Open main menu

Luna Torres v. Lynch

Luna Torres v. Lynch, 578 U.S. ___ (2016), was a United States Supreme Court case in which the Court held that an "aggravated felony" under the Immigration and Nationality Act (INA) encompasses every conviction of section 150.10 of the New York Penal Law, regardless if the state offense is missing the interstate or foreign commerce element.[2][3][4]

Luna Torres v. Lynch
Seal of the United States Supreme Court
Argued November 3, 2015
Decided May 19, 2016
Full case nameJorge Luna Torres, Petitioner v. Loretta E. Lynch, Attorney General
Docket no.14–1096
Citations578 U.S. ___ (more)
136 S. Ct. 1619; 194 L. Ed. 2d 737
Opinion announcementOpinion announcement
Affirmed the 2d Circuit, which deferred to the BIA's interpretation that a state conviction with one day of imprisonment "constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i)," i.e., 18 U.S.C. § 844(i), a federal offense punishable by "not less than 5 years and not more than 20 years" of imprisonment.[1]
Court membership
Chief Justice
John Roberts
Associate Justices
Anthony Kennedy · Clarence Thomas
Ruth Bader Ginsburg · Stephen Breyer
Samuel Alito · Sonia Sotomayor
Elena Kagan
Case opinions
MajorityKagan, joined by Roberts, Kennedy, Ginsburg, Alito
DissentSotomayor, joined by Thomas, Breyer
Laws applied
Immigration and Nationality Act

The Court basically reaffirmed the opinion of the U.S. Court of Appeals for the Second Circuit, which saw reasonable a determination made by the Board of Immigration Appeals (BIA) that a New York attempted arson conviction, with one day of imprisonment, "constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43)(E)(i)," i.e., 18 U.S.C. § 844(i), a federal offense punishable by "not less than 5 years and not more than 20 years" of imprisonment.[1]

It is important to note that a sentence is an integral part of an aggravated felony,[5] and that probation is not imprisonment.[6] This important element was never considered in this case nor in any of the previous cases involving 18 U.S.C. § 844(i).[7]


George Luna, a citizen of the Dominican Republic and a lawful permanent resident (LPR) of the United States since childhood, was convicted in 1999 of "attempted arson" under New York Penal Law § 150.10,[1] which states the following:

A person is guilty of arson in the third degree when he intentionally damages a building or motor vehicle by starting a fire or causing an explosion.... Arson in the third degree is a class C felony." (emphasis added).[8][9]

A class C felony is punishable by statute between zero to the maximum of fifteen years of imprisonment, which is solely in the state court's discretion.[10][5] The court sentenced Luna to a merely single day of imprisonment for his entire criminal action.[1] For U.S. citizenship and all other INA purposes, the "term of imprisonment" here is only one day,[5][6] and the "15 years" clock for obtaining cancellation of removal or a waiver of inadmissibility starts on the day Luna's conviction was entered in 1999. See below under the section: Opinion of the Court.

Seven years later, in 2006, the U.S. Immigration and Customs Enforcement (ICE) initiated removal proceedings against Luna,[4] charging that his above 1999 conviction is described at 18 U.S.C. § 844(i), which states the following:

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....[11][12]

The Immigration Judge (IJ) found Luna removable from the United States as charged. The BIA affirmed the IJ's decision. Under the well known Chevron doctrine, the Second Circuit, in an eight paragraph legal argument, deferred to the BIA's reasoning that Luna's 1999 state conviction was categorically an aggravated felony because it is described by § 844(i) element-by-element.[1] In other words, a "single day" of imprisonment is categorically the same as "5 years" of imprisonment.[5] But the U.S. Congress has been against such bizarre interpretations since 1970. In this regard, § 848 expressly states the following:

No provision of [§ 844] shall be construed as indicating an intent on the part of the Congress to occupy the field in which such provision operates to the exclusion of the law of any State on the same subject matter....[7]

Opinion of the CourtEdit

Associate Justice Elena Kagan authored a 5–3 decision.[4] The case primarily involved the understanding of 8 U.S.C. § 1101(a)(43)'s penultimate sentence, which in this case must be read as follows:

[Luna's 1999 conviction] applies to an offense described in this paragraph ... for which the term of imprisonment was completed within the previous 15 years.[13][14]

In this regard, Justice Kagan stated that "[t]he 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."[3] It is important to add that every offense covered by § 1101(a)(43) is in violation of the law of every country on earth, especially subparagraph (A) ("murder, rape, or sexual abuse of a minor").

