instead congress chose to make federal arson felony and that makes sense the federal arson statute has a minimum sentence of five years there are at least eighteen states with arson offenses that are classified as minors arizona and colorado have misdemeanor arson offenses involving damage to property worth less than one hundred dollars congress would not have wanted to make such minor offenses aggravated felonies we know this because of obstruction of justice burglary they will require a sentence of a year or more also listed with among the generic offenses is crime of violence there's a requirement of a sentence of a year or more arson is a crime of violence and so so congress would have realized that arson offenses which would fall under the crime of violence provision and and for more serious state arson offenses they would fall under this this this provision so that for the minor arson offenses where there's a sentence of less than a year the individual would would not be an aggravated felony and would be eligible for discretionary on language that is similar to maybe and maybe different in the important respect but nevertheless there are some similarity to the residual clause in the in the armed criminal our armed career criminal act doesn't  but i'm talking about what congress intended when congress right writes a lot it doesn't intend for for for the supreme court to find the language and ambiguous and and strike it down so so that we should be looking at what congress is intent was not not not whether or not the crime of violence will still be on aggravated felony after after johnson if if if there are problems with this that'll be that'll be for congress to fix i ask you about the statutory language that seems to me to present the greatest problem for your position maybe it's not fatal but what i'm referring to is the provision that says the term applies so we're looking at whether the state offense here is described in the federal arson statute and then there's language that says the term applies to offense described in this paragraph whether in violation of federal or state law what do you make of that that it can be argued that what that means is that when you have a federal offense with  concluded that all that means is that sometimes state offenses could could be out of a felony but it didn't require that that state offense is always be the aggravated felonies right but i mean the point is usually when you see language in interstate commerce and your immediate reactions are that's federal jurisdiction as opposed to state but here the one thing we know is they didn't want to matter they said in violation of federal or state law so as i look at the your instinctive is to say well you know course you don't have to worry about the provision that's in there to limit the offense to federal federal offenses this this this language it does it it doesn't  of multiple crimes right that's correct your honor and so for most of those crimes there's no jurisdictional element they don't that is also correct so if you're looking at this as superfluid stew not this individual some provision one some provision of many yes it's doing a lot of work it's a lot of work as there are a lot of other crimes that qualify under state law correct that's correct yeah i mean you brief in the solicitor general sort of tunnel in on this one provision of many but i'm wondering why i'm looking at the entire provision has many state court analogues that don't in which some things are included and some things are excluded in a way that appears not to make much sense now you've said no there is a reason for doing this with or sent to limit it to the federal offense i mean there are a lot of things a lot of things on that l that have jurisdictional locks in them so you would be excluding in addition to arson it would be executed in the child pornography crime you would be executing a kidnapping crime excluding felon in possession excluding receiving explosives for the purpose of killing somebody so you would be excluding all of those and then on the other hand you would be including some things that seem a lot more minor that just happen not to have jurisdiction hooks like operate in a gambling establishment so you create a world in which the executions in the inclusions seem not to match up with anybody's view of of of sensible categori well this is the same way that that that there's there's an aggravated felony provision for arson and that the judge for all those things that your honor mentioned there are other categories of aggravated felony which would cover state firearm and interstate commerce the second defendant is convicted under an identical state statute but of course there's no need to prove an interstate commerce element and under your argument the first would be included in the second would not expect that th it's an element of of the statute that's required for a conviction but it does it have to be expressed in the statute is it not always a required element of a federal crime there has to be federal jurisdiction so as as a matter of fact every federal crime has some jurisdictional element that right yes but but this whether it's expressed in the in the text of the statute or not the statutes can come in and challenge his conviction on the ground that there there was no basis on which the federal government could could have reached my conduct it was not interstate commerce there was it was not pursuant to his treaty or anything else on those other the ones that are not stated in the statute it's presumed it doesn't have to be proven to a jury beyond a reasonable doubt correct ok crack yeah could i have i'm going to sound like my colleague just aspire ok i became interested in the argument of the national association of criminal lawyers and basically their position is that the definition here that says an offense described in eight forty four what of that title relating to explosive material offenses and they argue that that takes arson that does show support are our position in that it shows how easy it is went when you have broad language that says eliminate eliminate elements as the government says that it could be any  don't argue the point that all they're just saying that this this is not covered by the fire the arsons not covered by the statute at all by the enhancement