Torres v. Holder, No. 13-2498 (2d Cir. 2014)

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Petitioner, a native and citizen of the Dominican Republic, was convicted of attempted arson in the third degree in violation of New York Penal Law sections 110 and 150.10. Petitioner claimed that his conviction is not an aggravated felony rendering him statutorily ineligible for cancellation of removal. Applying Chevron deference, the court deferred 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. Accordingly, the court denied the petition.

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13 2498 Luna Torres v. Holder 1 2 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 3 August Term, 2013 (Argued: May 5, 2014 4 Decided: August 20, 2014) Docket No. 13 2498 5 6 7 8 JORGE LUNA TORRES, Petitioner, 9 v. 10 11 ERIC H. HOLDER, JR., Attorney General of the United States, Respondent.* 12 13 Before: SACK, RAGGI, and CHIN, Circuit Judges. The petitioner, a lawful permanent resident of the United States, was 14 15 convicted of attempted arson in the third degree in violation of New York Penal 16 Law §§ 110 and 150.10. A United States Immigration Judge determined that this 17 conviction was an Êºoffense described inÊº 18 U.S.C. § 844(i) and therefore 18 constituted an Êºaggravated felonyÊº rendering the petitioner ineligible for 19 cancellation of removal under the Immigration and Nationality Act. See 8 U.S.C. 20 § 1101(a)(43)(E)(i). The Board of Immigration Appeals affirmed, rejecting the 21 petitionerÊ¹s argument that the state provision under which he was convicted is The Clerk of the Court is respectfully directed to amend the caption as set forth above. * 1 1 not an Êºoffense described inÊº 18 U.S.C. § 844(i) because it lacks a federal 2 jurisdictional element. We conclude that under Chevron, U.S.A., Inc. v. Natural 3 Resources Defense Council, Inc., 467 U.S. 837 (1984), we must defer to the 4 reasonable determination of the Board of Immigration Appeals that a state law 5 offense need not contain a federal jurisdictional element in order to qualify as an 6 Êºoffense described inÊº 18 U.S.C. § 844(i), and thereby constitute an aggravated 7 felony. The petition is therefore DENIED. 8 9 10 MATTHEW L. GUADAGNO, New York, NY, for Petitioner. 11 12 13 14 15 16 17 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. 18 SACK, Circuit Judge: We consider on this appeal whether a conviction under New York Penal 19 20 Law §§ 110 and 150.10 for attempted arson in the third degree constitutes an 21 Êºaggravated felonyÊº under the Immigration and Nationality Act (ÊºINAÊº). See 8 22 U.S.C. § 1101(a)(43)(E)(i). Answering this question requires us to decide whether 23 this state crime, which lacks a federal jurisdictional element, is an Êºoffense 2 1 described inÊº 18 U.S.C. § 844(i), the federal statute governing explosive materials 2 offenses, which does contain such an element. Because we defer to the BIAÊ¹s 3 reasonable determination that a state Êºoffense described inÊº 18 U.S.C. § 844(i) 4 need not contain a federal jurisdictional element, we deny the petition. BACKGROUND 5 Jorge Luna Torres, a native and citizen of the Dominican Republic and a 6 7 lawful permanent resident of the United States, was convicted in 1999 of 8 attempted arson in the third degree in violation of New York Penal Law §§ 110 9 and 150.10. Luna1 was sentenced to one day of imprisonment and five years of 10 probation. In 2006, Luna sought admission to the United States as a lawful 11 12 permanent resident after a trip abroad. On March 13, 2007, the Immigration and 13 Naturalization Service issued a Notice to Appear charging Luna with 14 inadmissibility as an alien convicted of a crime involving moral turpitude. Luna applied for cancellation of removal. After a merits hearing, a