Argument preview: Can a state-law crime be “described in” a federal statute that has a unique jurisdictional element?

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By Steve Vladeck on Oct 29, 2015 at 9:37 am

Instead of identifying an exhaustive list of every state and federal criminal offense for which a conviction renders a non-citizen subject to removal (or ineligible for relief from removal), Congress has historically identified categories of convictions that will trigger removability and left it to federal immigration authorities — and the courts — to sort out whether particular state-law convictions do or do not fall within the identified categories. This, in turn, has led the courts generally to pursue a “categorical” approach, under which “[t]he state conviction triggers removal only if, by definition, the underlying crime falls within a category of removable offenses defined by federal law.” But what about when the federal law definition includes a (constitutionally motivated) interstate commerce element that the state law offense lacks, such that a conviction under the state law offense would not necessarily establish the facts necessary for a conviction under the federal statute? That is the question the Justices will confront Tuesday morning, when they hear oral argument in Torres v. Lynch.