by the statute at all except under the arson provision that requires a sentence for you that's there or get out interstate or anything else so tell me why you didn't make that argument we we did a carriage because we didn't think that their in this as i was saying earlier that that you know that the statute says describing ok and the government saying described in tells us that we can eliminate elements but what's the criteria how do you know nothing to do with the conduct involved in the crime itself so the i think the jurisdictional provision is not like any other element it's there for one purpose only which is to authorize federal action and these three provisions have language are for interstate offenses if circumstances giving rise to federal jurisdiction had existed that that is very clear language removing the jurisdictional element  the statute in the government is saying a minute face and to admit things you need clear language but your assumption is that there is an element is an element is now met whether it's substantive or jurisdictional and that's not the way our our cases have treated them ordered or the general i mean you don't need to rely on a four for everything with the model penal code draws a precise distinction between matters relating to the harm or evil sought to be prevented and facts that relate to jurisdiction venue or limitations but still the jurisdictional element is required for the conviction you cannot have they can why no but my point is it's required for conviction but that doesn't necessarily mean that you would include the jurisdictional element when you're saying well what does the crime what is the what is the harm or evil sought to be prevented and in extent you'd like this it seems to me that that's what congress is concerned about at the technical elements like for example venue means venue an element if it's listed under the criminal provision will be sure it's an element that could have to be proved depending on the terms of the statute but that has nothing do with the harm or evil sought to be prevented s offenses whether in violation of federal or state law but but it's it's described in this paragraph so it's still the language of the pill and it's it's is still requiring all require mens rea yet as to jurisdictional elements so that's a pretty critical distinction that we've made saying suggesting that jurisdictional elements are different you know you have to prove them but you don't have to the defendant doesn't have to have mens rea with respect to them why doesn't that suggest that there is a real distinction here between jurisdictional elements and substantive elements that can come into play in this context as well this is the what state in what we think congress meant and we're saying you know congress could not have meant to requirements or a f or a jurisdictional element notwithstanding that there's not language in a statute that says and element so why not the same here or even even if it's different ok eric i say jurisdiction is different it doesn't stop it from being a requirement i mean it may be it may be a different element it may be a different kind of requirement requirement and so you can't just just wish it away with it the language the language in the statute isn't there just to say circumstances giving rise to federal jurisdiction had existed congress did put the language in the statute that was necessary should nor the plain language of the statute which is which is that congress wanted convictions and it eighteen u s c eight forty four i to be aggravated similar here the reason is there just isn't a you know there isn't a statute in the states which have a ten thousand dollar thing in it and so didn't make really sense to think congress wanted to exclude all those and and so here is a big thing explosive the criminal one of the rule should apply the second is that the longstanding principle of construing lingering ambiguities in deeper tashan deportation statutes in favor of the alley and should also be applied and with regard to those rules chevron is not a rubber stamp chevron tells us that there are certain circumstances when when when deference should be applied towards decisions and if if those circumstances are not that mr chief justice and may it please the court section eleven zero one eight forty three indicates that violations of state and foreign law should be considered aggravated felonies along with violations of federal law it was inactive against the backdrop of multiple doctrines across multiple areas of the law in which a jurisdictional element drops away when a federal crime is being compared to a state orenstein examples you gave me in your brief either it's clear explicitly purpose is that it's that federal that a state law is going to apply when there isn't a federal law so applying jurisdiction makes no sense our point so i don't take much f which is the fact that it chops away in other sections congress it does say it dropped away here well our point isn't that each one of those is exactly analogous if that there are so many different places where it drops away and that's very telling and of course the purpose of this statute is to capture people who are particularly interested in that i mean what i agreed with when i came in and then i thought my goodness of course it's an explosives crime my god blowing of a building or a person if anything's an aggravated felony that must be then the first words out of his mouth your friends mouth were have no fear read on because there is a section that makes it an aggravated felony to commit a crime of violence and a crime of violence is very broadly defined so any human being who commits an explosives violation where that's a state law violation will fall within the definition of aggravated felony because they will have committed a crime of violence so no if that's right i'm left with only half the problem i thought i was left with i'm happy i'm still left with is if we follow your interpretation of what we will suddenly do is put into the category aggravated felony which for bids the attorney general to exercise her discretion and keep the person here even when she wants to give them your case isn't a problem because after all she doesn't have to keep here all right we put in every tax fraud state every racketeering gambling