding lawful permanent residents who have

run into trouble with the law. Congress thus

! Counsel for all parties have consented to the filing of this brief,

in letters that are on file with the Clerk. No party or counsel for

a party authored this brief in whole or in part, and no person or

entity other than Amici and their counsel has made a monetary

contribution to the preparation or filing of this brief.

intended these avenues for relief to be open even if

the individual has been convicted of a crime—unless

the crime was an “aggravated felony” as defined in 8

U.S.C. § 1101(a)(43).

This case is the latest in a series of cases in which

the Government has attempted to block access to

these avenues for relief by adopting an overly

expansive definition of “aggravated felony.” The

definition of “aggravated felony” includes some broad

categories of crimes—like “murder” and “rape”—as

well as certain “offense[s} described in” specific

sections of the federal criminal code. The question

before the Court is whether a state offense counts as

“an offense described in” a federal criminal statute

when it lacks a critical element of that federal

offense: the element relating to interstate commerce.

As a matter of statutory interpretation, the answer is

no. The state arson conviction in this case was not

for the “offense described in” the federal arson statute

because it was missing an essential element—proof

that the burned property was connected to “interstate

commerce.” 18 U.S.C. § 844(i).

The Government’s contrary position would have

the bizarre effect of treating a variety of minor state

offenses (including misdemeanors) as “aggravated

felonies” that block an immigrant’s access to relief.

As discussed below, many state arson statutes

address re.atively minor offenses that involve only

tiny amounts of damage, cause no injury to anyone,

and are punished with only nominal jail time or fines.

For example, the state of Arizona punishes arson as a

misdemeanor if it involves property worth $100 or

less. Ariz. Rev. Stat. § 13-1703. That statute might

be used, for example, if a local prosecutor decides to

prosecute a teenager and send him to jail overnight

after he is caught setting fire to a neighbor's garbage

can—a crime, to be sure, but not a particularly

serious one. Under the Government’s position,

however, that crime would be deemed an “aggravated

felony.” The teenager could be placed in removal

proceedings, and his conviction would deprive him of

the ability to seek asylum or make a case for relief

from deportation—no matter how long he has lived

here or what hardship his deportation would cause.

There is no reason to believe that Congress intended

such an extreme result.

Amici are well suited to assist the Court in

understanding the practical implications of this case

for individuals fleeing persecution, as well as for all

other individuals who may find themselves in

deportation proceedings. The National Immigrant

Justice Center (“NIJC”) is a program of the

Heartland Alliance for Human Needs and Human

Rights, a non-profit corporation headquartered in

Chicago, Illinois. NIJC is dedicated to ensuring

human rights protections and access to justice for all

immigrants, refugees, and asylum seekers. By

partnering with more than 1,000 attorneys from the

Nation's leading law firms, NIJC provides direct legal

services to approximately 8,000 individuals annually.

This experience informs NIJC’s advocacy, litigation,

and educational initiatives, as it promotes human

rights on a local, regional, national, and international

stage. NIJC has a substantial interest in the issue

now before the Court, both as an advocate for the

rights of refugees and asylum seekers generally and

as the leader of a network of pro bono attorneys who

regularly represent refugees and asylum seekers in

- court. Given NIJC’s experience and perspective, it is

well-situated to assist the Court in understanding

how the “aggravated felony” issue will impact

individuals fleeing religious and political persecution,

as well as how it will affect others seeking relief from

deportation after spending most of their lives here.

The American Immigration Lawyers Association

(‘AILA”) is a national organization composed of more

than 13,000 immigration lawyers throughout the

United States, including lawyers and law school

professors who practice and teach in the field of

immigration and nationality law. AILA’s objectives

are to advance the administration of law pertaining

to immigration, nationality, and naturalization; to

cultivate the jurisprudence of the immigration laws;

and to facilitate the administration of justice and

elevate the standard of integrity, honor, and courtesy

of those appearing in immigration, nationality, and

naturalization matters. AILA’s members regularly

appear in immigration proceedings, often on a pro

bono basis.

Amici share a significant interest in ensuring the

fair, uniform, and predictable administration of

federal immigration laws. As leaders in the field—

and as advocates for the rights of immigrants and

refugees—Amici are uniquely qualified to address the

practical consequences of the Government’s position

in this case and how those consequences should

inform the issues of statutory interpretation.

SUMMARY OF ARGUMENT

1. As a practical matter, the Government's

position in this case would expand the definition of

“aggravated felony” to include a host of minor state

arson convictions, including convictions for crimes

that caused no harm and are subject to only minimal

jail time. Whereas federal arson convictions are

always felonies and tend to be more serious—as

reflected by the statute’s 5-year mandatory minimum

sentence—many state convictions relate to very

minor offenses, some of which are punished only as

misdemeanors.

This alone is a sufficient reason to reject the

Government’s interpretation. As this Court has held,

it must be “very wary” of applying the “aggravated

felony” label in a way “the English language tells us

not to expect,” Carachuri-Rosendo v. Holder, 560 U.S.