United 15 16 States Immigration Judge (ÊºIJÊº) found Luna removable as charged, a conclusion 17 which Luna does not challenge before this Court. Relying on Matter of Bautista, Although the removal proceedings employ the petitionerÊ¹s full name, Jorge Luna Torres, he refers to himself as Jorge Luna. We follow his preference here. 1 3 1 25 I. & N. Dec. 616 (BIA 2011), overruled by Bautista v. Attorney Gen., 744 F.3d 54 2 (3d Cir. 2014), the IJ also found Luna ineligible for cancellation of removal as a 3 permanent resident convicted of an aggravated felony, see 8 U.S.C. § 1229b(a)(3). 4 In Matter of Bautista, the Board of Immigration Appeals (ÊºBIAÊº) had concluded 5 that a conviction under the same provision of the New York Penal Law 6 constitutes an aggravated felony under section 101(a)(43)(E)(i) of the INA as an 7 Êºoffense described inÊº 18 U.S.C. § 844(i). Matter of Bautista, 25 I. & N. Dec. at 618 8 20; see 8 U.S.C. § 1101(a)(43)(E)(i) (codifying INA § 101(a)(43)(E)(i)). 9 Luna appealed the denial of cancellation to the BIA. He argued that the 10 agency should reconsider Matter of Bautista and that, if it did not, the decision 11 should not be applied retroactively to his case. The BIA dismissed LunaÊ¹s 12 appeal, declining to reconsider Matter of Bautista and concluding that its effect 13 was not impermissibly retroactive. Luna timely petitioned this Court for review, 14 repeating both of these arguments. After briefing but before oral argument in LunaÊ¹s appeal, the Third Circuit 15 16 vacated the BIAÊ¹s ruling in Matter of Bautista, concluding that the New York 17 arson statute did not qualify as an aggravated felony because it lacked the 18 federal jurisdictional element. Bautista v. Attorney Gen., 744 F.3d 54, 56 (3d Cir. 4 1 2014). The Third CircuitÊ¹s decision conflicts with interpretations by the Fifth, 2 Seventh, Eighth, and Ninth Circuits of 8 U.S.C. § 1101(a)(43)Ê¹s Êºoffense described 3 inÊº language. See Spacek v. Holder, 688 F.3d 536 (8th Cir. 2012) (interpreting 4 8 U.S.C. § 1101(a)(43)(J), relating to racketeering offenses); Nieto Hernandez v. 5 Holder, 592 F.3d 681 (5th Cir. 2009) (interpreting 8 U.S.C. § 1101(a)(43)(E)(ii), 6 relating to firearms offenses); Negrete Rodriguez v. Mukasey, 518 F.3d 497 (7th Cir. 7 2008) (same); United States v. Castillo Rivera, 244 F.3d 1020 (9th Cir. 2001) (same). 8 We therefore requested supplemental briefing, which the parties submitted prior 9 to oral argument. DISCUSSION 10 I. 11 Jurisdiction and Standard of Review This Court lacks jurisdiction to review the BIAÊ¹s denial of discretionary 12 13 relief from removal. See 8 U.S.C. §§ 1252(a)(2)(B)(ii), 1229b(a). But LunaÊ¹s claim 14 that his conviction is not an aggravated felony rendering him statutorily 15 ineligible for cancellation of removal raises a question of law which we retain 16 jurisdiction to review, id. § 1252(a)(2)(D), and which we evaluate under the 17 principles of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources 18 Defense Council, Inc., 467 U.S. 837 (1984). 5 II. 1 2 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 3 4 because Congress intended to define as Êºaggravated feloniesÊº only those state 5 law crimes encompassing all elements of the federal statute, including so called 6 ÊºjurisdictionalÊº elements. Because we defer to the BIAÊ¹s reasonable conclusion to 7 the contrary, we reject this argument. 8 The Statutory Framework Under the INA, an alien is ineligible for cancellation of removal if he has 9 10 been convicted of an aggravated felony. 