i mean you know the list and it includes an awful lot of trivial stuff so now i have removing the attorney general's discretion when she wants to keep the thing here keep the person here in a whole lot of trivial stuff if i accept your definition and if i accept the i don't have the problem i thought i had which was that people who commit very serious explosive crimes are not in the category aggravated so what is the answer to that i didn't think of it till i heard his first ar i disagree with i think both halves but let me start by talking about why i think it remains true despite the crime of violence provision and other parts of the aggravated felony provision that petitioners approach is radically under inclusive first of all it's important that we're not just talking about arson here we're talking about all of the different described in provisions where there is a federal jurisdictional element and so there are many things that it is clear would never be picked up by other parts i have a list in the front of me and i couldn't find anything on that list which either wouldn't fit within crime of violence or would be so terrible to leave well there are a couple different examples and i also think it's true and i don't want to leave this on the table that not all arsons would qualify as crimes of violence i want to get to that as well but the things that would be left out and that would not be picked up by other parts of the aberrated felony provision and under petitioners view would be a number of really serious child pornography offenses if they were prosecuted by a state or by foreign sovereign including possessing child pornography transporting child pornography putting out a notice saying that you want to receive or exchange child pornography none of that would be picked up by anything else and the provision petitioner says in his brief that the sexual abuse of a minor generic offense would pick that up but it wouldn't pick up any of those things that i just described although it might pick up some kinds of child pornography offenses gun possession offenses being a felon in possession of a firearm being a fugitive from justice  firearm a lot of really serious gun possession offenses also if prosecuted by prosecuted by a foreign sovereign would not be picked up and petitioner actually doesn't contend otherwise so it is an under inclusive approach and that's true even with respect to arson because is under the crime of violence provision that has to involve the use of force against the person or property of another a number of state arson offenses would cover arson against your own property which says you know except except for the jurisdictional but it didn't say it what do you do about the federal statute that that makes arson of a federal building across well that is that mean that old state orson scott huge your pick whether it's of a federal building or of of the corner grocery store now i think you'd have to engage an analysis that point about whether that element was a purely jurisdictional element or whether it going to undertake that analysis i think it would look to the model penal code definition that the chief justice pointed to earlier and that is the distinction between the harm or evil sought to be prevented and the legislatures power jurisdictional power to regulate that harm or evil and in the case that you mentioned i think that might very well be a substantive element because congress could be making a determination that there's something particularly pernicious particularly culpable particularly in need of deterrence about arson with respect to federal property which congress really specially wants to protect but i don't think you can say that about the interstate commerce jurisdictional element which this court has recognized what was the term  a jurisdictional hook but rather a substantive requirement that limited the scope of this particular statute to more severe instances of examples of the crime i don't think so because the announcing jones was against the backdrop of constitutional avoidance principle in the court said there might very well have been constitutional problems with interpreting the statute more broadly i think the best comparison is between jones and russell  and you can see there that the interstate commerce ahman is not doing substantive work if well i don't know why you say that it has to have substance of work otherwise it wouldn't be in the statute well it is picking a crime that only congress would prosecute which is following up on justice alito is point substantive because it's more serious it what we have to protect people who are affected from interstate travel or that effect since if they travel you could even following the model people you could still keep all the substances i don't think so and again i think the comparison between jones and russell makes this point in all the court said that the offense was something that could be prosecuted by the federal government because it was arson of a rental property which was used in interstate commerce in jones it was arson against a private non rental property and that was said to fall outside the scope of section eight between the jurisdictional element that substantive and when that isn't substantive just jurisdictional why should we do that i mean if it's an element it's an element and if congress really wants to eliminate  think it's possible to draw a negative inference from those other statutes congress obviously can get at the same meaning using different forms of words in different statutes in the us code and what's very important about the statutes the sister has pointed to that expressly say that the jurisdiction be taken out is that they don't have an analogue to the penultimate sentence in this case which shows congress's intent in the aggravated felony provision that state offenses and foreign offenses count along with federal fences as aggravated felonies and so i think once you've got that sentence in there it may very well be that congress no longer feels any need to put in language it's equivalent to the language in those other studies you say that's really ms goldenberg the only textual basis for your position you know your brief does a good deal about the difference between described and defined which the petitioner has suggested is is not a very