563, 575 (2010), unless Congress has provided a

“clear statutory command to override [the] ordinary

meaning.” Lopez v. Gonzales, 549 U.S. 47, 55 n.6

(2006). No such clear command exists here—and the

English language certainly would not lead any

reasonable person to expect that the term

“aggravated felony’ could be applied to include

offenses that are neither felonies nor particularly

“aggravated.” Accepting Petitioner's interpretation

avoids that problem.

2. A noncitizen with an “aggravated felony”

conviction faces extensive and severe consequences

under the immigration laws, and those consequences

counsel against an overbroad interpretation. A

lawful permanent resident with a conviction for an

aggravated felony is ineligible for “cancellation of

removal’—a discretionary, equitable means of relief

that Congress has made available to certain long-

time residents. A person convicted of an aggravated

felony is automatically ineligible for asylum, even if

she was or would be persecuted in her country of

nationality. A noncitizen with an aggravated felony

conviction may face expedited removal proceedings

and mandatory detention. And even for an individual

who is never placed in removal proceedings, an

aggravated felony conviction serves as a permanent,

insurmountable barrier to citizenship.

In view of these grave and often catastrophic

consequences, Congress could not have intended to

expand the definition of “aggravated felony” to

include minor state arson offenses, as _ the

Government’s position would hold. An aggravated

felony conviction will generally put both asylum

seekers and lawful permanent residents on an

express train to permanent and irrevocable exile.

Congress has reserved this treatment for those

convicted of particularly serious crimes, and the

Court should keep it that way.

3. This Government’s position should also be

rejected under the “longstanding principle” of

“construing any lingering ambiguities in deportation

statutes in favor of the [noncitizen].” INS v. St. Cyr,

533 U.S. 289, 320 (2001) (quoting INS v. Cardoza-

Fonseca, 480 U.S. 421, 449 (1987)). The Court follows

this approach—akin to the criminal rule of lenity—

“because deportation is a drastic measure and at

times the equivalent of banishment or exile.” Fong

Haw Tan v. Phelan, 333 U.S. 6, 10 (1948).

Here, the Government's position would effectively

“banish” or “exile” a longstanding resident based on a

minor state arson offense—even if it injured no one,

involved property worth less than $100, and

subjected the offender to just an overnight stay in

jail, Under St. Cyr, Fong Haw Tan, and other

precedents of this Court, the immigration laws

cannot be read to impose such a drastic result

without a clear statement by Congress.

ARGUMENT

I. The Government’s position would treat

many minor state arson offenses—including

misdemeanors—as “aggravated felonies,”

distorting that term’s meaning and violating

this Court’s precedent.

The question framed in this case is whether, for

purposes of the definition of “aggravated felony,” a

state offense can be one “described in” a particular

federal criminal statute where it lacks a critical

element of that statute—namely, the element

relating to interstate commerce. As relevant here,

the aggravated felony statute includes the “offense

described in * * * 844(d), (e), (f), (g), (h), or (i) of [Title

18] (relating to explosive materials offenses).” 8

U.S.C. § 1101(a)(43)(E)(i). Section 844(i) describes an

offense that arises only where the offender

“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.”

(Emphasis added). By its nature, this “interstate

commerce” element tends to be a feature of federal

criminal statutes. As a practical matter, then, for

that particular subsection of the “aggravated felony”

definition, the “described in” formulation generally

limits the offense to one prosecuted under federal

law.?

2 Under the categorical approach, “courts may ‘look only to the

statutory definitions’—i.e., the elements—of a defendant’s prior

The Government argues ctherwise—and the

consequences of its argument are extreme. Whereas

arson offenses prosecuted under federal law tend to

be quite serious—as evidenced by the 65-year

mandatory minimum sentence the statute provides,

see 18 U.S.C. § 844()—state arson offenses may

include far less serious crimes, many of which are not

felonies at all.

In Arizona, for example, the crime of “knowingly

damaging a structure or property through fire” is

punished as a class 1 misdemeanor “if the property

had a value of one hundred dollars or less.” Ariz. Rev.

Stat. § 13-1703. An offense satisfying all those

elements would necessarily meet all the elements of

the federal arson statute—except the element of

interstate commerce. Under the Government’s

position in this case, then, an Arizona conviction for

class 1 misdemeanor arson—relating to personal

property worth just a few dollars—would qualify as

an “aggravated felony.”

Arizona is not alone. Many other states also have

laws on their books that punish minor arson as a

misdemeanor, with minimal fines and jail time. A

sample of relevant statutes is provided here:

offenses * * *,” not to the underlying facts. Descamps v. United

States, 133 S. Ct. 2276, 2283 (2013). Neither the Government

nor the courta have considered in any detailed way whether

there are, in fact, state offenses that would satisfy all the

elements of the federal arson statute.

“(K]nowingly and unlawfully

damaging a structure or property by

knowingly causing a fire or explosion

*** is a class 1 misdemeanor if the

property had a value of one hundred

dollars or less.”

| Whoever “knowingly sets fire to,

burns, causes to be burned, or by the

use of any explosive damages or

destroys, or causes to be damaged or

destroyed, any property of another

without his consent” is guilty of a

class 2 misdemeanor, “if the damage

is less than one hundred dollars.”

