Torres v. Holder

Decision Date20 August 2014
Docket NumberDocket No. 13–2498.
Citation764 F.3d 152
PartiesJorge Luna TORRES, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Second Circuit

OPINION TEXT STARTS HERE

Matthew L. Guadagno, New York, N.Y., for Petitioner.

Rebecca Hoffberg Phillips, Trial Attorney (Stuart F. Delery, Assistant Attorney General; William C. Peachey, Assistant Director; Brianne Whelan Cohen, Acting Senior Litigation Counsel, on the brief), Civil Division, U.S. Department of Justice, Washington, DC, for Respondent.

Before: SACK, RAGGI, and CHIN, Circuit Judges.

SACK, Circuit Judge:

We consider on this appeal whether a conviction under New York Penal Law §§ 110 and 150.10 for attempted arson in the third degree constitutes an “aggravated felony” under the Immigration and Nationality Act (“INA”). See8 U.S.C. § 1101(a)(43)(E)(i). Answering this question requires us to decide whether this state crime, which lacks a federal jurisdictional element, is an “offense described in” 18 U.S.C. § 844(i), the federal statute governing explosive materials offenses, which does contain such an element. Because we defer to the BIA's reasonable determination that a state “offense described in” 18 U.S.C. § 844(i) need not contain a federal jurisdictional element, we deny the petition.

BACKGROUND

Jorge Luna Torres, a native and citizen of the Dominican Republic and a lawful permanent resident of the United States, was convicted in 1999 of attempted arson in the third degree in violation of New York Penal Law §§ 110 and 150.10. Luna 1 was sentenced to one day of imprisonment and five years of probation.

In 2006, Luna sought admission to the United States as a lawful permanent resident after a trip abroad. On March 13, 2007, the Immigration and Naturalization Service issued a Notice to Appear charging Luna with inadmissibility as an alien convicted of a crime involving moral turpitude.

Luna applied for cancellation of removal. After a merits hearing, a United States Immigration Judge (“IJ”) found Luna removable as charged, a conclusion which Luna does not challenge before this Court. Relying on Matter of Bautista, 25 I. & N. Dec. 616 (BIA 2011), overruled by Bautista v. Attorney Gen., 744 F.3d 54 (3d Cir.2014), the IJ also found Luna ineligible for cancellation of removal as a permanent resident convicted of an aggravated felony, see8 U.S.C. § 1229b(a)(3). In Matter of Bautista, the Board of Immigration Appeals (“BIA”) had concluded that a conviction under the same provision of the New York Penal Law constitutes an aggravated felony under section 101(a)(43)(E)(i) of the INA as an “offense described in” 18 U.S.C. § 844(i). Matter of Bautista, 25 I. & N. Dec. at 618–20; see8 U.S.C. § 1101(a)(43)(E)(i) (codifying INA § 101(a)(43)(E)(i)).

Luna appealed the denial of cancellation to the BIA. He argued that the agency should reconsider Matter of Bautista and that, if it did not, the decision should not be applied retroactively to his case. The BIA dismissed Luna's appeal, declining to reconsider Matter of Bautista and concluding that its effect was not impermissibly retroactive. Luna timely petitioned this Court for review, repeating both of these arguments.

After briefing but before oral argument in Luna's appeal, the Third Circuit vacated the BIA's ruling in Matter of Bautista, concluding that the New York arson statute did not qualify as an aggravated felony because it lacked the federal jurisdictional element. Bautista v. Attorney Gen., 744 F.3d 54, 56 (3d Cir.2014). The Third Circuit's decision conflicts with interpretations by the Fifth, Seventh, Eighth, and Ninth Circuits of 8 U.S.C. § 1101(a)(43)'s “offense described in” language. See Spacek v. Holder, 688 F.3d 536 (8th Cir.2012) (interpreting 8 U.S.C. § 1101(a)(43)(J), relating to racketeering offenses); Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir.2009) (interpreting 8 U.S.C. § 1101(a)(43)(E)(ii), relating to firearms offenses); Negrete–Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir.2008) (same); United States v. Castillo–Rivera, 244 F.3d 1020 (9th Cir.2001) (same). We therefore requested supplemental briefing, which the parties submitted prior to oral argument.

