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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1096

															_________________

															JORGE LUNA TORRES, PETITIONER v. LORETTA E. LYNCH,
ATTORNEY GENERAL

															on writ of certiorari to the united states court of appeals for
the second circuit

															[May 19, 2016]

															Justice Kagan delivered the opinion of the Court.

															The Immigration and Nationality Act (INA or Act) imposes certain
adverse immigration consequences on an alien convicted of an
“aggravated felony.” The INA defines that term by listing various
crimes, most of which are identified as offenses “described in”
specified provisions of the federal criminal code. Immediately
following that list, the Act provides that the referenced offenses
are aggravated felonies irrespective of whether they are “in
violation of Federal[,] State[,]” or foreign law. 108 Stat. 4322, 8
U. S. C. §1101(a)(43). In this case, we must decide if a
state crime counts as an aggravated felony when it corresponds to a
specified federal offense in all ways but one—namely, the state
crime lacks the interstate commerce element used in the federal
statute to establish legislative jurisdiction ( i.e., Congress’s power to enact the law). We hold that the absence of
such a jurisdictional element is immaterial: A state crime of that
kind is an aggravated felony.

															I

															The INA makes any alien convicted of an “aggravated felony”
after entering the United States deportable. See
§1227(a)(2)(A)(iii). Such an alien is also ineligible for several
forms of discretionary relief, including cancellation of removal—an
order allowing a deportable alien to remain in the country. See
§1229b(a)(3). And because of his felony, the alien faces expedited
removal proceedings. See §1228(a)(3)(A).

															The Act defines the term “aggravated felony” by way of a long
list of offenses, now codified at §1101(a)(43). In all, that
provision’s 21 subparagraphs enumerate some 80 different crimes. In
more than half of those subparagraphs, Congress specified the
crimes by citing particular federal statutes. According to that
common formulation, an offense is an aggravated felony if it is
“described in,” say, 18 U. S. C. §2251 (relating to child
pornography), §922(g) (relating to unlawful gun possession), or, of
particular relevance here, §844(i) (relating to arson and
explosives). 8 U. S. C. §§1101(a)(43)(E), (I). Most of
the remaining subparagraphs refer to crimes by their generic
labels, stating that an offense is an aggravated felony if, for
example, it is “murder, rape, or sexual abuse of a minor.”
§1101(a)(43)(A). Following the entire list of crimes,
§1101(a)(43)’s penultimate sentence reads: “The term [aggravated
felony] applies to an offense described in this paragraph whether
in violation of Federal or State law and applies to such an offense
in violation of the law of a foreign country for which the term of
imprisonment was completed within the previous 15 years.” So,
putting aside the 15-year curlicue, the penultimate sentence
provides that an offense listed in §1101(a)(43) is an aggravated
felony whether in violation of federal, state, or foreign law.

															Petitioner Jorge Luna Torres, who goes by the name George Luna,
immigrated to the United States as a child and has lived here ever
since as a lawful permanent resident. In 1999, he pleaded guilty to
attempted arson in the third degree, in violation of New York law;
he was sentenced to one day in prison and five years of probation.
Seven years later, immigration officials discovered his conviction
and initiated proceedings to remove him from the country. During
those proceedings, Luna applied for cancellation of removal. But
the Immigration Judge found him ineligible for that discretionary
relief because his arson conviction qualified as an aggravated
felony. See App. to Pet. for Cert. 21a–22a.

															The Board of Immigration Appeals (Board) affirmed, based on a
comparison of the federal and New York arson statutes. See id., at 15a–17a. The INA, as just noted, provides that “an
offense described in” 18 U. S. C. §844(i), the federal
arson and explosives statute, is an aggravated felony. Section
844(i), in turn, makes it a crime to “maliciously damage[ ] or
destroy[ ], or attempt[ ] to damage or destroy, by means
of fire or an explosive, any building [or] vehicle . . .
used in interstate or foreign commerce or in any activity affecting
interstate or foreign commerce.” For its part, the New York law
that Luna was convicted under prohibits “intentionally damag[ing],”
or attempting to damage, “a building or motor vehicle by starting a
fire or causing an explosion.” N. Y. Penal Law Ann. §§110,
150.10 (West 2010). The state law, the Board explained, thus
matches the federal statute element-for-element with one exception:
The New York law does not require a connection to interstate
commerce. According to the Board, that single difference did not
matter because the federal statute’s commerce element is
“jurisdictional”—that is, its function is to establish Congress’s
power to legislate. See App. to Pet for Cert. 16a–17a. Given that
the two laws’ substantive ( i.e., non-jurisdictional)
elements map onto each other, the Board held, the New York arson
offense is “described in” 18 U. S. C. §844(i).

															The Court of Appeals for the Second Circuit denied Luna’s
petition for review of the Board’s ruling. See 764 F. 3d 152
(2014). The court’s decision added to a Circuit split over whether
a state offense is an aggravated felony when it has all the
elements of a listed federal crime except one requiring a
connection to interstate commerce.[ 1 ] We granted
certiorari. 576 U. S. ___ (2015).

															II

															The issue in this case arises because of the distinctive role
interstate commerce elements play in federal criminal law. In our
federal system, “Congress cannot punish felonies generally,” Cohens v. Virginia , 6 Wheat. 264, 428 (1821); it may
enact only those criminal laws that are connected to one of its
constitutionally enumerated powers, such as the authority to
regulate interstate commerce. As a result, most federal offenses
include, in addition to substantive elements, a jurisdictional one,
like the interstate commerce requirement of §844(i). The
substantive elements “primarily define[ ] the behavior that
the statute calls a ‘violation’ of federal law,” Scheidler v. National Organization for Women, Inc. , 547 U. S. 9,
18 (2006) —or, as the Model Penal Code puts the point, they relate
to “the harm or evil” the law seeks to prevent, §1.13(10). The
jurisdictional element, by contrast, ties the substantive offense
(here, arson) to one of Congress’s constitutional powers (here, its
authority over interstate commerce), thus spelling out the warrant
for Congress to legislate. See id., at 17–18 (explaining
that Congress intends “such statu-tory terms as ‘affect commerce’
or ‘in commerce’ . . . as terms of art connecting the
congressional exercise of legislative authority with the
constitutional provision (here, the Commerce Clause) that grants
Congress that authority”).

															For obvious reasons, state criminal laws do not include the
jurisdictional elements common in federal statutes.[ 2 ] State legislatures, exercising their plenary police
powers, are not limited to Congress’s enumerated powers; and so
States have no reason to tie their substantive offenses to those
grants of authority. See, e.g., United States v. Lopez , 514 U. S. 549, 567 (1995) . In particular, state
crimes do not contain interstate commerce elements because a State
does not need such a jurisdictional hook. Accordingly, even state
offenses whose substantive elements match up exactly with a federal
law’s will part ways with respect to interstate commerce. That
slight discrepancy creates the issue here: If a state offense lacks
an interstate commerce element but otherwise mirrors one of the
federal statutes listed in §1101(a)(43), does the state crime count
as an aggravated felony? Or, alternatively, does the jurisdictional
difference reflected in the state and federal laws preclude that
result, no matter the laws’ substantive correspondence?

															Both parties begin with the statutory text most directly at
issue, disputing when a state offense (here, arson) is “described
in” an enumerated federal statute (here, 18 U. S. C.
§844(i)). Luna, armed principally with Black’s Law Dictionary,
argues that “described in” means “expressed” or “set forth”
in—which, he says, requires the state offense to include each one
of the federal law’s elements. Brief for Petitioner 15–16.[ 3 ] The Government, brandishing dictionaries of its own,
contends that the statutory phrase has a looser meaning—that
“describing entails . . . not precise replication,” but
“convey[ance of ] an idea or impression” or of a thing’s
“central features.” Brief for Respondent 17.[ 4 ]
On that view, “described in,” as opposed to the more precise
“defined in” sometimes found in statutes, denotes that the state
offense need only incorporate the federal law’s core, substantive
elements.

