By Christopher Zoukis
On a 5-4 vote, the U.S. Supreme Court on April 17 struck down a provision of the Immigration and Nationality Act (INA) that authorizes deporting a non-citizen who has been convicted of a “crime of violence” in this country. The statute defines “crime of violence” as being either: an aggravated felony, or a crime which by its very nature involved a “substantial risk… physical force against the person or property of another may be used.” The court’s rationale for invalidating the second part of the statutory provision: it was too vague to be constitutional, by not adequately defining what criminal offenses Congress meant to cover.
The case, Sessions v. Dimaya, upheld an earlier ruling by the San Francisco-based 9th Circuit. The Supreme Court first heard the government’s appeal in January last year, but split 4-4, after the death of Justice Antonin Scalia left it short-handed. After re-hearing it last October, Scalia’s replacement, Justice Neil Gorsuch, sided with four liberal colleagues, rather than the Court’s four conservative members, with whom he more frequently agrees. Most legal observers believe the decision may make deportations of non-citizen criminals more difficult, but hold differing opinions on its longer-term impact, not just on immigration, but possibly also on other laws.
James Garcia Dimaya was a permanent resident alien, who entered lawfully from the Philippines in 1992 at age 13, obtained a GED certificate, attended community college, and held jobs as a store cashier and manager. He pleaded no contest to a pair of first-degree burglary charges in California in 2007 and 2009. After his second conviction, the government sought to deport him. Dimaya’s lawyers argued the INA’s provisions on deportation should not apply, since no violence was involved in either of the crimes he committed. They also persuaded the 9th Circuit to find those provisions too vague to give reasonable notice of what crimes were covered, thus violating a defendant’s 5th Amendment right to due process. They also pointed to a 2015 Supreme Court case, Johnson v. U.S., where the high court found unconstitutionally vague the same definition in the Armed Career Criminal Act (ACCA), where it triggered 15-year mandatory sentences.
Defending the provision, government lawyers tried to distinguish mainly civil immigration laws from criminal laws like the ACCA, arguing greater clarity was required for the latter. But Justice Elena Kagan’s majority opinion, joined by three liberal colleagues and in part by Justice Gorsuch, found vagueness was equally a constitutional problem in provisions affecting such an important interest as the right to remain in this country. Gorsuch filed a separate opinion which, while agreeing with Kagan on some points, argued for higher judicial scrutiny of vague administrative rules and decisions, whether or not they involved criminal laws. He further urged that courts not presume administrative actions to be valid if their meaning and scope were less than clear to those expected to comply with them.
While President Trump quickly tweeted his reaction to the decision, terming it a “public safety crisis,” and some law enforcement sources predicted it could complicate a wide range of cases, some liberal advocates for Dimaya warn Gorsuch’s analysis, if adopted by the Court, might undercut a wide range of federal laws and regulatory actions.
Christopher Zoukis is the author of Federal Prison Handbook: The Definitive Guide to Surviving the Federal Bureau of Prisons, (Middle Street Publishing, 2017), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014). He regularly contributes to New York Daily News, Prison Legal News and Criminal Legal News. He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonerResource.com.