Effect on other aliens in removal proceedingsEdit

This case demonstrates the persecution that LPRs are experiencing in the United States since 1997. Unlike involving other types of cases, Supreme Court opinions are not necessarily binding on aliens in removal proceedings.[15][16] In this regard, the Court has expressly stated the following: "Our precedent is to be respected unless the most convincing of reasons demonstrates that adherence to it puts us on a course that is sure error."[17]


This page in most part is based on law of the United States, including statutory and latest published case law.

  1. ^ a b c d e Torres v. Holder, 764 F.3d 152, 159 (2d Cir. 2014); see also 8 U.S.C. § 1101(a)(43)(E)(i).
  2. ^ SCOTUSblog coverage
  3. ^ a b Luna Torres v. Lynch, 136 S.Ct. 1619, 1627 (2016).
  4. ^ a b c Luna Torres v. Lynch, No. 14–1096, 578 U.S. ____ (2016).
  5. ^ a b c d See, e.g., United States v. Valencia-Mendoza, ___ F.3d ___, ___, No. 17-30158, p.20-21 & n.4 (9th Cir. Jan. 10, 2019) (collecting cases).
  6. ^ a b 8 U.S.C. § 1101(a)(48)(B) ("Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law...."); Matter of Cota, 23 I&N Dec. 849, 852 (BIA 2005).
  7. ^ a b 18 U.S.C. § 848 ("Effect on State law").
  8. ^ "Section 150.10: Arson in the third degree".
  9. ^ "New York Consolidated Laws, Penal Law - PEN § 150.10 Arson in the third degree".
  10. ^ "Section 70.00: Sentence of imprisonment for felony". For a class C felony, the term shall be fixed by the court, and shall not exceed fifteen years.
  11. ^ 18 U.S.C. § 844(i) (emphasis added).
  12. ^ Alabama v. Bozeman, 533 U.S. 146, 153 (2001) ("The word 'shall' is ordinarily the language of command.") (internal quotation marks omitted).
  13. ^ 8 U.S.C. § 1101(43).
  14. ^ Matter of Vasquez-Muniz, 23 I&N Dec. 207, 211 (BIA 2002) (en banc) ("This penultimate sentence, governing the enumeration of crimes in section 101(a)(43) of the Act, refers the reader to all of the crimes 'described in' the aggravated felony provision."); see also 8 C.F.R. 1001.1(t) ("The term aggravated felony means a crime (or a conspiracy or attempt to commit a crime) described in section 101(a)(43) of the Act. This definition is applicable to any proceeding, application, custody determination, or adjudication pending on or after September 30, 1996, but shall apply under section 276(b) of the Act only to violations of section 276(a) of the Act occurring on or after that date.") (emphasis added).
  15. ^ See, e.g., 8 U.S.C. § 1252(d) ("A court may review a final order of removal only if—(1) the alien has exhausted all administrative remedies available to the alien as of right, and (2) another court has not decided the validity of the order, unless the reviewing court finds that the petition presents grounds that could not have been presented in the prior judicial proceeding or that the remedy provided by the prior proceeding was inadequate or ineffective to test the validity of the order."); 8 U.S.C. § 1252(f)(2) ("Particular cases"); 18 U.S.C. § 242 ("Deprivation of rights under color of law").
  16. ^ "House Conference Report on the REAL ID Act, H.R. Conf. Rep. No. 109-72 (2005), as reprinted in 2005 U.S.C.C.A.N. 240" (PDF). U.S. Government Publishing Office. p. 174. Retrieved 2018-12-11. Section 106 of Division B would address the anomalies created by St. Cyr and its progeny by restoring uniformity and order to the law....
  17. ^ Citizens United v. FEC, 558 U.S. 310, 362 (2010); see also Al-Sharif v. United States Citizenship and Immigration Services, 734 F.3d 207, 212 (3d Cir. 2013) (en banc) (same); Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc) (same)

External linksEdit