good distinction because the defined only refers to actual statutory definitions so are you still relying on that are you relying on anything else in the statutory text beyond the penultimate sentence or is the penalty mid sentence really the statutory basis for your argument no we're certainly still relying on the described in language and the distinction between that language and other language that congress chose to use elsewhere in the aggregate if only provision it's just that we think that it's important that when you look at the meaning of described and it be read in light of the penultimate sentence in light of the purpose of this provision in light of the irrational patchwork that would be created by petitioners  you so i think all those things inform how you would understand describe it but with respect to the question of whether defined in this provision was just used to refer to dictionary definition type statutory provisions i think that that is true as a descriptive matter there are only a couple defined in provisions of the aggravated felony statute and they do refer to other statutes that say the word x means y but that's not true throughout the us code which was petitioners original submission there are lots of places where congress has used to find and to refer to offenses and to mean exactly what follows but nothing else and one very telling example is section eight forty four in which actually refers to section eight four i the provision issue in this case by talking about offenses defined in this chapter so congress had added fingertips language that it could have used to refer to these federal criminal provisions if all it had meant to do is to say look we want you to use exactly what comes after this and nothing else and there's actually another distinction as well as a defined in language in the statute and that's in subsection p which is found on for it page for it of the appendix of the government's brief their congress uses the words in violation of an offense which is in violation of a particular federal statute the upshot of petitioners position is that anytime there's an interstate commerce jurisdictional element in any of the or federal provisions that are referred to only a violation of the federal statute only a federal criminal prosecution and conviction will count as an aggravated felony because no state crime no foreign crime is ever going to have interstate commerce as an element if that's what congress had meant if it meant to restrict it to violations of the federal statute then again it had language at its fingertips that it has used elsewhere in this provision that would have allowed it to do that and there's one other aspect of the statutory text that i'd like to mention and that's just a particular example of a place where petitioners reading doesn't make sense interstate commerce elements and then at the end of the provision there is one of the limitations that congress puts in sometimes and limitation is that the offense has to be punishable by more than one year again under petitioners view only actual violations of the federal the federal rico statute an actual federal prosecution and conviction under the federal rico statute would ever count under subsection j as an aggravated felony but if that were true there would be no reason for congress to have included that last clause there because federal rico convictions are always punishable by more than a year or so so right in the rico statute or punishable by up to twenty years so it must be i don't  life so it's subsection j and it is an offense described and i'm just referring to the first federal statute that's listed there it's page two a of the appendix to the government's brief and  should say when this this provision went into the aggravated felony statute it was only rico and not these other satellites that follow in subsection j that were listed so it says an offense described in section one thousand sixty two of title eighteen which is a rico for which a sentence of one year imprisonment or more may be imposed and what i'm saying is you can always impose a sentence of one year or more as an abstract matter when you have convicted somebody of a federal rico offense and so it can't be that just because there is an interstate commerce element in the federal rico statute that therefore state and foreign convictions all drop away and the only time someone is an aggravated felon under j is if they've been convicted of a federal rico crime if that were right then there would have been no need for congress to include that language at the end there clearly because congress wanted to pick up state and foreign versions of the crime and to then drop away as congress does sometimes the sort of more minor versions of those crimes where there are different sentencing and penalt in place of course he's not arguing that all federal jurisdictional requirements have to be one of the elements he's only saying that where where the statute d by my count about nine of them have an interstate commerce jurisdictional element and so it's not that the penultimate sentence would be superfluous on petitioner's view but it would start doing work in this very odd way for only about half of the aggravated felony provision and did well no x one for example the fraud tax robot uses different language yes no i think so many of them as with respect to the arson offense at issue here it would make sense to pick up state and also particularly foreign crimes i don't want foreign crimes to get left out of this discussion because i think it's very important it's very important to congress when dealing with the kinds of people who are going to be covered by the aggravated felony provision that if they had committed a sufficiently serious or in a crime that that would get picked up and of course foreign crimes are in this case that's just a feature of the aggravated felony provision that it sometimes sweeps in things that the states characterize as misdemeanors and that's very well recognized both by the board and by the courts of appeals this is a federal term of art aggravated  is used to show that certain immigration consequences should attach to someone and so the fact that the state idiosyncratically or for its own reasons attaches a pretty cruel opacity to something that's so forth here is well