Mich. Stat.

§ 750.77

Whoever “intentionally damages or

destroys by fire or explosive any

personal property having a value of

$1,000.00 or less * * * is guilty of fifth |

degree arson, [which is] a |

misdemeanor.” |

Minn. Stat.

§ 609.5632

—_ =

“Whoever intentionally by meansof |

fire or explosives sets fire toorburns |

or causes to be burned any real or |

personal property of value is guilty of |

a misdemeanor and may be sentenced

to imprisonment for not more than 90

days or to payment of a fine of not

more than $1,000, or both.”

Intentionally setting fire to property

or damaging it with an explosive is a

misdemeanor if the damage is “less

than one thousand five hundred

dollars.”

'N.H. Rev. | Whereas certain categories of arson

! Stat. / are punished as a felony—including

| § 634:1 arson to an occupied or historic

| structure, or to collect insurance

| payments, or to property worth more

than $1,000—‘“[a]ll other arson is a

| ' misdemeanor.”

In all, at least 18 states have misdemeanor arson

offenses that could be deemed an “aggravated felony”

under the Governmen*’s interpretation.’ Thus, while

Petitioner's conviction for third-degree arson was a

felony, the Government’s interpretation would apply

equally to fifth-degree arson under New York law,

which is a misdemeanor and is punished accordingly.

Compare N.Y. Penal Law § 150.10 (intentionally

damaging a “building or motor vehicle” is arson in the

third degree, a class C felony) with id. § 150.01

(intentionally damaging the “property of another” is

arson in the fifth degree, a class A misdemeanor); id.

§ 70.15(1) Gmprisonment for a class A misdemeanor

“shall not exceed one year’).

This is not the first time the Government has

attempted to expand the definition of “aggravated

felony” in a way that would encompass a minor state

offense—and in each instance, this Court has rejected

its arguments. See, e.g., Lopez v. Gonzales, 549 U.S.

3 See, e.g, Ariz. Rev. Stat. § 13-1703(B); Ark. Stat. § 5-38-

301(b)(1); Colo. Rev. Stat. § 18-4-103(3); D.C. Code § 22-303;

Haw. Rev. Stat. § 708-8254; Iowa Code § 712.4; Md. Code, Crim.

Law § 6-105(c); Mich. Stat. § 750.77(3); Minn. Stat. § 609.5632;

Neb. Rev. Stat. § 28-604(3); N.H. Rev. Stat. § 634:1(1V); N.M.

Stat. § 30-17-5(B); N.Y. Penal Law. § 150.01; Ohio Rev. Code

§ 2909.03(B)(2)(a); S.C. Code § 16-11-150(a); Utah Code § 76-6-

102(5); Va. Code. § 18.2-80; Wyo. Stat. § 6-3-104(b).

47, 56-57 (2006); Carachun-Rosendo v. Holder, 560

U.S. 563, 575 (2010); Moncrieffe v. Holder, 133 S. Ct.

1678, 1693 (2013). As this Court has explained, the

term “aggravated felony” should be given its

“common-sense conception” wherever possible. Lopez,

549 U.S. at 53. It should not be interpreted in a way

“the English language tells us not to expect” without

a clear statutory command. Carachuri-Rosendo, 560

U.S. at 575.

Under any common-sense understanding, a

“felony” “is a serious crime usually punishable by

imprisonment for more than one year or by death.”

Id. at 574 (internal quotation marks and alteration

omitted). Indeed, federal law itself defines a felony as

a crime punishable by “more than one year’ in jail. 18

U.S.C. § 3559(a)(5). In addition, “an ‘aggravated’

offense” is generally understood to be a felony “made

worse or more serious by circumstances such as

violence, the presence of a deadly weapon, or the

intent to commit another crime.” Carachuri-Rosendo,

560 U.S. at 574 (internal quotation marks omitted).

Obviously, a conviction for arson punishable by

“imprisonment for not more than 90 daye” (Minn.

Stat. § 609.5632) is neither a “felony” nor

“aggravated” under a common-sense interpretation.‘

* At one time, the Board of Immigration Appeals would have

agreed. In Matter of Crammond, the Board held that only a

felony conviction for “sexual abuse of a minor” could be

“considered an ‘aggravated felony’ under section 101(a)(43)(A).”

23 I. & N. Dec. 9, 14 (en banc), vacated on other grounds, 231. &

N. Dec. 179 (BIA 2001) (en banc). The Board reasoned that the

statute did not clearly indicate whether misdemeanors could

equal “aggravated felonies,” and accordingly it “turn[ed] to the

longstanding principle of construing any lingering ambiguities

in deportation statutes in favor of the alien.” Jbid. (internal

quotation marks omitted). Some courts of appeals, however,

As Petitioner's brief explains, the language in the

“aggravated felony” definition does not provide the

“clear statutory command” necessary to overcome the

term's common-sense meaning. Take, for example,

the penultimate sentence of § 1101(a)(43)—which

sweeps in any “offense described in this paragraph

whether in violation of Federal or State law.” That

sentence has been interpreted by this Court to mean

that for any offense identified specifically by

reference to a federal statute, a state offense is

included only if its elements “include the elements” of

the federal one. Lopez, 549 U.S. at 57. Some of the

federal offenses listed in § 1101(a)(43) do have a state

law analog. See, eg., 8 U.S.C. § 1101(a)(43)(A)

(“murder, “rape”). Some, however, necessarily do

not. See id. §§ 1101(a)(43)(H) (offense “described in”

federal statute that criminalizes using the Postal

Service to demand ransom), (E)(iii) (offense

“described in” statute relating to noncompliance with

Internal Revenue Code regarding firearms), (L)(i)

(offense “described in” federal statute relating to

treason against the United States).5

disagreed with the Board’s view. See, e.g., Guerrero-Perez v.

