Torres v. Holder
764 F.3d 152
2d Cir.2014Background
- Torres Luna, a Dominican native and lawful permanent resident, was convicted in 1999 of NY Penal Law §§ 110 and 150.10 for attempted arson in the third degree.
- Luna was sentenced to one day of imprisonment and five years of probation.
- In 2006 Luna sought admission to permanent residence; INS charged inadmissibility for a crime involving moral turpitude.
- An IJ ruled Luna removable and ineligible for cancellation of removal as an aggravated felony.
- BIA initially followed Bautista, concluding the conviction was an aggravated felony; the Third Circuit later vacated Bautista as to this issue, creating circuit split and prompting supplemental briefing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether NY §150.10 qualifies as an aggravated felony under INA §1101(a)(43)(E)(i). | Luna argues state crimes described in federal statutes need not reproduce jurisdictional elements. | BIA/Bautista contends such state offenses, described in 18 U.S.C. §844(i), do not require identical jurisdictional elements. | Ambiguity found; deference to BIA's reasonable interpretation applied. |
| Whether the phrase ‘offense described in’ requires a federal jurisdictional element to be present. | Luna argues ‘described in’ require identical elements including jurisdictional elements. | BIA reasons no identical element is required; jurisdictional element not necessary. | Statute ambiguous; court defers to BIA’s permissible construction. |
| Whether Matter of Bautista can be applied retroactively to Luna. | Luna contends the decision represents a departure without notice. | Bautista is controlling interpretation of the law and retroactive in direct-review cases. | Matter of Bautista governs Luna's case retroactively. |
| What is the proper standard of review and level of deference to the BIA’s interpretation? | Chevron deference should be limited when statute is ambiguous. | BIA’s interpretation is reasonable; deference is warranted. | Court defers to BIA’s interpretation under Chevron. |
Key Cases Cited
- Castillo-Rivera v. United States, 244 F.3d 1020 (9th Cir. 2001) (described in vs defined in distinction for §1101(a)(43))
- Negrete-Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 2008) (supports broader ‘described in’ interpretation)
- Nieto Hernandez v. Holder, 592 F.3d 681 (5th Cir. 2009) (relates to scope of 1101(a)(43) interpretations)
- Spacek v. Holder, 688 F.3d 536 (8th Cir. 2012) (discusses ‘described in’ vs ‘defined in’ language)
- Jones v. United States, 529 U.S. 848 (2000) (emphasizes scope of 844(i) jurisdictional element)