8 U.S.C. § 1229b(a)(3). The statute 11 defines the term Êºaggravated felonyÊº by enumerating an extensive catalogue of 12 crimes identified with varying degrees of specificity. See id. § 1101(a)(43). The 13 definitionÊ¹s penultimate sentence also provides that Êº[t]he term applies to an 14 offense described in this paragraph whether in violation of Federal or State law 15 and applies to such an offense in violation of the law of a foreign country for 16 which the term of imprisonment was completed within the previous 15 years.Êº 17 Id. 6 Among the offenses included under INA § 101(a)(43)Ê¹s definition is Êºan 1 2 offense described inÊº 18 U.S.C. § 844(i). See 8 U.S.C. § 1101(a)(43)(E)(i). That 3 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 . . . . 4 5 6 7 8 9 10 11 18 U.S.C. § 844(i). New York Penal Law § 150.10, under which Luna was 12 convicted, provides that Êº[a] person is guilty of arson in the third degree when he 13 intentionally damages a building or motor vehicle by starting a fire or causing an 14 explosion.Êº N.Y. Penal Law § 150.10(1). The two statutes are substantially 15 similar except that 18 U.S.C. § 844(i) contains one element that the property 16 destroyed be Êºused in interstate or foreign commerce or in any activity affecting 17 interstate or foreign commerceÊº which New York Penal Law § 150.10 lacks. 18 The question this appeal poses is whether the New York provision must include 19 this jurisdictional element in order to qualify as an Êºoffense described inÊº the 20 federal statute. 7 1 The BIAÊ¹s Decision in Matter of Bautista The BIA confronted precisely this question in Matter of Bautista. After 2 3 determining that New York Penal Law § 150.10 and 18 U.S.C. § 844(i) are 4 substantially similar except for the jurisdictional element, the BIA concluded that 5 its analysis in Matter of Vasquez Muniz, 23 I. & N. Dec. 207 (BIA 2002) (en banc), 6 controlled. Matter of Bautista, 25 I. & N. Dec. at 618 20. In Matter of Vasquez Muniz, the BIA decided that a conviction under the 7 8 California Penal Code for possession of a firearm by a felon constituted an 9 aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(ii) as an Êºoffense described inÊº 10 18 U.S.C. § 922(g)(1). Matter of Vasquez Muniz, 23 I. & N. Dec. at 213. The BIA, 11 sitting en banc, reasoned that a state crime Êºdescribed inÊº a federal crime need not 12 reproduce the federal jurisdictional element. Id. The BIA concluded that the 13 penultimate sentence of section 1101(a)(43), which clarifies that the term 14 Êºaggravated felonyÊº applies to Êºan offense described in this paragraph whether in 15 violation of Federal or State lawÊº or Êºthe law of a foreign country,Êº expressed a 16 congressional Êºconcern over substantive offenses rather than any concern about 17 the jurisdiction in which they are prosecuted.Êº Id. at 210 (emphasis added). The 18 BIA also reasoned that, since states rarely include federal jurisdictional language 8 1 in their criminal statutes, requiring state crimes to reproduce federal 2 jurisdictional elements in order to constitute aggravated felonies would virtually 3 excise state criminal convictions from the ambit of section 1101(a)(43)(E), despite 4 clear language to the contrary. Id. at 211 (citing 8 U.S.C. § 1231(a)(4)(B)(ii), which 5 refers to aliens Êºin the custody of a StateÊº pursuant to a final conviction for an 6 offense described in 8 U.S.C. § 1101(a)(43)(E)). The same would be true, the BIA 7 concluded, of foreign offenses. Id. at 211 12. Applying this reasoning in Matter of Bautista, the BIA found no distinction 8 9 between the federal jurisdictional element of 18 U.S.C. §§ 844(i) and that of 10 922(g)(1). Matter of Bautista, 25 I. & N. Dec. at 620. The BIA also distinguished 11 the holding of Jones v. United States, 529 U.S. 848 (2000), which emphasized the 12 importance of section 844(i)Ê¹s federal jurisdictional element, as Êºrelated to the 13 scope of the Federal criminal statute, not the collateral consequences in an 14 immigration case.