Holder, 242 F.3d 727, 737 (7th Cir. 2001). The Board eventually

reversed its stance and held that misdemeanors can be

“aggravated felonies” under the immigration laws without any

clear congressional statement to that effect. See Matter of

Small, 23 1. & N. Dec. 448, 450 (BLA 2002) (en banc).

5 Nor would this interpretation “leave subparagraph [(E)(i)} with

little, if any, meaningful application.’ Cf. Nijhawan v. Holder,

557 U.S. 29, 39 (2009). In Nijhawan, there was no federal

statute that directly matched the aggravated felony definition,

and few state statutes would have done so; thus, adopting

Nijhawan’s argument would have resulted in a “limited and

*** haphazard” statute. Id. at 40. By contrast, Petitioner's

argument here would respect the distinct and precise way

For arson, by referring to an “offense described in”

§ 844(i}rather than using the generic term

“arson”—Congress limited its definition to convictions

that would meet the elements of the federal arson

statute, including the element of “interstate

commerce.” As a practical matter, that may well

mean that a state arson conviction will not qualify as

an aggravated felony under§ 1101(a)(43)(E)(i). But

there is nothing absurd or unexpected about that,

given that state arson convictions are often far less

serious than federal ones. And in any event, state

arson convictions that trigger a sentence of more than

one year may still qualify as “aggravated felonies”

under a different section of the definition—the

provision for “crimes of violence” for which the term

of imprisonment is “at least one year.” 8 U.S.C.

§ 1101(a)(43)(F); Matter of Palacios, 22 I. & N. Dec.

434, 437 (BLA 1998) (so holding).* It would have been

entirely reasonable for Congress to conclude that this

is adequate to protect the interests of the United

States where state-law arson is concerned. Petr. Br.

36-38.

Congress chose to define aggravated felonies, whereas it is the

Government’s approach that would lead to a etrained and

unusual result.

8 Moreover, a particular state arson conviction might still have

immigration implications even if it is not an “aggravated felony.”

For example, arson has been held to involve moral turpitude

and thus may trigger removability or inadmissibility. See 8

U.S.C. §§ 1182(a)(2)(A)G@), 1227(a)(2)(A); Vuksanovic v. U.S. Atty.

Gen., 439 F.3d 1308, 1312 (11th Cir. 2006); Matter of S--, 31. &

N. Dec. 617~18, 1949 WL 6507 (BIA 1949). And as discussed

below, a judge evaluating whether to grant discretionary relief

may take even a minor conviction into account. /nfra at 19.

Indeed, it is not clear that Congress even intended

to include all federal arson felonies as “aggravated

felonies.” Its reference to § 844(i) includes a

parenthetical specifying “explosive materials

offenses” (8 U.S.C. §1101(a)(43)(E)G)), thus

apparently excluding any offense based solely on

“fire” (18 U.S.C. § 844(i) (“fire or an explosive”)). In

all, the level of precision Congress used to lay out this

definition—with some offenses described generally

(‘burglary’) and some described based on their

specific elements (the offense “described in

***844(i) of that title (relating to explosive

materials offenses)")—cannot simply be brushed

aside.

Il. The catastrophic, irrevocable consequences

of an aggravated felony conviction counsel

against an overbroad interpretation.

A conviction for an “aggravated felony” has

devastating consequences under the immigration

laws, for lawful permanent residents and asylum

seekers alike. As courts have imposed no statute of

limitations to limit these consequences, the passage

of time is no comfort; a noncitizen may be deported

based on an aggravated felony conviction many years

after it occurs—even when the conviction is only later

classified as an aggravated felony. See 8 U.S.C.

§ 1227(a)(2)(A)(aii); e.g., Perriello v. Napolitano, 579

F.3d 135, 137 (2d Cir 2009) (‘We acknowledge the

significant hardship that Perriello and his family will

face as a result of the unaccountable delay in the

decision to seek his removal decades after his

conviction, and notwithstanding his evidently lawful

and productive life in the interval.”), Kuhali v. Reno,

266 F.3d 93 (2d Cir. 2001) (finding a noncitizen

deportable pursuant to a removal order issued more

than twenty years after the predicate conviction).

The gravity of these consequences counsels

against adopting the Government's position. Under

the circumstances, Congress could not have intended

to impose such grave consequences based upon

relatively minor state-law offenses. We outline some

of the most serious consequences below.

A. An aggravated felony conviction

precludes a longtime resident from

seeking relief from removal no matter

how inequitable the result.