recognized not to be a reason to get out of the aggravated felony provision but i believe that mr wood donna's point was that this is it's a reason why congress may have used the language that it did rather than say just arson right that it wanted that it understood that there was a wealth of very minor arson crimes out there in the states that it wanted to exclude those and the way it excluded those was essentially by saying no it's got to be the federal offense i think that would be again a sort of strange roundabout way to exclude them and to move it back through the crime of violence provision it would be a lot of work congress could much more easily have done is just to put a limitation right there in you one as it did in many other provisions that you have to have a crime  for which you're in prison for at least a year or a certain value of property pass to be affected and congress did that not only when it was describing dress sergeant there aggravated felonies but also it did in some of the described in sections like subsection j that i was talking about earlier so that i think would be the way that congress would have approached it at the same time i don't think there's anything at all strange in thinking that congress didn't want to exclude even things that are more minor as arsons go on the scale of arsons on the view that are sin is a really serious crime i aggravated in every sense of that word and it's one this one was and his his crime one day jail time and five years probation so it falls on the lesser side given your argument is there any way that a person in the situation could get a ca cancellation of the movie that's right they can obtain cancellation of removal and that's consistent with congress's intent in putting the aggravated felony provision into place which was to constrain the attorney general discussion and to make it so that the attorney general wasn't locked into certain conclusions and that was because congress thought that the way that the whole cancellation of removal process was working before the aggravated felony provision went into place was it was wasn't working well too many people were being allowed to stay too many people were having the and congress expressed very clearly in legislative history that it didn't like that and it wanted to constrain the attorney general's discretion as i think you know i don't go back to that i was just going to say of course the attorney general may decide not the subject to removal in the first place right that's true yes although accurate aggravated felony is a ground for removal but i also i don't want to lose sight of the fact that just because this petition or sentence was one day and five years of probation does not mean that you committed a minor some kind we actually don't know what the conduct was it's not in the record of the only the only thing you've been able to think of my guess is that gets around his argument that arson and explosives will be covered by the crime of violence if you would have a person such far to his own property now when would a person set far to his own property when he wants to commit fraud and here we have a provision that puts fraud within it and moreover it has the limitation of ten thousand dollars so therefore serious fraud crimes will fall within this other section so not even the case that you've really brought up is actually needs this provision to prosecute state explosive crimes because they're against other people's property in which case they fall within crime of violence or they're against your own property in which case they are specie of fraud overcome thousand dollars i'm not sure that necessarily works under the categorical approach because it would depend what the person was actually prosecuted for in state court and if they were prosecuted not i mean but simply for arson and it was a provision that said that included arson against your own property then i think you wouldn't fall into either one but there's actually another reason that i didn't get to or why i think some arsons might not be crimes of violence and actually just some uncertainty around this but after this court's decision and leak out people are continuing to wrestle with whether recklessness would count as a crime of violence i think there are some at least forms of recklessness that are picked up by the substantive elements of section the forty four malicious arson would include deliberate indifferen possibility that there's going to be damage and so there might be some slippage there as well although as i say i know what do you think about this i mean i think i dread the suggestion but when i got into that whole thing god there's no way to avoid just doing this section by section and saying what did congress want section by section and then some time you know and then if we did that section by section maybe it would be satisfactory to say you know let them prove the jurisdictional hook  the in the deportation proceedings that gives the attorney general considerably more discretion she can do it if she doesn't have to do that she doesn't want to although i hesitate to reject a helpful suggestion i actually think that the answer here is to drop out  provision entirely and not to do that for a couple of different reasons first of all i don't think it works for foreign crimes so in a foreign crime situation you can't come in and provide proof that had an interstate commerce element because there's not really an equivalent to that on the foreign side and so i just think there's a whole serious set of crimes that congress wanted to include switch that approach wouldn't function it would also really multiply the difficulty of the proceedings and make them much longer and harder and i do think the language here is a little different than the language that the court was looking at a new one where this ten thousand dollars limitation was in the aggravated felony prison itself and it was worded in a particular way that the court sees i so i just don't think that analysis necessarily necessarily carries over here but again i think that all of the various signs that you would use to interpret the statute and by the way for the court of appeals that have addressed this have said the statute is unambiguous lee clear it means what the board said it meant i think that  i don't know the