Recently, the U.S. Supreme Court issued a decision regarding whether certain crimes determined to be “aggravated felonies” as “crimes of violence” under the Immigration and Nationality Act (INA) are too vague, violating the Due Process Clause of the Fifth Amendment. Considering its broad implications on immigrants with criminal records, we decided it would be prudent to briefly discuss what the justices stated in support of the decision and what this actually means for non-citizens with criminal backgrounds moving forward.
What the Case States:
The case revolves around a lawful permanent resident (LPR), James Dimaya, who had two convictions of first degree burglary under California law. After his second conviction, the Department of Homeland Security (DHS) sought to deport him as an aggravated felon. An aggravated felony is defined under the INA by listing different types of criminal offenses, often with references to criminal statutes. One offense listed includes “a crime of violence for which the term of imprisonment is at least one year.” The definitions of “crime or violence,” according to the federal criminal code, contain two parts, known as the elements clause and the residual clause. This case focused on the residual clause, which defines a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against a person or property of another may be used in the course of committing the offense.”
An immigration judge and the Board of Immigration Appeals held that the California first-degree burglary statute was a “crime of violence” under the INA. While Mr. Dimaya appealed his case to the Ninth Circuit federal Court of Appeals, the Supreme Court decided Johnson v. United States. This decision stated that a similar clause to the residual clause in the Armed Career Criminal Act (ACAA) to be unconstitutional based on being “void for vagueness” under the Fifth Amendment Due Process Clause. The ACAA clause defined a “violent felony” as any felony that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
The Supreme Court justices used Johnson to similarly hold that because the residual clause had the same two features as that in the ACCA, it was likewise unconstitutional as being “void for vagueness” under the Fifth Amendment Due Process clause. Justice Elena Kagan wrote for the majority, calling attention to how the crime of violence determination required the judicial branch to make an assessment of risk and determine what an “ordinary case” of a certain crime is without any certain guidance to help decide what an “ordinary case” actually was. Additionally, the majority opinion found issue with the Government’s argument that because immigration law is civil and not criminal, a different standard of “void for vagueness” applies. Specifically, Justice Kagan noted that based on Supreme Court precedent and how much immigration law has hinged on deportation orders based on prior convictions and becoming increasingly similar to the criminal process, that argument is unfounded. Justice Kagan went on to state “this Court has reiterated that deportation is ‘a particular severe penalty,’” which may be of greater concerns to a convicted alien than “any potential jail sentence.”
Justice Neil Gorsuch, President Trump’s appointee and generally regarded as a conservative justice, sided with the majority, conceding that the “void for vagueness” doctrine serves as an important aspect of the Constitution regarding due process and separation of powers. Although Gorsuch did not agree with the notion of treating deportations differently from other civil laws and their “severe sanctions,” he concurred with the majority that there should not be two different standards to determine “vagueness” depending on whether the case is a civil matter or a criminal one.
What This Means Moving Forward:
It is expected that there will be abundant analysis and references in future cases to the Dimaya decision. The Supreme Court’s decision gives a chance to those people who have been deprived of their liberty based on a vague law whose interpretation varied from one courtroom to another.
Dimaya is important in the fact that it addresses the issue of “crime of violence” – a way to categorize a conviction as an aggravated felony, which results in deportation with no waiver available. Dimaya does not exclude all other aggravated felonies enumerated in immigration regulations such as drug offenses, murder, and rape. Dimaya looks into the residual, catch-all clause that defines “crime of violence.” Before Dimaya, judges’ application of “crime of violence” varied widely and were inconsistent. This resulted in confusion and people being wrongly labeled as committing “crimes of violence,” later to be detained and consequently deported.
Moving forward, the Dimaya decision means that noncitizens placed in removal proceedings on the sole basis that they committed a “crime of violence” may no longer be deportable. Another group of noncitizens who may benefit from Dimaya are those who previously did not qualify for waivers such as cancellation of removal. Now, they can present their cases in court and their convictions may now qualify for relief that was otherwise not available to them previously. For those who were already deported based on convictions categorized as “crimes of violence,” they may now be able to have their cases reopened and request a review.
As Justice Gorsuch wrote in his concurrence, “A government of laws and not of men can never tolerate … any law so vague that reasonable people cannot understand its terms and judges do not know where to begin in applying it.” The Dimaya decision provides much needed clarity, consistency, and fairness. This is particularly important when the stakes of depriving a person of his or her liberty are high.