As Mr. Luna’s own case demonstrates,’ a

determination that a particular offense was an

“aggravated felony” can have catastrophic conse-

quences, even for longstanding residents of the

United States. Most importantly, a person convicted

of an aggravated felony may not seek “cancellation of

removal.” 8 U.S.C. §§ 1229b(a)(3). “Cancellation of

removal” is a form of discretionary relief; through this

mechanism, Congress allows individuals who have

lived in the United States for at least seven years

following their admission, and who have been lawful

permanent residents for at least five years, to make a

case to stay in the United States based on the

equities. Positive factors include family ties within

the United States, residency of long duration,

evidence of hardship to the respondent and family if

deportation occurs, service in the Armed Forces,

history of employment, existence of property or

’ Although the removal proceedings use Petitioner's full name,

Jorge Luna Torres, he refers to himeelf as George Luna, and

that preference is respected here.

business ties, existence of value and service to the

community, proof of genuine rehabilitation if a

criminal record exists, and evidence attesting to a

respondent's good moral character. See, e.g., Matter

of C-V-T-, 22 I. & N. Dec. 7 (BIA 1998); Matter of

Wadud, 19 I. & N. Dec. 182 (BIA 1984); Matter of

Marin, 16 1. & N. Dec. 581 (BIA 1978).

Given the grave consequences of deportation, it

should come as no surprise that Congress created this

mechanism for relief. These consequences are felt as

much by the family, friends, and community of the

noncitizen as they are by the noncitizen himself.

Deporting a child’s mother or father effectively

breaks apart a family forever and may leave a young

American citizen to fend for himself. And the effects

of deportation are even more pronounced in lower-

income families who cannot afford to travel back and

forth between the United States and their country of

origin to visit loved ones.

For a lawful permanent resident (“LPR”) like Mr.

Luna—who has lived in this country for nearly all his

life—deportation is among the most extreme

punishments imaginable. It amounts to permanent

exile from the only home he has ever known. Many of

these noncitizens have spent their entire lives in the

United States and do not even remember their time

in the nation to which they are being deported.* As

Learned Hand once observed:

8 See, e.g., Arguelles-Olivares v. Mukasey, 526 F.3d 171 (5th Cir.

2008) (LPR since 1977, 30 years in U.S.); Lopez-De Rowley v.

INS, 253 F. App’x 62, 64 (2d Cir. 2007) (LPR since 1970)

Knuteen v. Gonzales, 429 F.3d 733, 735, 739-40 (7th Cir. 2005)

(LPR since 1957); Chang v. INS, 307 F.3d 1185, 1187-90 (Sth

Cir. 2002) (LPR since 1975); Ferreira v. Ashcroft, 382 F.3d 1045,

We think it not improper to say that

deportation under the circumstances would

be deplorable. Whether the relator came here

in arms or at the age of ten, he is as much our

product as though his mother had borne him

on American soil. He knows no other

language, no other people, no other habits,

than ours; he will be as much a stranger in

fhis country of origin] as any one born of

ancestors who immigrated in the seventeenth

century. However heinous his crime,

deportation is to him exile, a dreadful

punishment, abandoned by the common

consent of all civilized people.

United States ex rel. Klonis v. Davis, 13 F.2d 630, 630

(N.Y. 1926); accord Jordan v. De George, 341 U.S.

223, 243 (1951) (Jackson, J., dissenting) (deportation

means “a life sentence of exile from what has become

home, of separation from his established means of

livelihood for himself and his family of American

citizens”).

Under the Government’s position in this case, a

lawful permanent resident who was convicted of a

minor state arson misdemeanor will have no ability

to access this form of relief. He will not have any

1047 (9th Cir. 2004) (LPR since age 11); Valenzuela-Zamarano

v. Ashcroft, 11 F. App’x 805, 806 (9th Cir. 2001) (LPR since age

five); Amaral vy. INS, 977 F.2d 33 (1st Cir. 1992) (LPR since age

two); Shurney v. INS, 201 F. Supp. 2d 783, 786 (N.D. Ohio 2001)

(entered U.S. at age three); Minto v. Mukasey, 302 F. App’x 13

(2d Cir. Dec. 5, 2008) (entered U.S. at age eight); Fernandez v.

Mukasey, 544 F.3d 862 (7th Cir. 2008) (Nos. 06-3987, 06-3994,

06-3476) (two LPRs, one in the U.S. since age nine, another in

the U.S. for over 40 years); Matter of Flores-Gomez, 2004 WL

2374449, at *1 (BIA Jul. 27, 2004) (admitted to U.S. in 1943).

opportunity to argue that as a matter of equity, he

should be allowed to remain in this country. He will

have no ability to present evidence weighing in favor

of cancellation—like family ties, history of

employment, proof of rehabilitation, and good moral

character—and no immigration judge will have the

power to consider such factors. He will face

automatic deportation, no matter how long he has

lived here, how minimal his connections are to his

country of origin, how many people here are

depending on him, and how much of a hardship his

deportation would create for his family and

community. It is difficult to imagine how devastating

this would be—both to the noncitizen himself and to

his family.

