Luna Torres v. Lynch ( 2016 )

(Slip Opinion) OCTOBER TERM, 2015 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LUNA TORRES v. LYNCH, ATTORNEY GENERAL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 14–1096. Argued November 3, 2015—Decided May 19, 2016
Any alien convicted of an “aggravated felony” after entering the United
States is deportable, ineligible for several forms of discretionary re-
lief, and subject to expedited removal. 8 U. S. C. §§1227(a)(2)(A)(iii),
(3). An “aggravated felony” is defined as any of numerous offenses
listed in §1101(a)(43), each of which is typically identified either as
an offense “described in” a specific federal statute or by a generic la-
bel (e.g., “murder”). Section 1101(a)(43)’s penultimate sentence
states that each enumerated crime is an aggravated felony irrespec-
tive of whether it violates federal, state, or foreign law.
Petitioner Jorge Luna Torres (Luna), a lawful permanent resident,
pleaded guilty in a New York court to attempted third-degree arson.
When immigration officials discovered his conviction, they initiated
removal proceedings. The Immigration Judge determined that
Luna’s arson conviction was for an “aggravated felony” and held that
Luna was therefore ineligible for discretionary relief. The Board of
Immigration Appeals affirmed. It found the federal and New York
arson offenses to be identical except for the former’s requirement that
the crime have a connection to interstate or foreign commerce. Be-
cause the federal statute’s commerce element serves only a jurisdic-
tional function, the Board held, New York’s arson offense is “de-
scribed in” the federal statute, 18 U. S. C. §844(i), for purposes of
determining whether an alien has been convicted of an aggravated
felony. The Second Circuit denied review.
Held: A state offense counts as a §1101(a)(43) “aggravated felony” when
it has every element of a listed federal crime except one requiring a
connection to interstate or foreign commerce.
Because Congress lacks general constitutional authority to punish
crimes, most federal offenses include a jurisdictional element to tie
2 LUNA TORRES v. LYNCH
Syllabus
the substantive crime to one of Congress’s enumerated powers. State
legislatures are not similarly constrained, and so state crimes do not
need such a jurisdictional hook. That discrepancy creates the issue
here—whether a state offense lacking a jurisdictional element but
otherwise mirroring a particular federal offense can be said to be “de-
scribed” by that offense. Dictionary definitions of the word “de-
scribed” do not clearly resolve this question one way or the other.
Rather, two contextual considerations decide this case: §1101(a)(43)’s
penultimate sentence and a well-established background principle
that distinguishes between substantive and jurisdictional elements in
criminal statutes. Pp. 4–21.
(a) Section §1101(a)(43)’s penultimate sentence shows that Con-
gress meant the term “aggravated felony” to capture serious crimes
regardless of whether they are made illegal by the Federal Govern-
ment, a State, or a foreign country. But Luna’s view would substan-
tially undercut that function by excluding from the Act’s coverage all
state and foreign versions of any enumerated federal offense contain-
ing an interstate commerce element. And it would do so in a particu-
larly perverse fashion—excluding state and foreign convictions for
many of §1101(a)(43)’s gravest crimes (e.g., most child pornography
offenses), while reaching convictions for far less harmful offenses
(e.g., operating an unlawful gambling business). Luna theorizes that
such haphazard coverage might reflect Congress’s belief that crimes
with an interstate connection are generally more serious than those
without. But it is implausible that Congress viewed the presence of
an interstate commerce element as separating serious from non-
serious conduct. Luna’s theory misconceives the function of inter-
state commerce elements and runs counter to the penultimate sen-
tence’s central message—that the state, federal, or foreign nature of a
crime is irrelevant. And his claim that many serious crimes excluded
for want of an interstate commerce element would nonetheless count
as §1101(a)(43)(F) “crime[s] of violence” provides little comfort: That
alternative would not include nearly all such offenses, nor even the
worst ones. Pp. 7–14.
(b) The settled practice of distinguishing between substantive and
jurisdictional elements in federal criminal statutes also supports
reading §1101(a)(43) to include state analogues that lack only an in-
terstate commerce requirement. Congress uses substantive and ju-
risdictional elements for different reasons and does not expect them
to receive identical treatment. See, e.g., United States v. Yermian,
468 U. S. 63, 68. And that is true where, as here, the judicial task is
to compare federal and state offenses. See Lewis v. United States,
523 U. S. 155, 165. Pp. 14–19.
764 F. 3d 152, affirmed.
Cite as: 578 U. S. ____ (2016) 3
Syllabus
KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and KENNEDY, GINSBURG, and ALITO, JJ., joined. SOTOMAYOR, J., filed a
dissenting opinion, in which THOMAS and BREYER, JJ., joined.
Cite as: 578 U. S. ____ (2016) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1096
_________________
JORGE LUNA TORRES, PETITIONER v. LORETTA E.
LYNCH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 19, 2016]
JUSTICE KAGAN delivered the opinion of the Court.
The Immigration and Nationality Act (INA or Act)
imposes certain adverse immigration consequences on an
alien convicted of an “aggravated felony.” The INA defines
that term by listing various crimes, most of which are
identified as offenses “described in” specified provisions of
the federal criminal code. Immediately following that list,
the Act provides that the referenced offenses are aggra­
vated felonies irrespective of whether they are “in viola­
tion of Federal[,] State[,]” or foreign law. 108 Stat. 4322, 8
U. S. C. §1101(a)(43). In this case, we must decide if a
state crime counts as an aggravated felony when it corre­
sponds to a specified federal offense in all ways but one—
namely, the state crime lacks the interstate commerce
element used in the federal statute to establish legislative
jurisdiction (i.e., Congress’s power to enact the law). We
hold that the absence of such a jurisdictional element is
immaterial: A state crime of that kind is an aggravated
felony.
I
The INA makes any alien convicted of an “aggravated
2 LUNA TORRES v. LYNCH
Opinion of the Court
felony” after entering the United States deportable. See
§1227(a)(2)(A)(iii). Such an alien is also ineligible for
several forms of discretionary relief, including cancellation
of removal—an order allowing a deportable alien to re­
main in the country. See §1229b(a)(3). And because of his
felony, the alien faces expedited removal proceedings. See
§1228(a)(3)(A).
The Act defines the term “aggravated felony” by way of
a long list of offenses, now codified at §1101(a)(43). In all,
that provision’s 21 subparagraphs enumerate some 80
different crimes. In more than half of those subpara­
graphs, Congress specified the crimes by citing particular
federal statutes. According to that common formulation,
an offense is an aggravated felony if it is “described in,”
say, 18 U. S. C. §2251 (relating to child pornography),
§922(g) (relating to unlawful gun possession), or, of partic­
ular relevance here, §844(i) (relating to arson and explo­
sives). 8 U. S. C. §§1101(a)(43)(E), (I). Most of the re­
maining subparagraphs refer to crimes by their generic
labels, stating that an offense is an aggravated felony if,
for example, it is “murder, rape, or sexual abuse of a mi­
nor.” §1101(a)(43)(A). Following the entire list of crimes,
§1101(a)(43)’s penultimate sentence reads: “The term
[aggravated felony] 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.” So, putting aside
the 15-year curlicue, the penultimate sentence provides
that an offense listed in §1101(a)(43) is an aggravated
felony whether in violation of federal, state, or foreign law.
Petitioner Jorge Luna Torres, who goes by the name
George Luna, immigrated to the United States as a child
and has lived here ever since as a lawful permanent resi­
dent. In 1999, he pleaded guilty to attempted arson in the
third degree, in violation of New York law; he was sen­
Cite as: 578 U. S. ____ (2016) 3
Opinion of the Court
tenced to one day in prison and five years of probation.
Seven years later, immigration officials discovered his
conviction and initiated proceedings to remove him from
the country. During those proceedings, Luna applied for
cancellation of removal. But the Immigration Judge found
him ineligible for that discretionary relief because his
arson conviction qualified as an aggravated felony. See
App. to Pet. for Cert. 21a–22a.
The Board of Immigration Appeals (Board) affirmed,
based on a comparison of the federal and New York arson
statutes. See id., at 15a–17a. The INA, as just noted,
provides that “an offense described in” 18 U. S. C. §844(i),
the federal arson and explosives statute, is an aggravated
felony. Section 844(i), in turn, makes it a crime to “mali­
ciously damage[ ] or destroy[ ], or attempt[ ] to damage or
destroy, by means of fire or an explosive, any building [or]
vehicle . . . used in interstate or foreign commerce or in
any activity affecting interstate or foreign commerce.” For
its part, the New York law that Luna was convicted under
prohibits “intentionally damag[ing],” or attempting to
damage, “a building or motor vehicle by starting a fire or
causing an explosion.” N. Y. Penal Law Ann. §§110,
150.10 (West 2010). The state law, the Board explained,
thus matches the federal statute element-for-element with
one exception: The New York law does not require a con­
nection to interstate commerce. According to the Board,
that single difference did not matter because the federal
statute’s commerce element is “jurisdictional”—that is, its
function is to establish Congress’s power to legislate. See
App. to Pet for Cert. 16a–17a. Given that the two laws’
substantive (i.e., non-jurisdictional) elements map onto
each other, the Board held, the New York arson offense is
“described in” 18 U. S. C. §844(i).
