Torres v. Lynch is a case, on its face, about a deliciously narrow question of immigration law that turns on a peculiar kind of cross-reference. It's also a case that may turn on whether administrative agencies get Chevron deference to interpretations of regulatory provisions that collaterally interpret criminal law.
A. What does an "offense described in" a federal statute mean?
First, some comments on the immigration law. In the Immigration and Nationality Act, an "aggravated felony" is a kind of federal or state conviction that subjects an alien to a host of serious immigration consequences - deportability, ineligibility for discretionary cancellation of deportation, and ineligibility for asylum, among other things. (Aggravated felony convictions also have certain criminal law consequences, discussed in Part B below.) The term is defined, exhaustively, though none too perspicuously, in a 21-subsection subsection of the Act (see subsection (a)(43)), to include a number of crimes, which Congress described in three ways. First, there are a number of generically described offenses - for example, murder and rape. Second, there are several offenses, or more accurately, kinds of offenses, "as defined in" some federal statute - for example, "a crime of violence, as defined in 18 U.S.C. 16." Third, there are a number of offenses - by my count 55 - "described in" one or another federal criminal statute. This list is followed by a proviso which states that the term "aggravated felony" applies "to an offense described in this paragraph whether in violation of Federal or State law." The question in Torres is, if someone is convicted of a state offense that includes every element of one of the listed "described in" federal offenses except the jurisdictional element of the federal offense, has he committed the offense "described in" the federal statute?
Getting down to details, 8 U.S.C. 1101(a)(43)(E)(i) says that an aggravated felony includes "an offense described in" 18 U.S.C. 844(i). 844(i), a sentencing provision, provides the sentence for "[w]hoever 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." The petitioner in this case violated a New York arson law that proscribes intentionally damaging, by means of fire or explosion, a building or motor vehicle. Having done so, he committed, element for element, the offense "described in" 844(i) - except that the New York statute, unsurprisingly, doesn't require the building or motor vehicle an arsonist destroys to have been used in interstate or foreign commerce. So the petitioner wasn't convicted of an offense that requires all the elements 844(i) requires. Nonetheless, did he commit the "offense described in" 844(i)? Or did he come one element short of committing the offense described in 844(i)? The Board of Immigration Appeals, affirming an immigration judge's order deporting Torres, said the former, and they typically get Chevron deference to their interpretations of the immigration laws. But absent some pretty good reason to think otherwise, the answer almost has to be the latter. After all, what sense does it make to say that the offense described in 844(i) is arson without the jurisdictional element, when 844(i) plainly describes a kind of arson with the jurisdictional element?
An initial reaction one might have in favor of the Board's interpretation is that "an offense described in . . . 844(i)" suggests something a little different from an offense that perfectly matches 844(i). The problem with that reaction is that some language like "described in" had to modify 844(i) and the many other enumerated described-in offenses in order to clarify that Congress wasn't just picking up the federal offenses themselves, but also meant matching state offenses (bracketing for the moment how closely they have to match). Perhaps "described in" solely does the work of making that much clear. Another initial reaction one might have is that, if "an offense described in [a federal criminal statute]" picks up matching state offenses, it has to exclude the jurisdictional elements from the federal statute, or it won't pick up any state offenses. But it turns out that, 844(i) notwithstanding, a great many of the 53 other "described in" offenses lack jurisdictional elements. So reading "described in" to pick them up will still leave a fair amount of "described in" state offense coverage, though virtually no state arson coverage.
As careful readers will have anticipated, the government says that there's an important difference between the listed offenses "as defined in" federal statutes and the listed offenses "described in" federal statutes. "Defined in," they say, suggests a tighter fit; "described in," a looser fit. That argument has persuaded several circuits. But it's a complete loser. The aggravated felony definition does use "defined in" in several spots instead of "described in," and there is a reason for the different usages. But it's not the one the government thinks. When Congress used "defined in," it did so for the simple reason that it was using a defined term, either as part of a description of a crime, or where Congress has a defined term elsewhere in the U.S. Code that describes a category of crimes, and wanted to reference its definition. See, e.g., 8 U.S.C. 1101(a)(43)(B) ("illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18)."). Not once in the aggravated felony definition does Congress simply refer to "an offense as defined in" some provision, without referencing some defined term. So there is no "offense as defined in"/"offense described in" contrast. Besides, Congress couldn't have written "an offense defined in 844(i)"; 844(i) is a penalty provision that doesn't define an offense - but does describe one.