DISCUSSION
I. Jurisdiction and Standard of Review

This Court lacks jurisdiction to review the BIA's denial of discretionary relief from removal. See8 U.S.C. §§ 1252(a)(2)(B)(ii), 1229b(a). But Luna's claim that his conviction is not an aggravated felony rendering him statutorily ineligible for cancellation of removal raises a question of law which we retain jurisdiction to review, id. § 1252(a)(2)(D), and which we evaluate under the principles of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

II. Whether a Violation of New York Penal Law § 150.10 Constitutes an Aggravated Felony Under the INA

On appeal, Luna argues that Matter of Bautista was incorrectly decided because Congress intended to define as “aggravated felonies” only those state law crimes encompassing all elements of the federal statute, including so-called “jurisdictional” elements. Because we defer to the BIA's reasonable conclusion to the contrary, we reject this argument.

The Statutory Framework

Under the INA, an alien is ineligible for cancellation of removal if he has been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). The statute defines the term “aggravated felony” by enumerating an extensive catalogue of crimes identified with varying degrees of specificity. See id. § 1101(a)(43). The definition's penultimate sentence also provides that [t]he term applies to an offense described in this paragraph whether in violation of Federal or State law and applies to such an offense in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years.” Id.

Among the offenses included under INA § 101(a)(43)'s definition is “an offense described in” 18 U.S.C. § 844(i). See8 U.S.C. § 1101(a)(43)(E)(i). That section in turn provides:

Whoever 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 shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both....

18 U.S.C. § 844(i). New York Penal Law § 150.10, under which Luna was convicted, provides that [a] person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.” N.Y. Penal Law § 150.10(1). The two statutes are substantially similar except that 18 U.S.C. § 844(i) contains one element—that the property destroyed be “used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce”—which New York Penal Law § 150.10 lacks. The question this appeal poses is whether the New York provision must include this jurisdictional element in order to qualify as an “offense described in” the federal statute.

The BIA's Decision in Matter of Bautista

The BIA confronted precisely this question in Matter of Bautista. After determining that New York Penal Law § 150.10 and 18 U.S.C. § 844(i) are substantially similar except for the jurisdictional element, the BIA concluded that its analysis in Matter of Vasquez–Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc), controlled. Matter of Bautista, 25 I. & N. Dec. at 618–20.

In Matter of Vasquez–Muniz, the BIA decided that a conviction under the California Penal Code for possession of a firearm by a felon constituted an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii) as an “offense described in” 18 U.S.C. § 922(g)(1). Matter of Vasquez–Muniz, 23 I. & N. Dec. at 213. The BIA, sitting en banc, reasoned that a state crime “described in” a federal crime need not reproduce the federal jurisdictional element. Id. The BIA concluded that the penultimate sentence of section 1101(a)(43), which clarifies that the term “aggravated felony” applies to “an offense described in this paragraph whether in violation of Federal or State law” or “the law of a foreign country,” expressed a congressional “concern over substantive offenses rather than any concern about the jurisdiction in which they are prosecuted.” Id. at 210 (emphasis added). The BIA also reasoned that, since states rarely include federal jurisdictional language in their criminal statutes, requiring state crimes to reproduce federal jurisdictional elements in order to constitute aggravated felonies would virtually excise state criminal convictions from the ambit of section 1101(a)(43)(E), despite clear language to the contrary. Id. at 211 (citing 8 U.S.C. § 1231(a)(4)(B)(ii), which refers to aliens “in the custody of a State” pursuant to a final conviction for an offense described in 8 U.S.C. § 1101(a)(43)(E)). The same would be true, the BIA concluded, of foreign offenses. Id. at 211–12.

Applying this reasoning in Matter of Bautista, the BIA found no distinction between the federal jurisdictional element of 18 U.S.C. §§ 844(i) and that of 922(g)(1). Matter of Bautista, 25 I. & N. Dec. at 620. The BIA also distinguished the holding of Jones v. United States, 529 U.S. 848, 120 S.Ct. 1904, 146 L.Ed.2d 902 (2000), which emphasized the importance of section 844(i)'s federal jurisdictional element, as “related to the scope of the Federal criminal statute, not the collateral consequences in an immigration case.” Matter of Bautista, 25 I. & N. Dec. at 621. The BIA therefore concluded that a conviction under New York Penal Law §§ 110 and 150.10 constituted an aggravated felony rendering an alien ineligible for cancellation of removal. Id. at 622.

Our Analysis Under Chevron

Chevron requires us to defer to an agency's reasonable interpretation of the statute it administers. Ch...

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