The Court of Appeals for the Second Circuit denied
Luna’s petition for review of the Board’s ruling. See 764
F. 3d 152 (2014). The court’s decision added to a Circuit
4 LUNA TORRES v. LYNCH
Opinion of the Court
split over whether a state offense is an aggravated felony
when it has all the elements of a listed federal crime
except one requiring a connection to interstate commerce.1
We granted certiorari. 576 U. S. ___ (2015).
II
The issue in this case arises because of the distinctive
role interstate commerce elements play in federal criminal
law. In our federal system, “Congress cannot punish
felonies generally,” Cohens v. Virginia, 6 Wheat. 264, 428
(1821); it may enact only those criminal laws that are
connected to one of its constitutionally enumerated pow­
ers, such as the authority to regulate interstate commerce.
As a result, most federal offenses include, in addition to
substantive elements, a jurisdictional one, like the inter­
state commerce requirement of §844(i). The substantive
elements “primarily define[ ] the behavior that the statute
calls a ‘violation’ of federal law,” Scheidler v. National
Organization for Women, Inc., 547 U. S. 9, 18 (2006)—or,
as the Model Penal Code puts the point, they relate to “the
harm or evil” the law seeks to prevent, §1.13(10). The
jurisdictional element, by contrast, ties the substantive
offense (here, arson) to one of Congress’s constitutional
powers (here, its authority over interstate commerce), thus
spelling out the warrant for Congress to legislate. See id.,
at 17–18 (explaining that Congress intends “such statu­
tory terms as ‘affect commerce’ or ‘in commerce’ . . . as terms
of art connecting the congressional exercise of legislative
authority with the constitutional provision (here, the
——————
1 Compare Espinal-Andrades v. Holder, 777 F. 3d 163 (CA4 2015)
(finding an aggravated felony in that circumstance); Spacek v. Holder,
688 F. 3d 536 (CA8 2012) (same); Nieto Hernandez v. Holder, 592 F. 3d
681 (CA5 2009) (same); Negrete-Rodriguez v. Mukasey, 518 F. 3d 497(CA7 2008) (same); United States v. Castillo-Rivera, 244 F. 3d 1020(CA9 2001) (same), with Bautista v. Attorney General, 744 F. 3d 54(CA3 2014) (declining to find an aggravated felony).
Cite as: 578 U. S. ____ (2016) 5
Opinion of the Court
Commerce Clause) that grants Congress that authority”).
For obvious reasons, state criminal laws do not include
the jurisdictional elements common in federal statutes.2
State legislatures, exercising their plenary police powers,
are not limited to Congress’s enumerated powers; and so
States have no reason to tie their substantive offenses to
those grants of authority. See, e.g., United States v. Lopez,
514 U. S. 549, 567 (1995). In particular, state crimes do
not contain interstate commerce elements because a State
does not need such a jurisdictional hook. Accordingly,
even state offenses whose substantive elements match up
exactly with a federal law’s will part ways with respect to
interstate commerce. That slight discrepancy creates the
issue here: If a state offense lacks an interstate commerce
element but otherwise mirrors one of the federal statutes
listed in §1101(a)(43), does the state crime count as an
aggravated felony? Or, alternatively, does the jurisdic­
tional difference reflected in the state and federal laws
preclude that result, no matter the laws’ substantive
correspondence?
Both parties begin with the statutory text most directly
at issue, disputing when a state offense (here, arson) is
“described in” an enumerated federal statute (here, 18
U. S. C. §844(i)). Luna, armed principally with Black’s
Law Dictionary, argues that “described in” means “ex­
pressed” or “set forth” in—which, he says, requires the
state offense to include each one of the federal law’s ele­
——————
2 That flat statement is infinitesimally shy of being wholly true. We
have found a handful of state criminal laws with an interstate com­
merce element, out of the tens (or perhaps hundreds) of thousands of
state crimes on the books. Mississippi, for example, lifted essentially
verbatim the text of the federal money laundering statute when draft­
ing its own, and thus wound up with such an element. See Miss. Code
Ann. §97–23–101 (rev. 2014). But because the incidence of such laws is
so vanishingly small, and the few that exist play no role in Luna’s
arguments, we proceed without qualifying each statement of the kind
above.
6 LUNA TORRES v. LYNCH
Opinion of the Court
ments. Brief for Petitioner 15–16.3 The Government,
brandishing dictionaries of its own, contends that the
statutory phrase has a looser meaning—that “describing
entails . . . not precise replication,” but “convey[ance of ] an
idea or impression” or of a thing’s “central features.” Brief
for Respondent 17.4 On that view, “described in,” as op­
posed to the more precise “defined in” sometimes found in
statutes, denotes that the state offense need only incorpo­
rate the federal law’s core, substantive elements.
But neither of those claims about the bare term “de­
scribed in” can resolve this case. Like many words, “de­
scribe” takes on different meanings in different contexts.
Consider two ways in which this Court has used the word.
In one case, “describe” conveyed exactness: A contractual
provision, we wrote, “describes the subject [matter] with
great particularity[,] . . . giv[ing] the precise number of
pounds [of tobacco], the tax for which each pound was
liable, and the aggregate of the tax.” Ryan v. United
States, 19 Wall. 514, 517 (1874). In another case, not:
“The disclosure provision is meant,” we stated, “to describe
the law to consumers in a manner that is concise and
comprehensible to the layman—which necessarily means
that it will be imprecise.” CompuCredit Corp. v. Green-
wood, 565 U. S. 95, 102 (2012). So staring at, or even
looking up, the words “described in” cannot answer
whether a state offense must replicate every last element
of a listed federal statute, including its jurisdictional one,
——————
3 Black’s Law Dictionary 401 (5th ed. 1979) (defining “describe” as to
“express, explain, set forth, relate, recount, narrate, depict, delineate,
portray”). Luna also cites Webster’s New Collegiate Dictionary 307
(1976), which defines “describe” to mean “to represent or give an
account of in words.”
4 See American Heritage Dictionary of the English Language 490 (5th
ed. 2011) (defining “describe” as “[t]o convey an idea or impression of ”);
Webster’s Third New International Dictionary 610 (1986) (defining
“describe” as “to convey an image or notion of” or “trace or traverse the
outline of ”).
Cite as: 578 U. S. ____ (2016) 7
Opinion of the Court
to qualify as an aggravated felony. In considering that
issue, we must, as usual, “interpret the relevant words not
in a vacuum, but with reference to the statutory context.”
Abramski v. United States, 573 U. S. ___, ___ (2014) (slip
op., at 9).5
Here, two contextual considerations decide the matter.
The first is §1101(a)(43)’s penultimate sentence, which
shows that Congress meant the term “aggravated felony”
to capture serious crimes regardless of whether they are
prohibited by federal, state, or foreign law. The second is
a well-established background principle distinguishing
between substantive and jurisdictional elements in federal
criminal statutes. We address each factor in turn.
A
Section 1101(a)(43)’s penultimate sentence, as noted
——————
5 The dissent disagrees, contending that the word “describe” decides
this case in Luna’s favor because a “description cannot refer to features
that the thing being described does not have.” Post, at 5 (opinion of
SOTOMAYOR, J.). Says the dissent: If a Craigslist ad “describes” an
apartment as having an “in-unit laundry, a dishwasher, rooftop access,
central A/C, and a walk-in closet,” it does not describe an apartment
lacking rooftop access. Ibid. That is true enough, but irrelevant. The
dissent is right that when someone describes an object by a list of
specific characteristics, he means that the item has each of those
attributes. But things are different when someone uses a more general
descriptor—even when that descriptor (as here, a federal statute) itself
has a determinate set of elements. It would be natural, for example, to
say (in the exact syntax of §1101(a)(43)) that a person followed the
itinerary for a journey through Brazil that is “described in” a Lonely
Planet guide if he traveled every leg of the tour other than a brief
“detour north to Petrópolis.” The Lonely Planet, On the Road: Desti-
nation Brazil, http://media.lonelyplanet.com/shop/pdfs/brazil-8-getting­
started.pdf (all Internet materials as last visited May 16, 2016). And
similarly, a person would say that she had followed the instructions for
setting up an iPhone that are “described in” the user’s manual even if
she in fact ignored the one (specifically highlighted there) telling her to
begin by “read[ing] important safety information” to “avoid injury.”
Apple, Set Up iPhone, http://help.apple.com/iphone/9/#iph3bf43d79.