These consequences are particularly troubling

with respect to individuals who have served in the

U.S. Armed Forces. For any lawful permanent

resident who finds himself in removal proceedings, a

record of military service would ordinarily weigh in

favor of granting cancellation of removal. Many

lawful permanent residents serve in the USS.

military, and the linguistic and cultural diversity

they bring to their service is especially valuable in

the context of national security. ANITA U.

HATTIANGADI ET AL., NON-CITIZENS IN TODAY'S

MILITARY: FINAL REPORT 1 (2005). Indeed, in

recognition of the benefits that noncitizens can offer

the military, the Government’s recruitment of

noncitizens is on the rise. Gerry J. Gilmore, Military

Recruits Non-citizen Health Care Workers, Linguists,

AMERICAN FORCES PRESS SERVICE, Dec. 5, 2008. There

are approximately 29,000 noncitizens serving in the

United States military currently, with another 8,000

enlisting each year. Jbid. Under the Government's

position, however, a veteran who committed a minor

state arson offense—no matter how long ago—would

have no opportunity to argue for relief based upon his

military service, or based upon the hardship his

removal would present to his family.

Importantly, cancellation of removal remains a

matter of discretion. See Moncrieffe v. Holder, 133 S.

Ct. 1678, 1692 (2013). A ruling in Petitioner’s favor

would not mean that he would “escape[] deportation”:

it would only mean that he would “avoid[}] mandatory

removal.” Ibid. Accordingly, as this Court has

already observed, “to the extent that [its] rejection of

the Government's broad understanding of the scope of

‘aggravated felony’ may have any practical effect on

policing our Nation’s borders, it is a limited one.”

Ibid. (citing Carachuri-Rosendo, 560 U.S. at 581).

In borderline cases, the exercise of discretion is a

far better way to assess the gravity of an offense

under the circumstances. The weighing of equities

may include the fact that the applicant was

previously convicted of a crime, taking into account

whether the offense was minor or serious, how long

ago it was committed, and whether he has

demonstrated that he has changed his ways—along

with other factors such as his military service,

character, family ties, employment history, and

hardship to family members. An immigration judge

is well-suited to make that determination, exercising

discretion based on a full record. Absent a clear

statutory command, this Court should not assume

that Congress intended to replace that discretion

with the blunt instrument of denying all relief.

B. An aggravated felony conviction bars a

noncitizen from seeking asylum.

An aggravated felony conviction permanently

blocks a noncitizen from seeking refuge in the United

States based on a well-founded fear that he will face

persecution or death if returned to his country of

origin. The gravity of this consequence means that

the Court should be particularly cautious about any

effort to expand the definition of “aggravated felony.”

Indeed, the history of refugee protection in the

United States demonstrates that a noncitizen should

be barred from this relief only if his crime was

particularly serious.

The current mechanism for asylum in the United

States was born more than 40 years ago, when the

United States acceded to the Protocol Relating to the

Status of Refugees. Under the Protocol, the United

States made a commitment to comply with the

substantive provisions of Articles 2 through 34 of the

1951 Convention Relating to the Status of Refugees,

developed in the aftermath of World War II. See INS

v. Stevic, 467 U.S. 407, 416 (1984). Article 33 of the

Convention—incorporated by _ reference and

reproduction into the Protocol—“provides an

entitlement for the subcategory fof refugees] that

‘would be threatened’ with persecution upon their

return.” INS v. Cardoza-Fonseca, 480 U.S. 421, 441

(1987). It states:

No Contracting State shall expel or return

(‘refouler’) a refugee in any manner

whatsoever to the frontiers of territories

where his life or freedom would be threatened

on account of his race, religion, nationality,

membership of a particular social group or

political opinion.

PROTOCOL RELATING TO THE STATUS OF REFUGEES, art.

33, 19 U.S.T. 6223.

Article 33 also describes two narrow categories of

refugees who are not entitled to this protection, in

view of the danger they would present to the host

country:

The benefit of the present provision may not

** * be claimed by a refugee whom there are

reasonable grounds for regarding as a danger

to the security of the country in which he is,

or who, having been convicted by a final

judgment of a particularly serious crime,

constitutes a danger to the community of that

country.

CONVENTION RELATING TO THE STATUS OF REFUGEES,

July 28, 1951, art. 33(2), 189 U.N.T.S. 150 (emphasis

added).

In recognition of the Protocol and Convention,

Congress made a_e series of changes to the

Immigration and Nationality Act (“INA”), including

to add a provision codifying the method by which a

refugee can apply for asylum. 8 U.S.C. § 1158;

Cardoza-Fonseca, 480 U.S. at 423. Asylum is a form

of discretionary relief that allows the noncitizen to

stay and work legally in the United States, seek

derivative asylum status for family members, and

ultimately seek permanent residence and citizenship.

See, e.g., 8 C.F.R. § 209.2; 8 U.S.C. § 1158.9

® Congress also created a separate form of relief. known as

“withholding of removal,” which is mandatory upon a showing of

a clear probability of persecution. 8 U.S.C. § 1231(b)(3). By

Congress also incorporated language that tracks

the exception in the second paragraph of Article 33.