Êº Matter of Bautista, 25 I. & N. Dec. at 621. The BIA therefore 15 concluded that a conviction under New York Penal Law §§ 110 and 150.10 16 constituted an aggravated felony rendering an alien ineligible for cancellation of 17 removal. Id. at 622. 9 1 Our Analysis Under Chevron 2 Chevron requires us to defer to an agencyÊ¹s reasonable interpretation of the 3 statute it administers. Chevron, 467 U.S. at 842 44; Kar Onn Lee v. Holder, 701 F.3d 4 931, 936 (2d Cir. 2012). We must first ask Êºwhether Congress has directly spoken 5 to the precise question at issue[,] . . . for the court, as well as the agency, must 6 give effect to the unambiguously expressed intent of Congress.Êº Chevron, 467 7 U.S. at 842 43. Êº[I]f the statute is silent or ambiguous with respect to the specific 8 issue, the question for the court is whether the agencyÊ¹s answer is based on a 9 permissible construction of the statute.Êº Id. at 843. We must defer to the BIAÊ¹s 10 interpretation of the INA unless it is Êºarbitrary, capricious, or manifestly contrary 11 to the statute.Êº Id. at 844. ÊºThe plainness or ambiguity of statutory language is determined by 12 13 reference to the language itself, the specific context in which that language is 14 used, and the broader context of the statute as a whole.Êº Kar Onn Lee, 701 F.3d at 15 936 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)) (internal quotation 16 marks omitted). ÊºIn interpreting the statute at issue, we consider not only the 17 bare meaning of the critical word or phrase but also its placement and purpose in 18 the statutory scheme.Êº Id. (quoting Holloway v. United States, 526 U.S. 1, 6 (1999)) 10 1 (internal quotation marks omitted). Considering the language of clause 2 1101(a)(43)(E)(i) and its place in paragraph 1101(a)(43) and the INA as whole, we 3 conclude that the statute is ambiguous as to whether a state crime must contain a 4 federal jurisdictional element in order to constitute an aggravated felony. Section 1101(a)Ê¹s paragraph 43 identifies crimes that constitute aggravated 5 6 felonies in three ways. Some are indicated in terms of generic offenses or 7 offenses Êºrelating toÊº generic offenses. See, e.g., 8 U.S.C. § 1101(a)(43)(A) 8 (Êºmurder, rape, or sexual abuse of a minorÊº); id. § 1101(a)(43)(S) (Êºan offense 9 relating to obstruction of justice, perjury or subornation of perjury, or bribery of a 10 witnessÊº). Others are referred to as offenses Êºdefined inÊº a particular federal 11 statute. See, e.g., id. § 1101(a)(43)(B) (Êºillicit trafficking in a controlled substance 12 (as defined in section 802 of Title 21), including a drug trafficking crime (as 13 defined in section 924(c) of Title 18)Êº). And still others are denominated offenses 14 Êºdescribed inÊº a particular federal statute. See, e.g., id. § 1101(a)(43)(E). The 15 provision at issue here belongs in this last category. Luna contends that, for a state offense to be one that is Êºdescribed inÊº a 16 17 federal statute, the elements of the state and federal crimes, including any 18 jurisdictional elements, must be identical. See PetÊ¹rÊ¹s Br. at 13 17. The Third 11 1 Circuit took a similar approach in rejecting the BIAÊ¹s decision in Matter of 2 Bautista, concluding that state offenses Êºdescribed inÊº a federal statute must 3 reproduce the federal jurisdictional element to constitute aggravated felonies, 4 while offenses Êºdefined inÊº a federal statute need not.2 Bautista, 744 F.3d at 59. 