															But neither of those claims about the bare term “described in”
can resolve this case. Like many words, “describe” takes on
different meanings in different contexts. Consider two ways in
which this Court has used the word. In one case, “describe”
conveyed exactness: A contractual provision, we wrote, “describes
the subject [matter] with great particularity[,] . . .
giv[ing] the precise number of pounds [of tobacco], the tax for
which each pound was liable, and the aggregate of the tax.” Ryan v. United States , 19 Wall. 514, 517 (1874). In
another case, not: “The disclosure provision is meant,” we stated,
“to describe the law to consumers in a manner that is concise and
comprehensible to the layman—which necessarily means that it will
be imprecise.” CompuCredit Corp. v. Greenwood , 565
U. S. 95, 102 (2012) . So staring at, or even looking up, the
words “described in” cannot answer whether a state offense must
replicate every last element of a listed federal statute, including
its jurisdictional one, to qualify as an aggravated felony. In
considering that issue, we must, as usual, “interpret the relevant
words not in a vacuum, but with reference to the statutory
context.” Abramski v. United States , 573 U. S.
___, ___ (2014) (slip op., at 9).[ 5 ]

															Here, two contextual considerations decide the matter. The first
is §1101(a)(43)’s penultimate sentence, which shows that Congress
meant the term “aggravated felony” to capture serious crimes
regardless of whether they are prohibited by federal, state, or
foreign law. The second is a well-established background principle
distinguishing between substantive and jurisdictional elements in
federal criminal statutes. We address each factor in turn.

															A

															Section 1101(a)(43)’s penultimate sentence, as noted above,
provides: “The term [aggravated felony] applies to an offense
described in this paragraph whether in violation of Federal or
State law and applies to such an offense in violation of the law of
a foreign country for which the term of imprisonment was completed
within the previous 15 years.” See supra, at 2. That
sentence (except for the time limit on foreign convictions)
declares the source of criminal law irrelevant: The listed offenses
count as aggravated felonies regardless of whether they are made
illegal by the Federal Government, a State, or a foreign country.
That is true of the crimes identified by reference to federal
statutes (as here, an offense described in 18 U. S. C.
§844(i)), as well as those employing generic labels (for example,
murder). As even Luna recognizes, state and foreign analogues of
the enumerated federal crimes qual-ify as aggravated felonies. See
Brief for Petitioner 21 (contesting only what properly counts as
such an analogue). The 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.

															Luna’s jot-for-jot view of “described in” would substantially
undercut that function by excluding from the Act’s coverage all
state and foreign versions of any enumerated federal offense that
(like §844(i)) contains an interstate commerce element. Such an
element appears in about half of §1101(a)(43)’s listed
statutes—defining, altogether, 27 serious crimes.[ 6 ] Yet under Luna’s reading, only those federal crimes,
and not their state and foreign counterparts, would provide a basis
for an alien’s removal—because, as explained earlier, only Congress
must ever show a link to interstate commerce. See supra, at
4–5. No state or foreign legislature needs to incorporate a
commerce element to establish its jurisdiction, and so none ever
does. Accordingly, state and foreign crimes will never precisely
replicate a federal statute containing a commerce element. And that
means, contrary to §1101(a)(43)’s penultimate sentence, that the
term “aggravated felony” would not apply to many of the
Act’s listed offenses irrespective of whether they are “in
violation of Federal[,] State[, or foreign] law”; instead, that
term would apply exclusively to the federal variants.[ 7 ]

															Indeed, Luna’s view would limit the penultimate sentence’s
effect in a peculiarly perverse fashion—excluding state and foreign
convictions for many of the gravest crimes listed in §1101(a)(43),
while reaching those convictions for less harmful offenses.
Consider some of the state and foreign crimes that would not count
as aggravated felonies on Luna’s reading because the corresponding
federal law has a commerce element: most child pornography
offenses, including selling a child for the purpose of
manufacturing such material, see §1101(a)(43)(I); demanding or
receiving a ransom for kidnapping, see §1101(a)(43)(H); and
possessing a firearm after a felony conviction, see
§1101(a)(43)(E)(ii). Conversely, the term “aggravated felony” in
Luna’s world would include state and foreign convictions for such
comparatively minor offenses as operating an unlawful gambling
business, see §1101(a)(43)(J), and possessing a firearm not
identified by a serial number, see §1101(a)(43)(E)(iii), because
Congress chose, for whatever reason, not to use a commerce element
when barring that conduct. And similarly, the term would cover any
state or foreign conviction for such nonviolent activity as
receiving stolen property, see §1101(a)(43)(G), or forging
documents, see §1101(a)(43)(R), because the INA happens to use
generic labels to describe those crimes. This Court has previously
refused to construe §1101(a)(43) so as to produce such
“haphazard”—indeed, upside-down—coverage. Nijhawan v. Holder , 557 U. S. 29, 40 (2009) . We see no reason to
follow a different path here: Congress would not have placed an
alien convicted by a State of running an illegal casino at greater
risk of removal than one found guilty under the same State’s law of
selling a child.[ 8 ]

															In an attempt to make some sense of his reading, Luna posits
that Congress might have believed that crimes having an interstate
connection are generally more serious than those lacking one—for
example, that interstate child pornography is “worse” than the
intrastate variety. Brief for Petitioner 35. But to begin with,
that theory cannot explain the set of crazy-quilt results just
described: Not even Luna maintains that Congress thought local acts
of selling a child, receiving explosives, or demanding a ransom are
categorically less serious than, say, operating an unlawful casino
or receiving stolen property (whether or not in interstate
commerce). And it is scarcely more plausible to view an interstate
commerce element in any given offense as separating serious from
non-serious conduct: Why, for example, would Congress see an alien
who carried out a kidnapping for ransom wholly within a State as
materially less dangerous than one who crossed state lines in
committing that crime? The essential harm of the crime is the same
irrespective of state borders. Luna’s argument thus misconceives
the function of interstate commerce elements: Rather than
distinguishing greater from lesser evils, they serve (as earlier
explained) to connect a given substantive offense to one of
Congress’s enumerated powers. See supra, at 4–5. And still
more fundamentally, Luna’s account runs counter to the penultimate
sentence’s central message: that the national, local, or foreign
character of a crime has no bearing on whether it is grave enough
to warrant an alien’s automatic removal.[ 9 ]

															Luna (and the dissent, see post, at 6) must therefore
fall back on a different defense: that his approach would exclude
from the universe of aggravated felonies fewer serious state and
foreign offenses than one might think. To make that argument, Luna
relies primarily on a part of the Act specifying that the term
“aggravated felony” shall include “a crime of violence (as defined
in [ 18 U. S. C. §16]) for which the term of imprisonment
[is] at least one year.” §1101(a)(43)(F); see 18 U. S. C.
§16 (defining “crime of violence” as involving the use of “physical
force” against the person or property of another). According to
Luna, many state and foreign offenses failing to match the Act’s
listed federal statutes (for want of an interstate commerce
element) would count as crimes of violence and, by that alternative
route, trigger automatic removal. A different statutory phrase, or
so Luna says, would thus plug the holes opened by his construction
of the “described in” provisions.

