Second, everyone not included in the first group is considered an “alien” as defined by the INA. 8 U.S.C. §1101(a)(3). Finally, the term “immigrant” is defined as any “alien” not specified in twenty-two separate categories.

Question presented:Whether a state offense constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is “described in” a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks.Lower court opinion: Torres v. Holder, 764 F.3d 152 (2nd Cir. 2014)DocketScotusblog pageLast week we saw the decision in Johnson v. U.S., involving the “residual clause” of the Armed Career Criminal Act’s definition of a “violent felony,” which had defied consistent application by sentencing judges. Today the Court takes another case involving a question about the meaning of a federal statute that triggers certain consequences based on a person’s prior convictions.

The INA sets forth a multi-part definition of the term “aggravated felony,” which applies to violations of federal and state law. 8 U.S.C. § 1101(a)(43).DISCUSSIONThe “aggravated felony” ground of deportability is found at 8 U.S.C. § 1227(a)(2)(A)(iii).

Amos appealed, but the BIA denied Petitioner’s motion for reconsideration. The question on appeal was whether Petitioner’s conviction, under the former Maryland statute, qualifies as the aggravated felony of “sexual abuse of a minor,” within the meaning of 8 U.S.C § 1101(a)(43)(A). Petitioner contended that his Maryland conviction did not render him removable under 8 U.S.C § 1101(a)(43)(A), because “the conduct proscribed by the former Maryland statute is not encompassed within the generic federal offense of ‘sexual abuse of a minor.’

The U.S. Supreme Court today agreed to hear a case asking whether the IIRIRA definition of “admission,” INA § 101(a)(13)(C)(v), applies to individuals who were convicted prior to IIRIRA’s enactment then left the United States after enactment. Vartelas v. Holder, No. 10-1211 (U.S. Sept. 27, 2011).The question presented, as described in the Solicitor General’s Brief in Opposition, states:In 1996, Congress amended 8 U.S.C. 1101(a)(13) to specify that those aliens seeking “admission” to the United States include lawful permanent resident aliens who are returning to the United States from travel abroad and who “ha[ve] committed an offense identified in [8 U.S.C.] 1182(a)(2).” 8 U.S.C. 1101(a)(13)(C)(v).

See new 8 CFR 214.2(h)(4)(ii). Per 8 U.S.C. § 1101(a)(15)(H)(i)(b), only “intending employer[s]” may apply for H-1B nonimmigrant visas. For comparison, the U.S. Department of Labor’s elemental rule, long followed by the United States Citizenship and Immigration Services (USCIS) (since 1991) and adopted into the H-1B regulations, defines an employer as (1) a “person, firm, corporation, contractor, or other association or organization in the United States which suffers or permits a person to work in the United States” that (2) “may hire pay, fire, supervise or otherwise control the work of any such employee” and (3) which “has an IRS tax identification number.”

The proclamation adds that “the Secretary of Labor shall also undertake, as appropriate, investigations pursuant to section 212(n)(2)(G)(i) of the INA (8 U.S.C. § 1182(n)(2)(G)(i)).” For background, this section provides the Secretary of Labor with the authority to investigate employers’ compliance with obligations regarding wages paid and working conditions associated with employees who hold H-1B visas (8 U.S.C. § 1101(a)(15)(H)(i)(b) (defining specialty occupation workers)), with attention to “an employer’s practices or employment conditions, or an employer’s compliance with the employer’s labor condition application.” The labor condition application is a precursor filing by the H-1B visa employer with the DOL that certifies working conditions and a minimum prevailing wage.There is authority for this review.

On January 24, 2001, after Ojo had turned seventeen, the Circuit Court for Montgomery County, Maryland (the “Maryland state court”), entered a judgement for adoption. During Ojo’s twenties he was convicted of two drug-related offenses—either of which qualified as an “aggravated felony” under 8 U.S.C. § 1101(a)(43)(B). On May 6, 2013, in light of Ojo’s convictions, and alleging that Ojo had not derived citizenship as an adopted child under 8 U.S.C. § 1101(b)(1)(E), the Department of Homeland Security (“DHS”) charged Ojo with removability form the Unites States under 8 U.S.C. § 1227(a)(2)(A)(iii).

One of the crimes listed as an aggravated felony is “sexual abuse of a minor.” 8 U.S.C. § 1101(a)(43)(A). In this case the Supreme Court holds that “in the context of statutory rape offenses that criminalize sexual intercourse based solely on the age of the participants, the generic federal definition of sexual abuse of a minor requires that the victim be younger than 16.”

Under U.S. law, the term “immigrant” means “every alien except an alien who is within one of the [enumerated] classes of nonimmigrant aliens.” INA 101(a)(15), 8 U.S.C. 1101(a)(15). This encompasses non-citizens who intend to reside in the United States permanently, including lawful permanent residents (known as “green card holders” or LPRs).