8 LUNA TORRES v. LYNCH
Opinion of the Court
above, provides: “The term [aggravated felony] applies to
an offense described in this paragraph whether in viola­
tion 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.” See supra, at 2. That sentence (except for the
time limit on foreign convictions) declares the source of
criminal law irrelevant: The listed offenses count as ag­
gravated felonies regardless of whether they are made
illegal by the Federal Government, a State, or a foreign
country. That is true of the crimes identified by reference
to federal statutes (as here, an offense described in 18
U. S. C. §844(i)), as well as those employing generic labels
(for example, murder). As even Luna recognizes, state and
foreign analogues of the enumerated federal crimes qual­
ify as aggravated felonies. See Brief for Petitioner 21
(contesting only what properly counts as such an ana­
logue). The whole point of §1101(a)(43)’s penultimate
sentence is to make clear that a listed offense should lead
to swift removal, no matter whether it violates federal,
state, or foreign law.
Luna’s jot-for-jot view of “described in” would substan­
tially undercut that function by excluding from the Act’s
coverage all state and foreign versions of any enumerated
federal offense that (like §844(i)) contains an interstate
commerce element. Such an element appears in about
half of §1101(a)(43)’s listed statutes—defining, altogether,
27 serious crimes.6 Yet under Luna’s reading, only those
——————
6 See
8 U. S. C. §1101(a)(43)(D) (“an offense described in” 18 U. S. C.
§1956, which criminalizes laundering of monetary instruments); ibid.(“an offense described in” 18 U. S. C. §1957, which criminalizes engag­
ing in monetary transactions involving property derived from specified
unlawful activities); §1101(a)(43)(E)(i) (three “offense[s] described in”
18 U. S. C. §§842(h)–(i), 844(d), which criminalize activities involving
explosives); ibid. (“an offense described in” 18 U. S. C. §844(e), which
criminalizes threatening to cause death, injury, or property damage
Cite as: 578 U. S. ____ (2016) 9
Opinion of the Court
federal crimes, and not their state and foreign counter­
parts, would provide a basis for an alien’s removal—
because, as explained earlier, only Congress must ever
show a link to interstate commerce. See supra, at 4–5. No
state or foreign legislature needs to incorporate a com­
merce element to establish its jurisdiction, and so none
ever does. Accordingly, state and foreign crimes will never
precisely replicate a federal statute containing a commerce
element. And that means, contrary to §1101(a)(43)’s
penultimate sentence, that the term “aggravated felony”
would not apply to many of the Act’s listed offenses irre­
——————
using explosives); ibid. (“an offense described in” 18 U. S. C. §844(i),
which criminalizes using fire or explosives to cause property damage);
§1101(a)(43)(E)(ii) (six “offense[s] described in” 18 U. S. C. §§922(g)(1)–
(5), ( j), which criminalize possessing a firearm in various circumstances);
ibid. (two “offense[s] described in” 18 U. S. C. §§922(n), 924(b),
which criminalize transporting or receiving a firearm under certain
circumstances); §1101(a)(43)(E)(iii) (“an offense described in” 26
U. S. C. §5861( j), which criminalizes transporting an unregistered
firearm); §1101(a)(43)(H) (“an offense described in” 18 U. S. C. §875,
which criminalizes making a threat to kidnap or a ransom demand);
ibid. (“an offense described in” 18 U. S. C. §1202(b), which criminalizes
possessing, receiving, or transmitting proceeds of a kidnapping);
§1101(a)(43)(I) (“an offense described in” 18 U. S. C. §2251, which
criminalizes sexually exploiting a child); ibid. (“an offense described in”
18 U. S. C. §2251A, which criminalizes selling a child for purposes of
child pornography); ibid. (“an offense described in 18 U. S. C. §2252,
which criminalizes various activities relating to child pornography);
§1101(a)(43)(J) (“an offense described in” 18 U. S. C. §1962, which
criminalizes activities relating to racketeering); ibid. (“an offense
described in” 18 U. S. C. §1084, which criminalizes transmitting infor­
mation to facilitate gambling); §1101(a)(43)(K)(ii) (“an offense described
in” 18 U. S. C. §2421, which criminalizes transporting a person for
purposes of prostitution); ibid. (“an offense described in” 18 U. S. C.
§2422, which criminalizes coercing or enticing a person to travel for
purposes of prostitution); ibid. (“an offense described in” 18 U. S. C.
§2423, which criminalizes transporting a child for purposes of prostitu­
tion); §1101(a)(43)(K)(iii) (“an offense described in” 18 U. S. C.
§1591(a)(1), which criminalizes sex trafficking of children, or of adults
by force, fraud, or coercion).
10 LUNA TORRES v. LYNCH
Opinion of the Court
spective of whether they are “in violation of Federal[,]
State[, or foreign] law”; instead, that term would apply
exclusively to the federal variants.7
Indeed, Luna’s view would limit the penultimate sen­
tence’s effect in a peculiarly perverse fashion—excluding
state and foreign convictions for many of the gravest
crimes listed in §1101(a)(43), while reaching those convic­
tions for less harmful offenses. Consider some of the state
and foreign crimes that would not count as aggravated
felonies on Luna’s reading because the corresponding
federal law has a commerce element: most child pornog­
raphy offenses, including selling a child for the purpose
of manufacturing such material, see §1101(a)(43)(I); de­
manding or receiving a ransom for kidnapping, see
§1101(a)(43)(H); and possessing a firearm after a felony
conviction, see §1101(a)(43)(E)(ii). Conversely, the term
“aggravated felony” in Luna’s world would include state
and foreign convictions for such comparatively minor
offenses as operating an unlawful gambling business, see
§1101(a)(43)(J), and possessing a firearm not identified by
a serial number, see §1101(a)(43)(E)(iii), because Congress
chose, for whatever reason, not to use a commerce element
when barring that conduct. And similarly, the term would
cover any state or foreign conviction for such nonviolent
activity as receiving stolen property, see §1101(a)(43)(G),
or forging documents, see §1101(a)(43)(R), because the
INA happens to use generic labels to describe those
crimes. This Court has previously refused to construe
——————
7 The dissent replies: What’s the big deal? See post, at 10. After all,
it reasons, some listed federal statutes—specifically, those prohibiting
treason, levying war against the United States, and disclosing national
defense information—will lack state or foreign analogues even under
our construction. See ibid. But Congress’s inclusion of a few federal
offenses that, by their nature, have no state or foreign analogues hardly
excuses expelling from the Act’s coverage the countless state and
foreign versions of 27 other serious crimes.
Cite as: 578 U. S. ____ (2016) 11
Opinion of the Court
§1101(a)(43) so as to produce such “haphazard”—indeed,
upside-down—coverage. Nijhawan v. Holder, 557 U. S.
29, 40 (2009). We see no reason to follow a different path
here: Congress would not have placed an alien convicted
by a State of running an illegal casino at greater risk of
removal than one found guilty under the same State’s law
of selling a child.8
In an attempt to make some sense of his reading, Luna
posits that Congress might have believed that crimes
having an interstate connection are generally more serious
than those lacking one—for example, that interstate child
pornography is “worse” than the intrastate variety. Brief
for Petitioner 35. But to begin with, that theory cannot
explain the set of crazy-quilt results just described: Not
even Luna maintains that Congress thought local acts of
selling a child, receiving explosives, or demanding a ran­
——————
8 Luna’s position, in addition to producing this bizarre patchwork of
coverage, conflicts with our ordinary assumption that Congress, when
drafting a statute, gives each provision independent meaning. See
United States v. Butler, 297 U. S. 1, 65 (1936) (“These words cannot be
meaningless, else they would not have been used”). Until its most
recent amendment, §1101(a)(43)(J ) provided that the term “aggravated
felony” included any “offense described in [18 U. S. C. §1962] (relating
to racketeer influenced corrupt organizations) for which a sentence of 5
years’ imprisonment or more may be imposed.” 8 U. S. C.
§1101(a)(43)(J ) (1994 ed., Supp. I). (That provision now incorporates
two more federal crimes, and uses one year of prison as the threshold.)
The federal racketeering statute cited has an interstate commerce
element; analogous state and foreign laws (per usual) do not, and
therefore would fall outside §1101(a)(43)(J ) on Luna’s reading. But if
Congress had meant to so exclude those state and foreign counterparts,
then §1101(a)(43)(J )’s final clause—“for which a sentence of 5 years’
imprisonment may be imposed”—would have been superfluous, because
federal racketeering is always punishable by more than five years’
imprisonment, see 18 U. S. C. §1963(a). That language’s presence
shows that Congress thought §1101(a)(43)(J ) would sweep in some state
and foreign laws: The final clause served to filter out such statutes
when—but only when—they applied to less serious conduct than the
federal racketeering offense.