															Luna’s argument does not reassure us. We agree that state
counterparts of some enumerated federal offenses would qualify as
aggravated felonies through the “crime of violence” provision. But
not nearly all such offenses, and not even the worst ones. Consider
again some of the listed offenses described earlier. See supra, at 10. The “crime of violence” provision would not
pick up demanding a ransom for kidnapping. See 18
U. S. C. §875(a) (defining the crime without any
reference to physical force). It would not cover most of the listed
child pornography offenses, involving the distribution, receipt,
and possession of such materials. It would not reach
felon-in-possession laws and other firearms offenses. And indeed,
it would not reach arson in the many States defining that crime to
include the destruction of one’s own property. See Jordison v. Gonzales , 501 F. 3d 1134, 1135 (CA9 2007) (holding
that a violation of California’s arson statute does not count as a
crime of violence for that reason); Tr. of Oral Arg. 28–29
(Solicitor General agreeing with that interpretation).[ 10 ] So under Luna’s reading, state and foreign
counterparts to a broad swath of listed statutes would remain
outside §1101(a)(43)’s coverage merely because they lack an
explicit interstate commerce connection. And for all the reasons
discussed above, that result would significantly restrict the
penultimate sentence’s force and effect, and in an utterly random
manner.[ 11 ]

															B

															Just as important, a settled practice of distinguishing between
substantive and jurisdictional elements of federal criminal laws
supports reading §1101(a)(43) to include state analogues lacking an
interstate commerce requirement. As already explained, the
substantive elements of a federal statute describe the evil
Congress seeks to prevent; the jurisdictional element connects the
law to one of Congress’s enumerated powers, thus establishing
legislative authority. See supra, at 4–5; ALI, Model Penal
Code §1.13(10) (1962). Both kinds of elements must be proved to a
jury beyond a reasonable doubt; and because that is so, both may
play a real role in a criminal case. But still, they are not
created equal for every purpose. To the contrary, courts have often
recognized—including when comparing federal and state offenses—that
Congress uses substantive and jurisdictional elements for different
reasons and does not expect them to receive identical
treatment.

															Consider the law respecting mens rea . In general, courts
interpret criminal statutes to require that a defendant possess a mens rea , or guilty mind, as to every element of an offense.
See Elonis v. United States , 575 U. S. ___, ___
(2015) (slip op., at 10). That is so even when the “statute by its
terms does not contain” any demand of that kind. United
States v. X-Citement Video, Inc. , 513 U. S. 64, 70
(1994) . In such cases, courts read the statute against a
“background rule” that the defendant must know each fact making his
conduct illegal. Staples v. United States , 511
U. S. 600, 619 (1994) . Or otherwise said, they infer, absent
an express indication to the contrary, that Congress intended such
a mental-state requirement.

															Except when it comes to jurisdictional elements. There, this
Court has stated, “the existence of the fact that confers federal
jurisdiction need not be one in the mind of the actor at the time
he perpetrates the act made criminal by the federal statute.” United States v. Feola , 420 U. S. 671, 677, n. 9
(1975) ; see United States v. Yermian , 468 U. S.
63, 68 (1984) (“Jurisdictional language need not contain the same
culpability requirement as other elements of the offense”); Model
Penal Code §2.02. So when Congress has said nothing about the
mental state pertaining to a jurisdictional element, the default
rule flips: Courts assume that Congress wanted such an element to
stand outside the otherwise applicable mens rea requirement.
In line with that practice, courts have routinely held that a
criminal defendant need not know of a federal crime’s interstate
commerce connection to be found guilty. See, e.g. , United
States v. Jinian , 725 F. 3d 954, 964–966 (CA9
2013); United States v. Lindemann , 85 F. 3d
1232, 1241 (CA7 1996); United States v. Blackmon , 839
F. 2d 900, 907 (CA2 1988). Those courts have recognized, as we
do here, that Congress viewed the commerce element as distinct
from, and subject to a different rule than, the elements describing
the substantive offense.

															Still more strikingly, courts have distinguished between the two
kinds of elements in contexts, similar to this one, in which the
judicial task is to compare federal and state offenses. The
Assimilative Crimes Act (ACA), 18 U. S. C. §13(a),
subjects federal enclaves, like military bases, to state criminal
laws except when they punish the same conduct as a federal statute.
The ACA thus requires courts to decide when a federal and a state
law are sufficiently alike that only the federal one will apply.
And we have held that, in making that assessment, courts should
ignore jurisdictional elements: When the “differences among
elements” of the state and federal crimes “reflect jurisdictional,
or other technical, considerations” alone, then the state law will
have no effect in the area. Lewis v. United States ,
523 U. S. 155, 165 (1998) ; see also id. , at 182
(Kennedy, J., dissenting) (agreeing that courts should “look beyond
. . . jurisdictional elements,” and focus only on
substantive ones, in determining whether “the elements of the two
crimes are the same”). In such a case, we reasoned—just as we do
now—that Congress meant for the federal jurisdictional element to
be set aside.

															And lower courts have uniformly adopted the same approach when
comparing federal and state crimes in order to apply the federal
three-strikes statute. That law imposes mandatory life imprisonment
on a person convicted on three separate occasions of a “serious
violent felony.” 18 U. S. C. §3559(c)(1). Sounding very
much like the INA, the three-strikes statute defines such a felony
to include “a Federal or State offense, by whatever designation and
wherever committed, consisting of” specified crimes ( e.g., murder, manslaughter, robbery) “as described in” listed federal
criminal statutes. §3559(c)(2)(F). In deciding whether a state
crime of conviction thus corresponds to an enumerated federal
statute, every court to have faced the issue has ignored the
statute’s jurisdictional element. See, e.g., United States v. Rosario-Delgado , 198 F. 3d 1354, 1357 (CA11 1999)
( per curiam ); United States v. Wicks , 132
F. 3d 383, 386–387 (CA7 1997). Judge Wood, writing for the
Seventh Circuit, highlighted the phrase “a Federal or State
offense, by whatever designation and wherever committed”—the
three-strikes law’s version of §1101(a)(43)’s penultimate sentence.
“It is hard to see why Congress would have used this language,” she
reasoned, “if it had meant that every detail of the federal
offense, including its jurisdictional element[ ], had to be
replicated in the state offense.” Id., at 386–387. Just so,
too, in the INA—whose “aggravated felony” provisions operate
against, and rely on, an established legal backdrop distinguishing
between jurisdictional and substantive elements.[ 12 ]

															Luna objects to drawing that line on the ground that it is too
hard to tell the difference between the two. See Brief for
Petitioner 26–28 (discussing, in particular, statutes criminalizing
the destruction of federal property and sending threats via the
Postal Service). But that contention collides with the judicial
experience just described. Courts regularly separate substantive
from jurisdictional elements in applying federal criminal statutes’ mens rea requirements; so too in implementing other laws
that require a comparison of federal and state offenses. And from
all we can see, courts perform that task with no real trouble: Luna
has not pointed to any divisions between or within Circuits arising
from the practice. We do not deny that some tough questions may
lurk on the margins—where an element that makes evident Congress’s
regulatory power also might play a role in defining the behavior
Congress thought harmful. But a standard interstate commerce
element, of the kind appearing in a great many federal laws, is
almost always a simple jurisdictional hook—and courts may as easily
acknowledge that fact in enforcing the INA as they have done in
other contexts.

															C

															Luna makes a final argument opposing our reading of
§1101(a)(43): If Congress had meant for “ordinary state-law” crimes
like arson to count as aggravated felonies, it would have drafted
the provision to make that self-evident. Brief for Petitioner 20.
Congress, Luna submits, would have used the generic term for those
crimes— e.g. , “arson”—rather than demanding that the state
law of conviction correspond to a listed federal statute. See id., at 20–23. Or else, Luna (and the dissent) suggests, see id., at 24; post, at 13, Congress would have
expressly distinguished between substantive and jurisdictional
elements, as it did in an unrelated law mandating the pretrial
detention of any person convicted of a federal offense “described
in [a certain federal statute], or of a State or local offense that
would have been an offense described in [that statute] if a
circumstance giving rise to Federal jurisdiction had existed,” 18
U. S. C. §3142(e)(2)(A).

