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January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 at 11:55 PM | Permalink


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Posted by: Michael Van Tubergen | Jan 17, 2017 1:33:55 AM

very timely posting Doug, I have been representing an undocumented alien for years on a challenge to a deportation proceeding on the grounds of a criminal conviction.

My client has lived in NC for fourteen years, has three children born here, owns his own home, pays taxes, works daily, His "crime" is going through a traffic stop roadblock on the way home from work , after he and some friends drank some beer. The officer at the roadblock detected the odor of alcohol and asked Mr. Esteban to blow into a breath test machine.

In NC a reading of above .08 is a per se conviction of Driving While Impaired. He exceeded the limit by a few milligrams per deciliter He was charged with DWI. During the trial he was found not guilty of Driving While Appreciably Impaired, meaning his mental and physical faculties were not impaired. There was no bad driving. He has no other criminal record.

However, the judge found him "guilty" of DWI, supposedly a crime, although someone can commit that crime unknowingly.

He is scheduled to be deported on February 8, unless I can come up with something to stop it. Maybe Lynch is it.

Thanks for the posting


Posted by: bruce cunningham | Jan 17, 2017 6:50:04 AM

Deport the drunk driver now.

Posted by: federalist | Jan 17, 2017 11:17:01 AM

As anyone who has read my comments in the past knows I consider the legal phrase "crime of violence" to be wholly without meaning.

Posted by: Daniel | Jan 17, 2017 1:56:15 PM

I got to attend oral arguments yesterday (for the first time!) and saw this case. Based on the justices questions, it wasn't obvious which direction they were leaning. There seemed to be a tension between the worries about future cases they'd have to decide on this issue if they didn't strike down the statute vs. a sense that this statute wasn't actually producing the same kinds of confusion as the the case in Johnson. It'll be interesting to see which of those will win out.

Posted by: Jason Manion | Jan 18, 2017 5:31:41 PM

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