Further, unlike the government, Torres has a contrast-based argument that actually works. Whereas many of the offenses in the aggravated felony definition are defined generically, Torres's offense was defined by reference to a particular federal statute. If Congress wanted to make arson sans jurisdictional element an aggravated felony, it need only have generically listed arson. The government says the generic definition of arson is too confused across the states for that to have worked, but as Torres says, Congress could have provided one. Moreover, vague generic offenses didn't trouble Congress when it listed "sexual abuse of a minor" as an aggravated felony.
would seem to have much the better of the arguments at Step One of Chevron, and if
he wins at Step One the Court can, if it wants to, duck whether Chevron
applies to the Board's interpretation of the aggravated felony
definition. (If he loses at Step One the Court can also duck that question, but I don't see a serious chance of that.) But if you're getting the sense that this isn't quite a
Step One case, you're not alone. Torres's trouble at Step One is that it
is, in some instances, natural enough to read "x described in Statute
Q" to mean "x less one inapposite aspect of the description in Statute
Q." For example, imagine the following statute:
1: An "exchange" is a health insurance marketplace established by a
state that meets the following forty-odd substantive requirements...
2: If a state fails to establish an exchange, HHS shall establish the
exchange described in Section 1 and operate it in that state.
Few people, I think, would say that Section 2's command is impossible or even
literally nonsensical because an "exchange described in Section 1" must
be established by a state. "Exchange described in Section 1" is
naturally read to refer to the substantive requirements of Section 1
only, excluding the identity of the governmental unit that establishes
B. Does the Board of Immigration Appeals get Chevron deference?
Complicating what would otherwise be a straightforward Chevron case, the term the Board has construed in Torres, "aggravated felony," makes key appearances in several immigration crimes. The most notable of these, as far as real-world prosecutions and real-world impact, is the sentencing provision for illegal reentry - a provision cited in a whopping 16,000 federal appellate decisions, to give readers some sense of the frequency with which illegal reentry prosecutions are brought.* A deported alien who illegally reenters the country is normally subject to a maximum sentence of two years, but an alien who was deported after (not for) committing an aggravated felony is subject to a maximum sentence of twenty years for reentry.
*Aggravated felonies are also substantive elements of certain immigration crimes. The most clean example is that while it's a crime to "bring in" to the country all sorts of aliens, it is only a crime to aid or assist an alien to enter the country if he is inadmissible by virtue of an aggravated felony conviction, or by virtue of being a security threat in several respects. These aid-or-assist prosecutions, however, are rarely brought.
Despite these high criminal-law stakes, the circuits have unanimously given the Board Chevron deference to its interpretation of the aggravated-felony definition, whether in interpreting the immigration or criminal laws where the term appears. (There have been some murmurings in the courts of appeals that the Board lacks the requisite criminal-law expertise to interpret, even for purely immigration-law purposes, Congress's references to generic offenses and the like, but no circuit has made that its law, and appropriately so, as the Court's "Step Zero" cases on Chevron's applicability have never turned on expertise.) In the normal course, a circuit defers to the Board on the meaning of a part of the definition in an immigration case, and then, having deferred, applies its deferential precedent in subsequent criminal cases.
Unanimity in the circuits notwithstanding, the Court has never held whether the Board gets Chevron deference to its interpretation of the aggravated-felony definition; while it's had at least half a dozen cases on various pieces of the definition, those cases have often lacked published precedents of the Board on the issues before the Court. More problematically for the government, in the last two years, Judge Sutton and Justice Scalia (Chevron's best friend on the Court) have written notable opinions doubting that agencies should receive Chevron deference where they construe language that has both civil and criminal effect. Torres and a group of Gibson Dunn-represented amici seize on these opinions and argue that the Board can't receive deference to its interpretation of "aggravated felony" because of the definition's substantial criminal law consequences. Their argument has basically two pieces - first, there can be no Chevron deference to an agency's interpretation of an ambiguous criminal law, because lenity resolves all such ambiguities, and second, only legislatures, not the executive branch, can define crimes.
Assuming that the Court hasn't squarely decided whether agencies get deference to interpretations of statutory language that has criminal-law bite (which I think is basically true, the SG's protestations to the contrary), how should the Court decide this question? Initially I'm inclined to say that the Court should dodge it in Torres by holding that the Board gets Chevron deference to its interpretations of "aggravated felony" when that term appears in immigration laws, but not when it appears in criminal laws. Such a move, of course, would have to overcome the obvious objection that a defined term can't mean different things in different places.