															But as an initial matter, Congress may have had good reason to
think that a statutory reference would capture more accurately than
a generic label the range of state convictions warranting automatic
deportation. The clause of §1101(a)(43) applying to Luna’s case
well illustrates the point. By referring to 18 U. S. C.
§844(i), that provision incorporates not only the garden-variety
arson offenses that a generic “arson” label would cover, but
various explosives offenses too. See Brief for Petitioner 23,
n. 7 (conceding that had Congress used the term “arson,” it
would have had to separately identify the explosives crimes
encompassed in §844(i)). And the elements of generic arson are
themselves so uncertain as to pose problems for a court having to
decide whether they are present in a given state law. See Poulos,
The Metamorphosis of the Law of Arson, 51 Mo. L. Rev. 295, 364,
387–435 (1986) (describing multiple conflicts over what conduct the
term “arson” includes). Nor is the clause at issue here unusual in
those respects: Section 1101(a)(43) includes many other statutory
references that do not convert easily to generic labels. See, e.g., §1101(a)(43)(E)(ii) (listing federal statutes defining
various firearms offenses). To be sure, Congress used such labels
to describe some crimes qualifying as aggravated felonies—for
example, “murder, rape, or sexual abuse of a minor.”
§1101(a)(43)(A). But what is good for some crimes is not for
others. The use of a federal statutory reference shows only that
Congress thought it the best way to identify certain substantive
crimes—not that Congress wanted (in conflict with the penultimate
sentence) to exclude state and foreign versions of those offenses
for lack of a jurisdictional element.

															Still more, Congress’s omission of statutory language
specifically directing courts to ignore those elements cannot tip
the scales in Luna’s favor. We have little doubt that “Congress
could have drafted [§1101(a)(43)] with more precision than it did.” Graham County Soil & Water Conservation Dist. v. United States ex rel. Wilson , 545 U. S. 409, 422 (2005)
. But the same could be said of many (even most) statutes; as to
that feature, §1101(a)(43) can join a well-populated club. And we
have long been mindful of that fact when interpreting laws. Rather
than expecting (let alone demanding) perfection in drafting, we
have routinely construed statutes to have a particular meaning even
as we acknowledged that Congress could have expressed itself more
clearly. See, e.g., ibid. ; Florida Dept. of Revenue v. Piccadilly Cafeterias, Inc. , 554 U. S. 33, 41 (2008)
; Scarborough v. United States , 431 U. S. 563
–571, 575 (1977). The question, then, is not: Could Congress have
indicated (or even did Congress elsewhere indicate) in more
crystalline fashion that comparisons of federal and state offenses
should disregard elements that merely establish legislative
jurisdiction? The question is instead, and more simply: Is that the
right and fair reading of the statute before us? And the answer to
that question, given the import of §1101(a)(43)’s penultimate
sentence and the well-settled background rule distinguishing
between jurisdictional and substantive elements, is yes.

															III

															That reading of §1101(a)(43) resolves this case. Luna has
acknowledged that the New York arson law differs from the listed
federal statute, 18 U. S. C. §844(i), in only one
respect: It lacks an interstate commerce element. See Pet. for
Cert. 3. And Luna nowhere contests that §844(i)’s commerce
element—featuring the terms “in interstate or foreign commerce” and
“affecting interstate or foreign commerce”—is of the standard,
jurisdictional kind. See Tr. of Oral Arg. 12, 19; Scheidler ,
547 U. S., at 17–18 (referring to the phrases “affect
commerce” and “in commerce” as conventional “jurisdictional
language”). For all the reasons we have given, such an element is
properly ignored when determining if a state offense counts as an
aggravated felony under §1101(a)(43). We accordingly affirm the
judgment of the Second Circuit.