Thus, it placed the relief of asylum off-limits for any

refugee who, “having been convicted by a final

judgment of a particularly serious crime, constitutes

a danger to the community.” 8 USC.

§ 1158(b)(2)(A) (i). Congress further defined

“particularly serious crime” to include any

“aggravated felony.” Id. § 1158(b)(2)(B)(i).

Under these provisions, any person convicted of

an “aggravated felony” is statutorily barred from

seeking asylum, regardless of the severity of the

threat faced upon return to the country of origin.

This statutory bar can and does result in the

deportation of noncitizens to countries where they

face imminent harm.'? Yet the context and language

of these provisions demonstrates that Congress

intended the term “aggravated felony” to be

equivalent to a “particularly serious crime” that

makes the individual “a danger to the community.”

This undermines the Government's argument—

itaelf, however, this form of relief does not addreas all of this

Nation's obligations under the Protocol. For instance, the

Protocol requires that to the extent possible, each nation must

facilitate the assimilation of refugees into society. By definition,

“withholding of removal” cannot achieve this; only a grant of

asylum allows a refugee to achieve lawful permanent residence

status and thus to move toward full assimilation in U.S. society,

including naturalization. 8 U.S.C. §§ 1445-1448; see also

CONVENTION art. 28 (requiring nations to provide refugees with

travel documents); 8 C.F.R. § 223.1 (denying such documents to

recipients of “withholding” relief).

10 See, e.g., Berhe v. Gonzales, 464 F.3d 74, 86 (ist Cir. 2006)

(even in the face of severe religious persecution in an Eritrean

national’s country of origin, access to relief depended in the first

instance on whether prior conviction was an aggravated felony).

which, as shown above, would expand the definition

to include a variety of very minor state arson

convictions.

C. An aggravated felony conviction subjects

certain noncitizens to expedited removal

and mandatory detention.

An aggravated felony conviction may also make

the process of removal faster and may deprive the

noncitizen of access to resources and the opportunity

to defend himself. The INA provides for the creation

of special expedited removal proceedings for

noncitizens with a conviction for an aggravated

felony. 8 U.S.C. § 1228. This entails a conclusive

presumption of deportability and virtually no

procedural protections ensuring the right to contest

the charges effectively. Id. § 1228(c).

The denial of these protections could have

devastating consequences. In one recent case, for

example, a Congolese woman was summarily ordered

removed based on a 2011 conviction for misdemeanor

battery, which the Department of Homeland Security

classified as an aggravated felony. Malu v. U.S. Atty.

Gen., 764 F.3d 1282, 1284 (11th Cir. 2014), cert.

dismissed per Rule 45, Malu v. Lynch, No. 14-1044,

2015 WL 802339 (U.S. May 14, 2015). That

allegation was in error under Johnson v. United

States, 559 U.S. 133 (2010). See United States v.

Diaz-Calderone, 716 F.3d 1345, 1349 (11th Cir. 2013).

But appearing pro se, Ms. Malu did not submit legal

arguments against these charges within the ten-day

period given to her to mount a defense. After a

lengthy appeals process, the Eleventh Circuit

concluded that because she had failed to contest her

aggravated felony status within those ten days, she

had failed to exhaust administrative remedies and

was barred from seeking relief based on her fear of

persecution. Malu, 764 F.3d at 1287. Although the

Government ultimately settled the litigation with Ms.

Malu and allowed her to remain here, the Eleventh

Circuit’s decision demonstrates the potentially dire

consequences of expedited proceedings.

At the same time, a noncitizen with an aggravated

felony conviction may face extended, mandatory

detention without the possibility of bond. 8 U.S.C.

§ 1226(c)(1). People in removal proceedings often sit

in Immigration and Customs Enforcement custody

for months, or even years, before the courts

adjudicate their cases. See, e.g., Flores-Torres v.

Mukasey, 548 F.3d 708 (Sth Cir. 2008) (detaining an

immigrant for over two years during removal

proceedings initiated on account of an aggravated

felony conviction); Valansi v. Reno, 278 F.3d 203 (3d

Cir. 2002) (detaining an immigrant pursuant to

section 1226(c) for nearly a year pending the

completion of removal proceedings). Pre-removal

detention is highly disruptive to the noncitizen’s life,

can prevent him or her from being in a position to

arrange for care for family members after

deportation, and limits his access to resources that

might assist in preventing removal. Thus even

during the removal process itself, an aggravated

felony conviction can have grave consequences.

D. An aggravated felony conviction is a

permanent bar to naturalization.

An aggravated felony conviction also makes it

impossible for a noncitizen to show good moral

character. Among other consequences, this operates

as a permanent barrier to citizenship, as long as the

conviction occurred after the INA amendments

became effective in 1990. An applicant for

naturalized citizenship must demonstrate good moral

character for a period of time, generally for five years

prior to filing. 8 U.S.C. § 1427(a)(3); 8 C.F.R.

§ 316.2(a)(7). By statute, however, “[n]o person shall

be regarded as, or found to be, a person of good moral

character * * * who at any time has been convicted of

an aggravated felony.” 8 U.S.C. §1101(f)(8).