5 We are inclined to disagree. It seems to us, as it did to the Fifth, Seventh, 6 Eighth, and Ninth Circuits, that Êºdescribed inÊº is the broader standard, and that 7 an offense identified in this way need not reproduce the federal jurisdictional 8 element to have immigration consequences. See Castillo Rivera, 244 F.3d at 1023 9 (stating that Congress ÊºÊ¹had to use some looser standard such as Êºdescribed inÊº 10 rather than the more precise standard of Êºdefined in,Êº if it wanted more than a 11 negligible number of state offenses to count as aggravated feloniesÊ¹Êº); Negrete 12 Rodriguez, 518 F.3d at 502, 503 (discussing Castillo RiveraÊ¹s distinction between 13 Êºdescribed inÊº and Êºdefined inÊº and rejecting petitionerÊ¹s argument that ÊºÊ¹defined 14 inÊ¹ and Ê¹described inÊ¹ are synonymousÊº); Nieto Hernandez, 592 F.3d at 685 86 The Third Circuit also reasoned that if Congress had intended all state arson crimes to constitute aggravated felonies, it could have written section 1101(a)(43)(E)(i) to refer to the generic offense of arson rather than the federal statute governing explosives offenses. Bautista, 744 F.3d at 64. While this argument is not without force, we find at least equally persuasive the counterargument that Congress may have chosen to indicate the covered crimes by referring to 18 U.S.C. § 844 because the explosives offenses detailed therein are broader than generic or common law arson. Cf. Negrete Rodriguez, 518 F.3d at 503 (Êº[M]any firearms offenses are not susceptible to being easily described in general terms . . . .Êº). 2 12 1 (citing Negrete Rodriguez and Castillo Rivera); Spacek, 688 F.3d at 538 (ÊºSection 2 1101(a)(43)(J) requires only Ê¹an offense described in section 1962 of title 18,Ê¹ while 3 Congress used the more restrictive construction Ê¹as defined inÊ¹ elsewhere in the 4 statute.Êº (emphases in original)); see also Bautista, 744 F.3d at 71 (Ambro, J., 5 dissenting) (ÊºTo me, the phrase Ê¹described inÊ¹ refers broadly to the type of 6 offense.Êº (emphasis in original)). On the other hand, we do not think that this conclusion follows inexorably 7 8 from the INAÊ¹s text and structure. We are not fully convinced, for example, that 9 paragraph 43Ê¹s penultimate sentence unequivocally expresses CongressÊ¹s intent 10 to discount federal jurisdictional elements when determining whether a state 11 offense is Êºdescribed inÊº a federal statute. The BIA has reasoned and the 12 government has argued that the penultimate sentence which states that the 13 term Êºaggravated felonyÊº Êºapplies to an offense described in this paragraph 14 whether in violation ofÊº federal, state, or foreign law requires this 15 interpretation, because otherwise section 1101(a)(43)(E) would capture few, if 16 any, state crimes. See Matter of Bautista, 25 I. & N. Dec. at 619 20; RespÊ¹tÊ¹s Br. at 17 21 24. We think, though, that the penultimate sentence could also be read to 18 make clear that an offense will not be exempted from the definition of an 13 1 Êºaggravated felonyÊº merely because it was a violation of state or foreign, rather 2 than federal, law. This reading would not require the result that the government 3 and the BIA appear to have reached. We therefore are not persuaded that the 4 penultimate sentence evinces an unambiguously expressed congressional intent. The BIA also determined in Matter of Bautista, and the government argues 5 6 on appeal, that reading 8 U.S.C. § 1101(a)(43) to require state offenses to include a 7 federal jurisdictional element renders meaningless another provision of the 8 Immigration and Naturalization Act. See Matter of Bautista, 25 I. & N. Dec. at 620 9 (citing Matter of Vasquez Muniz, 23 I. & N. Dec. at 212); RespÊ¹tÊ¹s Br. at 25. That 10 provision refers to the removal of aliens who are held Êºin the custody of a 11 State . . . pursuant to a final conviction for . . . an offense described inÊº 8 U.S.C. 12 § 1101(a)(43)(E), among other provisions. 