answer to that but i think there may be there might be such offenses and there might be foreign offenses like that as well and i haven't been able to canvass that whole area obviously and i still think that's the only explanation for that limiting language at the end we go misdemeanor never heard of such a thing i mean i've seized on the rico statute but actually the very next provision in j which is section ten eighty four the same analysis would apply section twenty four is a statute that has an interstate commerce ohman in it it has to do with gambling  transmitting information for gambling in interstate commerce and it is punishable by up to two years when it is prosecuted federally and there is a federal conviction so the same analysis would work there as well and that's something where i think it's pretty clear that there would be state and walks to the substan congress just use the generic definition of arson here and i think there are a number number of reasons for that for one thing i think it would have been under inclusive because it would've included the explosives offenses that are set forth in the federal statute very likely or it's possible that courts would have reached that conclusion for another i think it would have entailed and i know this court is from earlier with the process it would have entailed coming up with what the elements of that generic offense are and that could be difficult i think it could be especially difficult in the arson context where there are states there from all over the place and that have moved away from the classic common law definition of burning of a dwelling place and so i think there are very good reasons that congress had when it found a federal criminal provision that had the substantive elements that wanted to simply refer to that federal criminal provision using the looser language i've described and in light of the penultimate sentence and that's something that would have at square this with the categorical approach you know we've been very clear the categorical approach says every element of a crime that has to be proven to jury has to be included in the state offense but now you're saying it's every categorical element that's not jurisdiction you get that from what i think the thrust of the categorical approach is that you don't look at the particular conduct that the person engaged and you look at the elements of the crime that they were convicted of and then you compare it to something that federal law tells you to compare it to and i think that is a question of statutory interpretation what it is that you're supposed to be comparing it to that the federal law is telling you is the proper compared her and here that's a question we're answering that's the question about what described in means but what it means in light of the penult i don't think there's anything in this court's categorical approach cases that would preclude the interpretation that we're putting forth here today i just think it hasn't arisen in exactly this way before but again the important thing about the approach is that you don't look at the particular conduct here as i say it's not even the record what his conduct is all that we know is he committed a felony under new york state law that was punishable my understanding is by up to seven years in prison and that's the only information we have and then we have to look at the elements of the new york it that he was convicted under and compare them to the offense described in section eight forty four to the extent that the court thought that they were ambiguity we would ask for deference to the board here but we don't think there is ambiguity knowledge to original position i don't think so and it is true that the board changed positions but it knew that it was doing it and it gave reasons for doing it and it gave a lot of reasons in its ultimate decision in two thousand and two that are not reflected in the original decision that the board doesn't seem to have considered in the original decision so i just think it's the vazquez muse decision from two thousand and two that has been announced as very similar to the analysis of the courts of appeals that have found the statute on ambiguous have walked through here in looking at not only at the arson throughout title eighteen there are references to arson both priest talk about the federal three strikes law within the federal three strikes law is actually a definition of arson congress could have could have referred to the definite if sion of arson in that provision in provision k of the aggravated felony provision it discusses first generically managing a prostitution business and then it refers to title eighteen offenses regarding transportation of  prostitutes congress could have said arson and then and then referred to title eighteen eighteen u s c eight forty four i could have combined both a generic arson and a reference to two explosive devices with regards to the comment about not all state arson offenses being crimes of violence because some would involve personal property that issue has been resolved by the board of immigration appeals since eighty eight are brief i'll reply brief mentions a case from the board called matter of palacios where the board held that damaging your own property would would constitute burning your own property through arson would constitute a crime of violence with regards to the comments about about the find in with regards to the i n a defined in is used can consistently to refer to a definition and the congressional drafting manuals also indicate that the find and should be referring to a definition and or my final point is that what we're seeking here is  cancellation of removal of discretionary relief and that congress would not have wanted to deprive individuals who have been convicted of minor offenses or less serious offenses of such discretionary relief and would want them to have a chance to  as i said before there is overlap and that they're very likely i want to know where the overlap is for the child pornography there there is on that one i don't think there's there's there's any question about that because there is a second minor so that that is there is at least one case out there where where that is the way that the government pursued one of one of these cases you know for the question spank