Therefore, a person with an aggravated felony

conviction is permanently barred from naturalization,

regardless of the severity of the predicate offense, any

showing of rehabilitation, or the passage of time since

the conviction.

This stringent bar to citizenship remains even if

the aggravated felony was “waived” many years ago

for purposes of obtaining legal permanent resident

status, and even if the crime was committed prior to

its categorization as an aggravated felony.!! As a

matter of fairness—and under the rule of lenity,

discussed below—this Court should not impose such

an irrevocable and drastic consequence on a minor

state offense unless Congress says so explicitly.

1! Letter, Miller, Acting Asst. Comm. Adjudications HQ 316-C

(May 5, 1993), reprinted in 70 No. 22 Interpreter Releases 752,

769-70 (June 7, 19938); Chan v. Gantner, 464 F.3d 289, 292-94

(2d Cir. 2006) (applying § 1101(a)(43)(N) and (U) retroactively

such that a conviction for conspiracy to commit alien smuggling

barred citizenship for lack of good moral character despite a

prior waiver); Socarras v. DHS, 672 F. Supp. 2d 1320, 1324-25

(S.D. Fla. 2009) (aggravated felony bar to naturalization was not

waived where petitioner had received a waiver for crime when

she became an LPR).

III. The Government’s position violates this

Court’s canon construing ambiguity in the

immigration laws in favor of noncitizens.

As Petitioner’s brief explains, the plain language

of § 1101(a)(43)(E)G) requires holding that a state

offense must satisfy all elements of the relevant

federal criminal statute in order to qualify as an

“offense described in” 18 U.S.C. § 844(i). That

includes the element of interstate commerce. In the

event that the Court finds the statute ambiguous,

however, any ambiguity should be construed in favor

of the noncitizen, given the tremendously harsh

consequences that would otherwise result.

For many years, this Court has recognized a

“longstanding principle” of “construing any lingering

ambiguities in deportation statutes in favor of the

[noncitizen].” INS v. St. Cyr, 533 U.S. 289, 320

(2001) (quoting INS v. Cardoza-Fonseca, 480 U.S.

421, 449 (1987)). This principle—akin to the criminal

rule of lenity—applies to the immigration laws in

light of the harsh consequences that flow from

deportation, as discussed above. Fong Haw Tan v.

Phelan, 333 U.S. 6, 10 (1948) (resolving statutory

ambiguities in favor of noncitizen “because

deportation is a drastic measure and at times the

equivalent of banishment or exile”). In Leocal v.

Ashcroft, for example—another case that turned on

whether a particular conviction would lead to a

lawful permanent resident’s deportation—this Court

explained that even if the plain language did not

require it, “we would be constrained to interpret any

ambiguity in the statute in petitioner’s favor.” 543

U.S. 1, 12 n.8 (2004).

This canon of construction has particular force in

situations where a favorable interpretation of a

predicate statute serves that statute’s “humanitarian

purpose.” INS v. Errico, 385 U.S. 214, 225 (1966)

(interpreting an INA provision to preclude the

deportation of a noncitizen who obtained entry

through misrepresentation under certain conditions).

As discussed above, the statutes providing for

cancellation of removal and asylum were enacted to

avoid overly harsh results, to protect the interests of

United States citizens who would suffer extreme

hardship due to a noncitizen’s removal, and (for

asylum) to reflect the United States’ international

treaty obligations.!2 All of these purposes call for

application of this canon.

This case demonstrates why this principle is so

important. Mr. Luna was sentenced to one days

imprisonment and five years of probation. Yet after

spending 32 years among us—working hard, buying a

home, going to school, and providing for himself and

his fiancé as she completes an advanced degree—his

hopes hang on the interpretation of a statute that has

stumped educated lawyers. Padilla v. Kentucky, 559

U.S. 356, 378 (2010) (Alito, J. concurring in the

judgment) (noting “as has been widely acknowledged,

determining whether a particular crime is an

‘aggravated felony or a ‘crime involving moral

turpitude’ is not an easy task”). If the statute is

unclear, then Mr. Luna could not have been on notice

of the consequences of his actions when he committed

18 Cf. Murray v. Charming Betsy, 6 U.S. (2 Cranch) 64, 118

(1804) (‘an act of congress ought never to be construed to violate

the law of nations, if any other possible construction remains”).

them—a fundamental Due Process problem that the

rule of lenity and this canon are designed to solve.

In short, any ambiguity in the definition of

“aggravated felony” should be resolved in favor of Mr.

Luna. This canon of construction counsels that the

Court should remain wary of interpretive expansion.

If Congress wishes to extend the devastating

consequences of an aggravated felony conviction to

minor state law offenses, it must express its intention

in clear statutory terms.

CONCLUSION

Amui urge this Court to reverse the decision of

the Second Circuit and hold that for purposes of 8

U.S.C. § 1101(a)(43), a crime is not an “offense

described in” a federal criminal statute unless it

meets all the elements of that statute, including the

interstate commerce requirement.

Respectfully submitted.

LINDA T. COBERLY CHUCK ROTH