Before coming to that objection, a thumbnail sketch of why I think separating civil applications of the aggravated-felony definition from criminal applications is the right move. Congress didn't delegate authority to the Board to interpret the definition of aggravated felony. It delegated authority to the Board to interpret deportation statutes that use that defined term. The Board - a group of political appointees appointed by the Attorney General and her recent predecessors - doesn't have a roving jurisdiction to interpret definitional provisions in the immigration laws. Rather, it decides, inter alia, appeals from deportation proceedings before immigration judges, and in doing so interprets ambiguous terms in deportation statutes. One of those ambiguous terms is "aggravated felony," a term that Congress defined with some care, but defined, nevertheless, in a definition shot through with ambiguity and vagueness. The theory of Chevron is that those ambiguities and vaguenesses represent policy choices that Congress failed to make, and that Congress intended the expert political appointees on the Board, not judges, to make the policy choices left unmade on which criminal aliens should be deported. On the other hand, Congress obviously did not give the Board authority to decide prosecutions for immigration crimes, and thus under Chevron and Mead the Board has no authority to interpret ambiguous language in statutes defining those crimes or providing sentences for them.
Torres anticipates this move and claims that it "would be impossible" for "aggravated felony" to have two different meanings, since it's a defined term. But the cases he cites for that proposition, most notably Clark v. Martinez, say that the same provision can't mean different things as applied to different kinds of cases.* Here, the question is a little different - whether different provisions that use the same term can use that term to mean different things notwithstanding a common definition of the term. That may sound like the same thing - isn't the definition being given different meanings as applied to different cases? - but it isn't, really. Here, the claim is that when a defined term is put into different linguistic contexts (not just applied to different facts), those differing contexts act on the ambiguities in the term's definition in different ways and generate different meanings.
* As Jonathan Siegel has argued, the Court hasn't even always stuck to this principle.
Whether you buy that distinction or not, the Court does. Just eight years ago in Duke Energy the Court held, with only Justice Thomas in partial dissent, that there is "no effectively irrebuttable presumption that the same defined term in different provisions of the same statute must be interpreted identically. Context counts." There, the Court deferred to EPA regulations reading "modification" in one part of the Clean Air Act to mean something other than it does in another part, even though the one provision actually said it was using "modification (as defined in [the other provision])."
Lest one think otherwise, the Court's nearly unanimous opinion in Duke Energy is no outlier. In the opinion the Court discusses several recent cases where a defined term was given different meanings as it appeared in different provisions, and Justice Scalia recently cited Duke Energy's seemingly atextual holding with approval in Utility Air by way of holding for the Court that the EPA could and should have given the defined term "air pollutant" different meanings in different parts of the Clean Air Act. Torres is, if anything, a weaker case for identical interpretation than Duke Energy. Here, the criminal provisions referring to aggravated felonies don't, of course, talk about aggravated felonies as defined in the deportation statutes. Whereas in Duke Energy the EPA was the delegated interpreter of both provisions, here the Board is only the delegated interpreter of one of the two provisions at issue. And in this case, not only is the Board not the delegated interpreter of the criminal provisions, there's a lenity problem and possibly even a separation-of-powers problem (more on which below) with applying the Board's interpretation to those provisions.
Since the Duke Energy principle is so uncontroversial, applies a fortiori in this case vis-a-vis Duke Energy, and is such an easy way to avoid the tough problem of Chevron deference to interpretations of criminal law, I think there's a pretty decent chance the Court simply cordons off civil interpretations of "aggravated felony" from the term's criminal applications. There's also, though, a good chance it doesn't. The government, in arguing the Board should get Chevron deference, has made the curious tactical choice of arguing that the Board's interpretation of the aggravated-felony definition should get Chevron deference in criminal cases, and hasn't argued Duke Energy as a back-up. There are, in the non-agency context, several cases holding that where a provision of a statute has both civil and criminal applications, lenity requires a globally lenient reading of the statute. And whereas in the typical Duke Energy case there's some contextual reason that a term in one provision appears to mean something different than it does in another, here the difference isn't one of meaning so much as interpretive authority - arguably making Duke Energy a little inapposite.
Suppose, then, that the Court holds that if the Board gets Chevron deference to its interpretation of the definition of aggravated felony, as that term is used in deportation provisions, courts must then apply that interpretation to criminal statutes' usages of "aggravated felony." Should the Board still get Chevron deference? I think the answer's a pretty resounding yes.
The core of the argument against giving the Board Chevron deference, and the core of the Scalia/Sutton argument against giving agencies deference to their interpretations of criminal law, is lenity. Lenity, the argument goes, resolves all ambiguities in criminal laws, leaving agencies with no gaps to fill. This is wrong for several reasons.
First, it misunderstands how lenity actually works. Lenity doesn't kick in whenever a statute is ambiguous in the Chevron Step One sense; it kicks in when, after exhausting every source of statutory meaning, including "history and purpose," a criminal statute remains "grievously" ambiguous. Now, Chevron is itself a canon of interpretation of sorts; it claims that whenever Congress enacts a statute that is ambiguous (whether or not it's "grievously" so), and gives an agency power to regulate or adjudicate under that statute in a formal enough way, it intends for the statute to bear any reasonable meaning the agency gives it. Lenity, on the other hand, says that when we can't tell what Congress intended, after every means of answering that question is exhausted, the defendant wins on ambiguities. Chevron purports to tell us what Congress intended; ergo, it should trump lenity, not the other way around. (Besides, Chevron is stronger stuff than the inferences from history and purpose that the Court has said numerous times trump lenity.)