12 LUNA TORRES v. LYNCH
Opinion of the Court
som are categorically less serious than, say, operating an
unlawful casino or receiving stolen property (whether or
not in interstate commerce). And it is scarcely more plau­
sible to view an interstate commerce element in any given
offense as separating serious from non-serious conduct:
Why, for example, would Congress see an alien who car­
ried out a kidnapping for ransom wholly within a State as
materially less dangerous than one who crossed state lines
in committing that crime? The essential harm of the
crime is the same irrespective of state borders. Luna’s
argument thus misconceives the function of interstate
commerce elements: Rather than distinguishing greater
from lesser evils, they serve (as earlier explained) to con­
nect a given substantive offense to one of Congress’s enu­
merated powers. See supra, at 4–5. And still more fun­
damentally, Luna’s account runs counter to the
penultimate sentence’s central message: that the national,
local, or foreign character of a crime has no bearing on
whether it is grave enough to warrant an alien’s automatic
removal.9
——————
9 The dissent attempts a variant of Luna’s “not so serious” argument,
but to no better effect. Claims the dissent: Even if Congress could not
have viewed “interstate crimes [as] worse than wholly intrastate
crimes,” it might have thought that, say, “arsons prosecuted as federal
crimes are more uniformly serious than arsons prosecuted as state
crimes.” Post, at 14 (emphasis added). But we see no call to suppose
that Congress regarded state prosecutions as Grapefruit League
versions of the Big Show. Cf. Mistretta v. United States, 488 U. S. 361,
427 (1989) (Scalia, J., dissenting). In our federal system, “States
possess primary authority for defining and enforcing” criminal laws,
including those prohibiting the gravest crimes. Brecht v. Abrahamson,
507 U. S. 619, 635 (1993). For that reason, even when U. S. Attorneys
have jurisdiction, they are generally to defer to, rather than supplant,
state prosecutions of serious offenses. See U. S. Attorneys’ Manual:
Principles of Federal Prosecution §9–27.240 (1997). And still more
obviously, the dissent’s theory fails with respect to foreign convictions.
That a foreign sovereign prosecutes a given crime reflects nothing
about its gravity, but only about its location.
Cite as: 578 U. S. ____ (2016) 13
Opinion of the Court
Luna (and the dissent, see post, at 6) must therefore fall
back on a different defense: that his approach would ex­
clude from the universe of aggravated felonies fewer seri­
ous state and foreign offenses than one might think. To
make that argument, Luna relies primarily on a part of
the Act specifying that the term “aggravated felony” shall
include “a crime of violence (as defined in [18 U. S. C. §16])
for which the term of imprisonment [is] at least one year.”
§1101(a)(43)(F); see 18 U. S. C. §16 (defining “crime of
violence” as involving the use of “physical force” against
the person or property of another). According to Luna,
many state and foreign offenses failing to match the Act’s
listed federal statutes (for want of an interstate commerce
element) would count as crimes of violence and, by that
alternative route, trigger automatic removal. A different
statutory phrase, or so Luna says, would thus plug the
holes opened by his construction of the “described in”
provisions.
Luna’s argument does not reassure us. We agree that
state counterparts of some enumerated federal offenses
would qualify as aggravated felonies through the “crime of
violence” provision. But not nearly all such offenses, and
not even the worst ones. Consider again some of the listed
offenses described earlier. See supra, at 10. The “crime of
violence” provision would not pick up demanding a ransom
for kidnapping. See 18 U. S. C. §875(a) (defining the crime
without any reference to physical force). It would not
cover most of the listed child pornography offenses, involv­
ing the distribution, receipt, and possession of such mate­
rials. It would not reach felon-in-possession laws and
other firearms offenses. And indeed, it would not reach
arson in the many States defining that crime to include
the destruction of one’s own property. See Jordison v.
Gonzales, 501 F. 3d 1134, 1135 (CA9 2007) (holding that a
violation of California’s arson statute does not count as a
crime of violence for that reason); Tr. of Oral Arg. 28–29
14 LUNA TORRES v. LYNCH
Opinion of the Court
(Solicitor General agreeing with that interpretation).10 So
under Luna’s reading, state and foreign counterparts to a
broad swath of listed statutes would remain outside
§1101(a)(43)’s coverage merely because they lack an ex­
plicit interstate commerce connection. And for all the
reasons discussed above, that result would significantly
restrict the penultimate sentence’s force and effect, and in
an utterly random manner.11
B
Just as important, a settled practice of distinguishing
between substantive and jurisdictional elements of federal
criminal laws supports reading §1101(a)(43) to include
state analogues lacking an interstate commerce require­
——————
10 In all those States, arsons of every description (whether of one’s
own or another’s property) would fall outside the “crime of violence”
provision. See Tr. of Oral Arg. 29, 46 (Solicitor General noting that the
categorical approach to comparing federal and state crimes produces
that effect). And contrary to the dissent’s suggestion, post, at 6, n. 2,
that would be true of the most dangerous arsons, as well as of less
serious ones. The dissent similarly fails to take into account the
categorical approach’s rigorous requirements when discussing a couple
of the non-arson offenses discussed above. (Still others, the dissent
wholly ignores.) It speculates that if the exact right state charge is
filed, some of that conduct “may” qualify, through the crime-of-violence
provision or some other route, as an aggravated felony. Ibid. “May” is
very much the operative word there, because—depending on the ele­
ments of the state offense chosen—that conduct also “may not.” And
the dissent never explains why Congress would have left the deporta­
tion of dangerous felons to such prosecutorial happenstance.
11 The dissent well-nigh embraces those consequences, arguing that a
narrow reading of “aggravated felony” would make more convicted
criminals removable under other statutory provisions, all of which allow
for relief at the Attorney General’s discretion. See post, at 8, 15 (la­
menting that aliens convicted of aggravated felonies may not “even
appeal[ ] to the mercy of the Attorney General”). But Congress made a
judgment that aliens convicted of certain serious offenses (irrespective
of whether those convictions were based on federal, state, or foreign
law) should be not only removable but also ineligible for discretionary
relief. It is not our place to second-guess that decision.
Cite as: 578 U. S. ____ (2016) 15
Opinion of the Court
ment. As already explained, the substantive elements of a
federal statute describe the evil Congress seeks to prevent;
the jurisdictional element connects the law to one of Con­
gress’s enumerated powers, thus establishing legislative
authority. See supra, at 4–5; ALI, Model Penal Code
§1.13(10) (1962). Both kinds of elements must be proved
to a jury beyond a reasonable doubt; and because that is
so, both may play a real role in a criminal case. But still,
they are not created equal for every purpose. To the
contrary, courts have often recognized—including when
comparing federal and state offenses—that Congress
uses substantive and jurisdictional elements for different
reasons and does not expect them to receive identical
treatment.
Consider the law respecting mens rea. In general,
courts interpret criminal statutes to require that a de­
fendant possess a mens rea, or guilty mind, as to every
element of an offense. See Elonis v. United States, 575
U. S. ___, ___ (2015) (slip op., at 10). That is so even when
the “statute by its terms does not contain” any demand of
that kind. United States v. X-Citement Video, Inc., 513
U. S. 64, 70 (1994). In such cases, courts read the statute
against a “background rule” that the defendant must know
each fact making his conduct illegal. Staples v. United
States, 511 U. S. 600, 619 (1994). Or otherwise said, they
infer, absent an express indication to the contrary, that
Congress intended such a mental-state requirement.
Except when it comes to jurisdictional elements. There,
this Court has stated, “the existence of the fact that con­
fers federal jurisdiction need not be one in the mind of the
actor at the time he perpetrates the act made criminal by
the federal statute.” United States v. Feola, 420 U. S. 671,
677, n. 9 (1975); see United States v. Yermian, 468 U. S.
63, 68 (1984) (“Jurisdictional language need not contain
the same culpability requirement as other elements of the
offense”); Model Penal Code §2.02. So when Congress has
16 LUNA TORRES v. LYNCH
Opinion of the Court
said nothing about the mental state pertaining to a juris­
dictional element, the default rule flips: Courts assume
that Congress wanted such an element to stand outside
the otherwise applicable mens rea requirement. In line
with that practice, courts have routinely held that a crim­
inal defendant need not know of a federal crime’s inter­
state commerce connection to be found guilty. See, e.g.,
United States v. Jinian, 725 F. 3d 954, 964–966 (CA9
2013); United States v. Lindemann, 85 F. 3d 1232, 1241
(CA7 1996); United States v. Blackmon, 839 F. 2d 900, 907
(CA2 1988). Those courts have recognized, as we do here,
that Congress viewed the commerce element as distinct
from, and subject to a different rule than, the elements
describing the substantive offense.
Still more strikingly, courts have distinguished between
the two kinds of elements in contexts, similar to this one,
in which the judicial task is to compare federal and state
offenses. The Assimilative Crimes Act (ACA), 18 U. S. C.
§13(a), subjects federal enclaves, like military bases, to
state criminal laws except when they punish the same
conduct as a federal statute. The ACA thus requires
courts to decide when a federal and a state law are suffi­
ciently alike that only the federal one will apply. And we
have held that, in making that assessment, courts should
ignore jurisdictional elements: When the “differences
among elements” of the state and federal crimes “reflect
jurisdictional, or other technical, considerations” alone,
then the state law will have no effect in the area. Lewis v.
United States, 523 U. S. 155, 165 (1998); see also id., at
182 (KENNEDY, J., dissenting) (agreeing that courts should
“look beyond . . . jurisdictional elements,” and focus only
on substantive ones, in determining whether “the ele­
ments of the two crimes are the same”). In such a case, we
reasoned—just as we do now—that Congress meant for
the federal jurisdictional element to be set aside.
