Updated: April 25, 2018
On Tuesday, April 17, 2018, the Supreme Court of the United States (SCOTUS), held in a 5-4 opinion that the term "aggravated felony" in the Immigration and Nationality Act (INA), as it relates to Section 16(b) of the federal criminal code, is "unconstitutionally void for vagueness" under the Fifth Amendment's Due Process Clause.
What is void for vagueness?
The Constitution requires laws to state explicitly and definitely what conduct is punishable. Criminal laws that violate this requirement are said to be void for vagueness. The vagueness doctrine rests on the Due Process clauses of the Fifth and Fourteenth Amendments of the U.S. Constitution. By requiring fair notice of what is punishable and what is not, vagueness doctrine also helps prevent arbitrary enforcement of the laws.
Supreme Court Opinion
The case in question involved James Dimaya, a lawful permanent resident from the Philippines, who had two convictions for first-degree burglary under California law. Following a second offense, the federal government moved to deport Dimaya as an aggravated felon. An Immigration Judge and the Board of Immigration Appeals (BIA) held that California first-degree burglary is a "crime of violence" under Section 16(b) of the federal criminal code, making Dimaya deportable.
While Dimaya's appeal was pending in the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court provided its judgment in Johnson v. United States that involved a similar clause in the Armed Career Criminal Act (ACCA), which defined "violent felony" as any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." There, the Supreme Court held this clause unconstitutionally vague because it failed to provide fair notice of the precise conduct it outlaws.
According to Justice Kagan, the author of the Dimaya opinion, Section 16(b) violates the Constitution in just the same way. The statute calls for a court to identify a crime's "ordinary case" in order to measure the crime's risk, without providing anything more for judges to go on, just as nothing in ACCA did. The statute also creates uncertainty about the level of risk that makes a crime "violent." In short, instead of clarifying what type of conduct is being outlawed, the statute has given rise to "more unpredictability and arbitrariness" than Due Process allows.
The Supreme Court decision affirmed the Ninth Circuit ruling, which remanded the case to the BIA for further proceedings. For a comprehensive procedural history of the case, please follow this link to the SCOTUSBlog.
What does the SCOTUS decision mean for immigrants?
Dimaya's case will go back to the BIA for determination on his deportation case. The SCOTUS decision does not automatically grant Dimaya the right to stay here in the United States. Instead, the BIA, the agency that handles immigration appeals, will need to redetermine whether Dimaya should be deported. Despite the federal government's mischaracterization of the consequences of this ruling, this does not in any way open the floodgates but ensures that the due process rights afforded by the U.S. Constitution remain vibrant and true as intended by our Founding Fathers.
For permanent residents, now is a good time to consider naturalization. As illustrated in this case, green card holders, like Dimaya, are not immune to deportation. Permanent residents with criminal histories are especially vulnerable. In most cases, you can apply for naturalization without the help of an attorney. In fact, the U.S. Citizenship and Immigration Services (USCIS) has made the process more streamlined and efficient, by providing an online filing option. However, if you have any legal or eligibility issues, we recommend that you seek the help of an immigration attorney, to help you determine if naturalization is the right option for you and to make sure that your case is presented in the best possible light.
For more on the impact of the Sessions v. Dimaya decision on immigrants, follow this link to the Think Immigration post, Sessions v. Dimaya: SCOTUS Demands Clarity and Due Process in Immigration Laws.
Rasoulpour Torregoza is the law firm for immigrants, by immigrants. We are founded on the motto of LegalEase: we do away with the legal jargon and make law easy to understand, so you can focus on what’s important to you – going for your American Dream.
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