															It is so ordered. Notes 1 Compare Espinal-Andrades v. Holder , 777 F. 3d 163 (CA4 2015) (finding an aggravated
felony in that circumstance); Spacek v. Holder , 688
F. 3d 536 (CA8 2012) (same); Nieto Hernandez v. Holder , 592 F. 3d 681 (CA5 2009) (same); Negrete-Rodriguez v. Mukasey , 518 F. 3d 497 (CA7
2008) (same); United States v. Castillo-Rivera , 244
F. 3d 1020 (CA9 2001) (same), with Bautista v. Attorney General , 744 F. 3d 54 (CA3 2014) (declining to
find an aggravated felony). 2 That flat statement is
infinitesimally shy of being wholly true. We have found a handful
of state criminal laws with an interstate commerce element, out of
the tens (or perhaps hundreds) of thousands of state crimes on the
books. Mississippi, for example, lifted essentially verbatim the
text of the federal money laundering statute when drafting its own,
and thus wound up with such an element. See Miss. Code Ann.
§97–23–101 (rev. 2014). But because the incidence of such laws is
so vanishingly small, and the few that exist play no role in Luna’s
arguments, we proceed without qualifying each statement of the kind
above. 3 Black’s Law Dictionary 401 (5th ed.
1979) (defining “describe” as to “express, explain, set forth,
relate, recount, narrate, depict, delineate, portray”). Luna also
cites Webster’s New Collegiate Dictionary 307 (1976), which defines
“describe” to mean “to represent or give an account of in
words.” 4 See American Heritage Dictionary of
the English Language 490 (5th ed. 2011) (defining “describe” as
“[t]o convey an idea or impression of ”); Webster’s Third New
International Dictionary 610 (1986) (defining “describe” as “to
convey an image or notion of” or “trace or traverse the outline
of ”). 5 The dissent disagrees, contending
that the word “describe” decides this case in Luna’s favor because
a “description cannot refer to features that the thing being
described does not have.” Post, at 5 (opinion of Sotomayor,
J.). Says the dissent: If a Craigslist ad “describes” an apartment
as having an “in-unit laundry, a dishwasher, rooftop access,
central A/C, and a walk-in closet,” it does not describe an
apartment lacking rooftop access. Ibid. That is true enough,
but irrelevant. The dissent is right that when someone describes an
object by a list of specific characteristics, he means that the
item has each of those attributes. But things are different when
someone uses a more general descriptor—even when that descriptor
(as here, a federal statute) itself has a determinate set of
elements. It would be natural, for example, to say (in the exact
syntax of §1101(a)(43)) that a person followed the itinerary for a
journey through Brazil that is “described in” a Lonely Planet guide
if he traveled every leg of the tour other than a brief “detour
north to Petrópolis.” The Lonely Planet, On the Road: Destination
Brazil,
http://media.lonelyplanet.com/shop/pdfs/brazil-8-getting-started.pdf
(all Internet materials as last visited May 16, 2016). And
similarly, a person would say that she had followed the
instructions for setting up an iPhone that are “described in” the
user’s manual even if she in fact ignored the one (specifically
highlighted there) telling her to begin by “read[ing] important
safety information” to “avoid injury.” Apple, Set Up iPhone,
http://help.apple.com/iphone/9/#iph3bf43d79. 6 See 8 U. S. C.
§1101(a)(43)(D) (“an offense described in” 18 U. S. C.
§1956, which criminalizes laundering of monetary instruments); ibid. (“an offense described in” 18 U. S. C.
§1957, which criminalizes engaging in monetary transactions
involving property derived from specified unlawful activities);
§1101(a)(43)(E)(i) (three “offense[s] described in” 18
U. S. C. §§842(h)–(i), 844(d), which criminalize
activities involving explosives); ibid. (“an offense
described in” 18 U. S. C. §844(e), which criminalizes
threatening to cause death, injury, or property damage using
explosives); ibid. (“an offense described in” 18
U. S. C. §844(i), which criminalizes using fire or
explosives to cause property damage); §1101(a)(43)(E)(ii) (six
“offense[s] described in” 18 U. S. C. §§922(g)(1)–(5),
( j), which criminalize possessing a firearm in various
circumstances); ibid. (two “offense[s] described in” 18
U. S. C. §§922(n), 924(b),which criminalize transporting
or receiving a firearm under certain circumstances);
§1101(a)(43)(E)(iii) (“an offense described in” 26
U. S. C. §5861( j), which criminalizes transporting
an unregistered firearm); §1101(a)(43)(H) (“an offense described
in” 18 U. S. C. §875, which criminalizes making a threat
to kidnap or a ransom demand); ibid. (“an offense described
in” 18 U. S. C. §1202(b), which criminalizes possessing,
receiving, or transmitting proceeds of a kidnapping);
§1101(a)(43)(I) (“an offense described in” 18 U. S. C.
§2251, which criminalizes sexually exploiting a child); ibid. (“an offense described in” 18 U. S. C.
§2251A, which criminalizes selling a child for purposes of child
pornography); ibid. (“an offense described in 18
U. S. C. §2252, which criminalizes various activities
relating to child pornography); §1101(a)(43)(J) (“an offense
described in” 18 U. S. C. §1962, which criminalizes
activities relating to racketeering); ibid. (“an offense
described in” 18 U. S. C. §1084, which criminalizes
transmitting information to facilitate gambling);
§1101(a)(43)(K)(ii) (“an offense described in” 18
U. S. C. §2421, which criminalizes transporting a person
for purposes of prostitution); ibid. (“an offense described
in” 18 U. S. C. §2422, which criminalizes coercing or
enticing a person to travel for purposes of prostitution); ibid. (“an offense described in” 18 U. S. C.
§2423, which criminalizes transporting a child for purposes of
prostitution); §1101(a)(43)(K)(iii) (“an offense described in” 18
U. S. C. §1591(a)(1), which criminalizes sex trafficking
of children, or of adults by force, fraud, or
coercion). 7 The dissent replies: What’s the big
deal? See post, at 10. After all, it reasons, some listed
federal statutes—specifically, those prohibiting treason, levying
war against the United States, and disclosing national defense
information—will lack state or foreign analogues even under our
construction. See ibid. But Congress’s inclusion of a few
federal offenses that, by their nature, have no state or foreign
analogues hardly excuses expelling from the Act’s coverage the
countless state and foreign versions of 27 other serious
crimes. 8 Luna’s position, in addition to
producing this bizarre patchwork of coverage, conflicts with our
ordinary assumption that Congress, when drafting a statute, gives
each provision independent meaning. See United States v. Butler , 297 U. S. 1, 65 (1936) (“These words cannot be
meaningless, else they would not have been used”). Until its most
recent amendment, §1101(a)(43)(J ) provided that the term
“aggravated felony” included any “offense described in [ 18
U. S. C. §1962] (relating to racketeer influenced corrupt
organizations) for which a sentence of 5 years’ imprisonment or
more may be imposed.” 8 U. S. C. §1101(a)(43)(J )
(1994 ed., Supp. I). (That provision now incorporates two more
federal crimes, and uses one year of prison as the threshold.) The
federal racketeering statute cited has an interstate commerce
element; analogous state and foreign laws (per usual) do not, and
therefore would fall outside §1101(a)(43)(J ) on Luna’s
reading. But if Congress had meant to so exclude those state and
foreign counterparts, then §1101(a)(43)(J )’s final
clause—“for which a sentence of 5 years’ imprisonment may be
imposed”—would have been superfluous, because federal racketeering
is always punishable by more than five years’ imprisonment,
see 18 U. S. C. §1963(a). That language’s presence shows
that Congress thought §1101(a)(43)(J ) would sweep in some
state and foreign laws: The final clause served to filter out such
statutes when—but only when—they applied to less serious conduct
than the federal racketeering offense. 9 The dissent attempts a variant of
Luna’s “not so serious” argument, but to no better effect. Claims
the dissent: Even if Congress could not have viewed “interstate
crimes [as] worse than wholly intrastate crimes,” it might have
thought that, say, “arsons prosecuted as federal crimes are
more uniformly serious than arsons prosecuted as state
crimes.” Post , at 14 (emphasis added). But we see no call to
suppose that Congress regarded state prosecutions as Grapefruit
League versions of the Big Show. Cf. Mistretta v. United
States , 488 U. S. 361, 427 (1989) (Scalia, J.,
dissenting). In our federal system, “States possess primary
authority for defining and enforcing” criminal laws, including
those prohibiting the gravest crimes. Brecht v. Abrahamson , 507 U. S. 619, 635 (1993) . For that
reason, even when U. S. Attorneys have jurisdiction, they are
generally to defer to, rather than supplant, state prosecutions of
serious offenses. See U. S. Attorneys’ Manual: Principles of
Federal Prosecution §9–27.240 (1997). And still more obviously, the
dissent’s theory fails with respect to foreign convictions. That a
foreign sovereign prosecutes a given crime reflects nothing about
its gravity, but only about its location. 10 In all those States, arsons of every
description (whether of one’s own or another’s property) would fall
outside the “crime of violence” provision. See Tr. of Oral Arg. 29,
46 (Solicitor General noting that the categorical approach to
comparing federal and state crimes produces that effect). And
contrary to the dissent’s suggestion, post, at 6, n. 2,
that would be true of the most dangerous arsons, as well as of less
serious ones. The dissent similarly fails to take into account the
categorical approach’s rigorous requirements when discussing a
couple of the non-arson offenses discussed above. (Still others,
the dissent wholly ignores.) It speculates that if the exact right
state charge is filed, some of that conduct “may” qualify, through
the crime-of-violence provision or some other route, as an
aggravated felony. Ibid. “May” is very much the operative
word there, because—depending on the elements of the state offense
chosen—that conduct also “may not.” And the dissent never explains
why Congress would have left the deportation of dangerous felons to
such prosecutorial happenstance. 11 The dissent well-nigh embraces those
consequences, arguing that a narrow reading of “aggravated felony”
would make more convicted criminals removable under other statutory provisions, all of which allow for relief at the Attorney
General’s discretion. See post, at 8, 15 (lamenting that
aliens convicted of aggravated felonies may not “even
appeal[ ] to the mercy of the Attorney General”). But Congress
made a judgment that aliens convicted of certain serious offenses
(irrespective of whether those convictions were based on federal,
state, or foreign law) should be not only removable but also
ineligible for discretionary relief. It is not our place to
second-guess that decision. 12 The dissent declares our discussion
of the three-strikes law, the Assimilative Crime Act (ACA), and mens rea “unhelpful” on the ground that all three contexts
are somehow “differ[ent].” Post, at 10–13. But what makes
them relevantly so the dissent fails to explain. First, the dissent
errs in suggesting that the uniform judicial interpretation of the
three-strikes law ignores only “place-based jurisdiction elements”
(because, so says the dissent, of the phrase “wherever committed”). Post, at 13. As Judge Wood’s analysis indicates, that is a
theory of the dissent’s own creation; the actual appellate
decisions apply to all jurisdictional elements, not just
territorial ones. Next, the dissent goes wrong in claiming that the
ACA is not pertinent because this Court adopted a different method
for matching substantive elements under that law than under
the INA. See post, at 12. For even as the Court made that
choice, it unanimously agreed that, however substantive elements
should be compared, jurisdictional elements should be disregarded.
See Lewis v. United States , 523 U. S. 155, 165
(1998) ; id. , at 182 (Kennedy, J., dissenting). And finally,
the dissent does nothing to undermine our point on mens rea by noting that Congress very occasionally dispenses with that
requirement for substantive elements. See post, at 11. As
just shown, the default rule respecting mental states flips
as between jurisdictional and substantive elements, see supra , at 15–16—reflecting the view (also at play in the
three-strikes and ACA contexts) that Congress generally means to
treat the two differently. That leaves the dissent with nothing
except its observation that when applying the
beyond-a-reasonable-doubt and jury-trial requirements, the Court
does not distinguish between jurisdictional and substantive
elements. See post, at 10. But the dissent forgets that
those commands are constitutional in nature; a principle of
statutory interpretation distinguishing between the two kinds of
elements, as best reflecting Congress’s intent, could not bear on
those mandates. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 14–1096

															_________________

															JORGE LUNA TORRES, PETITIONER v. LORETTA E. LYNCH, ATTORNEY GENERAL

															on writ of certiorari to the united states
court of appeals for the second circuit

															[May 19, 2016]

															Justice Sotomayor, with whom Justice Thomas
and Justice Breyer join, dissenting.

															The Immigration and Nationality Act (INA) metes
out severe immigration consequences to a noncitizen convicted of
any of a number of “aggravated felon[ies].” 8 U. S. C.
§1101(a)(43). An offense “described in” 18 U. S. C.
§844(i)—a federal arson statute—qualifies as such a crime.