And lower courts have uniformly adopted the same
Cite as: 578 U. S. ____ (2016) 17
Opinion of the Court
approach when comparing federal and state crimes in
order to apply the federal three-strikes statute. That law
imposes mandatory life imprisonment on a person convicted
on three separate occasions of a “serious violent felony.”
18 U. S. C. §3559(c)(1). Sounding very much like the INA,
the three-strikes statute defines such a felony to include “a
Federal or State offense, by whatever designation and
wherever committed, consisting of ” specified crimes (e.g.,
murder, manslaughter, robbery) “as described in” listed
federal criminal statutes. §3559(c)(2)(F). In deciding
whether a state crime of conviction thus corresponds to an
enumerated federal statute, every court to have faced the
issue has ignored the statute’s jurisdictional element. See,
e.g., United States v. Rosario-Delgado, 198 F. 3d 1354,
1357 (CA11 1999) (per curiam); United States v. Wicks,
132 F. 3d 383, 386–387 (CA7 1997). Judge Wood, writing
for the Seventh Circuit, highlighted the phrase “a Federal
or State offense, by whatever designation and wher-
ever committed”—the three-strikes law’s version of
§1101(a)(43)’s penultimate sentence. “It is hard to see
why Congress would have used this language,” she rea­
soned, “if it had meant that every detail of the federal
offense, including its jurisdictional element[ ], had to be
replicated in the state offense.” Id., at 386–387. Just so,
too, in the INA—whose “aggravated felony” provisions
operate against, and rely on, an established legal backdrop
distinguishing between jurisdictional and substantive
elements.12
——————
12 The dissent declares our discussion of the three-strikes law, the
Assimilative Crime Act (ACA), and mens rea “unhelpful” on the ground
that all three contexts are somehow “differ[ent].” Post, at 10–13. But
what makes them relevantly so the dissent fails to explain. First, the
dissent errs in suggesting that the uniform judicial interpretation of the
three-strikes law ignores only “place-based jurisdiction elements”
(because, so says the dissent, of the phrase “wherever committed”).
Post, at 13. As Judge Wood’s analysis indicates, that is a theory of the
18 LUNA TORRES v. LYNCH
Opinion of the Court
Luna objects to drawing that line on the ground that it
is too hard to tell the difference between the two. See
Brief for Petitioner 26–28 (discussing, in particular, stat­
utes criminalizing the destruction of federal property and
sending threats via the Postal Service). But that conten­
tion collides with the judicial experience just described.
Courts regularly separate substantive from jurisdictional
elements in applying federal criminal statutes’ mens rea
requirements; so too in implementing other laws that
require a comparison of federal and state offenses. And
from all we can see, courts perform that task with no real
trouble: Luna has not pointed to any divisions between or
within Circuits arising from the practice. We do not deny
that some tough questions may lurk on the margins—
where an element that makes evident Congress’s regulatory
power also might play a role in defining the behavior
Congress thought harmful. But a standard interstate
——————
dissent’s own creation; the actual appellate decisions apply to all
jurisdictional elements, not just territorial ones. Next, the dissent goes
wrong in claiming that the ACA is not pertinent because this Court
adopted a different method for matching substantive elements under
that law than under the INA. See post, at 12. For even as the Court
made that choice, it unanimously agreed that, however substantive
elements should be compared, jurisdictional elements should be disre­
garded. See Lewis v. United States, 523 U. S. 155, 165 (1998); id., at
182 (KENNEDY, J., dissenting). And finally, the dissent does nothing to
undermine our point on mens rea by noting that Congress very occa­
sionally dispenses with that requirement for substantive elements. See
post, at 11. As just shown, the default rule respecting mental states
flips as between jurisdictional and substantive elements, see supra, at
15–16—reflecting the view (also at play in the three-strikes and ACA
contexts) that Congress generally means to treat the two differently.
That leaves the dissent with nothing except its observation that when
applying the beyond-a-reasonable-doubt and jury-trial requirements,
the Court does not distinguish between jurisdictional and substantive
elements. See post, at 10. But the dissent forgets that those commands
are constitutional in nature; a principle of statutory interpretation
distinguishing between the two kinds of elements, as best reflecting
Congress’s intent, could not bear on those mandates.
Cite as: 578 U. S. ____ (2016) 19
Opinion of the Court
commerce element, of the kind appearing in a great many
federal laws, is almost always a simple jurisdictional
hook—and courts may as easily acknowledge that fact in
enforcing the INA as they have done in other contexts.
C
Luna makes a final argument opposing our reading of
§1101(a)(43): If Congress had meant for “ordinary state-
law” crimes like arson to count as aggravated felonies, it
would have drafted the provision to make that self-
evident. Brief for Petitioner 20. Congress, Luna submits,
would have used the generic term for those crimes—e.g.,
“arson”—rather than demanding that the state law of
conviction correspond to a listed federal statute. See id.,
at 20–23. Or else, Luna (and the dissent) suggests, see id.,
at 24; post, at 13, Congress would have expressly distin­
guished between substantive and jurisdictional elements,
as it did in an unrelated law mandating the pretrial deten­
tion of any person convicted of a federal offense “described
in [a certain federal statute], or of a State or local offense
that would have been an offense described in [that statute]
if a circumstance giving rise to Federal jurisdiction had
existed,” 18 U. S. C. §3142(e)(2)(A).
But as an initial matter, Congress may have had good
reason to think that a statutory reference would capture
more accurately than a generic label the range of state
convictions warranting automatic deportation. The clause
of §1101(a)(43) applying to Luna’s case well illustrates the
point. By referring to 18 U. S. C. §844(i), that provision
incorporates not only the garden-variety arson offenses
that a generic “arson” label would cover, but various ex­
plosives offenses too. See Brief for Petitioner 23, n. 7
(conceding that had Congress used the term “arson,” it
would have had to separately identify the explosives
crimes encompassed in §844(i)). And the elements of
generic arson are themselves so uncertain as to pose prob­
20 LUNA TORRES v. LYNCH
Opinion of the Court
lems for a court having to decide whether they are present
in a given state law. See Poulos, The Metamorphosis of
the Law of Arson, 51 Mo. L. Rev. 295, 364, 387–435 (1986)
(describing multiple conflicts over what conduct the term
“arson” includes). Nor is the clause at issue here unusual
in those respects: Section 1101(a)(43) includes many other
statutory references that do not convert easily to generic
labels. See, e.g., §1101(a)(43)(E)(ii) (listing federal stat­
utes defining various firearms offenses). To be sure, Con­
gress used such labels to describe some crimes qualifying
as aggravated felonies—for example, “murder, rape, or
sexual abuse of a minor.” §1101(a)(43)(A). But what is
good for some crimes is not for others. The use of a federal
statutory reference shows only that Congress thought it
the best way to identify certain substantive crimes—not
that Congress wanted (in conflict with the penultimate
sentence) to exclude state and foreign versions of those
offenses for lack of a jurisdictional element.
Still more, Congress’s omission of statutory language
specifically directing courts to ignore those elements can­
not tip the scales in Luna’s favor. We have little doubt
that “Congress could have drafted [§1101(a)(43)] with
more precision than it did.” Graham County Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545
U. S. 409, 422 (2005). But the same could be said of many
(even most) statutes; as to that feature, §1101(a)(43) can
join a well-populated club. And we have long been mind­
ful of that fact when interpreting laws. Rather than ex­
pecting (let alone demanding) perfection in drafting, we
have routinely construed statutes to have a particular
meaning even as we acknowledged that Congress could
have expressed itself more clearly. See, e.g., ibid.; Florida
Dept. of Revenue v. Piccadilly Cafeterias, Inc., 554 U. S.
33, 41 (2008); Scarborough v. United States, 431 U. S. 563,
570–571, 575 (1977). The question, then, is not: Could
Congress have indicated (or even did Congress elsewhere
Cite as: 578 U. S. ____ (2016) 21
Opinion of the Court
indicate) in more crystalline fashion that comparisons of
federal and state offenses should disregard elements that
merely establish legislative jurisdiction? The question is
instead, and more simply: Is that the right and fair read­
ing of the statute before us? And the answer to that ques­
tion, given the import of §1101(a)(43)’s penultimate sen­
tence and the well-settled background rule distinguishing
between jurisdictional and substantive elements, is yes.
III
That reading of §1101(a)(43) resolves this case. Luna
has acknowledged that the New York arson law differs
from the listed federal statute, 18 U. S. C. §844(i), in only
one respect: It lacks an interstate commerce element. See
Pet. for Cert. 3. And Luna nowhere contests that §844(i)’s
commerce element—featuring the terms “in interstate or
foreign commerce” and “affecting interstate or foreign
commerce”—is of the standard, jurisdictional kind. See
Tr. of Oral Arg. 12, 19; Scheidler, 547 U. S., at 17–18
(referring to the phrases “affect commerce” and “in com­
merce” as conventional “jurisdictional language”). For all
the reasons we have given, such an element is properly
ignored when determining if a state offense counts as an
aggravated felony under §1101(a)(43). We accordingly
affirm the judgment of the Second Circuit.