8 U.S.C. § 1231(a)(4)(B)(ii). We agree 13 with the BIA and the government that this provision suggests that at least some 14 state offenses must constitute aggravated felonies under subparagraph (E), or 15 there could be no individuals held in state custody pursuant to crimes 16 ÊºdescribedÊº there. But this fact alone does not compel the conclusion that 17 Congress has spoken unequivocally regarding whether a state offense Êºdescribed 18 inÊº 18 U.S.C. § 844(i) must reproduce that statuteÊ¹s jurisdictional element. 14 Because we conclude that the statute is ambiguous, we owe deference to 1 2 the BIAÊ¹s interpretation unless it is unreasonable. See Chevron, 467 U.S. at 842 43; 3 Rotimi v. Holder, 577 F.3d 133, 139 (2d Cir. 2009). As already indicated, we find 4 persuasive the BIAÊ¹s reading of the relevant statutory provisions as set forth in 5 Matter of Bautista and might well adopt it ourselves,3 were we not constrained to 6 do so in any event by Chevron. It is noteworthy, too, that the BIAÊ¹s interpretation 7 is consonant with the conclusions of the Fifth, Seventh, Eighth, and Ninth 8 Circuits concerning related provisions of paragraph 43. We therefore defer to the 9 BIAÊ¹s Êºpermissible constructionÊº of section 1101(a)(43)(E)(i).4 See Kar Onn Lee, 701 10 F.3d at 937. III. 11 Whether Applying Matter of Bautista Is Impermissibly Retroactive 12 In the alternative, Luna argues that Matter of Bautista cannot be applied 13 retroactively to him because the decision represented Êºsuch a departure from 14 past practices by the [BIA]Êº that he lacked notice that the state arson crime to Even if we were to decide that the BIAÊ¹s reading of the statute is clearly preferable to the PetitionerÊ¹s, it would not follow that the provision is unambiguous and that Chevron deference is therefore not required. Equipoise is not a precondition to a finding of ambiguity. 4 For this reason, we reject LunaÊ¹s argument that the rule of lenity should be applied to his case. See Adams v. Holder, 692 F.3d 91, 107 (2d Cir. 2012) (stating that lenity enters only Êºwhen none of the other canons of statutory interpretation is capable of resolving the statuteÊ¹s meaning and the BIA has not offered a reasonable interpretation of the statuteÊº (internal quotation marks omitted)). 3 15 1 which he pled guilty would be deemed an aggravated felony. PetÊ¹rÊ¹s Br. 30. We 2 see no obstacle to Matter of BautistaÊ¹s application in LunaÊ¹s case. LunaÊ¹s 1999 conviction postdated the 1996 enactment of 8 U.S.C. 3 4 § 1101(a)(43). See Guaylupo Moya v. Gonzales, 423 F.3d 121, 126 27 (2d Cir. 2005). 5 In relying on Matter of Bautista, the BIA therefore Êºdid not retroactively apply a 6 new law but instead applied [its] determination of what the law Ê¹had always 7 meant.Ê¹Êº De Quan Yu v. U.S. Attorney Gen., 568 F.3d 1328, 1333 (11th Cir. 2009) 8 (per curiam) (emphasis in original) (quoting Rivers v. Roadway Express, Inc., 511 9 U.S. 298, 313, n. 12 (1994)). Once Matter of Bautista issued, Êºthat decision became 10 the controlling interpretation of the law and was entitled to full retroactive effect 11 in all cases still open on direct review, regardless of whether the events predated 12 the . . . decision.Êº Id. at 1334; see also Rivers, 511 U.S. at 312 (ÊºThe essence of 13 judicial decisionmaking applying general rules to particular situations 14 necessarily involves some peril to individual expectations because it is often 15 difficult to predict the precise application of a general rule until it has been 16 distilled in the crucible of litigation.Êº). Matter of Bautista therefore governs LunaÊ¹s 17 case. 16 CONCLUSION 1 For the foregoing reasons, we defer to the BIAÊ¹s determination, which we 2 3 conclude is reasonable, that a conviction under New York Penal Law §§ 110 4 and 150.10 constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i), 5 rendering an alien ineligible for cancellation of removal. LunaÊ¹s petition is 6 therefore DENIED. 17

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