A Second Circuit courtroom at the Thurgood Marshall Courthouse, 40 Foley Square
A Second Circuit courtroom at the Thurgood Marshall Courthouse, 40 Foley Square (NYLJ/Rick Kopstein)

Parting with one sister court but joining four others, the U.S. Court of Appeals for the Second Circuit has found that a noncitizen’s state felony need not include a federal jurisdictional element to qualify as a deportable offense.

At issue in Torres v. Holder, 13-2498, was whether an attempted arson committed 15 years ago by a lawful permanent resident of the U.S. subjects him to removal to his native Dominican Republic.

The third-degree attempted arson charge to which Jorge Luna Torres pleaded guilty, and for which he served a one-day jail sentence, is similar to its federal counterpart. However, the federal law includes a jurisdictional element—that the property destroyed “be used in interstate or foreign commerce”—that is not found in the New York State statute.

At issue in the appeal argued in May was whether the New York arson statute qualifies as an aggravated felony under federal rules even if it lacks the jurisdictional element.

Luna apparently came to the attention of immigration authorities in 2007 when he was targeted for removal as an alien convicted of a crime involving moral turpitude. An immigration judge found him removable under a Board of Immigration Appeals 2011 holding, Matter of Bautista, 25 I. & N. Dec. 616.

Bautista, which the U.S. Court of Appeals for the Third Circuit overruled earlier this year (see Bautista v. Attorney General, 744 F.3d 54), held that the New York arson offense qualifies as an “aggravated” federal felony for immigration purposes, regardless of the lacking jurisdictional statement.

But the Third Circuit’s decision contradicted rulings by the Fifth, Seventh, Eighth and Ninth circuits in similar cases.

On appeal to the Bureau of Immigration Appeals, Luna challenged the immigration judge’s decision, arguing that Bautista was wrongly decided by the board and, even if it was correct, should not be applied retroactively. After the board dismissed his appeal, Luna petitioned for review by the Second Circuit.

In a decision Wednesday by Judge Robert Sack (See Profile) and joined by judges Reena Raggi (See Profile) and Denny Chin (See Profile), the Second Circuit said the board’s interpretation was “reasonable” and rejected Luna’s petition.

The Board of Immigration Appeals “reasoned that, since states rarely include federal jurisdictional language in their criminal statutes, requiring state crimes to reproduce federal jurisdictional elements in order to constitute aggravated felonies would virtually excise state criminal convictions from the ambit” of the federal removal statute, Sack wrote.

Sack said the Third Circuit concluded in its review of Bautista that state crimes must replicate the federal statute for removal purposes.

“We are inclined to disagree,” he wrote, noting that the federal statute itself is “ambiguous” and, therefore the court owes deference to the board’s interpretation.

Sack said the court is bound under Chevron v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984) to defer to the Board of Immigration Appeals. But Chevron notwithstanding, Sack said the court “might well adopt [the board's position] ourselves.”

The appeal was argued by Matthew Guadagno of Manhattan for Luna and Rebecca Hoffberg Phillips of the U.S. Department of Justice for the government.