Second, lenity, which predates modern administrative agencies by centuries, was developed as a response to judicial interpretation of criminal laws. Unsurprisingly, its purposes have little bite in the agency context. Most famously, lenity is about fair warning - the concern that if courts interpret criminal laws to cover conduct they don't clearly cover, defendants will lack adequate notice of their criminal liability. How does fair notice play in the agency context? Federal agencies, unlike courts with limited geographical jurisdiction, interpret statutes in regulations or adjudications that apply nationwide. Really, then, people will usually have better notice of their criminal liability if the meaning of criminal laws is fixed by agency glosses that apply nationwide and interpret a statute with some specificity than they will in the normal situation, where thousands of district judges with local jurisdictions can interpret ambiguous criminal laws as they like, so long as they don't find "grievous" ambiguity.
Judge Sutton has strained to argue that Chevron deference creates a notice problem because even after Mead agencies can, occasionally, get Chevron deference to some pretty obscure acts of interpretation - policy statements, opinion letters, and the like. Of course, a patchwork of unpublished district court opinions is equally obscure, if not more so, and I don't see why someone seriously investigating their criminal liability shouldn't be expected to read relevant agency policy statements. But if obscure policy statements are a serious fair warning concern, that's only a reason to modify Mead so as to not give Chevron deference to agency interpretations of criminal law in policy statements - not a reason to never give Chevron deference to agency interpretations of criminal law. Torres's amici argue that deferring to agency interpretations of criminal law would create a notice problem because agencies aren't bound by horizontal stare decisis to follow their own prior interpretations. But neither are district courts. Stare decisis, horizontal or vertical, doesn't kick in until a court of appeals decides a question. And even statutory stare decisis doesn't always last forever. What's more conducive to fair notice - nationally applicable interpretations of criminal law that sometimes change, or numerous locally applicable interpretations of criminal law that, in the aggregate, change a little less?
Lenity is also sometimes said to have a separation-of-powers purpose; lenity, the story goes, ensures that democratically accountable legislatures, not unaccountable courts, define crimes. The advocates of a criminal law carve-out from Chevron say that this purpose of lenity, at least, is served by denying deference to agency interpretations of criminal law. Agencies, however, aren't courts where accountability is concerned; indeed, the whole premise of Chevron is that they aren't. What's more, given the realities of lenity doctrine, there's a good argument that Chevron deference would enhance the democratic legitimacy of criminal law, not reduce it. In a Chevron-free criminal law interpretive regime, completely unaccountable courts are free to make significant policy choices about the content of criminal law so long as they don't find grievous ambiguity. In my preferred world, it's true that an agency, rather than Congress, could create criminal liability in the rare cases where a statute is so ambiguous that lenity would apply. (Then again, one could take the position that in those rare cases of grievous ambiguity, lenity should kick in at Step One.) But in the minerun of cases where there's enough ambiguity for courts to have interpretive leeway, but sufficient material to work with that lenity is off the table, Chevron would move interpretive authority to a more politically accountable, and congressionally controlled, branch of government.
The opponents of deference to agency interpretations of criminal law also argue that, apart from lenity, there's a freestanding separation-of-powers rule (or really, soft principle) against the executive defining crimes. Yet they readily concede that Congress may make it a crime to violate a class of regulations that don't yet exist and then authorize an agency to write the regulations. Judge Sutton suggests that that's different than Chevron, because in that instance Congress has clearly stated an intent to let agencies write criminal law. He argues a clear-statement rule should govern whether Congress has delegated criminal lawmaking power to agencies. Justice Scalia, for his part, has vaguely suggested that agency interpretation of existing criminal law is somehow worse than agencies making criminal law from scratch.
I don't understand Scalia's point at all. Judge Sutton's argument has, at least, an internal logic to it. But whatever one's general views on the virtues of courts using clear statement rules to dissuade Congress from doing things it's constitutionally allowed to do (I'm skeptical, obviously), this particular clear statement rule seems a bad idea. Under the guise of ensuring that only Congress defines crimes unless it clearly states otherwise, it would actually shift criminal-lawmaking authority from mildly politically accountable agency actors to completely unaccountable courts. As is almost always the case in debates over Chevron's domain, the choice isn't between fidelity to the law Congress made and agencies running amok, but between a political branch making policy and a court doing it.