It is so ordered.
Cite as: 578 U. S. ____ (2016) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 14–1096
_________________
JORGE LUNA TORRES, PETITIONER v. LORETTA E.
LYNCH, ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[May 19, 2016]
JUSTICE SOTOMAYOR, with whom JUSTICE THOMAS and
JUSTICE BREYER join, dissenting.
The Immigration and Nationality Act (INA) metes out
severe immigration consequences to a noncitizen convicted
of any of a number of “aggravated felon[ies].” 8 U. S. C.
§1101(a)(43). An offense “described in” 18 U. S. C. §844(i)—
a federal arson statute—qualifies as such a crime.
In this case, petitioner, who goes by George Luna, was
convicted of third-degree arson under N. Y. Penal Law
Ann. §150.10 (West 2010), which punishes anyone who (1)
“intentionally” (2) “damages,” by (3) “starting a fire or
causing an explosion,” (4) “a building or motor vehicle.”
By contrast, the federal arson statute, 18 U. S. C. §844(i),
applies when someone (1) “maliciously” (2) “damages or
destroys,” (3) “by means of fire or an explosive,” (4) “any
building, vehicle, or other real or personal property” (5)
“used in interstate or foreign commerce.” There is one
more element in the federal offense than in the state
offense—(5), the interstate or foreign commerce element.
Luna thus was not convicted of an offense “described in”
the federal statute. Case closed.
Not for the majority. It dubs the fifth element “jurisdic­
tional,” then relies on contextual clues to read it out of the
statute altogether. As a result of the majority’s sleuthing,
Luna—a long-time legal permanent resident—is foreclosed
2 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
from even appealing to the sound discretion of the Attor­
ney General to obtain relief from removal. Because prece­
dent and the text and structure of the INA require the
opposite result, I respectfully dissent.
I
A
Noncitizens convicted of crimes face various conse­
quences under the INA. Among the harshest of those
consequences fall on noncitizens convicted of 1 of the
approximately 80 “aggravated felonies.” A crime that falls
into one of the listed provisions can be an aggravated
felony “whether in violation of Federal or State law” or “in
violation of the law of a foreign country.” See 8 U. S. C.
§1101(a)(43).
An aggravated felony conviction has two primary reper­
cussions for noncitizens: It renders them deportable,
§1227(a)(2)(A)(iii), and it makes them categorically ineli­
gible for several forms of immigration relief ordinarily left
to the discretion of the Attorney General. See, e.g.,
§§1229b(a)–(b) (cancellation of removal).
The dozens of aggravated felonies in the INA are speci­
fied in two main ways. First, some are specified by refer­
ence to a generic crime. It is an aggravated felony, for
instance, to commit “murder, rape, or sexual abuse of a
minor.” §1101(a)(43)(A). Some of those crimes use a
federal definition as one of the elements. For example:
“Illicit trafficking in a controlled substance (as defined in
[21 U. S. C. §802]).” 8 U. S. C. §1101(a)(43)(B) (emphasis
added). (“Illicit trafficking” is a generic crime; the element
of “controlled substance” takes the meaning in 21 U. S. C.
§802, the “Definitions” provision of the Controlled Sub­
stances Act.)
Second, it lists crimes that are wholly “described in” the
federal criminal code. See, e.g., §1101(a)(43)(H) (“an of­
fense described in section 875, 876, 877, or 1202 of title 18
Cite as: 578 U. S. ____ (2016) 3
SOTOMAYOR, J., dissenting
(relating to the demand for or receipt of ransom)”);
§1101(a)(43)(I) (“an offense described in section 2251,
2251A, or 2252 of title 18 (relating to child pornography)”).
The Government contends that Luna committed a crime in
this second category: an “offense described in” 18 U. S. C.
§844(i), which criminalizes arson. 8 U. S. C. §1101(a)(43)(E)(i).
B
In 2006, Luna was found removable from the United
States. He attempted to apply for cancellation of removal,
a form of relief available to long-time legal permanent
residents at the discretion of the Attorney General.
§1229b(a). Nothing in Luna’s history would otherwise
preclude cancellation. He was the sole source of financial
support for his U. S. citizen fiancée, enrolled in college and
studying engineering, a homeowner, and a law-abiding
legal permanent resident since he was brought to the
United States as a child over 30 years ago, aside from the
one third-degree arson conviction at issue in this case, for
which he served a day in jail.
But the Immigration Judge found—and the Board of
Immigration Appeals and the Second Circuit confirmed—
that Luna was ineligible for cancellation of removal.
Luna’s New York State arson conviction, the judge held,
qualified as an aggravated felony under the provision for “an
offense described in” §844(i), a federal arson statute. See
§1101(a)(43)(E)(i). Aggravated felons are ineligible for can-
cellation of removal. See §1229b(a)(3). Luna’s cancellation-
of-removal application was thus summarily denied.
II
But the offense of which Luna was convicted is not
“described in” §844(i). This Court’s ordinary method of
interpreting the aggravated felony statute, the plain text
of that provision, and the structure of the INA all confirm
as much.
4 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
A
This is not the first time the Court has been tasked with
determining whether a state offense constitutes an “ag­
gravated felony” under the INA. Until today, the Court
has always required the state offense to match every ele­
ment of the listed “aggravated felony.” Kawashima v.
Holder, 565 U. S. ___, ___ (2012) (slip op., at 4); see also
Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (slip op., at
4–5); Carachuri-Rosendo v. Holder, 560 U. S. 563, 580
(2010); Nijhawan v. Holder, 557 U. S. 29, 33 (2009); Gon-
zales v. Duenas-Alvarez, 549 U. S. 183, 185 (2007); Lopez
v. Gonzales, 549 U. S. 47, 52–53 (2006); Leocal v. Ashcroft,
543 U. S. 1, 8 (2004).
Our ordinary methodology thus confirms that the federal
arson statute does not describe the New York arson stat­
ute under which Luna was convicted. As I have outlined
above, see supra, at 1, the federal statute is more limited:
It applies only to fires that involve “interstate or foreign
commerce.” The state statute contains no such limitation.
Thus, under the approach we have used in every case to
date, the omission of the interstate commerce element
means that Luna’s state arson conviction was not an
aggravated felony under the INA.
B
The plain language of the statute supports this straight­
forward approach. The word “describe” means to “ex­
press,” “portray,” or “represent.” See Black’s Law Diction­
ary 445 (6th ed. 1990); Webster’s Third New International
Dictionary 610 (1986). A description may be “detailed” or
it may be general, setting forth only the “recognizable
features, or characteristic marks,” of the thing described
while leaving the rest to the imagination. 4 Oxford Eng­
lish Dictionary 512 (2d ed. 1989). For example, a
Craigslist ad describing an apartment with “in-unit laun­
dry, a dishwasher, rooftop access, central A/C, and a walk-in
Cite as: 578 U. S. ____ (2016) 5
SOTOMAYOR, J., dissenting
closet” may leave much to the imagination. After all, the
description does not mention the apartment’s square
footage, windows, or floor number. But though the ad
omits features, we would still call it a “description” be­
cause it accurately conveys the “recognizable features” of
the apartment.
However, even the most general description cannot refer
to features that the thing being described does not have.
The ad is only an accurate description if the apartment
“described in” it has at least the five features listed. If the
apartment only has four of the five listed features—there
is no rooftop access, say, or the walk-in closet is not so
much walk-in as shimmy-in—then the Craigslist ad no
longer “describes” the apartment. Rather, it misdescribes
it.
So, too, with the statutes in this case. The federal de­
scription can be general as long as it is still accurate—that
is, as long as the state law has at least all of the elements
in the federal law. But there is no meaning of “describe”
that allows the Court to say §844(i) “describes” the New
York offense when the New York offense only has four of
the five elements listed in §844(i). Section 844(i) misde­
scribes the New York offense just as surely as the too-
good-to-be-true Craigslist ad misdescribes the real-life
apartment.
C
The structure of the INA confirms that conclusion and
makes clear that we need not contort the ordinary, accepted
meaning of the phrase “described in.” The INA has many
overlapping provisions that assign carefully calibrated
consequences to various types of criminal convictions.
The Court thus need not interpret any provision—and
certainly none of the aggravated felony provisions, among
the harshest in the INA—as broadly as possible because
the INA as a whole ensures that serious criminal conduct
6 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
is adequately captured.
That overlapping structure is apparent throughout the
INA. First, the aggravated felony list itself has multiple
fail-safe provisions. Most serious offenses, for instance,
will qualify as “crime[s] of violence . . . for which the term
of imprisonment [is] at least one year,” 8 U. S. C.