															In this case, petitioner, who goes by George
Luna, was convicted of third-degree arson under N. Y. Penal Law
Ann. §150.10 (West 2010), which punishes anyone who (1)
“intentionally” (2) “damages,” by (3) “starting a fire or causing
an explosion,” (4) “a building or motor vehicle.” By contrast, the
federal arson statute, 18 U. S. C. §844(i), applies when
someone (1) “maliciously” (2) “damages or destroys,” (3) “by means
of fire or an explosive,” (4) “any building, vehicle, or other real
or personal property” (5) “used in interstate or foreign commerce.”
There is one more element in the federal offense than in the state
offense—(5), the interstate or foreign commerce element. Luna thus
was not convicted of an offense “described in” the federal statute.
Case closed.

															Not for the majority. It dubs the fifth element
“jurisdictional,” then relies on contextual clues to read it out of
the statute altogether. As a result of the majority’s sleuthing,
Luna—a long-time legal permanent resident—is foreclosed from even
appealing to the sound discretion of the Attorney General to obtain
relief from removal. Because precedent and the text and structure
of the INA require the opposite result, I respectfully dissent.

															I

															A

															Noncitizens convicted of crimes face various
consequences under the INA. Among the harshest of those
consequences fall on noncitizens convicted of 1 of the
approximately 80 “aggravated felonies.” A crime that falls into one
of the listed provisions can be an aggravated felony “whether in
violation of Federal or State law” or “in violation of the law of a
foreign country.” See 8 U. S. C. §1101(a)(43).

															An aggravated felony conviction has two primary
repercussions for noncitizens: It renders them deportable,
§1227(a)(2)(A)(iii), and it makes them categorically ineligible for
several forms of immigration relief ordinarily left to the
discretion of the Attorney General. See, e.g., §§1229b(a)–(b) (cancellation of removal).

															The dozens of aggravated felonies in the INA are
specified in two main ways. First, some are specified by reference
to a generic crime. It is an aggravated felony, for instance, to
commit “murder, rape, or sexual abuse of a minor.” §1101(a)(43)(A).
Some of those crimes use a federal definition as one of the
elements. For example: “Illicit trafficking in a controlled
substance ( as defined in [ 21 U. S. C. §802]).” 8
U. S. C. §1101(a)(43)(B) (emphasis added). (“Illicit
trafficking” is a generic crime; the element of “controlled
substance” takes the meaning in 21 U. S. C. §802, the
“Definitions” provision of the Controlled Substances Act.)

															Second, it lists crimes that are wholly
“described in” the federal criminal code. See , e.g., §1101(a)(43)(H) (“an offense described in section 875, 876, 877, or
1202 of title 18 (relating to the demand for or receipt of
ransom)”); §1101(a)(43)(I) (“an offense described in section 2251,
2251A, or 2252 of title 18 (relating to child pornography)”). The
Government contends that Luna committed a crime in this second
category: an “offense described in” 18 U. S. C.
§844 (i), which criminalizes arson. 8 U. S. C.
§1101 (a) (43) (E) (i).

															B

															In 2006, Luna was found removable from the
United States. He attempted to apply for cancellation of removal, a
form of relief available to long-time legal permanent residents at
the discretion of the Attorney General. §1229b(a). Nothing in
Luna’s history would otherwise preclude cancellation. He was the
sole source of financial support for his U. S. citizen fiancée,
enrolled in college and studying engineering, a homeowner, and a
law-abiding legal permanent resident since he was brought to the
United States as a child over 30 years ago, aside from the one
third-degree arson conviction at issue in this case, for which he
served a day in jail.

															But the Immigration Judge found—and the Board of
Immigration Appeals and the Second Circuit confirmed—that Luna was
ineligible for cancellation of removal. Luna’s New York State arson
conviction, the judge held, qualified as an aggravated felony under
the provision for “an offense described in” §844(i), a federal
arson statute. See §1101(a)(43)(E)(i). Aggravated felons are
ineligible for can-cellation of removal. See §1229b(a)(3). Luna’s
cancellation-of-removal application was thus summarily denied.

															II

															But the offense of which Luna was convicted is not “ described in” §844(i). This Court’s ordinary method of
interpreting the aggravated felony statute, the plain text of that
provision, and the structure of the INA all confirm as much.

															A

															This is not the first time the Court has been
tasked with determining whether a state offense constitutes an
“aggravated felony” under the INA. Until today, the Court has
always required the state offense to match every element of
the listed “aggravated felony.” Kawashima v. Holder ,
565 U. S. ___, ___ (2012) (slip op., at 4); see also Moncrieffe v. Holder , 569 U. S. ___, ___ (2013)
(slip op., at 4–5); Carachuri-Rosendo v. Holder , 560
U. S. 563, 580 (2010) ; Nijhawan v. Holder , 557
U. S. 29, 33 (2009) ; Gonzales v. Duenas-Alvarez , 549 U. S. 183, 185 (2007) ; Lopez v. Gonzales , 549 U. S. 47 –53 (2006); Leocal v. Ashcroft , 543 U. S. 1, 8 (2004) .

															Our ordinary methodology thus confirms that the
federal arson statute does not describe the New York arson statute
under which Luna was convicted. As I have outlined above, see supra , at 1, the federal statute is more limited: It applies
only to fires that involve “interstate or foreign commerce.” The
state statute contains no such limitation. Thus, under the approach
we have used in every case to date, the omission of the interstate
commerce element means that Luna’s state arson conviction was not
an aggravated felony under the INA.

															B

															The plain language of the statute supports
this straightforward approach. The word “describe” means to
“express,” “portray,” or “represent.” See Black’s Law Dictionary
445 (6th ed. 1990); Webster’s Third New International Dictionary
610 (1986). A description may be “detailed” or it may be general,
setting forth only the “recognizable features, or characteristic
marks,” of the thing described while leaving the rest to the
imagination. 4 Oxford English Dictionary 512 (2d ed. 1989). For
example, a Craigslist ad describing an apartment with “in-unit
laundry, a dishwasher, rooftop access, central A/C, and a walk-in
closet” may leave much to the imagination. After all, the
description does not mention the apartment’s square footage,
windows, or floor number. But though the ad omits features, we
would still call it a “description” because it accurately conveys
the “recognizable features” of the apartment.

															However, even the most general description
cannot refer to features that the thing being described does not
have. The ad is only an accurate description if the apartment
“described in” it has at least the five features listed. If
the apartment only has four of the five listed features—there is no
rooftop access, say, or the walk-in closet is not so much walk-in
as shimmy-in—then the Craigslist ad no longer “describes” the
apartment. Rather, it mis describes it.

															So, too, with the statutes in this case. The
federal description can be general as long as it is still
accurate—that is, as long as the state law has at least all of the
elements in the federal law. But there is no meaning of “describe”
that allows the Court to say §844(i) “describes” the New York
offense when the New York offense only has four of the five
elements listed in §844(i). Section 844(i) misdescribes the New
York offense just as surely as the too-good-to-be-true Craigslist
ad misdescribes the real-life apartment.

															C

															The structure of the INA confirms that
conclusion and makes clear that we need not contort the ordinary,
accepted meaning of the phrase “described in.” The INA has many
overlapping provisions that assign carefully calibrated
consequences to various types of criminal convictions. The Court
thus need not interpret any provision—and certainly none of the
aggravated felony provisions, among the harshest in the INA—as
broadly as possible because the INA as a whole ensures that serious
criminal conduct is adequately captured.

