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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2015

## Text

No. 14-1096

3n the Supreme Court of the Hnited States

JORGE LUNA TORRES, PETITIONER,

v.

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

ss

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

1V

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

es

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.”

|

10

'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).

ll

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,

12

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

13

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.

14

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

15

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.

16

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,

17

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).

18

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

19

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.

20

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,

21

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

22

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).

23

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

24

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

25

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).

26

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).

27

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”).

28

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.

29

Respectfully submitted.
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 Suite 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
Suite 300
Washington, DC 20005
(202) 507-7600

Counsel for Amici Curiae

AUGUST 25, 2015

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0544%3A09. Public record. Not legal advice.