§1101(a)(43)(F), even if they are not covered by a more
specific provision in the aggravated felony list. Had his
crime been charged as a more serious arson and had he
been punished by one year of imprisonment instead of one
day, Luna might have qualified as an aggravated felon
under that provision. See Santana v. Holder, 714 F. 3d
140, 145 (CA2 2013) (second-degree arson in New York is
a “crime of violence”).1
——————
1 Manyof the majority’s own examples of “the gravest” state offenses
supposedly excluded from the aggravated felony list by Luna’s reading
actually fall within these fail-safe provisions. Ante, at 10. Many state
arsons will qualify as “crime[s] of violence” under 8 U. S. C.
§1101(a)(43)(F), see, e.g., Mbea v. Gonzales, 482 F. 3d 276, 279 (CA4
2007); an even greater fraction of the most serious arsons will fall
under that heading because States like New York have enacted gra-
dated statutes under which more severe degrees of arson are crimes of
violence, see Santana, 714 F. 3d, at 145. To take another of the majori­
ty’s examples, while a state conviction for demanding a ransom in a
kidnaping is not “an offense described in [18 U. S. C. §875]” under
§1101(a)(43)(H), a state conviction for kidnaping or conspiring to
kidnap may qualify as a crime of violence under §1101(a)(43)(F). See
United States v. Kaplansky, 42 F. 3d 320 (CA6 1994).
And even under the majority’s reading, a state-law conviction will
only qualify as an aggravated felony if the “right state charge is filed.”
Ante, at 14, n. 10. For example, even on the majority’s reading, a state-
court defendant who sells a child for purposes of child pornography is
unlikely to be convicted of “an offense described in [18 U. S. C.]
§2251A,” see §1101(a)(43)(I). That is because virtually no States have a
statute corresponding to 18 U. S. C. §2251A, with or without the
interstate commerce element. (But see Fla. Stat. §847.0145 (2015).)
Such a defendant may, however, be convicted of a state offense that
qualifies as an aggravated felony for conspiring to commit sexual abuse
of a minor under 8 U. S. C. §§1101(a)(43)(U) and 1101(a)(43)(A).
Cite as: 578 U. S. ____ (2016) 7
SOTOMAYOR, J., dissenting
Second, other sections of the INA provide intertwining
coverage for serious crimes. Some examples of provisions
that encompass many offenses include those for the com­
mission of a “crime involving moral turpitude,” a firearms
offense, or a controlled substance offense, all of which will
render a noncitizen removable, even if he or she has not
committed an aggravated felony. See §§1227(a)(2)(A)(i),
(B)(i), (C); §§1182(a)(2)(A)(i)–(ii). Cf. Judulang v. Holder,
565 U. S. 42, 48 (2011) (commenting on the breadth of the
“crime involving moral turpitude” provision).2
And finally, in Luna’s case or anyone else’s, the Attor­
ney General can exercise her discretion to deny relief to a
serious criminal whether or not that criminal has been
convicted of an aggravated felony. See Carachuri-
Rosendo, 560 U. S., at 581 (doubting that a narrow read­
ing of §1101(a)(43) will have “any practical effect on polic­
ing our Nation’s borders”).
To be sure, on Luna’s reading, some serious conduct
may not be captured by the INA. But not nearly so much
as the majority suggests. By contrast, once the aggra­
vated felony statute applies to a noncitizen, no provision in
the INA—and virtually no act by the Attorney General—
can prevent him or her from being removed.
Looking for consistency in the aggravated felony provi­
sions of the INA is often a fool’s errand. See Kawashima,
565 U. S., at ___, n. 2 (slip op., at 9, n. 2) (GINSBURG, J.,
dissenting) (noting the absurdity of making a tax misde­
——————
2 Other crimes in the majority’s list of serious offenses, ante, at 10–14,
will be covered by these separate INA provisions. For example, the
Board of Immigration Appeals has held that any child pornography
offense is a “crime involving moral turpitude,” rendering a noncitizen
removable in many cases. See §§1227(a)(2)(A)(i), 1182(a)(2)(A)(i); In re
Olquin-Rufino, 23 I. & N. Dec. 896 (BIA 2006). Any offense involving a
gun would make a noncitizen deportable under one of the catchall
provisions for buying, selling, or possessing a firearm in violation of
“any law.” See §1227(a)(2)(C).
8 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
meanor, but not driving while drunk and causing serious
bodily injury, an aggravated felony). But the structure of
the INA gives the Court no reason to read the aggravated
felony provisions as broadly as possible.3 That is why this
Court has repeatedly cautioned against interpreting the
aggravated felony section to sweep in offenses that—like
many state arson convictions—may be neither aggravated
nor felonies. See Carachuri-Rosendo, 560 U. S., at 574;
Brief for National Association of Criminal Defense Law­
yers et al. as Amici Curiae 28–29 (collecting state misde­
meanor arson statutes).
III
The majority denies Luna the opportunity to present his
case to the Attorney General based on two “contextual
——————
3 If the aggravated felony provisions were the primary mechanism for
removing serious noncitizen criminals, we would expect any noncitizen
convicted of an aggravated felony to face immigration consequences. In
fact, the aggravated felony provisions only apply to noncitizens who are
lawfully admitted or later paroled. Matter of Alyazji, 25 I. & N. Dec.
397, 399 (BIA 2011). Other noncitizens—such as undocumented
immigrants, noncitizens applying for a visa, or some legal permanent
residents returning after an extended stay abroad—cannot be removed
based on the conviction of an aggravated felony; the Government must
rely on the other provisions of the INA, including the statute’s other
criminal provisions, to remove such noncitizens. See §§1101(a)(13)(A),
1182, 1227(a)(2)(A)(iii).
Similarly, if the aggravated felony provision were the only way to
ensure that the Attorney General exercised her discretion wisely, we
would expect that discretion to be constrained as to all noncitizens who
potentially pose a threat to the United States. In fact, the Attorney
General is not prevented from granting cancellation of removal—the
discretionary relief at issue in this case—to, for instance, a noncitizen
who has not been convicted of a crime but is removable for having
“received military-type training” from a terrorist organization. See
§§1227(a)(4)(B), 1182(a)(3)(B)(i)(VIII), 1229b(a).
In short, it cannot be the case that the aggravated felony provisions
were intended to be the statute’s sole mechanism for identifying the
most dangerous noncitizens.
Cite as: 578 U. S. ____ (2016) 9
SOTOMAYOR, J., dissenting
considerations,” ante, at 7, and an intuition about how the
statute ought to work. None are sufficiently persuasive to
overcome the most natural reading of the aggravated
felony statute.
A
The majority first perceives a conflict between Luna’s
reading of the INA and what it calls the “penultimate
sentence” of the aggravated felony statute. The “penulti­
mate sentence” provides that an offense can be an aggra­
vated felony “whether in violation of Federal or State law”
or “in violation of the law of a foreign country.” 8 U. S. C.
§1101(a)(43). The majority claims that Luna’s reading of
the INA would vitiate the quoted proviso. Ante, at 8–10.
It is true that, on Luna’s reading, some of the aggra-
vated felonies listed in the INA (including “an offense de­
scribed in” §844(i)) will have no state or foreign analog.
But the proviso still applies to generic offenses, which
constitute nearly half of the entries in the aggravated
felony list. See, e.g., §§1101(a)(43)(A), (G), (M)(i). And
that already-large portion jumps to close to three-quarters
of the offenses after counting those many listed federal
statutes with no jurisdictional element. See, e.g.,
§§1101(a)(43)(C), (E)(ii), (J). In fact, it applies to the vast
majority of offenses adjudicated under the INA given that
most serious crimes are also “crimes of violence.” See
§1101(a)(43)(F).4
And the majority must admit that its interpretation will
also leave entries in the aggravated-felony section with no
state or foreign analogs. For instance, it seems unlikely
that the proviso contemplates state analogs for the aggra­
——————
4 When the proviso was added to the INA in 1990, it would have ap­
plied to an even greater fraction of the aggravated felonies: At that
time, the aggravated felony statute listed only five offenses, four of
which would have had state analogs even on Luna’s reading. See 104
Stat. 5048 (1990).
10 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
vated felony provisions regarding treason, levying war
against the United States, or disclosing national defense
information. See §§1101(a)(43)(L)(i), (P).
In other words, under Luna’s reading, the “penultimate
sentence” applies to most, but not all, of the entries of the
aggravated felony statute; under the majority’s reading,
the “penultimate sentence” also applies to most, but not
all, of the entries of the aggravated felony statute. The
majority’s first “contextual consideration” thus supplies no
reason to prefer one reading over the other.
B
Just as important, the majority suggests, is a “settled
practice of distinguishing between substantive . . . ele­
ments”—those that define “the evil Congress seeks to
prevent”—and “jurisdictional element[s],” which merely
“establis[h] legislative authority.” Ante, at 15. The major­
ity admits that the Court does not distinguish between
substantive and jurisdictional elements for many purposes,
such as proof beyond a reasonable doubt and the right
to a jury trial. Ibid.; see Ring v. Arizona, 536 U. S. 584,
606 (2002). But it nonetheless insists on a standard dis­
tinction so entrenched that Congress must have intended
it to apply even absent any particular indication in the
INA.