															That overlapping structure is apparent
throughout the INA. First, the aggravated felony list itself has
multiple fail-safe provisions. Most serious offenses, for instance,
will qualify as “crime[s] of violence . . . for which the
term of imprisonment [is] at least one year,” 8 U. S. C.
§1101(a)(43)(F), even if they are not covered by a more specific
provision in the aggravated felony list. Had his crime been charged
as a more serious arson and had he been punished by one year of
imprisonment instead of one day, Luna might have qualified as an
aggravated felon under that provision. See Santana v. Holder , 714 F. 3d 140, 145 (CA2 2013) (second-degree
arson in New York is a “crime of violence”).[ 1 ]

															Second, other sections of the INA provide
intertwining coverage for serious crimes. Some examples of
provisions that encompass many offenses include those for the
commission of a “crime involving moral turpitude,” a firearms
offense, or a controlled substance offense, all of which will
render a noncitizen removable, even if he or she has not committed
an aggravated felony. See §§1227(a)(2)(A)(i), (B)(i), (C);
§§1182(a)(2)(A)(i)–(ii). Cf. Judulang v. Holder , 565
U. S. 42, 48 (2011) (commenting on the breadth of the “crime
involving moral turpitude” provision).[ 2 ]

															And finally, in Luna’s case or anyone else’s,
the Attorney General can exercise her discretion to deny relief to
a serious criminal whether or not that criminal has been convicted
of an aggravated felony. See Carachuri-Rosendo, 560
U. S., at 581 (doubting that a narrow reading of §1101(a)(43)
will have “any practical effect on policing our Nation’s
borders”).

															To be sure, on Luna’s reading, some serious
conduct may not be captured by the INA. But not nearly so much as
the majority suggests. By contrast, once the aggra-vated felony
statute applies to a noncitizen, no provision in the INA—and
virtually no act by the Attorney General—can prevent him or her
from being removed.

															Looking for consistency in the aggravated felony
provisions of the INA is often a fool’s errand. See Kawashima , 565 U. S., at ___, n. 2 (slip op., at
9, n. 2) (Ginsburg, J., dissenting) (noting the absurdity of
making a tax misdemeanor, but not driving while drunk and causing
serious bodily injury, an aggravated felony). But the structure of
the INA gives the Court no reason to read the aggravated felony
provisions as broadly as possible.[ 3 ] That is why this Court has repeatedly cautioned against
interpreting the aggravated felony section to sweep in offenses
that—like many state arson convictions—may be neither aggravated
nor felonies. See Carachuri-Rosendo , 560 U. S., at 574;
Brief for National Association of Criminal Defense Lawyers
et al. as Amici Curiae 28–29 (collecting state
misdemeanor arson statutes).

															III

															The majority denies Luna the opportunity to
present his case to the Attorney General based on two “contextual
considerations,” ante, at 7, and an intuition about how the
statute ought to work. None are sufficiently persuasive to overcome
the most natural reading of the aggravated felony statute.

															A

															The majority first perceives a conflict
between Luna’s reading of the INA and what it calls the
“penultimate sentence” of the aggravated felony statute. The
“penultimate sentence” provides that an offense can be an
aggravated felony “whether in violation of Federal or State law” or
“in violation of the law of a foreign country.” 8
U. S. C. §1101(a)(43). The majority claims that Luna’s
reading of the INA would vitiate the quoted proviso. Ante, at 8–10.

															It is true that, on Luna’s reading, some of the aggra-vated felonies listed in the INA (including “an
offense de-scribed in” §844(i)) will have no state or foreign
analog. But the proviso still applies to generic offenses, which
constitute nearly half of the entries in the aggravated felony
list. See, e.g., §§1101(a)(43)(A), (G), (M)(i). And that
already-large portion jumps to close to three-quarters of the
offenses after counting those many listed federal statutes with no
jurisdictional element. See, e.g., §§1101(a)(43)(C),
(E)(ii), (J). In fact, it applies to the vast majority of offenses
adjudicated under the INA given that most serious crimes are also
“crimes of violence.” See §1101(a)(43)(F).[ 4 ]

															And the majority must admit that its
interpretation will also leave entries in the aggravated-felony
section with no state or foreign analogs. For instance, it seems
unlikely that the proviso contemplates state analogs for the
aggravated felony provisions regarding treason, levying war against
the United States, or disclosing national defense information. See
§§1101(a)(43)(L)(i), (P).

															In other words, under Luna’s reading, the
“penultimate sentence” applies to most, but not all, of the entries
of the aggravated felony statute; under the majority’s reading, the
“penultimate sentence” also applies to most, but not all, of the
entries of the aggravated felony statute. The majority’s first
“contextual consideration” thus supplies no reason to prefer one
reading over the other.

															B

															Just as important, the majority suggests, is a
“settled practice of distinguishing between substantive
. . . elements”—those that define “the evil Congress
seeks to prevent”—and “jurisdictional element[s],” which merely
“establis[h] legislative authority.” Ante, at 15. The
majority admits that the Court does not distinguish between
substantive and jurisdictional elements for many purposes, such as
proof beyond a reasonable doubt and the rightto a jury trial. Ibid .; see Ring v. Arizona , 536 U. S.
584, 606 (2002) . But it nonetheless insists on a standard
distinction so entrenched that Congress must have intended it to
apply even absent any particular indication in the INA.

															None of the three examples that the majority
proffers is evidence of such a strong norm. First, the majority
invokes our rules for interpreting criminal statutes. Ante, at 15–16. Whereas our general assumption is that a de-fendant must
know each fact making his conduct illegal, courts generally hold
that a criminal defendant need not know the facts that satisfy the
jurisdictional element of a statute.

															But jurisdictional elements are not the only
elements a defendant need not know. Under the “default rule,” ante, at 18, n. 12, for interpreting so-called “public
welfare” offenses, courts have held that a defendant need not know
that the substance he possesses is a narcotic, that the device he
possesses is unregistered, or that he reentered the United States
after previously being deported. See Staples v. United
States , 511 U. S. 600 –609, 611 (1994) (citing United
States v. Balint , 258 U. S. 250 (1922) , and United States v. Freed , 401 U. S. 601 (1971) ); United States v. Burwell , 690 F. 3d 500, 508–509
(CADC 2012); United States v. Giambro , 544 F. 3d
26, 29 (CA1 2008); United States v. Martinez-Morel ,
118 F. 3d 710, 715–717 (CA10 1997). But surely the majority
would not suggest that if we agree with those holdings regarding mens rea , we must then ignore the “controlled substance”
element of the drug trafficking aggravated felony, the
“unregistered” element of the unregistered firearms aggravated
felony, or the “following deportation” element of the illegal
reentry aggravated felony. See 8 U. S. C.
§§1101(a)(43)(B), (E)(iii), (M)(i), (O). So there is likewise no
reason to believe that the “default rule” for assigning mens
rea to jurisdictional elements is embedded in the INA.

															The majority next points to two of the many
statutes that, like the INA, require comparing the elements of
federal and state offenses. But in each case, it is the statute’s
language and context, not some “settled practice,” ante, at
15, that command the omission of the jurisdic-tional element.

															The majority’s first example, ante, at
16–17, is the Assimilative Crimes Act, 18 U. S. C.
§13(a), a gap-filling statute that incorporates state criminal law
into federal enclaves if the “act or omission” is not “made
punishable by any enactment of Congress” but “would be punishable
if committed or omitted within the jurisdiction of the State.” The
Court held that, in identifying such a gap, courts should ignore
“jurisdictional, or other technical,” differences between a state
and federal statute. Lewis v. United States , 523
U. S. 155, 165 (1998) . But the way courts match the elements
of a state law to a federal analog under the Assimilative Crimes
Act differs fundamentally from our INA inquiry. The basic question
under the Assimilative Crimes Act is whether “federal statutes
reveal an intent to occupy so much of the field as would exclude
the use of the particular state statute at issue.” Id., at
164. Under the Assimilative Crimes Act, the state statute is not
compared to a single federal statute, but rather to a complex of
federal statutes that roughly cover the same general conduct and
“policies.” Ibid. That statute thus has little to teach us
about 8 U. S. C. §1101(a)(43): In interpreting the
Assimilative Crimes Act, every Member of the Court rejected the
simple elements-matching approach that the Court generally employs
to construe the aggravated felony provisions of the INA. See 523
U. S., at 182 (Kennedy, J., dissenting) (allowing “slight
differences” in definition between federal and state statute and
using “same-elements inquiry” only as a “starting point”).

															The majority’s analogy to the federal three
strikes statute, 18 U. S. C. §3559(c)(2)(F), ante, at 17–18, is similarly unhelpful. That provision counts as a
predicate “ ‘serious violent felony’ ” any
“ ‘Federal or State offense . . . wherever
committed , consisting of’ ” various crimes, including
several “ ‘as described in’ ” federal statutes. Ante, at 17. (emphasis added). Though this Court has not
construed the statute, the majority notes that courts of appeals
disregard the jurisdictional element of federal statutes in
assessing whether a state conviction is for a “serious violent
felony.” Ante , at 15–16. But nearly all of the statutes
listed in §3559(c)(2)(F) contain place-based jurisdiction
elements—the crime must take place “within the special maritime and
territorial jurisdiction of the United States,” e.g., §1111(b), or within “the special aircraft jurisdiction of the
United States,” 49 U. S. C. §46502, and so on. In the two
cases cited by the majority, for instance, ante, at 17,
Courts of Appeals concluded that a state robbery offense qualified
as an offense “described in” the federal bank robbery statute even
though the robbery did not take place in a bank. See United
States v. Wicks , 132 F. 3d 383, 387 (CA7 1997); United States v. Rosario-Delgado , 198 F. 3d
1354, 1357 (CA11 1999). In that statute, it is the “wherever
committed,” not some loose construction of “described in,” that
specifically instructs the courts that the location where a crime
occurs does not matter.

															Moreover, in other statutes where Congress wants
to exclude jurisdictional elements when comparing state and federal
offenses, it ordinarily just says so. See, e.g., 18
U. S. C. §3142(e)(2)(A) (requiring detention of defendant
pending trial if “the person has been convicted . . . of
a State or local offense that would have been an offense described
in subsection (f )(1) of this section if a circumstance giving
rise to Federal jurisdiction had existed”); §2265A(b)(1)(B);
§2426(b)(1)(B); §3142(f)(1)(D); §5032; 42 U. S. C.
§§671(a)(15)(D)(ii)(I)–(II); §§5106a(b)(2)(B)(xvi)(I)–(II). Absent
comparably clear language, the Court should not presume that the
INA intended deportability to depend on a not-so-“settled
practice,” ante , at 15, of occasionally distinguishing
between substantive and jurisdictional elements.

															C

															Finally, the majority suggests that it would
be “peculiarly perverse,” ante, at 10, to adopt Luna’s
plain-text readingof the statute because it would draw a
distinction among crimes based on a jurisdictional element that the
majority assumes is wholly divorced from “the evil Congress seeks
to prevent,” ante, at 15. The jurisdictional element of a
federal statute, the majority asserts, is as trivial as the
perfunctory warning on a new electronic device: “[A] person would
say that she had followed the instructions for setting up an iPhone
that are ‘described in’ the user’s manual, even if she in fact
ignored the one” instructing that she “begin by ‘read[ing]
important safety information.’ ” Ante, at 7, n. 5;
see also ibid. (comparing jurisdictional element to a
“detour” in a 3-week itinerary).

															For instance, the majority assumes that it would
not be “plausible,” ante, at 12, for Congress to have
thought that interstate crimes are worse than wholly intrastate
crimes. Perhaps. But when faced with an offense that, like arson,
admits of a range of conduct, from the minor to the serious,
Congress could plausibly have concluded that arsons
prosecuted as federal crimes are more uniformly serious than arsons
prosecuted as state crimes and counted only the former as
aggravated felonies. See, e.g., Klein et al., Why Federal
Prosecutors Charge: A Comparison of Fed-eral and New York State
Arson and Robbery Filings, 2006–2010, 51 Houston L. Rev. 1381,
1406, 1416–1419 (2014) (finding that arsons prosecuted federally
involve more property damage and more injury than arsons prosecuted
under state law).

															That is because, far from being token,
“conventional jurisdictional elements” serve to narrow the kinds of
crimes that can be prosecuted, not just to specify the sovereign
that can do the prosecuting. Take the federal statute at issue in
this case. Section 844(i) requires that the property destroyed be
“used in interstate . . . commerce.” The Court has held
that “standard, jurisdictional” element, ante, at 21,
demands the property’s “active employment for commercial purposes,
and not merely a passive, passing, or past connection to commerce.” Jones v. United States , 529 U. S. 848, 855
(2000) . As a result, the Court held that a defendant who threw a
Molotov cocktail through the window of an owner-occupied
residential house could not be guilty under §844(i) because the
house was not “active[ly] used” in interstate commerce. Id .,
at 851. Surely, however, a New York prosecutor could have secured a
conviction under N. Y. Penal Law Ann. §150.10 had the same crime
been prosecuted in state, rather than federal, court.

															The difference between an offense under N. Y.
Penal Law Ann. §150.10 and an offense under 18 U. S. C.
§844(i) is thus more than a technical consideration about which
authority chooses to prosecute. It is a difference that goes to the
magnitude and nature of the “evil,” ante, at 15 , itself.

															*  *  *

															On the majority’s reading, long-time legal
permanent residents with convictions for minor state offenses are
foreclosed from even appealing to the mercy of the Attorney
General. Against our standard method for comparing statutes and the
text and structure of the INA, the majority stacks a supposed
superfluity, a not-so-well-settled practice, and its conviction
that jurisdictional elements are mere technicalities. But an
element is an element, andI would not so lightly strip a federal
statute of one. I respectfully dissent. Notes 1 Many of the majority’s
own examples of “the gravest” state offenses supposedly excluded
from the aggravated felony list by Luna’s reading actually fall
within these fail-safe provisions. Ante, at 10. Many state
arsons will qualify as “crime[s] of violence” under 8
U. S. C. §1101(a)(43)(F), see, e.g., Mbea v. Gonzales , 482 F. 3d 276, 279 (CA4 2007); an even
greater fraction of the most serious arsons will fall under that
heading because States like New York have enacted gra-dated
statutes under which more severe degrees of arson are crimes of
violence, see Santana , 714 F. 3d, at 145. To take
another of the majority’s examples, while a state conviction for
demanding a ransom in a kidnaping is not “an offense described in [
18 U. S. C. §875]” under §1101(a)(43)(H), a state
conviction for kidnaping or conspiring to kidnap may qualify as a
crime of violence under §1101(a)(43)(F). See United States v. Kaplansky , 42 F. 3d 320 (CA6 1994). 2 Other crimes in the
majority’s list of serious offenses, ante, at 10–14, will be
covered by these separate INA provisions. For example, the Board of
Immigration Appeals has held that any child pornography offense is
a “crime involving moral turpitude,” rendering a noncitizen
removable in many cases. See §§1227(a)(2)(A)(i), 1182(a)(2)(A)(i); In re Olquin-Rufino , 23 I. & N. Dec.
896 (BIA 2006). Any offense involving a gun would make a noncitizen
deportable under one of the catchall provisions for buying,
selling, or possessing a firearm in violation of “any law.” See
§1227(a)(2)(C). 3 If the aggravated felony
provisions were the primary mechanism for removing serious
noncitizen criminals, we would expect any noncitizen
convicted of an aggravated felony to face immigration consequences.
In fact, the aggravated felony provisions only apply to noncitizens
who are lawfully admitted or later paroled. Matter of
Alyazji , 25 I. & N. Dec. 397, 399 (BIA 2011).
Other noncitizens—such as undocumented immigrants, noncitizens
applying for a visa, or some legal permanent residents returning
after an extended stay abroad—cannot be removed based on the
conviction of an aggravated felony; the Government must rely on the
other provisions of the INA, including the statute’s other criminal
provisions, to remove such noncitizens. See §§1101(a)(13)(A), 1182,
1227(a)(2)(A)(iii). 4 When the proviso was
added to the INA in 1990, it would have applied to an even greater
fraction of the aggravated felonies: At that time, the aggravated
felony statute listed only five offenses, four of which would have
had state analogs even on Luna’s reading. See 104Stat. 5048
(1990).