None of the three examples that the majority proffers is
evidence of such a strong norm. First, the majority in­
vokes our rules for interpreting criminal statutes. Ante, at
15–16. Whereas our general assumption is that a de-
fendant must know each fact making his conduct illegal,
courts generally hold that a criminal defendant need not
know the facts that satisfy the jurisdictional element of a
statute.
But jurisdictional elements are not the only elements a
defendant need not know. Under the “default rule,” ante,
at 18, n. 12, for interpreting so-called “public welfare”
Cite as: 578 U. S. ____ (2016) 11
SOTOMAYOR, J., dissenting
offenses, courts have held that a defendant need not know
that the substance he possesses is a narcotic, that the
device he possesses is unregistered, or that he reentered
the United States after previously being deported. See
Staples v. United States, 511 U. S. 600, 606–609, 611
(1994) (citing United States v. Balint, 258 U. S. 250 (1922),
and United States v. Freed, 401 U. S. 601 (1971)); United
States v. Burwell, 690 F. 3d 500, 508–509 (CADC 2012);
United States v. Giambro, 544 F. 3d 26, 29 (CA1 2008);
United States v. Martinez-Morel, 118 F. 3d 710, 715–717
(CA10 1997). But surely the majority would not suggest
that if we agree with those holdings regarding mens rea,
we must then ignore the “controlled substance” element of
the drug trafficking aggravated felony, the “unregistered”
element of the unregistered firearms aggravated felony, or
the “following deportation” element of the illegal reentry
aggravated felony. See 8 U. S. C. §§1101(a)(43)(B), (E)(iii),
(M)(i), (O). So there is likewise no reason to believe that
the “default rule” for assigning mens rea to jurisdictional
elements is embedded in the INA.
The majority next points to two of the many statutes
that, like the INA, require comparing the elements of
federal and state offenses. But in each case, it is the
statute’s language and context, not some “settled practice,”
ante, at 15, that command the omission of the jurisdic-
tional element.
The majority’s first example, ante, at 16–17, is the
Assimilative Crimes Act, 18 U. S. C. §13(a), a gap-filling
statute that incorporates state criminal law into federal
enclaves if the “act or omission” is not “made punishable
by any enactment of Congress” but “would be punishable if
committed or omitted within the jurisdiction of the State.”
The Court held that, in identifying such a gap, courts
should ignore “jurisdictional, or other technical,” differ­
ences between a state and federal statute. Lewis v. United
States, 523 U. S. 155, 165 (1998). But the way courts
12 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
match the elements of a state law to a federal analog
under the Assimilative Crimes Act differs fundamentally
from our INA inquiry. The basic question under the As­
similative Crimes Act is whether “federal statutes reveal
an intent to occupy so much of the field as would exclude
the use of the particular state statute at issue.” Id., at
164. Under the Assimilative Crimes Act, the state statute
is not compared to a single federal statute, but rather to a
complex of federal statutes that roughly cover the same
general conduct and “policies.” Ibid. That statute thus
has little to teach us about 8 U. S. C. §1101(a)(43): In
interpreting the Assimilative Crimes Act, every Member of
the Court rejected the simple elements-matching approach
that the Court generally employs to construe the aggra­
vated felony provisions of the INA. See 523 U. S., at 182(KENNEDY, J., dissenting) (allowing “slight differences” in
definition between federal and state statute and using
“same-elements inquiry” only as a “starting point”).
The majority’s analogy to the federal three strikes stat­
ute, 18 U. S. C. §3559(c)(2)(F), ante, at 17–18, is similarly
unhelpful. That provision counts as a predicate “‘serious
violent felony’” any “ ‘Federal or State offense . . . wherever
committed, consisting of ’ ” various crimes, including sev­
eral “ ‘as described in’ ” federal statutes. Ante, at 17. (em­
phasis added). Though this Court has not construed the
statute, the majority notes that courts of appeals disre­
gard the jurisdictional element of federal statutes in as­
sessing whether a state conviction is for a “serious violent
felony.” Ante, at 15–16. But nearly all of the statutes
listed in §3559(c)(2)(F) contain place-based jurisdiction
elements—the crime must take place “within the special
maritime and territorial jurisdiction of the United States,”
e.g., §1111(b), or within “the special aircraft jurisdiction of
the United States,” 49 U. S. C. §46502, and so on. In the
two cases cited by the majority, for instance, ante, at 17,
Courts of Appeals concluded that a state robbery offense
Cite as: 578 U. S. ____ (2016) 13
SOTOMAYOR, J., dissenting
qualified as an offense “described in” the federal bank
robbery statute even though the robbery did not take place
in a bank. See United States v. Wicks, 132 F. 3d 383, 387
(CA7 1997); United States v. Rosario-Delgado, 198 F. 3d
1354, 1357 (CA11 1999). In that statute, it is the “wher­
ever committed,” not some loose construction of “described
in,” that specifically instructs the courts that the location
where a crime occurs does not matter.
Moreover, in other statutes where Congress wants to
exclude jurisdictional elements when comparing state and
federal offenses, it ordinarily just says so. See, e.g., 18
U. S. C. §3142(e)(2)(A) (requiring detention of defendant
pending trial if “the person has been convicted . . . of a
State or local offense that would have been an offense
described in subsection (f )(1) of this section if a circum­
stance giving rise to Federal jurisdiction had existed”);
§2265A(b)(1)(B); §2426(b)(1)(B); §3142(f)(1)(D); §5032; 42
U. S. C. §§671(a)(15)(D)(ii)(I)–(II); §§5106a(b)(2)(B)(xvi)(I)–
(II). Absent comparably clear language, the Court should
not presume that the INA intended deportability to de­
pend on a not-so-“settled practice,” ante, at 15, of occasion­
ally distinguishing between substantive and jurisdictional
elements.
C
Finally, the majority suggests that it would be “peculiarly
perverse,” ante, at 10, to adopt Luna’s plain-text reading
of the statute because it would draw a distinction among
crimes based on a jurisdictional element that the majority
assumes is wholly divorced from “the evil Congress seeks
to prevent,” ante, at 15. The jurisdictional element of a
federal statute, the majority asserts, is as trivial as the
perfunctory warning on a new electronic device: “[A] per­
son would say that she had followed the instructions for
setting up an iPhone that are ‘described in’ the user’s
manual, even if she in fact ignored the one” instructing
14 LUNA TORRES v. LYNCH
SOTOMAYOR, J., dissenting
that she “begin by ‘read[ing] important safety infor­
mation.’ ” Ante, at 7, n. 5; see also ibid. (comparing juris­
dictional element to a “detour” in a 3-week itinerary).
For instance, the majority assumes that it would not be
“plausible,” ante, at 12, for Congress to have thought that
interstate crimes are worse than wholly intrastate crimes.
Perhaps. But when faced with an offense that, like arson,
admits of a range of conduct, from the minor to the seri­
ous, Congress could plausibly have concluded that arsons
prosecuted as federal crimes are more uniformly serious
than arsons prosecuted as state crimes and counted only
the former as aggravated felonies. See, e.g., Klein et al.,
Why Federal Prosecutors Charge: A Comparison of Fed­
eral and New York State Arson and Robbery Filings, 2006–
2010, 51 Houston L. Rev. 1381, 1406, 1416–1419 (2014)
(finding that arsons prosecuted federally involve more
property damage and more injury than arsons prosecuted
under state law).
That is because, far from being token, “conventional
jurisdictional elements” serve to narrow the kinds of
crimes that can be prosecuted, not just to specify the
sovereign that can do the prosecuting. Take the federal
statute at issue in this case. Section 844(i) requires that
the property destroyed be “used in interstate . . . com­
merce.” The Court has held that “standard, jurisdictional”
element, ante, at 21, demands the property’s “active em­
ployment for commercial purposes, and not merely a pas­
sive, passing, or past connection to commerce.” Jones v.
United States, 529 U. S. 848, 855 (2000). As a result, the
Court held that a defendant who threw a Molotov cocktail
through the window of an owner-occupied residential
house could not be guilty under §844(i) because the house
was not “active[ly] used” in interstate commerce. Id., at
851. Surely, however, a New York prosecutor could have
secured a conviction under N. Y. Penal Law Ann. §150.10
had the same crime been prosecuted in state, rather than
Cite as: 578 U. S. ____ (2016) 15
SOTOMAYOR, J., dissenting
federal, court.
The difference between an offense under N. Y. Penal
Law Ann. §150.10 and an offense under 18 U. S. C. §844(i)
is thus more than a technical consideration about which
authority chooses to prosecute. It is a difference that goes
to the magnitude and nature of the “evil,” ante, at 15,
itself.
* * *
On the majority’s reading, long-time legal permanent
residents with convictions for minor state offenses are
foreclosed from even appealing to the mercy of the Attor­
ney General. Against our standard method for comparing
statutes and the text and structure of the INA, the majority
stacks a supposed superfluity, a not-so-well-settled prac­
tice, and its conviction that jurisdictional elements are
mere technicalities. But an element is an element, and
I would not so lightly strip a federal statute of one. I
respectfully dissent.